Petroships Pte Ltd of Singapore v Petec Trading and Investment Corporation of Vietnam and others: ComC 22 May 2001

Cresswell J
[2001] EWHC Commercial 418, [2001] 2 Lloyd’s 348
Bailii
Arbitration Act 1986
England and Wales
Cited by:
CitedNewfield Construction Limited v Tomlinson, Tomlinson TCC 10-Nov-2004
. .

Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 28 November 2021; Ref: scu.163052

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:
CitedAmerican 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 . .
CitedEvans 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 . .
CitedParker 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 . .
CitedMetall und Rohstoff AG v Donaldson Luftkin and Jenrette Inc CA 1991
. .
CitedComninos 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. . .
CitedED and F Man Sugar Ltd v Lendoudis ComC 10-Oct-2007
. .

Cited by:
Appeal fromAB 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:
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

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:
DistinguishedRitchie 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 . .
CitedRitchie 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 . .
ApprovedTally Wiejl (UK) Ltd v Pegram Shopfitters Ltd CA 21-Nov-2003
. .
CitedCarillion 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. . .
CitedCarillion 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 . .
CitedDiscain Project Services Ltd v Opecrime Development Ltd TCC 11-Apr-2001
. .
CitedAlexander 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:
CitedAlstom Combined Cycles Ltd v Henry Boot Plc TCC 1-May-2001
. .

Cited by:
See AlsoAlstom 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

Guidance Investments Ltd v Guidance Hotel Investment Company Bsc: ComC 7 Nov 2013

Application by the Claimant for a stay of part of the Defendant’s Counterclaim under section 9 of the 1996 Act and/or pursuant to the court’s inherent jurisdiction on the grounds that it relates to matters covered by an arbitration clause. In addition the Claimant seeks an order that the Defendant be debarred from relying on the like allegations by way of defence.

Hamblen J
[2013] EWHC 3413 (Comm)
Bailii
Arbitration Act 1996 9

Arbitration

Updated: 25 November 2021; Ref: scu.517480

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 AlsoDoosan 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:
CitedRust 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:
CitedOMV 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:
CitedHeyman 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 . .
CitedMackender 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 . .
CitedEmpresa 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 . .
CitedUnion 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 . .
CitedSamick 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 . .
CitedThe 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 . .
CitedFillite (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 . .
CitedThe 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’. . .
CitedAggeliki 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 . .
CitedHarbour 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 . .
CitedOverseas 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 . .
CitedEthiopian 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. . .
CitedHarbour 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 . .
CitedDelos, 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. . .
CitedChimimport 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’. . .
CitedLogicrose 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 . .
CitedFrancesco 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 . .
CitedCredit 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) . .
CitedLaw 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 . .
CitedAhmad 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 . .
CitedBirse 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 fromFiona 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 AlsoFiona Trust Holding Corporation and others v Privalov and others ComC 19-Jan-2007
. .

Cited by:
See AlsoFiona 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 fromPremium 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 . .
CitedScottish 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 AlsoFiona 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 AlsoFiona 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:
CitedNational 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 . .
CitedOverseas 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

UST-Kamenogorsk Hydropower Plant Jsc v AES UST-Kamenogorsk Hydropower Plant Llp: SC 12 Jun 2013

Arrangements between the parties owners and operators of a power plant in Kazakhstan required disputes to be arbitrated in London under ICC Rules. That clause was governed by English law, and the remainder by Kazakh law. A ruling by the Supreme Kazakh Court declared the arbitration clause invalid. The contractor began arbitration proceedings in England for a declaration as to its validity. An injunction was granted prohibiting further proceedings in Kazakhstan. The owner appealed.
Held: The appeal failed. Courts in the UK have long held jurisdiction to restrain foreign proceedings brought in breach of an arbitration agreement.

