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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  














Arbitration - From: 1980 To: 1984

This page lists 17 cases, and was prepared on 03 April 2018.


 
 Tradax International v Cerrahogullari; 1981 - [1981] 3 All ER 344

 
 Fox v Wellfair Ltd; CA 1981 - [1981] 1 Lloyd's Rep 514

 
 Black Clawson International Limited v Papierwerke; 1981 - [1981] 2 Lloyd's Rep 446

 
 Bremer Vulkan Schiffbau und Maschineenfabrik v South India Shipping Coroporation; HL 1981 - [1981] 1 AC 909; [1981] 2 WLR 141; [1981] 2 All ER 289

 
 Pioneer Shipping Ltd v BTP Tioxide Ltd ('The Nema'); HL 1982 - [1981] 3 WLR 292; [1982] AC 724

 
 Intermare Transport GmbH v International Copra Export Corporation (The 'Ross Isle' and 'Ariel'); ChD 1982 - [1982] 2 Lloyd's Rep 589

 
 Ellerine Bros v Klinger; CA 1982 - [1982] 1WLR 1375

 
 Clegg v Fraser; 1982 - [1982] 2 EGLR 7
 
Nordsee Deutsche Hochseefischerei Gmbh v Reederei Mond Hochseefischerei Nordstern Ag and Co. Kg And Reederei Friedrich Busse Hochseefischerei Nordstern Ag and Co. Kg. R-102/81; [1982] EUECJ R-102/81
23 Mar 1982
ECJ

European, Arbitration
An arbitrator who is called upon to decide a dispute between the parties to a contract under a clause inserted in that contract is not to be considered as a 'court or tribunal of a member state' within the meaning of article 177 of the treaty where the contracting parties are under no obligation, in law or in fact, to refer their disputes to arbitration and where the public authorities in the member state concerned are not involved in the decision to opt for arbitration and are not called upon to intervene automatically in the proceedings before the arbitrator. If in the course of arbitration resorted to by agreement between the parties questions of community law are raised which the ordinary courts may be called upon to examine either in the context of their collaboration with arbitration tribunals or in the course of a review of an arbitration award, it is for those courts to ascertain whether it is necessary for them to make a reference to the court of justice under article 177 of the treaty in order to obtain the interpretation or assessment of the validity of provisions of community law which they may need to apply in exercising such functions.
[ Bailii ]

 
 Finelvet AG v Vinava Shipping Co Ltd ("The Chrysalis"); 1983 - [1983] 1 WLR 1469; [1983] 1 Lloyds Rep 503
 
Paal Wilson and Co v Partenreederei Hannah Blumenthal (The Hannah Blumenthal) [1983] 1 AC 854; [1983] Com LR 20; [1983] 1 All ER 34; [1983] 1 Lloyds Rep 103; [1982] 3 WLR 1149
1983
HL
Lord Brandon, Lord Diplock
Contract, Arbitration
The House was asked whether a contract to abandon an arbitration might be implied from conduct, or a lack of conduct. Held: The abandonment of a contract can be effected by the entry of the parties, expressly or by necessary inference from conduct, into a fresh contract for mutual release from their obligations under the contract said to be abandoned. An argument that mere inactivity of the parties could be construed as an implied agreement to rescind the agreement to arbitrate, failed.
Lord Brandon of Oakbrook considered that an actual abandonment, as opposed to an estoppel precluding an assertion of continuance, required proof of conduct of each party, as evinced to the other party and acted on by him, as "leads necessarily to the inference of an implied agreement" between them to abandon the contract. Lord Roskill referred to "the only possible inference [being] that the agreement to arbitrate has been rescinded by mutual consent". Though Lord Diplock made no similar observation both Lords Keith of Kinkel and Brightman agreed with Lords Brandon and Roskill.
Lord Brandon said: "there are two essential factors which must be present in order to frustrate a contract. The first essential factor is that there must be some outside event or extraneous change of situation, not foreseen or provided for by the parties at the time of contracting, which either makes it impossible for the contract to be performed at all, or at least renders its performance something radically different from what the parties contemplated when they entered into it. The second essential factor is that the outside event or extraneous change of situation concerned, and the consequences of either in relation to the performance of the contract, must have occurred without either the fault or the default of either party to the contract."
1 Citers


 
The Messiniaki Bergen [1983] 1 Lloyds Law Rep 424
1983

Bingham J
Arbitration
In an agreement between the parties, the English Courts were given jurisdiction over disputes but either party had a right to elect that the dispute be referred to arbitration. It was argued that there was no existing binding agreement to arbitrate but at best an agreement to agree, and that the 1950 Act did not apply. Held: The court rejected the submission.
Bingham J said: "I see force in the contention that until an election is made there is no agreement to arbitrate, but once an election is duly made (and the option exercised) I share the opinion of the High court of Delhi in the Bharat case, that a binding arbitration agreement comes into existence."
Arbitration Act 1950
1 Citers


