Joint Stock Company Aeroflot Russian Airlines v Berezovsky and others [2012] EWHC 1610 (Ch), [2012] All ER (D) 115 (Jun)
In determining whether to grant a stay pending arbitration, the court had to decide first whether there was an arbitration agreement, and whether the agreement covered the matters in issue in the litigation. If the court decided those questions in the affirmative, and there was no assertion that the agreement was “null and void, inoperative, or incapable of being performed”, a stay was mandatory. If any of those matters was asserted, however, the court would have to go on to decide them, and if satisfied as to any of them, would refuse the statutory stay. If an agreement was null and void, inoperative, or incapable of performance under its applicable law, that was a matter which was properly to be taken into account under s 9(4) of the Arbitration Act 1996. It was settled law that s 9(1) required a concluded arbitration agreement before the court could order a stay, and not merely an arguable case that there was such an agreement The correct approach was
