ASM Shipping Ltd of India v TTMI Ltd of England: CA 16 Oct 2006

The court at first instance had dismissed the ship-owner’s application to set aside the arbitration award, and then refused leave to appeal. The court of appeal had to consider whether it had jurisdiction itself to hear an application for leave.
Held: A decision that a right has been waived under section 73 is a decision under section 68 and thus unappealable if the judge has refused permission. It had been argued that a decision as to waiver was not a decision on the asserted irregularity. Longmore LJ (referring to Cetelem): ‘That case is very different from the present case. Here there is no doubt that Morison J had jurisdiction either to accede to the application or to refuse it. Whichever way the decision went, it was still a decision under section 68 of the Act and a refusal of permission to appeal was likewise a decision under the section. It cannot, therefore be challenged by way of appeal even if the decision is wrong or, even, obviously wrong. The fact that waiver (or indeed estoppel) can be said to operate as a defence to a prima facie entitlement is, in our view, nothing to the point. A decision to refuse relief (for whatever reason) is still a decision under section 68 just as much as a decision to grant relief would have been, if the decision had gone the other way.’


[2006] EWCA Civ 1341




Arbitration Act 1996


England and Wales


CitedCetelem Sa v Roust Holdings Ltd CA 24-May-2005
The parties were engaged in arbitration proceedings. The claimant had sought and obtained an interim mandatory order intended to prevent the defendant dissipating its assets in anticipation of an adverse ruling. The defendant sought leave to appeal. . .
Appeal fromASM Shipping Ltd of India v TTMI Ltd of England ComC 19-Oct-2005
The court upheld an objection to one member of the arbitration panel for apparent bias, but refused to set aside a preliminary decision of the panel. . .
See AlsoTTMI Ltd of England v ASM Shipping Ltd of India ComC 23-Nov-2005
. .

Cited by:

See AlsoASM Shipping Ltd of India v TTMI Ltd of England Admn 20-Apr-2007
Application to remove arbitrators. . .
CitedSumukan 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.
See AlsoASM Shipping Ltd of India v TTMI Ltd of England ComC 20-Apr-2007
. .
See AlsoASM Shipping Ltd v Harris and others ComC 28-Jun-2007
Objection was made the panel selected to undertake an arbitration. It was said that one member of the panel had been found to be subject to proper objectin for an apparent bias, and that the remaining panel members should recuse themselves for . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 07 July 2022; Ref: scu.245343