Category: Arbitration

Clyde and Co Llp and Another v Winkelhof: CA 5 Jul 2011

[2011] ArbLR 18, [2011] EWCA Civ 947
Bailii
England and Wales
Cited by:
See Also – Clyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .

Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 28 December 2021; Ref: scu.467247

R v Switzerland: ECHR 4 Mar 1987

(Commission) ‘whereas the inclusion of an arbitration clause in an agreement between individuals amounts legally to partial renunciation of the exercise of those rights defined by Article 6 para. 1; whereas nothing in the text of that Article nor of any other article of the Convention explicitly prohibits such renunciation; whereas the Commission is not entitled to assume that the Contracting States, in accepting the obligations arising under Article 6 para. 1, intended to prevent persons coming under their jurisdiction from entrusting the settlement of certain matters to arbitrators; whereas the disputed arbitration clause might have been regarded as contrary to the Convention if X. had signed it under constraint, which was not the case.’

10881/84
Human Rights
Cited by:
Cited – Stretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Arbitration

Updated: 28 December 2021; Ref: scu.250488

PCL and Others v The Y Regional Government of X: ComC 23 Jan 2015

The Defendant, YRG applied to set aside without notice orders permitting the Claimants to serve an arbitration claim form and other documents on YRG at the address of their solicitors in the jurisdiction and setting down an expedited timetable for the determination of the arbitration claim, and abridging the time for filing an acknowledgment of service to 3 business days. YRG contended that the court had no power to make the Orders by reason of the mandatory provisions of s.12 of the 1978 Act. Further or alternatively, that the Orders should be set aside for failure to make full and fair disclosure. The application succeeded, and the orders were set aside.

Hamblen J
[2015] EWHC 68 (Comm)
Bailii
State Immunity Act 1978 12

Jurisdiction, International, Arbitration

Updated: 27 December 2021; Ref: scu.542026

Salford Estates (No2) Ltd v Altomart Ltd: CA 8 Dec 2014

The issue on this appeal is whether, and if so in what way, the stay provisions in section 9 of 1996 Act apply to a petition to wind up a company on the ground of its inability to pay its debts where the debt on which the petition is based arises out of contract containing an arbitration agreement.

Sir Terence Etherton, Longmore, Kitchin LJJ
[2014) EWCA 1575 Civ
Bailii
Arbitration Act 1996 9
England and Wales

Arbitration, Insolvency

Updated: 24 December 2021; Ref: scu.539765

Halliburton Company v Chubb Bermuda Insurance Ltd: SC 27 Nov 2020

This appeal concerns the circumstances in which an arbitrator in an international arbitration may appear to be biased. It raises important questions about the duty of impartiality and obligation of arbitrators to make disclosure.

Lord Reed, Lord Hodge, Lady Black, Lord Lloyd-Jones, Lady Arden
[2020] UKSC 48, [2021] AC 1083, [2021] Lloyd’s Rep IR 1, [2021] BLR 1, [2021] 2 All ER 1175, [2020] WLR(D) 653, 193 Con LR 1, [2020] 3 WLR 1474
Bailii, Bailii Press Summary, Bailii Issues and Facts, WLRD
England and Wales

Arbitration, Natural Justice

Updated: 21 December 2021; Ref: scu.656384

Kabab-Ji Sal (Lebanon) v Kout Food Group (Kuwait): SC 26 Oct 2021

Governing law of an arbitration agreement which provides for arbitration in Paris but which is contained in a main agreement which is expressly governed by English law and (ii) as to whether the respondent became a party to the main agreement and/or the arbitration agreement notwithstanding the presence of No Oral Modification provisions in the main contract.

Lord Hodge, Deputy President, Lord Lloyd-Jones, Lord Sales, Lord Hamblen, Lord Leggatt
[2021] UKSC 48, [2021] Bus LR 1717
Bailii, Bailii Summary, Bailii Issues and Facts
England and Wales
Citing:
Appeal from – Kabab-Ji Sal (Lebanon) v Kout Food Group (Kuwait) CA 20-Jan-2020
. .

Lists of cited by and citing cases may be incomplete.

Arbitration, Contract

Updated: 21 December 2021; Ref: scu.669012

Viscous Global Investment Ltd v Palladium Navigation Corporation ‘Quest’: ComC 30 Jul 2014

The Court was asked whether an arbitration clause in a P and I Club Letter of Undertaking was intended to replace the arbitration clauses incorporated into four bills of lading issued by the defendant shipowners for the carriage of a cargo of bagged rice.

Males J
[2014] EWHC 2654 (Comm)
Bailii
Arbitration Act 1996 32

Arbitration, Contract

Updated: 18 December 2021; Ref: scu.535486

Occidental Exploration and Production Company vRepublic of Ecuador: CA 9 Sep 2005

The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to hear the appeal.
Held: The appeal was dismissed. The treaty was intended to encourage bilateral trading between the US and Ecuador, and the provision for resolution of disputes was part of that. This was a determination of private rights, and not an adjudication as between states. English law had been made the curial law of the arbitration, though international law was to be preferred as the agreement to arbitrate. Here there was no attempt to invoke at national level an international treaty, and the general law of non-justiciability did not apply: ‘We see no good reason why any arbitration held pursuant to such an agreement, or any supervisory role which the court of the place of arbitration may have in relation to any such arbitration, should be categorised as being concerned with ‘transactions between States’ so as to invoke the principle of non-justiciability. ‘ The court described the international system for arbitrating banking disputes, saying: ‘The Treaty involves, on any view, a deliberate attempt to ensure for private investors the benefits and protection of consensual arbitration; and this is an aim to which national courts should, in an internationalist spirit and because it has been agreed between States at an international level, aspire to give effect.’

