EASTERN CARIBBEAN SUPREME COURT
IN THE COURT OF APPEAL
TERRITORY OF THE VIRGIN ISLANDS
On appeal from the Commercial Division
CUKUROVA HOLDING A.S.
SONERA HOLDING B.V.
The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal
On Written Submissions:
Mr. Bankim Thanki, QC, Mr. John Carrington and Mr. Ben Valentin
for the Applicant
Ms. Arabella di Iorio for the Respondent
2012: December 5.
Application to strike out notice of appeal on basis that leave to appeal not first sought –
Leave to appeal – Whether required – Application test – Section 30(4) of the West Indies
Associated States Supreme Court (Virgin Islands) Act – Whether order being appealed
interlocutory or final – Enforcement of arbitral award
The appellant, Cukurova Holding A.S. (“Cukurova”), filed a notice of appeal against a
judgment of the learned judge in which he refused to set aside an order which, inter alia,
granted the respondent, Sonera Holding B.V. (“Sonera”), permission to enforce an ICC
arbitration award made by an arbitration tribunal sitting in Geneva. Cukurova did not apply
for leave to appeal before filing the notice of appeal. Sonera subsequently applied to the
Court for orders that the appellant’s notice of appeal be struck out on the basis that the
judgment which the appellant sought to challenge was an interlocutory judgment which 2
required leave to appeal by virtue of section 30(4) of the West Indies Associated States
Supreme Court (Virgin Islands) Act, and leave of the Court was not sought by the appellant
prior to filing the notice of appeal. Cukurova opposed the application to strike out the
appeal, contending that the judgment being appealed was a final judgment which did not
Held: dismissing the respondent’s application with costs, and ordering that the parties file
and serve skeleton arguments with respect to costs within 21 days of this order, that:
1. The appellant’s application to set aside the order which granted the respondent
permission to enforce the ICC arbitration award raised a number of issues about
the enforceability of the award, which issues were properly dealt with at a trial
involving expert evidence and cross-examination of witnesses. This trial disposed
of the issues and settled the matters in litigation between the parties. Moreover,
the issues would have been disposed of regardless of the conclusion that the
learned judge had reached. Therefore, the judgment which dismissed the
appellant’s application to set aside the recognition and enforcement of the foreign
arbitral award was a final judgment and no leave was required to appeal it.
Dallah Real Estate and Tourism Holding Company v The Ministry of
Religious Affairs, Government of Pakistan  UKSC 46 applied;
Consolidated Contractors International Co SAL v Masri 74 WIR 235 applied;
Pirate Cove Resorts Limited et al v Euphemia Stephens et al Saint Vincent
and the Grenadines High Court Civil Appeal No. 11 of 2002 (delivered 5
2003, unreported) distinguished.
 BAPTISTE JA: Cukurova Holding A.S. (“Cukurova”) filed a notice of appeal
against the judgment of Bannister J [Ag.] dismissing its application to set aside an
order dated 24
October 2011 granting Sonera Holding B.V. (“Sonera”) permission
to enter judgment in the same terms and to enforce an ICC arbitration award made
by an arbitration tribunal sitting in Geneva and ordering Cukurova to pay over
 By notice of application filed on 12
October 2012, Sonera applied to the Court for
orders that the notice of appeal filed by Cukurova be struck out and that Cukurova 3
pays costs of the application and the appeal. The grounds of the application are
(1) The judgment dated 19
September 2012 which Cukurova seeks to
challenge is an interlocutory judgment which requires leave to appeal
by virtue of section 30(4) of the West Indies Associated States
Supreme Court (Virgin Islands) Act.
(2) Cukurova has not sought leave from the Court.
(3) The appeal is therefore a nullity and should be struck out.
Cukurova opposes the application to strike out the appeal contending that the
judgment is a final judgment which does not require leave.
Applicable principles and submissions
 Section 30(4) of the West Indies Associated States Supreme Court (Virgin
Islands) Act provides that:
“No appeal shall lie without the leave of the judge or of the Court of
Appeal from any interlocutory order or any interlocutory judgment made or
given by a judge except in the following cases–
(i) where the liberty of the subject or the custody of infants is
(ii) where an injunction or the appointment of a receiver is
granted or refused;
(iii) in the case of a decree nisi in a matrimonial cause or a
judgment or order in an Admiralty action determining liability;
(iv) in such other cases, to be prescribed by rules of court, as
may in the opinion of the authority having power to make
such rules of court be of the nature of final decisions.”
 I agree with Cukurova’s submission that the meaning of section 30(4) is clear and
the parties are agreed as to its effect. While a party who intends to appeal from a
Cap. 80, Revised Laws of the Virgin Islands 1991. 4
final order or from an interlocutory order which falls within the exceptions set out in
section 30(4) does not require leave to appeal, a party who intends to appeal from
all other interlocutory orders or judgments must first seek leave to appeal. The
failure to seek leave will result in the striking out of the appeal as a nullity: see, for
example, TSJ Engineering Consulting Limited v Al-Rushaid Petroleum
Investment Company et al
; Oliver McDonna v Benjamin Wilson Richardson.