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Toulson
[2013] UKSC 35, [2013] 2 Lloyd’s Rep 281, [2013] 1 WLR 1889, [2013] WLR(D) 232
Bailii, Bailii Summary
Arbitration Act 1996 9
England and Wales
Citing:
CitedWest Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa and others (The Front Comor) HL 21-Feb-2007
A ship had foundered, and the owners disputed their insurance claim. The policy provided for arbitration in London, and one party sought an order to prevent the other commencing proceedings in another EU state in breach of the arbitration agreement. . .
CitedC v D CA 5-Dec-2007
The court considered an appeal under the Bermuda Form of international Liability Insurance which provided for arbitration in London subject to the internal laws of New York. The insurers threatened to challenge under US federal arbitration law in a . .
At first instanceAES Ust-Kamenogorsk Hydropower Plant Llp v Ust-Kamenogorsk Hydropower Plant Jsc ComC 16-Apr-2010
The parties contracte for works relating to a power plant. The applicable law was Khazak, but the agreement provided that any dispute between the parties was to be settled by arbitration in London. The claimant now sought an anti-suit injunction to . .
CitedVale Do Rio Doce Navegacao SA and another v Shanghai Bao Steel Ocean Shipping Co Ltd and Others QBD 14-Apr-2000
An arbitration process which sought to join parties who denied being part of the contract for arbitration could not itself decide the contractual power to enforce the arbitration. Accordingly the High Court had no jurisdiction either to apply the . .
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 fromAES UST-Kamenogorsk Hydropower Plant Llp v UST-Kamenogorsk Hydropower Plant Jsc CA 27-May-2011
The parties disputed the right to prevent a foreign court action where the agreement required arbitration in London . .
CitedArsanovia Ltd and Others v Cruz City 1 Mauritius Holdings ComC 20-Dec-2012
. .

Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 12 November 2021; Ref: scu.510794

Econet Satellite Services Ltd v Vee Networks Ltd: ComC 13 Jul 2006

Field J
[2006] EWHC 1664 (Comm), [2006] ArbLR 20
Bailii
Arbitration Act 1996 67 68 69
England and Wales
Citing:
See AlsoVee Networks Limited v Econet Wireless International Limited QBD 14-Dec-2004
The court considered a complaint that the arbitration award was faulty or lack of jurisdiction under the agreement founding it. . .
See AlsoEconet Wireless Ltd v Vee Networks Ltd and others ComC 28-Jun-2006
. .

Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 12 November 2021; Ref: scu.243425

Dallah Estates and Tourism Holding Company v Ministry of Religious Affairs, Government Of Pakistan: CA 20 Jul 2009

The claimant sought to enforce an international arbitration award against the defendant in respect of the provision of accommodation for Hajj pilgrims. A without notice order had been made to allow its enforcement, but that had been set aside.
Held: When asked to review an arbitration award made internationally under the Convention, it was important for the court to establish which standard of proof had been applied in the arbitration proceedings. Here there had been no agreement as to the applicable law, and the tribunal had applied ‘those transnational general principles and usages which reflect the fundamental requirements of justice in international trade and the concept of good faith in business’. There is no provision in the Convention requiring a party wishing to challenge an award to make that challenge in the country in which the award was made, and the claimant had itself chosen London to seek to enforce the award. Any discretion to enforce an award despite a continuing objection must be a narrow one. The words of the section were intended to act as a limitation on such a power not to ennable one.