 
Arab African v Olieprodukten [1983] Vol 2 419
1983

Leggatt J
Arbitration
By section 3(1) of the 1979 Act, the High Court was precluded from granting permission to appeal on a point of law from an award "if the parties to the reference in question have entered into an agreement in writing (in this section referred to as an "exclusion agreement") which excludes the right of appeal." A contract for the sale of gas had been made by an exchange of telex messages containing a term "Inco Terms 1980 – English law-arbitration, if any London according ICC rules". By Article 24 of the rules any right of appeal was waived. The arbitrator made an award and there was an attempt to appeal the same on a point of law. Seeking to argue that there was no valid exclusion agreement Arab African argued inter alia that there was no agreement in writing, and that section 3 required a provision which itself excluded the right of appeal and not one which merely incorporated by reference. The parties relied on two decisions of the European Court of Justice in relation to Article 17 of the Brussels Convention dealing with agreements as to "exclusive jurisdiction", the first of which held that Article 17 imposed on a court the duty of satisfying itself that the clause conferring jurisdiction was in fact the subject of consensus between the parties, and the other holding that where a contract concluded orally was confirmed in writing accompanied by notification of general terms, the terms had to be accepted in writing. It was urged that adopting the approach under these decisions of the European Court, under section 3(1) "the agreement in writing relied upon must in terms exclude the right of appeal." Held: The exclusion agreement had been incorporated into the contract in written form: "Section 3(1) of the 1979 Act does not require the overt demonstration of an intention to exclude the right of appeal. True it is, that formerly the Court was careful to maintain its supervisory jurisdiction over arbitrators and their awards. But that aspect of public policy has now given way to the need for finality. In this respect the striving for legal accuracy may be said to have been overtaken by commercial expediency. Since public policy has now changed its stance, I see no reason to continue to adopt an approach to the construction of exclusion agreements which might well have been appropriate before it had done so.
"In my judgment, the phrase "an agreement in writing which excludes the right of appeal" is apt to apply to an exclusion agreement incorporated by reference. I reach this conclusion unpersuaded to the contrary by the decisions of the European Court which I consider might be misleading in this essentially domestic context. Whatever considerations of good sense may support those decisions and however much one, might be impressed by them if approaching the matter a priori, the pursuit of homogeneity should not deter me from the broader approach hitherto adopted by the common law. It is more important that commercial men should know that the English Courts are consistent than that the Courts should turn towards Luxembourg when Parliament has not directed them to do so."
Arbitration Act 1979 3(1)
1 Citers


 
Interbulk Limited v Aiden Shipping Co Limited (The "Vimeira") [1984] 2 Lloyd's Rep 66
1984
CA
Robert Goff LJ, Ackner LJ
Litigation Practice, Arbitration
The court considered whether an arbitrator had a duty to raise a point missed by counsel. Held: Robert Goff LJ: “In truth, we are simply talking about fairness. It is not fair to decide a case against a party on an issue which has never been raised in the case without drawing the point to his attention so that he may have an opportunity of dealing with it, either by calling further evidence or by addressing argument on the facts or the law to the tribunal.” Ackner LJ: “Where there is a breach of natural justice as a general proposition it is not for the courts to speculate what would have been the result if the principles of fairness had been applied. I adopt, with respect, the words of Mr Justice Megarry in John v Rees [1969] 2 All ER 275 at p 309 where he said: 'As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.' But, in this case, speculation does not arise. If the arbitrators had informed the parties of what they had in mind, the consequences would have been obvious. Firstly, the charterers would have sought to persuade the arbitrators that it was common ground on the evidence that there was adequate room to turn the vessel and that, therefore, the arbitrators should decide the dispute according to the evidence. If they failed so to persuade the arbitrators, they would have sought, and would have been entitled to, an adjournment. Having obtained an adjournment, the charterers would have called the evidence which in fact was called at the sub-arbitration and would have satisfied the arbitrators that the turning area was adequate.”
1 Cites

1 Citers



 
 Bank Mellat v Helliniki Techniki; 1984 - [1984] 1 QB 291
 
The Padre Island [1984] 2 Lloyds Rep 408
1984


Insurance, Insolvency, Arbitration
The 1930 Act creates a statutory assignment of any rights of action in a case where the assured has become bankrupt or been wound up, the party to whom the benefit of a right of action under the liability insurance contract has been transferred may only operate that right in accordance with an arbitration agreement in the contract of insurance even if that agreement is expressed to refer only to the parties to the contract of insurance and not in terms wide enough to cover a statutory assignee.
Third Parties (Rights against Insurers) Act 1930
1 Citers



 
 Antaios Compania Naviera SA v Salen Rederierna AB ('the Antaios'); HL 1984 - [1985] AC 191; [1984] 3 WLR 592; [1984] 3 All ER 229; [1984] 2 Lloyds Rep 235
 
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