ReSolution Issue 23, November 2019 | Page 35

summary enforcement of the Award.
In enforcement proceedings before the Court, new evidence was submitted which was not put before the Beth Din. In particular, evidence was submitted which demonstrated that (1) the Claimant was at all times acting as an agent for the Claimant’s Nominee, including when he signed the Heskem; and (2) the Claimant was in receipt of housing benefit from Hackney Borough Council (“Hackney BC“) at the Property, on what appeared to be an unlawful basis after the Heskem was signed.
The Court's judgment
The Court had to deal with three legal issues in deciding whether to enforce the Award: (1) whether the Beth Din had the power to order the transfer of Property to begin with, (2) if the Beth Din lacked such a power, whether the Court had the power to order the transfer itself, and (3) whether the Court should exercise its discretion under section 66 of the Act to enforce the Award.
(1) Did the Beth Din have the power to order the transfer of Property to begin with?
Neither party disputed that the Beth Din had the power under Jewish law to order the transfer of the Property — Jewish law expressly states that the Beth Din has the power to grant an order for specific performance of a contract relating to land.
However, the Defendants argued that the Beth Din did not have jurisdiction to make the transfer because section 48(5)(b) of the Act, which lists the powers of an arbitral tribunal “unless otherwise agreed by the parties”, does not include the power to order the transfer of property. According to the Defendants, to give effect to the “unless otherwise agreed” provision, the parties had to specifically agree that the tribunal could make an order to transfer property, rather than simply choosing Jewish law as the governing law of the arbitration.
The Court rejected this objection because the Defendants did not challenge the Award on this ground or otherwise at the appropriate time, therefore under section 73 of the Act, the Defendants had lost their right to object.
However, the Court nonetheless went on to consider the substance of this argument, had it been made at the appropriate juncture, and also rejected it. The Court held that the choice of Jewish