Mance LJ
[2005] EWCA Civ 1116, Times 23-Sep-2005, [2006] 2 WLR 70, [2006] QB 432
Bailii
Arbitration Act 1996 67
England and Wales
Citing:
Appeal from – Ecuador v Occidental Exploration and Production Company ComC 29-Apr-2005
English law doctrine of ‘non – justiciability’. . .
Cited – Buttes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
Cited – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
Cited – The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom and Others QBD 17-Dec-2002
The applicant sought an advisory order from the court to interpret the meaning of United Nations Security Council resolution no 1441 with regard to steps to be taken under the resolution in the event of the failure of Iraq to comply.
Held: A . .
Cited – Case of the Mavrommatis Palestine Concessions 1924
(Permanent International Court of Justice) ‘It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been . .
Cited – Jurisdiction of the Courts of Danzig Case (the Beamtenabkommen) ICJ 1928
The Beamtenabkommen regulated the employment conditions of Danzig railway employees who had, after the First World War, passed into the service of the Polish Railways Administration. Poland’s contention that this treaty only created inter-State . .
Cited – In re Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (second phase) ICJ 5-Feb-1970
ICJ The claim arose out of the adjudication in bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada. Its object was to seek reparation for damage alleged by Belgium to have been sustained . .
Cited – Enron Corporation v The Argentine Republic ICSID 14-Jan-2004
The Barcelona Traction case ‘has been held not to be controlling in investment claims such as the present, as it deals with the separate question of diplomatic protection in a particular setting’ and that: ‘what the State of nationality of the . .
Cited – Regina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .
Cited – Philippson v Imperial Airways Ltd HL 1939
Where parties have entered into a domestic contract in which they have chosen to incorporate the terms of the treaty, the court may be called upon to interpret the treaty for the purposes of ascertaining the rights and obligations of the parties . .
Cited – Camuzzi International SA v The Argentine Republic (No 2) ICSID 11-May-2005
(Spanish Text) Diplomatic protection ‘cannot be considered the general rule in the system of international law presently governing the matter, but as a residual mechanism available when the affected individual has no direct channel in its own . .
Cited – Camuzzi International SA v Argentine Republic ICSID 11-May-2005
Of the Barcelona Traction case:- ‘this decision of the International Court of Justice referred particularly to the protection that could be expected by the shareholders in this case, but specifying that they can enjoy other protection, if there is a . .
Cited – Gas Natural SDG SA v The Argentine Republic ICSID 2003
‘The scheme of both the ICSID Convention and the bilateral investment treaties is that in this circumstance, the foreign investor acquires rights under the Convention and Treaty, including in particular the standing to initiate international . .
Cited – Westland Helicopters Ltd v Arab Organisation for Industrialisation 1995
International arbitration proceedings under a joint venture agreement had led to an award in Westland’s favour against the Organisation. The award was converted into a judgment and Westland obtained garnishee orders nisi against six London banks. . .
Cited – British Airways Board v Laker Airways Limited HL 1985
The plaintiffs tried to restrain the defendant from pursuing an action in the US courts claiming that the plaintiffs had acted together in an unlawful conspiracy to undermine the defendant’s business.
Held: The action in the US were unlawful . .
Cited – Maclaine Watson and Co Ltd v International Tin Council HL 2-Jan-1989
The International Tin Council was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order.
Held: As a legal person in . .
Cited – Secretary of State in Council of India v Kamachee Boye Sahab PC 9-Jul-1859
‘The transactions of independent states between each other are governed by other laws than those which municipal courts administer: such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may . .
Cited – Rustomjee v The Queen QBD 1876
The Sovereign acts ‘throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the . .
Cited – Maclaine Watson and Co Ltd v International Tin Council (No. 2) CA 1988
When the ITC did not satisfy an arbitral award made against it, the judgment creditor sought to discover where its assets could be found. Application to the Court was made under RSC 0.48 of the Supreme Court Act 1981 and under the Court’s inherent . .
Cited – Fothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
Cited – Zoernsch v Waldock CA 1964
A claim was lodged against a former president as well as the current secretary of the European Commission of Human Rights. The former president, Sir Humphrey Waldock, was under the 1960 Order entitled to ‘the like immunity from legal process as is . .
Cited – Post Office v Estuary Radio Ltd CA 1968
On the proper inerpretation of the legislation, the extent of application of the legislative regime is determined by reference to the concept of the UK’s territorial waters as defined from time to time by the Crown. When the exercise of the Royal . .
Cited – Blackburn v Attorney-General CA 10-May-1971
The complainant sought to argue that entry to Europe would be unlawful in that it involved surrender of the sovereignty of the Queen in Parliament. The respondent accepted that the Bill would involve some surrender of power, but that it was a lawful . .
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – Dallal v Bank Mellat 1986
Any choice of international law to govern an agreement to arbitrate should be express. . .
Cited – Arab Monetary Fund v Hashim HL 1991
Lord Templeman said: ‘passages extracted and amassed from a lengthy speech deal with different issues and different facts’. . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Cited – Regina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
Cited – Jones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
Cited – Case Concerning East Timor (Portugal v Australia) ICJ 18-Jul-1995
Indonesia not accepting jurisdiction of International Court of Justice not bound by it. The Court refused, in the absence of Indonesia as a party, to entertain a claim brought by Portugal challenging Australia’s right to conclude a treaty with . .
Cited – Thomas Cook and James Charles Cook v Sir James Gordon Sprigg PC 1-Aug-1899
Municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law.
(Cape of Good . .

Cited by:
See Also – Ecuador v Occidental Exploration and Production Co ComC 2-Mar-2006
. .
Cited – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
Cited – ETI Euro Telecom International Nv v Republic of Bolivia and Another CA 28-Jul-2008
The parties were involved in an international investment dispute arbitration. An injunction had been sought to prevent repatriation of assets to Bolivia.
Held: The international system of arbitration was not subject to any national law and did . .
See Also – Ecuador v Occidental Exploration and Production Co CA 4-Jul-2007
Appeal against refusal to set aside arbitration award for want of jurisdiction. . .
Cited – ETI Euro Telecom International Nv v Republic of Bolivia and Another CA 28-Jul-2008
The parties were involved in an international investment dispute arbitration. An injunction had been sought to prevent repatriation of assets to Bolivia.
Held: The international system of arbitration was not subject to any national law and did . .

Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 18 December 2021; Ref: scu.230011

Isotis v Commission: ECFI 16 Jul 2014

ECFI (French Text) (Judgment Of The Court Of First Instance) Arbitration clause – Sixth Framework Programme for research, technological development and demonstration activities contributing to the creation of the European Research Area and to innovation (2002-2006) – Contracts Access-eGOV, EU4ALL, eABILITIES, Emerge, Enable, Ask-It ‘- Programme eTEN on trans-European telecommunications networks – navigabile Contracts and Euridice – Framework Programme for Competitiveness and Innovation – Contract T-Seniority – Payment of balance – Counterclaim – Repayment sums advanced – Liquidated damages

T-59/11, [2014] EUECJ T-59/11
Bailii

European, Arbitration

Updated: 18 December 2021; Ref: scu.535364

Central Trading and Exports Ltd v Fioralba Shipping Company: ComC 16 Jul 2014

The court was asked: ‘On a challenge to an arbitration award under section 67 of the Arbitration Act 1996, in what circumstances can the court prevent a party from relying on evidence which is relevant and admissible, but was not adduced before the arbitrators? Does it matter that the party who now seeks to rely on new evidence to challenge the award failed to comply with orders made by the arbitrators that such material should be produced?’

Males J
[2014] EWHC 2397 (Comm)
Bailii

Arbitration

Updated: 17 December 2021; Ref: scu.534351

Konkola Copper Mines Plc v U and M Mining Zambia Ltd: ComC 2 Jul 2014

Applications on behalf of the defendant for (i) security for costs pursuant to s70(6) of the Arbitration Act 1996 in relation to challenges made by the claimant to an arbitration award; and (ii) security for certain sums due under such award pursuant to s70(7) of the 1996 Act.

Eder J
[2014] EWHC 2146 (Comm)
Bailii
Arbitration Act 1996 70(6) 70(7)
England and Wales

Arbitration, Costs

Updated: 16 December 2021; Ref: scu.533813

Minister of Finance (Incorporated) and Another v International Petroleum Investment Company and Another: ComC 4 Nov 2021

This unusual arbitration claim seeks to challenge under s.67 or s.68 of the Arbitration Act 1996 (‘the Act’) a Consent Award dated 9 May 2017 by which an LCIA arbitration between the parties, LCIA Ref. 163357 (‘Arbitration 1’), was concluded.

Mr Justice Andrew Baker
[2021] EWHC 2949 (Comm)
Bailii
Arbitration Act 1996 67 68
England and Wales

Arbitration

Updated: 16 December 2021; Ref: scu.670106

Regina v Cripps; Ex parte Muldoon: CA 1984

The Elections Commissioner had sought, some time after his order on a petition, to clarify the order from costs.
Held: The Commissioner, and in turn Keith J, had been wrong to consider themselves not bound by Muldoon. What Mr Cripps (the Commissioner) had purported to do went far beyond what the slip rule permitted so that his remarks were ‘wholly without effect’. Sir John Donaldson MR said: ‘if a court has reached a decision which is ambiguously expressed either in the reasoned judgment or in the formal orders giving effect to the decision, the ambiguity of expression can be removed in the exercise of the slip rule powers’. And the slip rule: ‘is surprisingly wide in scope. Its primary purpose is akin to rectification, namely to allow the court to amend a formal order which by accident or error does not reflect the actual decision of the judge. But it also authorises the court to make an order which it failed to make as a result of the accidental omission of counsel to ask for it. It even authorises the court to vary an order which accurately reflects the oral decision of the court, if it is clear that the court inadvertently failed to express the decision which it intended.
‘It is a distinction between having second thoughts and intentions and correcting an award to give effect to first thoughts or intentions which creates the problem. Neither an arbitrator nor a judge can make any claim to infallibility. If he assesses the evidence wrongly or misappreciates the law the resulting award or judgment will be erroneous but it cannot be corrected under section
17 (of the Arbitration Act 1950) or under the old Order 20 Rule 11. It cannot normally be corrected under section 22 (where the arbitrator has made a mistake). The remedy is to appeal if the right of appeal exists. The skilled arbitrator or judge may be tempted to describe this as an accidental slip but this is a natural form of self-exculpation.
He also approved the commentary in Mustill and Boyd on Commercial Arbitration at page 406: ‘This [the Arbitration Act 1996] enables the arbitrator to make an award on a claim which he has inadvertently overlooked such as an award of interest or to correct errors of accounting or arithmetic such as attributing a credit item to the wrong party but the section does not give the arbitrator licence to give effect to second thoughts on a matter on which he has made a conscious judgment.’
So far as the adjudication ‘slip rule’ is concerned, the following can be said:
(a) An adjudicator can only revise a decision if it is an implied term of the contract by which adjudication is permitted to take place that permits it. It does not follow that, if it is purely a statutory arbitration under the HGRCA (if there is no contractual adjudication clause), such implication can be said to arise statutorily.
(b) If there is such an implied term, it can and will only relate to ‘patent errors’. A patent error can certainly include the wrong transposition of names or the failing to give credit for sums found to have been paid or simple arithmetical errors.
(c) The slip rule cannot be used to enable an adjudicator who has had second thoughts and intentions to correct an award. Thus for example, if an adjudicator decides that the law is that there is no equitable right of set off but then changes his mind having read some cases feeling that he has got that wrong, such a change would not be permitted because that would be having second thoughts.’
Sir John Donaldson MR set out the concept of functus officio: ‘Most courts continue in existence over a period of time and deal with many different and separate proceedings. Questions arise as to whether and to what extent the court has finally disposed of each proceeding or issue arising in such a proceeding. When it has, the judge who presided is said to have become functus officio, quoad that issue or those proceedings. An election court, or at least one concerned with a petition questioning a local election, is somewhat different. It is brought into existence by the appointment of a barrister to constitute that court and the trial of that petition is the life-work of the court. When that trial has been concluded in accordance with s. 125 of the Act of 1949, not only is the barrister functus officio but the court ceases to exist.’
and: ‘It is not . . necessary to consider whether on that day he was sitting as ‘Mr Commissioner Cripps’ in or as a local election court or whether his remarks were those of ‘Mr Anthony Cripps QC’ speaking under a misapprehension as to his capacity. Suffice it to say that although by section 115(6) of the Act of 1949 a local election court has ‘for the purposes of the trial . . the same powers and privileges as a judge on the trial of a parliamentary election petition’ (our emphasis) which would import the High Court slip rule power, it is probable that these powers are inapplicable once the trial has been concluded by the formalities prescribed by section 125 and that thereafter slips must be corrected by the High Court under the powers contained in section 137(3). However, even if Mr Cripps had been appointed as a deputy High Court judge and invited to exercise the powers of the High Court, for the reasons which we have given, he could not properly have ‘corrected’ the order which he had made in a wholly different capacity.’