Ward LJ, Rix LJ, Moore-Bick LJ
[2009] EWCA Civ 755, Times 24-Aug-2009, [2009] 30 EG 67, [2009] 2 CLC 84, 125 Con LR 37, [2010] 1 All ER 592
Bailii
Arbitration Act 1996 101, New York Convention
England and Wales
Citing:
Appeal fromDallah Real Estate and Tourism Holding Company v Ministry of Religious Affairs, Government of Pakistan ComC 1-Aug-2008
The claimant had obtained an arbitration award, and a without notice order for its enforcement. The defendant applied for it to be set aside on the basis that no law had been agreed which would set the basis for the arbitration, and that the award . .
CitedSvenska Petroleum Exploration Ab v Lithuania and Another (No 2) CA 13-Nov-2006
The defendant state could not now claim state immunity to avoid enforcement of an arbitration award, having agreed to the reference to arbitration in writing.
Held: A person against whom an award has been made is not bound to challenge it . .
CitedYukos Oil Company v Dardana Ltd CA 18-Apr-2002
The claimant sought to enforce an arbitration award made in Sweden, even though it had yet to give its final adjudication on the defence under the New York Convention argued by the defendant.
Held: The Act cannot have been intended to give the . .
CitedKanoria and others v Guinness CA 21-Feb-2006
Lord Phillips CJ expressed his own doubts about whether section 103(2) gives the court a broad discretion to allow enforcement of an award where one of the grounds set out in that subsection has been established. . .
DistinguishedWatt (Formerly Carter) v Ahsan HL 21-Nov-2007
The claimant was a Pakistani member of the Labour Party. He had sought selection as parliamentary candidate, but allegations had been made about behaviour of members in the Pakistani community in his ward and the local party had been suspended. A . .
CitedSvenska Petroleum Exploration Ab v Government of the Republic of Lithuania and Another ComC 11-Jan-2005
The claimant sought enforcement of a final award. The Government of Lithuania had not attempted to challenge the tribunal’s first award in Denmark.
Held: Nigel Teare QC said that that, where a person has unsuccessfully contested the issue of . .
CitedPaklito Investment Ltd v Klockner East Asia Ltd 1993
(Hong Kong) The plaintiff sought to enforce a Chinese arbitration award. The other party said it had not been allowed to present its case and resisted enforcement.
Held: The defence succeeded. The court was still asked to to enforce it under . .
CitedChina Agribusiness Development Corporation v Balli Trading 1998
The plaintiff sought to enforce a Chinese award following an arbitration in which the arbitration rules current at the time when the dispute arose rather than the old rules current at the time of agreement had been applied.
Held: The court . .
CitedCarl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) HL 1966
An agency had to be proved in a search to identify an entity which the law recognised (a) existed and (b) was legally responsible for the acts in issue in the proceedings. The House was asked whether the fact that an issue had already been . .
CitedIPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation ComC 27-Apr-2005
A Nigerian arbitration award between two Nigerian companies was first subject to proceedings in Nigeria to set aside the award and subsequently to enforcement proceedings in England.
Held: Gross J refused to consider immediate enforcement. He . .
CitedPeterson Farms Inc v C and M Farming Ltd ComC 4-Feb-2004
The claimant sought a declaration that an award made in an ICC arbitration was made without jurisdiction and void. . .
CitedPeterson Farms v C and M Farming Ltd and Another ComC 5-Sep-2003
. .

Cited by:
Appeal from.Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan SC 3-Nov-2010
The claimant had achieved a judgment in arbitration proceedings abroad against the respondent foreign government regarding contracts providing services for the Holy Places in Saudi Arabia. The contract made no express provision for the nationality . .

Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 11 November 2021; Ref: scu.349086

S Ltd v C Ltd: ComC 27 Feb 2009

Defamation allegation not subject to arbitration

The parties had an agreement referring disputes between them to arbitration. One party raised an allegation of defamation, but the arbitrator refused jurisdiction. The parties had chosen the London Metal Exchange for its expertise in metals trading, not defamation.
Held: The choice of the LME did indicate the intention of the parties, but it was not determinative. However: ‘The simple question is whether there is the connection between the contracts and the matters said to give rise to the tort.’ and ‘it is unlikely that it the parties to the contract are to be taken to have intended that this sort of distinction should mean that claims of this sort relating to past conduct should go to the Tribunal but defamatory inferences of the sort said to have been made in the LME letter should go to another Tribunal. I am therefore persuaded, although it is nearer the line, that the arbitration agreements cover the claim of the defamation said to have been made in the LME letter.’

Andrew Smith J
[2009] EWHC B23 (Comm)
Bailii
Arbitration Act 1996 67
England and Wales
Citing:
CitedAstro Vencedor Compania Naviera SA v Mabanaft GmbH CA 1971
For an arbitration clause in a contract between parties to be used to enforce arbitration of a tortious claim, the tortious claim must arise out of the contractual matters. In this case damages were sought for the wrongful arrest of a ship in . .
CitedAggeliki Charis Compania Maritima SA v Pagnan SpA – The Angelic Grace CA 1995
On the charterers’ orders the Angelic Grace was required to tie up alongside another vessel which they owned. Whilst unloading the weather turned and the vessels collided. Each blamed the other and the owners claimed a salvage. The court considered . .
CitedPremium 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 . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Defamation