 It is also beyond contention that the applicable test in determining whether an
order is interlocutory or final is the application test. Thus in Oliver McDonna v
Benjamin Wilson Richardson, Barrow JA said at paragraphs 19:
“The application test says that the court considering the question whether
an order was interlocutory or final must look at the application pursuant to
which the order was made. If, whichever way the application was decided
that decision would have brought an end to the issue in litigation, the
decision given on that application is a final order. If, on the other hand,
the proceedings would not have ended if one side as opposed to the other
side won, the order is not a final order but is an interlocutory order.”
In TSJ Engineering Consulting Ltd v Al-Rushaid Petroleum Investment
Company, Rawlins CJ said, at paragraph 8:
“A determination whether an order is final or interlocutory is made by our
courts on the “application test”. An order or judgment is final if it would be
determinative of the issues that arise on a claim, whichever way the
application is decided. If the issues of liability on the claim are finally
determined whether the outcome on an application is in favour of either
party to the claim, the order would be final. The order would however be
interlocutory, for example, if a ruling on the application in favour of the
claimant would determine the issues of liability in favour of the claimant
whereas a ruling in favour of the defendant would re-open the issue of
liability for continued litigation. In determining whether an order is final or
interlocutory, the court should consider the nature of the application and
order and the circumstances that gave rise to them.”
Territory of the Virgin Islands High Court Civil Appeal No. 13 of 2010 (delivered 27
July 2010, unreported),
at  and .
Anguilla High Court Civil Appeal No. 3 of 2005 (delivered 29
June 2007, unreported), per Barrow JA, at
In Nigel Hamilton-Smith et al v Alexander M. Fundora,
Edwards JA said, at
“… it is well established in a plethora of decisions that our courts apply the
“application test” to determine whether or not the order or decision is
interlocutory. The observations of Vaughan Williams LJ in Herbert
Reeves reflect our preferred approach. The “application test” looks at the
outcomes that were possible on the application. The test is whether a
decision on the application had it been decided in favour of the appellant
or the respondent would have brought an end to the proceedings.
[Barrow JA in Oliver McDonna v Benjamin Richardson Civ App No. 3 of
2005 (Anguilla)] A final order must generally be one which ends the
litigation and leaves nothing for the court to do but execute the judgment.”
 Sonera contends that Cukurova’s appeal is an interlocutory appeal and in the
absence of leave to appeal it should be struck out as a nullity. The basis for this
contention is the proposition, described as being “well established”, that an order
setting aside or refusing to set aside another judgment or order is an interlocutory
order. Sonera’s argument appears to be based on a passage in the judgment of
Byron CJ in Pirate Cove Resorts Limited et al v Euphemia Stephens et al,
citing a section of the 1998 edition of the English White Book which indicated that,
for the purposes of the rules as they then were in England in 1998, an order
setting aside or refusing to set aside another judgment or order was deemed to be
an interlocutory order.
 Sonera argues that Cukurova’s application in the present case sought an order
setting aside the judgment enforcing the an arbitration award (the “Final Award”).
The application was brought within Sonera’s claim (Claim No. BVIHC (Com)
119/2011). On a straightforward application of the principle set out in the Pirate
Cove case, an order refusing to set aside another judgment, whether that other
judgment is final or interlocutory, is an interlocutory order.
 With respect to Pirate Cove, however, Cukurova submits that despite making the
observation relied upon by Sonera, Byron CJ expressly stated that it was the
Antigua and Barbuda High Court Civil Appeal No. 31 of 2010 (delivered 31
August 2010, unreported).
Saint Vincent and the Grenadines High Court Civil Appeal No. 11 of 2002 (delivered 5
application test that governed the issue.
Further, the Court did not have to decide
whether the application test as commonly understood or the approach set out in
the 1998 English White Book should be applied, holding that the Order in the case
would have been interlocutory “whatever test is used”
The nature of the Set-Aside Application
 In any event, Cukurova submits, whatever test is applied, it is plain that the
judgment is a final judgment. The “Set-Aside Application” was an application to
set aside an order that permitted Sonera to enforce the Final Award. That order
was made ex-parte. It did not determine any issues between the parties. It simply
entitled Sonera to enforce its award, subject to Cukurova’s right to apply under the
Arbitration Act 1976 to have the initial order set aside. It is only upon such an
application that issues between the parties as to enforceability can be raised,
considered and determined.
 The nature of such applications was considered by the UK Supreme Court in
Dallah Real Estate and Tourism Holding Company v The Ministry of
Religious Affairs, Government of Pakistan.