Sir John Donaldson MR, Fox and Stephen Brown LJJ
[1984] 3 WLR 53, [1984] 1 QB 686, [1984] 2 All ER 705
England and Wales
Citing:
Appeal from – Regina v Cripps; Ex parte Muldoon QBD 1983
The election commissioner, Mr Anthony Cripps QC, had purported to explain many months later what he had meant in an order for costs which he had made when handing down his judgment on an election petition. It was argued that he had had the power to . .

Cited by:
Cited – The Conservative and Unionist Party v The Election Commissioner CA 23-Nov-2010
A losing candidate at a local election alleged corrupt and illegal practices relating to the entry of non-existent people on the electoral roll and using postal votes. The Election Commissioner found this proved and the election void, and awarded . .
Binding – The Conservative and Unionist Party v The Election Commissioner and Others Admn 19-Feb-2010
A local election result had been set aside for fraud in the winning Conservative candidate. The Commissioner made an order for costs against his party which was now challenged for lack of jurisdiction the Commissioner being functus officio, and the . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 13 December 2021; Ref: scu.654116

Interbulk Limited v Aiden Shipping Co Limited (The “Vimeira”): CA 1984

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.’

Robert Goff LJ, Ackner LJ
[1984] 2 Lloyd’s Rep 66
England and Wales
Citing:
Cited – John v Rees and Others; Martin and Another v Davis and Others ChD 1969
The Court was asked as to the validity of proceedings at a meeting of the members of the local Labour Party which had broken up in disorder. The proceedings were instituted by the leader of one faction on behalf of himself and all other members of . .

Cited by:
Appeal from – Aiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
Cited – Carillion Construction Ltd v Devonport Royal Dockyard Ltd CA 16-Nov-2005
The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
Held: The dispute was complex and . .
Cited – Bandwidth Shipping Corporation v Intaari (‘Magdalena Oldendorrf’) CA 17-Oct-2007
An arbitrator hearing a case, and who appreciated that counsel had failed to take a point, should draw counsel’s attention to the point. No duty could arise if the arbitrator did not himself see the point.
An applicant under section 68 faces a . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration

Updated: 11 December 2021; Ref: scu.235381

B v A: ComC 1 Jul 2010

ambit of a permissible challenge to the validity of an arbitration award, under sections 67 and 68 of the Arbitration Act 1996

The Hon Mr Justice Tomlinson
[2010] EWHC 1626 (Comm), [2010] 2 CLC 1, 132 Con LR 73, [2010] 2 Lloyds Rep 681, [2011] Bus LR D113
Bailii
England and Wales

Arbitration

Updated: 11 December 2021; Ref: scu.420043

Paul Smith Ltd v H and S International Holdings Inc: ChD 1991

The contract between the parties said both that any disupte should be referred to arbitration, and that ‘The Courts in England shall have exclusive jurisdiction over it to which jurisdiction the parties hereby submit.’ The plaintiffs said the clauses were ineffective since they conflicted irreconcileably.
Held: The argument failed. Steyn J described that as an unattractive result. ‘It involves the total failure of the agreed method of dispute resolution in an international commercial contract. An incidental further result of such a conclusion would be that art. 9 (force majeure), which provides for a modification of the terms of the agreement by an arbitrator, will be deprived of all legal effect. On the other hand, if the arbitration agreement is valid, there is no legal difficulty in giving effect to the so-called hardship clause.
Fortunately, there is a simple and straight forward answer to the suggestion that cll. 13 and 14 are inconsistent. Clause 13 is a self-contained agreement providing for the resolution of disputes by arbitration. Clause 14 specifies the lex arbitri the curial law or the law governing the arbitration, which will apply to this particular arbitration. The law governing the arbitration is not to be confused with (1) the proper law of the contract, (2) the proper law of the arbitration agreement, of (3) the procedural rules which will apply in the arbitration. These three regimes depend on the choice, express of presumed, of the parties. In this case it is common ground that both the contract and the arbitration agreement are governed by English law. The procedural rules applicable to the arbitration are not rules derived from English law. On the contrary, the procedural regime is the comprehensive and sophisticated ICC rules which apply by virtue of the parties’ agreement.
What then is the law governing the arbitration? It is, as Martin Hunter and Alan Redfern, International Commercial Arbitration, page 53, trenchantly explain, a body of rules which sets a standard external to the arbitration agreement, and the wishes of the parties, for the conduct of the arbitration. The law governing the arbitration comprises the rules governing interim measures (e.g. Court orders for the preservation or storage of goods), the rules empowering the exercise by the Court of supportive measures to assist an arbitration which has run into difficulties (e.g. filling a vacancy in the composition of the arbitral tribunal if there is no other mechanism) and the rules providing for the exercise by the Court of its supervisory jurisdiction over arbitrations (e.g. removing an arbitrator for misconduct).
If cl 14 is read as specifying the law governing the arbitration, there is no inconsistency between cll. 13 and 14. Admittedly, the language is not felicitous: it provides for the exclusive jurisdiction of the English Courts ‘over it’, i.e. the agreement. Strictly, it should refer to the law governing the arbitration. This incongruity pales into insignificance, however, when compared to the unfortunate consequences of treating the arbitration clause in a non-domestic commercial agreement as pro non scripto.
In my view there is no inconsistency between cll. 13 and 14, and both clauses are valid and binding.’