Updated: 11 November 2021; Ref: scu.375623

Geogas SA v Trammo Gas Ltd (The Baleares): CA 26 Nov 1990

Judge Wrong to Accept Appeal of Fact

The charterers had sought to appeal the arbitrators’ findings on foreseeability and remoteness. The judge had set aside the arbitration award. Though he certified that a point of law existed which was of general public importance, he had refused leave to appeal.
Held: The court granted leave. The judge’s action was illegitimate because these were issues of fact (or, at least, mixed fact and law) and thus not appealable as questions of law. On the application for leave to appeal, the test for the exercise of court’s discretion was whether the point was one which should be considered by the court, and not only whether the judge was thought to be in the wrong. The discretionary test for leave to appeal is that the question of law is ‘worthy of consideration by the Court of Appeal’: ‘In the final analysis, the question for this Court is: is its decision one which it considers open to any serious doubt; or (putting it another way), is there any realistic possibility that the Court of Appeal might come to a different result.’
As to an appeal under the section of the 1979 Act 1979 on ‘a question of law arising from an arbitration award’, Steyn LJ said: ‘For those concerned in this case that is a statement of the obvious. But it matters. It defines the limits of the jurisdiction of the Court hearing an appeal under the 1979 Act. The arbitrators are the masters of the facts. On an appeal the Court must decide any question of law arising from an award on the basis of a full and unqualified acceptance of the findings of fact of the arbitrators. It is irrelevant whether the Court considers those findings of fact to be right or wrong. It also does not matter how obvious a mistake by the arbitrators on issues of fact might be, or what the scale of the financial consequences of the mistake of the fact might be. That is, of course, an unsurprising position. After all, the very reason why parties conclude an arbitration agreement is because they do not wish to litigate in the Courts. Parties who submit their disputes to arbitration bind themselves by agreement to honour the arbitrators’ award on the facts. The principle of party autonomy decrees that a Court ought never to question the arbitrators’ findings of fact . . From time to time attempts are made to circumvent the rule that the arbitrators’ findings of fact are conclusive . . This catalogue of challenges to arbitrators’ findings of fact points to the need for the Court to be constantly vigilant to ensure that attempts to question or qualify the arbitrators’ findings of fact, or to dress up questions of fact as questions of law, are carefully identified and firmly discouraged.’

Steyn LJ
[1991] 3 All ER 554, [1991] 1 WLR 776, [1993] 1 Lloyd’s Rep 215, Times 26-Nov-1990, [1991] 2 Lloyds Rep 318
Arbitartion Act 1979 1(3)(b)
England and Wales
Citing:
ConsideredPioneer Shipping Ltd v BTP Tioxide Ltd (‘The Nema’) HL 1982
There is no fetter on the judicial discretion to refuse leave under Section 1(3)(b) to appeal against an arbitration award.
Frustration of a contract is ‘not likely to be invoked to relieve contracting parties of the normal consequences of . .

Cited by:
Appeal fromGeogas SA v Trammo Gas Ltd (The Baleares) HL 1991
Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no . .
CitedGuangzhou Dockyards Co Ltd v Ene Aegiali I ComC 5-Nov-2010
No appeal on facts from award
The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal . .
CitedWalsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
CitedHuggett v Secretary of State for the Environment Etc; Wendy Fair Markets Ltd v Same; Bello v Etc CA 1-Mar-1995
There is no power for Court of Appeal itself to give leave to appeal after High Court’s refusal of leave on an enforcement notice. The court rejected the applicant’s submission that a High Court judge’s decision refusing permission to appeal under . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Leading Case

Updated: 11 November 2021; Ref: scu.430592

Halsey v Milton Keynes General NHS Trust etc: CA 11 May 2004

The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.
Held: If the parties (or at least one of them) remain intransigently opposed to ADR, then it would be wrong for the court to compel them to embrace it. The claimant in Halsey had sought mediation as a matter of tactics.
Lord Justice Dyson said: ‘The court’s role is to encourage not to compel.’ but ‘In deciding whether to deprive a successful party of some or all of his costs on the grounds that he has refused to agree to ADR, it must be borne in mind that such an order is an exception to the general rule that costs should follow the event. In our view, the burden is on the unsuccessful party to show why there should be a departure from the general rule. The fundamental principle is that such departure is not justified unless it is shown (the burden being on the unsuccessful party) that the successful party acted unreasonably in refusing to agree to ADR.’ An effective compulsion to arbitrate might in human rights law be an unacceptable restraint on a party’s right of access to court.