In that case, the Supreme Court
considered the nature of the exercise that an enforcing court must undertake when
presented with a challenge to the enforceability of a particular award (in the
context of an argument that a particular tribunal had exceeded its jurisdiction). As
per Lord Mance:
“24. … . Arbitration of the kind with which this appeal is concerned is
consensual – the manifestation of parties’ choice to submit present or
future issues between them to arbitration. Arbitrators (like many other
decision-making bodies) may from time to time find themselves faced with
challenges to their role or powers, and have in that event to consider the
existence and extent of their authority to decide particular issues involving
particular persons. But, absent specific authority to do this, they cannot
by their own decision on such matters create or extend the authority
conferred upon them. Of course, it is possible for parties to agree to
submit to arbitrators (as it is possible for them to agree to submit to a
court) the very question of arbitrability – that is a question arising as to
See para. 10 of the judgment.
See para. 11 of the judgment.
 UKSC 46. 7
whether they had previously agreed to submit to arbitration (before a
different or even the same arbitrators) a substantive issue arising between
them. But such an agreement is not simply rare, it involves specific
agreement … and, absent any agreement to submit the question of
arbitrability itself to arbitration, ‘the court should decide that question just
as it would decide any other question that the parties did not submit to
arbitration, namely, independently’”… .
26. An arbitral tribunal’s decision as to the existence of its own jurisdiction
cannot therefore bind a party who has not submitted the question of
arbitrability to the tribunal. This leaves for consideration the nature of the
exercise which a court should undertake where there has been no such
submission and the court is asked to enforce an award. Domestically,
there is no doubt that, whether or not a party’s challenge to the jurisdiction
has been raised, argued and decided before the arbitrator, a party who
has not submitted to the arbitrator’s jurisdiction is entitled to a full judicial
determination on evidence of an issue of jurisdiction …”
Cukurova submits that at the enforcement stage, if a party raises issues as to the
enforceability of an arbitration award, an enforcing Court determines those issues
like any other, i.e. independently and on evidence.
 In this case, Cukurova raised a number of issues as to the enforceability of the
Final Award. These were the subject of the Set-Aside Application. It was common
ground that the Court was required to determine those issues independently and
upon evidence in accordance with the principles set out in Dallah. It did so.
There was a trial of the relevant issues, involving expert evidence and crossexamination. That trial resulted in the judgment, which disposed of the issues.
The judgment settled the matters in litigation between the parties and it would
have done so whichever conclusion Bannister J had reached.
 I agree with Cukurova’s contention that there is no parallel in this case to the
situation that faced the Court in Pirate Cove. In Pirate Cove, the Court was
dealing with an appeal concerning an order that related to the precise manner of
enforcement of a judgment that had been entered by consent.
In that context, the
See paras. 2-5 of the judgment. 8
conclusion that the relevant order would have been interlocutory “whatever test is
used” is readily understandable. But the same logic cannot apply in the instant
case because, as set out above, (1) it was only the Set-Aside Application that
raised the substantive issues between the parties as to the enforceability of the
Final Award, (2) the Court determined those issues in the same way that it would
have determined any other substantive issues (i.e. via a trial), and (3) the Court’s
decision would have determined the issues whichever way it had gone.
 Cukurova relies on Consolidated Contractors International Co SAL v Masri
support of its position and argues that it provides a far better parallel than Pirate
Cove, to the case at bar. I agree. In Consolidated Contractors, the appellant
sought to challenge an order of the judge dismissing an application to set aside
the registration in Bermuda of various monetary judgments in favour of the
respondent. The issue for the court was whether the judge’s order was
interlocutory, from which an appeal lay only with leave of the court, or final, where
appeal was of right.
 The Court of Appeal in Bermuda held that:
“… the appellant’s application to set aside registration of the English
judgments, had been one proceeding, which had been bound to end in
finality, in whatever manner the judge had decided to conduct it. If he had
decided to direct a full trial of that issue, whether as a preliminary or
discrete issue, by himself or by another judge, the outcome of
determination of that issue would necessarily have amounted to a final
order in the application. … Accordingly, the judge’s dismissal of the
appellant’s application to set aside the registration of the English
judgments in the respondent’s favour had been a final order, and thus the
appellant did not require permission to appeal to the Court of Appeal … .”
 The parallel with the instant case is clear: just as an order dismissing an
application to set aside the registration of a foreign judgment is a final order, the
judgment (which dismissed Cukurova’s application to set aside the recognition and
enforcement of a foreign arbitral award) is a final judgment and does not require
leave to appeal.
74 WIR 235. 9
Disposition and order
 For all the above reasons Sonera’s application is dismissed with costs. It is
ordered that the application by the Respondent/Applicant (Sonera) by Notice of
Application dated 12
October 2012 for an order that Cukurova’s appeal be struck
out is dismissed with costs. The parties are to file and serve skeleton arguments
with respect to costs within 21 days of this order.
Davidson Kelvin Baptiste
Justice of Appeal