Steyn J
[1991] 2 Lloyds Rep 127
England and Wales
Cited by:
Cited – McNicholas Plc v AEI Cables Limited TCC 25-May-1999
The claimant had subcontracted to supply cabling on the defendant’s project. The contract provided both for the exclusive jurisdiction of the English courts but also for arbitration. The defendant applied for the action to be stayed and referred to . .

Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 06 December 2021; Ref: scu.238326

Commune De Millau And Semea v Commission: ECJ 19 Jun 2014

ECJ Judgment Of The Court – Appeal – Arbitration clause – Grant contract concerning a local development action – Recovery of part of the sums paid – Assumption of debt – Jurisdiction of the General Court – Limitation period – Liability of the Commission

C-531/12, [2014] EUECJ C-531/12
Bailii
European

European, Arbitration

Updated: 05 December 2021; Ref: scu.527236

Commission of The European Communities v Efrosyni Alexiadou: ECJ 13 Nov 2008

ECJ (Judgment Of The Court (Fourth Chamber)) Appeal – Arbitration clause – Contract concerning a technological development programme relating to the production of water-repellent leather – Repayment of advance paid – Interest

C-436/07, [2008] EUECJ C-436/07, ECLI:EU:C:2008:623
Bailii

European, Arbitration

Updated: 04 December 2021; Ref: scu.526328

Cukurova Holding As v Sonera Holding Bv: PC 13 May 2014

(British Virgin Islands) The appellant sought to have set aside the Final Decision of an arbitrator.

Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Hodge
[2014] UKPC 15
Bailii
Commonwealth
Citing:
See Also – Cukurova Finance International Ltd and Another v Alfa Telecom Turkey Ltd PC 5-May-2009
(British Virgin Islands) Shares in two companies incorporated under the BVI Business Companies Act 2004, Cukurova Finance International Ltd and Cukurova Telecoms Holdings Ltd were provided as security under two sets of equitable mortgages, one set . .
See Also – Cukurova Finance International Ltd and Others v Alfa Telecom Turkey Ltd PC 23-May-2012
(British Virgin Islands) Interlocutory issue as to who should manage the affairs of the Turkcell mobile telephone business pending the Board’s final adjudication (after a hearing which should take place this autumn) on the rights and wrongs of what . .
See Also – Cukurova Finance International Ltd and Another v Alfa Telecom Turkey Ltd PC 30-Jan-2013
(British Virgin Islands) The claimant sought to recover shareholdings given in charge.
Held: There was an event of default, which entitled ATT to accelerate the loan and to appropriate – or forfeit – the charged shares, but that relief against . .
See Also – Cukurova Finance International Ltd and Another v Alfa Telecom Turkey Ltd PC 9-Jul-2013
British Virgin Islands . .
Cited – Cukurova Finance International Ltd and Another v Alfa Telecom Turkey Ltd PC 29-Jul-2013
(British Virgin Islands) . .

Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 03 December 2021; Ref: scu.525609

Jivraj v Hashwani: ComC 26 Jun 2009

The claimant said that the requirement in an arbitration clause for all the arbitrators to be members of the Ismaili community was unlawful under the 2003 Regulations.
Held: The appointment was not discriminatory. An arbitrator’s employment was not within the Regulations, and was not a worker under the case law. He was instead an independent provider of services who was not in a relationship of subordination with the person who received the services. The purpose of the contract was not the only test for determining employment, though it can be relevant in arriving at the correct conclusion in particular cases. An arbitrator was a quasi-judicial adjudicator whose duty was not to act in the particular interests of either party. The main purpose of the appointment, where relevant, was the impartial resolution of the dispute.

David Steel J
[2009] EWHC 1364 (Comm), [2009] 1 CLC 962, [2010] 1 All ER 302, [2009] 2 All ER (Comm) 778
Bailii
Employment Equality (Religion or Belief) Regulations 2003
England and Wales
Cited by:
At first instance – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Appeal from – Jivraj v Hashwani (Rev 2) CA 22-Jun-2010
The court was asked whether parties to an arbitration agreement in a commercial contract can stipulate that the tribunal is to be drawn from members of a particular religious group, in this case the Ismaili community.
Held: The defendant’s . .
Cited – Clyde and Co LLP and Another v van Winkelhof SC 21-May-2014
Solicitor Firm Member was a Protected Worker
The solicitor appellant had been a member of the firm, a limited liability partnership. She disclosed criminal misbehaviour by a partner in a branch in Africa. On dismissal she sought protection as a whistleblower. This was rejected, it being found . .

Lists of cited by and citing cases may be incomplete.

Discrimination, Contract, Arbitration, European

Updated: 30 November 2021; Ref: scu.347273

FR Absalom Limited v Great Western (London) Garden Village Society Ltd: HL 1933

Where the matter referred to the arbitrator for decision involves the application of the law or the interpretation of a contract on the basis of undisputed facts, then that would be a reference of a specific question of law.
Lord Russell of Killowen said: ‘My Lords, it is, I think, essential to keep the case where disputes are referred to an arbitrator in the decision of which a question of law becomes material distinct from the case in which a specific question of law has been referred to him for decision. I am not sure that the Court of Appeal has done so. The authorities make a clear distinction between these two cases, and, as they appear to me, they decide that in the former case the Court can interfere if and when any error of law appears on the face of the award, but that in the latter case no such interference is possible upon the ground that it so appears that the decision upon the question of law is an erroneous one’.

Lord Russell of Killowen
[1933] AC 592, [1933] All ER 616
Arbitration Act 1892
England and Wales

Arbitration

Updated: 30 November 2021; Ref: scu.223727

AB v CD: QBD 3 Jan 2014

The parties were contracted to each other in respect of an internet based marketing system for metals and other resources. The claimant had contracted in effect to promote the system. The claimant sought an injunction to prevent termination of services pending arbitration. The court now gave its reasons for refusing the injunction.