Lord Justice Laws, Lord Justice Ward, Lord Justice Dyson
[2004] EWCA Civ 576, Times 27-May-2004, Gazette 03-Jun-2004, [2004] 1 WLR 3002, [2004] CP Rep 34, [2004] 4 All ER 920, (2005) 81 BMLR 108, [2004] 3 Costs LR 393
Bailii
European Convention on Human Rights 6(1), Civil Proceure Rules 44.3(2)
England and Wales
Citing:
CitedCowl and Others v Plymouth City Council CA 14-Dec-2001
It remains of overriding importance for parties to seek to avoid litigation wherever possible. In this case, a dispute between a local authority and some of the inhabitants of one of its residential homes. The courts now have ample power within the . .
CitedDunnett v Railtrack plc CA 22-Feb-2002
The claimant had appealed a judgment against her. The court itself recommended that the parties use a method of alternate dispute resolution, to avoid the need for appeal. The defendant refused, not wishing to make any payment over and above the . .
CitedHurst v Leeming (9026) ChD 9-May-2002
The claimant solicitor, had instructed the defendant, a barrister, to represent him in a civil claim. He sought had damages for alleged negligence. He had agreed that the action could not proceed, and the court had to decide the costs. He resisted . .
CitedDeweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
CitedArthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
CitedRoyal Bank of Canada v Secretary of State for Defence ChD 2003
The parties had disputed the interpretation of a lease.
Held: Though a point of law had been at issue, the dispute should still have been mediated. The ADR pledge given by Government was something to which he ought to attach ‘great weight’: . .
CitedPerformance Cars Ltd v Abraham CA 28-Jul-1961
The plaintff sought damages after a collision, but the car had already been damaged in a previous accident, the repair of which would cover the second accident. Lord Evershed MR said: ‘In my judgment in the present case the defendant should be taken . .
CitedChapman v Hearse, Baker v Willoughby HL 26-Nov-1969
The plaintiff, a pedestrian had been struck by the defendant’s car while crossing the road. The plaintiff had negligently failed to see the defendant’s car approaching. The defendant had a clear view of the plaintiff prior to the collision, but was . .
CitedJobling v Associated Dairies HL 1980
The claimant suffered an accident at work which left him with continuing disabling back pain. Before the trial of his claim he was diagnosed as suffering from a disease, in no way connected with the accident, which would in any event have wholly . .
CitedFairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
CitedRahman v Arearose Limited and Another, University College London, NHS Trust CA 15-Jun-2000
The claimant had suffered a vicious physical assault from which the claimant’s employers should have protected him, and an incompetently performed surgical operation. Three psychiatrists agreed that the aetiology of the claimant’s very severe . .
See AlsoHalsey v Milton Keynes General NHS Trust and Another v Joy and Another SCCO 11-May-2004
. .

