In Enka v Chubb [2020] EWCA Civ 574, Popplewell LJ found at para 61:

There is an express forum conveniens requirement in most cases of applications for permission to serve out of the jurisdiction: CPR 6.37(3) provides that the court will not give permission unless it is satisfied that England and Wales is the proper place in which to bring the claim. Arbitration claims, which include applications for anti-suit injunctions to restrain foreign proceedings brought in breach of an arbitration agreement, are governed by a different regime in Part 62. As already observed, one of the gateways for such jurisdiction is provided for in CPR 62.5(1)(c) where the seat of the arbitration is in England and Wales. But by contrast with the requirement in CPR 6.37(3), there is no requirement that England and Wales must be the proper place in which to bring the claim. This is because questions of forum conveniens do not arise when the court is exercising the curial jurisdiction which goes with the choice of England (or Wales) as the seat of the arbitration. It is true, as Mr Bailey emphasises, that the power to grant permission to serve out of the jurisdiction in CPR 62.5(1) is expressed in discretionary terms ("The Court may grant permission…"), but in cases where the gateway is the seat of the arbitration, that does not import forum conveniens as a relevant discretionary factor for the reasons I have explained. That is also the view of the editors of Merkin & Flannery on The Arbitration Act 1996 6th ed, at paragraph, which I prefer to that of the editors of Dicey Morris & Collins on The Conflict of Laws 15th ed at paragraph 16-046 who treat the question of forum conveniens as arising within the discretion under CPR62.5(1) in every case, but say that the forum conveniens requirement is likely to be satisfied where the seat of the arbitration is in England.

This finding, overturning the first instance judgment to the contrary, that the Civil Procedure Rules precluded applying forum non conveniens to choice of the arbitral seat, is quite significant.

However, the UKSC, when considering the same case ([2020] UKSC 38) completely sidestepped the forum non conveniens issues at first instance and appeal, upholding Popplewell LJ but with different reasoning. In light of that, is this conclusion still good law? It was not expressly overturned, but was more or less ignored by the SC.

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