Birse Construction Limited v St David Limited: TCC 12 Feb 1999

There are four approaches to deciding whether an arbitration agreement exists to which section 9 applies:- (1) to determine on the evidence before the court that such an agreement does exist in which case (if the disputes fall within the terms of that agreement) a stay must be granted, in the light of the mandatory ‘shall’ in section 9(4). It is this mandatory provision which is the statutory enactment of the relevant Article of the New York Convention, to which the United Kingdom is a party; (2) to stay the proceedings on the basis that it will be left to the arbitrators to determine their own jurisdiction pursuant to section 30 of the 1996 Act, taking into account the subsequent provisions in the 1996 Act for challenge to any decision eventually made by the arbitrators; (3) not to decide the issue but to make directions pursuant to what is now CPR Part 62.8 for an issue to be tried as to whether an arbitration agreement does indeed exist; (4) to decide that no arbitration agreement exists and to dismiss the application to stay.

HHJ Humphrey Lloyd
[1999] EWHC Technology 253, (1999) BLR 194
England and Wales
Cited by:
CitedFiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Construction, Arbitration

Updated: 27 November 2021; Ref: scu.136058