Stuart-Smith J
[2014] EWHC 1 (QB)
Bailii
Arbitration Act 1996 44
England and Wales
Citing:
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – Evans Marshall and Co Ltd v Bertola SA CA 1973
Lord Justice Sachs considered whether damages were an adequate remedy for the refusal of an injunction, and said: ‘The standard question in relation to the grant of an injunction, Are damages an adequate remedy?’ might perhaps, in the light of the . .
Cited – Parker v Schuller CA 1901
The plaintiffs had obtained leave to serve a writ out of the jurisdiction under Order 11, r 1(e) of the RSC on the ground that the claim was for breach of a contract within the jurisdiction. The breach alleged was of a CIF contract, and the . .
Cited – Metall und Rohstoff AG v Donaldson Luftkin and Jenrette Inc CA 1991
. .
Cited – Comninos v Prudential Assurance Company Ltd (The Ikarian Reefer no 2) CA 12-Oct-1999
Mr Comninos challenged the jurisdiction of the court to have made an order for costs made against him. . .
Cited – ED and F Man Sugar Ltd v Lendoudis ComC 10-Oct-2007
. .

Cited by:
Appeal from – AB v CD CA 6-Mar-2014
The court was asked a point of principle about the proper approach to the grant of an interim injunction. It is trite law that such an injunction will not be granted if damages would be an adequate remedy for the wrong, if proved: indeed the same . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 28 November 2021; Ref: scu.519432

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
Bailii
England and Wales
Cited by:
Cited – Fiona 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

Macob Civil Engineering Ltd v Morrison Construction Ltd: TCC 12 Feb 1999

Once made, an award by an adjudicator under the Scheme was enforceable immediately and should be enforced by writ and application for summary judgment, provided only that the arbitrator had jurisdiction to make the award. It remained payable immediately despite any intention to challenge. The Act and Regulations were discussed by the Court: ‘The intention of Parliament in enacting the Act was plain. It was to introduce a speedy mechanism for settling disputes in construction contracts on a provisional interim basis, and requiring the decisions of adjudicators to be enforced pending final determination of disputes by arbitration, litigation or agreement: see section 108(3) of the Act and paragraph 23(2) of Part 1 of the Scheme. The timetable for adjudications is very tight (see section 108 of the Act). Many would say unreasonably tight, and likely to result in injustice. Parliament must be taken to have been aware of this. So far as procedure is concerned, the adjudicator is given a fairly free hand. It is true (but hardly surprising) that he is required to act impartially (s 108(2)(e) of the Act and paragraph 12(a) of Part 1 of the Scheme). He is, however, permitted to take the initiative in ascertaining the facts and the law (s 108(2)(f) of the Act and paragraph 13 of Part 1 of the Scheme). He may, therefore, conduct an entirely inquisitorial process, or he may, as in the present case, invite representations from the parties. It is clear that Parliament intended that the adjudication should be conducted in a manner which those familiar with the grinding detail of the traditional approach to the resolution of construction disputes apparently find difficult to accept. But Parliament has not abolished arbitration and litigation of construction disputes. It has merely introduced an intervening provisional stage in the dispute resolution process. Crucially, it has made it clear that decisions of adjudicators are binding and are to be complied with until the dispute is finally resolved.’

Dyson J
Gazette 10-Mar-1999, Times 11-Mar-1999, [1999] EWHC Technology 254, (1999) 64 Con LR 1, [1999] BLR 93
Bailii
Scheme for Construction Contracts (England and Wales) Regulations 1998 (1988 No 649)
England and Wales
Cited by:
Distinguished – Ritchie Brothers (Pwc) Limited v David Philp (Commercials) Limited IHCS 24-Mar-2005
The adjudicator had delivered his decision out of time. The pursuer sought to enforce it. The defender aid that if it was delivered out of time it was void.
Held: The expiry of the time limit deprived the arbitrator of jursidcition to decide . .
Cited – Ritchie Brothers (Pwc) Limited v David Philp (Commercials) Limited IHCS 24-Mar-2005
The adjudicator had delivered his decision out of time. The pursuer sought to enforce it. The defender aid that if it was delivered out of time it was void.
Held: The expiry of the time limit deprived the arbitrator of jursidcition to decide . .
Approved – Tally Wiejl (UK) Ltd v Pegram Shopfitters Ltd CA 21-Nov-2003
. .
Cited – Carillion Construction Ltd v Devonport Royal Dockyard TCC 26-Apr-2005
Application for leave to appeal against arbitrator’s award in construction dispute.
Held: The appeal was declined. . .
Cited – Carillion Construction Ltd v Devonport Royal Dockyard Ltd CA 16-Nov-2005
The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
Held: The dispute was complex and . .
Cited – Discain Project Services Ltd v Opecrime Development Ltd TCC 11-Apr-2001
. .
Cited – Alexander and Law Ltd v Coveside (21BPR) Ltd TCC 12-Dec-2013
The claimant sought to enforce an arbitration award. The respondent resisted, saying that the claimant faced unresolved insolvency proceedings, and may be unable to repay any sum later found due. . .

Lists of cited by and citing cases may be incomplete.

Construction, Arbitration

Updated: 27 November 2021; Ref: scu.136059

Henry Boot Construction Limited v Alstom Combined Cycles Limited (Formerly GEC Alsthom Combined Cycles Limited): TCC 22 Jan 1999

Humphrey Lloyd QC
[1999] EWHC Technology 263
Bailii
England and Wales
Citing:
Cited – Alstom Combined Cycles Ltd v Henry Boot Plc TCC 1-May-2001
. .

Cited by:
See Also – Alstom Combined Cycles Ltd v Henry Boot Plc TCC 1-May-2001
. .

Lists of cited by and citing cases may be incomplete.

Arbitration, Construction

Updated: 27 November 2021; Ref: scu.136065

Doosan Babcock Ltd v Comercializadora De Equipos Y Materiales Mabe Limitada: TCC 11 Oct 2013

Application to suspend demands for payment under on-demand guarantees.

