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.’
Judges:
Leggatt J
Citations:
[1983] Vol 2 419
Statutes:
Cited by:
Cited – Sumukan Ltd v The Commonwealth Secretariat CA 21-Mar-2007
The appellants sought to challenge a finding that they had by their contract with the defendants excluded the right to appeal to a court on a point of law. The defendants replied that the appeal court had no jurisdiction to hear such an appeal.
Lists of cited by and citing cases may be incomplete.
Arbitration
Updated: 01 May 2022; Ref: scu.251561