Edwards-Stuart J
[2013] EWHC 3010 (TCC)
Bailii
Cited by:
See Also – Doosan Babcock Ltd and Another v Comercializadora De Equipos Y Materiales Mabe Limitada TCC 24-Oct-2013
. .

Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 25 November 2021; Ref: scu.517360

Arts and Antiques Ltd v Richards and Others: ComC 5 Nov 2013

The court was asked whether the findings of a private arbitration could be relied upon as between other parties in an abuse of process argument.

Hamblen J
[2013] EWHC 3361 (Comm)
Bailii
England and Wales
Citing:
Cited – Rust v Abbey Life Assurance Co ltd CA 1979
Delay in objection indicated assent to contract
The court was asked whether a binding contract had been concluded between an applicant for an investment in property bonds and the insurance company offering such bonds when, in response to an application form submitted by the applicant, accompanied . .

Cited by:
Cited – OMV Petrom Sa v Glencore International Ag ComC 7-Feb-2014
The claimant sought to have struck out as abuse of process parts of the defence, saying that the factual issues raised had already been resolved in arbitration proceedings, but as against a different oarty. The defendant replied that the arbitration . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice, Contract

Updated: 25 November 2021; Ref: scu.517383

Dawes v Treasure and Son Ltd: TCC 10 Dec 2010

The court was asked as to the point or stage at which an arbitrator becomes functus officio or ceases to have jurisdiction and the extent, ambit or scope of a settlement of an arbitration.

Akenhead J
[2010] EWHC 3218 (TCC), [2011] BLR 194, [2011] 6 EG 104, 134 Con LR 133, [2011] Bus LR 676, [2010] 2 CLC 907
Bailii
England and Wales

Arbitration

Updated: 20 November 2021; Ref: scu.427225

Fiona 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.
Held: a dispute whether the contract can be set aside or rescinded for alleged bribery does fall within the arbitration clause on its true construction. ‘If arbitrators can decide whether a contract is void for initial illegality, there is no reason why they should not decide whether a contract has been procured by bribery, just as much as they can decide whether a contract has been procured by misrepresentation or non-disclosure. Illegality is a stronger case than bribery which is not the same as non est factum or the sort of mistake which goes to the question whether there was any agreement ever reached. It is not enough to say that the bribery impeaches the whole contract unless there is some special reason for saying that the bribery impeaches the arbitration clause in particular. ‘ and ‘we see no reason why the charterers should be prevented from arbitrating these claims; if the arbitration tribunal decides that the charters were indeed procured by bribery they will be able to decide what consequence that conclusion has on any claims which the charterers might otherwise legitimately have. ‘

Tuckey, Arden and Longmore LJJ
Times 29-Jan-2007, [2007] EWCA Civ 20, [2007] Bus LR 686, [2007] 1 CLC 144, [2007] 2 Lloyd’s Rep 267, [2007] ArbLR 22, [2007] 1 All ER (Comm) 891
Bailii
England and Wales
Citing:
Cited – Heyman v Darwins Limited HL 1942
An arbitration clause will survive a repudiatory breach: ‘I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of . .
Cited – Mackender v Feldia AG CA 1966
A clause provided that an insurance policy should be governed by Belgian law and that ‘any disputes arising thereunder shall be exclusively subject to Belgian jurisdiction.’ The underwriters avoided the contract for non-disclosure of material facts . .
Cited – Empresa Exportadora de Azucar v Industria Azucarera Nacional S.A, The Playa Larga CA 1983
There had been a theft by Cuban sellers of one cargo of sugar, property in which had already passed to the buyers, and non-delivery of a second combined with trickery whereby the intended buyers were nonetheless induced to pay its price. The first . .
Cited – Union of India v Aaby’s Rederi A/S, The Evje HL 1975
Lord Dilhorne said of the words ‘to be settled in London’: ‘At first sight those words appear to me to mean no more and no less than that the contributions to be made have to be determined in London and paid there, and that implies determined in . .
Cited – Samick Lines Co Ltd v Owners of The Antonis P Lemos HL 2-Jan-1985
The House was asked as to the effect of the section.
Held: Since the provisions of the statute under consideration were designed to give domestic effect to an international convention, a broad and liberal construction should be given to them . .
Cited – The Eschersheim; The Jade HL 1976
The 1956 Act implemented as part of the domestic law the treaty obligations of the United Kingdom under the International Convention Relating to the Arrest of Seagoing Ships signed at Brussels on 10 May 1952 (the Arrest Convention).
Held: The . .
Cited – Fillite (Runcorn) Ltd v Aqua-Lift CA 1989
The court considered whether claims arising from misrepresentation or breach of a collateral contrat were claims arising ‘under’ the contract so as to be governed by the disputes provisions in it.
Held: The disputes did not arise ‘under the . .
Cited – The Ermoupolis 1990
A claim for the tort of conversion fell within the phrase ‘any dispute arising in any way whatsoever out of this bill of lading’. . .
Cited – Aggeliki Charis Compania Maritima SA v Pagnan SpA The Angelic Grace QBD 1994
The court considered whether a claim for a collision between two ships was governed by an arbitration clause which read ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying . .
Cited – Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Ltd CA 7-Apr-1993
An action was brought by re-insurers for a declaration that reinsurance policies were void for illegality, and that the plaintiffs were not liable under them. The illegality alleged was that the defendants were not registered or approved to carry on . .
Cited – Overseas Union v AA Mutual International Insurance Co Ltd 1988
Evans J said that there was a broad distinction between clauses which referred ‘only those disputes which may arise regarding the rights and obligations which are created by the contract itself’ and those which ‘show an intention to refer some wider . .
Cited – Ethiopian Oil Fields v Rio del Mar 1990
A dispute about rectification came within the words ‘any dispute arising out of or under this contract’. The phrase ‘out of’ must add something to ‘under’, even though the words ‘out of ‘ were in fact the words which appeared first in the clause. . .
Cited – Harbour Assurance Co (Uk) Ltd v Kansa General International Insurance Co Ltd 1993
The Court said that older (pre Heyman v Darwins Ltd) authorities about the width of arbitration clauses had to be approached with some care and that the words ‘arising from the contract’ have almost invariably been treated as ‘words of very wide . .
Cited – Delos, Owners of Cargo v Delos Shipping Ltd ComC 31-Jan-2001
Claims for breach of duty and bailment could be brought within the phrase ‘any disputes under’ the contract. . .
Cited – Chimimport Plc v G d’Alesio SAS 1994
The phrase ‘arising under’ in a clause referring matters to arbitration is narrower than ‘arising out of’ and the court doubted whether a tortious claim could easily give rise to a dispute ‘under the contract’. . .
Cited – Logicrose Ltd v Southend United Football Club Ltd CA 5-Feb-1988
The agent required the contractual counterparty to pay a bribe of pounds 70,000 to an offshore account.
Held: The bribe was held to be recoverable by the principal whether the principal rescinded or affirmed the contract because it was a . .
Cited – Francesco Benincasa v Dentalkit Srl ECJ 3-Jul-1997
A contract which forms a part of the customer’s arrangements for pursuing his trade or profession is not a consumer contract and a choice of jurisdiction clause in a distribution agreement was valid.
Europa . .
Cited – Credit Suisse First Boston (Europe) Ltd v Seagate Trading Co Ltd 1999
An oral contract for the sale of Russian Notes was followed by a Trade confirmation with an English jurisdiction clause. It was said that this document was fraudulently presented by Credit Suisse as a mere perfunctory confirmation (which it was not) . .
Cited – Law Debenture Trust Corporation Plc v Elektrim Finance Bv and others ChD 1-Jul-2005
A bond contained an arbitration clause subject to a further clause giving the claimant an ‘exclusive right at its option to apply to the courts of England to settle any disputes which may arise out of or in connection with these presents’. The . .
Cited – Ahmad Al-Naimi (T/a Buildmaster Construction Services) v Islamic Press Agency Incorporated CA 28-Jan-2000
The court has an inherent power to stay proceedings. The court could refer a matter to arbitration where there was an arbitration clause, but could also do so under its inherent discretion, where this was not quite clear, but it was clear that good . .
Cited – 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 . .
Appeal from – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
See Also – Fiona Trust Holding Corporation and others v Privalov and others ComC 19-Jan-2007
. .

Cited by:
See Also – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
Appeal from – Premium Nafta Products Ltd (20th Defendant) and others v Fili Shipping Company Ltd and others; Fiona Trust and Holding Corporation v Privalov HL 17-Oct-2007
The owners of a ship sought to rescind charters saying that they had been procured by bribery.
Held: A claim to rescind a contract by reason of bribery fell within the scope of an arbitration clause under which the parties had agreed to refer . .
Cited – Scottish and Newcastle Plc v Raguz HL 29-Oct-2008
The lease had been assigned by the claimant to the defendant and on again to a tenant who became insolvent. The landlord had recovered sums said to be due from the claimant who now sought an indemnity from the defendant. The defendant said that the . .
See Also – Fiona Trust Holding Corp and others v Privalov and others ComC 21-May-2007
Allegations were made of different varieties of fraud. Applications were made for freezing orders. . .
See Also – Fiona Trust and Holding Corporation and others v Privalov and others ComC 22-Jul-2008
. .

Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 19 November 2021; Ref: scu.248016

Tsakiroglou and Co Ltd v Noblee Thorl GmbH: HL 1961

The appellants had agreed to sell to the respondents 300 tonnes of groundnuts. However due to the blockade of the Suez canal from November 2 1956 until April 1957, the appellants failed to deliver these goods and the respondents sued for breach of contract. The issue before the court was whether by reason of the blockade the contract became impossible of performance and could therefore be discharged as frustrated. The appellants argued that the use of an alternative route via the Cape of Good Hope to deliver the goods meant that the contract was frustrated. The arbitrator had determined a mixed question as to whether a cif contract had been frustrated.
Held: A mixed finding of fact and law by an arbitrator is open to review by a court. Though in the ultimate analysis whether a contract was frustrated is a question of law, ‘that conclusion is almost completely determined by what is ascertained as to mercantile usage and the understanding of mercantile men.’
A contract for goods to be shipped between two locations was silent as to the method of delivery. It was held that the closing of the most direct route (the Suez Canal at a time of war) did not frustrate the contract where there was an alternative, albeit longer route available. Lord Reid commented that the appellants had simply to find another ship and that the altered nature of the voyage did not mean that the contract was frustrated. His Lordship stated that it was a question of law in light of commercial considerations whether a contract was fundamentally different and was frustrated. Shipping the goods by a different route was not commercially or fundamentally different so as to frustrate the contract.
Lord Reid pointed out that it was not a case where a longer voyage would have damaged the goods or one where the buyers would suffer extraordinary losses as a result of the goods arriving later than anticipated.
Viscount Simmonds held that use of the route via the Cape did not frustrate the contract, he pointed out, at 115, that it may well have meant greater expense and reduced or eliminated the appellant’s profits but that was not a ground for frustration and the contract was not ‘fundamentally’ altered.

Lord Radcliffe, Lord Reid, Viscount Simmonds
[1962] AC 93, [1961] 2 All ER 179
England and Wales
Cited by:
Cited – National Carriers Ltd v Panalpina (Northern) Ltd HL 11-Dec-1980
No Frustration of Lease through loss of access
The tenant’s access to the premises was closed by the local authority because it passed by a derelict and dangerous building. The tenant argued that its tenancy was frustrated.
Held: The lease was not frustrated. The lease had a term of ten . .
Cited – Overseas Buyers v Granadex 1980
The court considered the meaning of a promise by one party to use its best endeavours.
Held: Mustill J said: ‘it was argued that the arbitrators can be seen to have misdirected themselves as to the law to be applied, for they have found that . .

Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Leading Case

Updated: 14 November 2021; Ref: scu.259072