Cited by:
CitedCouwenbergh v Valkova CA 27-May-2004
The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect . .
CitedReed Executive Plc, Reed Solutions Plc v Reed Business Information Ltd, Reed Elsevier (Uk) Ltd, Totaljobs.Com Ltd CA 14-Jul-2004
Walker v Wilshire still Good Law
After successfully appealing, the defendant claimant argued for a substantial part of its costs, saying that the defendant had unreasonably refused ADR. To pursue this, it now sought disclosure of the details of the without prejudice negotiations . .
CitedDaniels v Commisioner of Police of the Metropolis CA 20-Oct-2005
The claimant appealed refusal of her application that the defendant be disallowed any of his costs. As a serving officer she had sought damages for negligence having been injured falling from her police horse. The defendant had rejected three . .
CitedBrown v Rice and Another ChD 14-Mar-2007
The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
CitedVale of Glamorgan Council v Roberts ChD 1-Dec-2008
. .
CitedCorby Group Litigation v Corby District Council (Costs) TCC 11-Aug-2009
. .
CitedGil v Baygreen Properties Limited (In Liquidation) and Others ChD 19-Aug-2004
. .
CitedBurchell v Bullard and others CA 8-Apr-2005
Each side had succeeded in part on their claims and counterclaims, but the Respondent was andpound;5,000 out of pocket. Each party had been ordered to pay the costs of the other.
Held: The appeal succeeded. The judge had correctly recognised . .
CitedAskey v Wood CA 21-Apr-2005
. .
CitedLMS International Ltd and others v Styrene Packaging and Insulation Ltd and others TCC 30-Sep-2005
. .
CitedBrown v MCASSO Music Productions CA 10-Nov-2005
. .
CitedHickman v Blake Lapthorn QBD 17-Jan-2006
. .
CitedAird and Another v Prime Meridian Ltd TCC 19-Sep-2006
. .
CitedP4 Ltd v Unite Integrated Solutions Plc TCC 17-Nov-2006
. .
CitedAllen v Colman Coyle Llp SCCO 29-Jun-2007
. .
CitedNigel Witham Ltd v Smith and Another (No. 2) TCC 4-Jan-2008
. .
CitedMalmesbury and Others v Strutt and Parker (A Partnership) QBD 18-Mar-2008
. .
CitedCumbria Waste Management Ltd and Another v Baines Wilson (A Firm) QBD 16-Apr-2008
The court was asked to consider whether documents generated in a mediation could be disclosed by one of those parties in later proceedings against solicitors for negligence in drafting and negotiation and agreement with the other party, which gave . .
CitedRolf v De Guerin CA 9-Feb-2011
The parties had disputed a building contract. A Part 36 offer had been made by the builder defendant, but the judgment was for rather less, and the judge awarded the claimant her costs.
Held: The court exercised its discretion to set aside the . .
To be revisitedWright v Michael Wright Supplies Ltd and Another CA 27-Mar-2013
The appellant said that the judge had erred in allowing only written evidence. The case was long running, complex, unwieldy and the intransigent parties were each acting as litigants in person.
Held: The court asked whether mediation might not . .
CitedMann v Mann FD 5-Mar-2014
The parties had agreed to an order settling the ancillary relief application with enforcement first to be through mediation. W applied to court for enforcement rejecting H’s request for mediation. . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Costs, Human Rights, Litigation Practice

Leading Case

Updated: 10 November 2021; Ref: scu.196701

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 Regulations. The High Court found the appointment to be outwith the provisions, but this was reversed on appeal. J appealed again.
Held: The appeal succeeded (Lord Mance dissenting in part). The Regulations were not applicable to the selection, engagement or appointment of arbitrators. An arbitrator was not a person employed under ‘a contract personally to do any work’ for the purpose of legislation prohibiting discrimination on the grounds of religion or belief.
Lord Clarke said: ‘the dominant purpose of appointing an arbitrator or arbitrators is the impartial resolution of the dispute between the parties in accordance with the terms of the agreement and, although the contract between the parties and the arbitrators would be a contract for the provision of personal services, they were not personal services under the direction of the parties.’
He went on to accept a submission that, within the Framework Directive: ‘the expression ‘access . . to self-employment or to occupation’ means what it says and is concerned with preventing discrimination from qualifying or setting up as a solicitor, plumber, greengrocer or arbitrator. It is not concerned with discrimination by a customer who prefers to contract with one of their competitors once they have set up in business. That would not be denying them ‘access . . to self-employment or to occupation’.’

Lord Phillips, President, Lord Walker, Lord Mance, Lord Clarke, Lord Dyson
[2011] UKSC 40, UKSC 2010/0170, UKSC 2010/0158, [2011] IRLR 827, [2011] 32 EG 54, [2011] ArbLR 28, [2011] Bus LR 1182, [2011] ICR 1004, [2011] CILL 3076, [2011] 1 WLR 1872
Bailii, Bailii Summary, SC Summary, SC
Employment Equality (Religion or Belief) Regulations 2003, Council Framework Directive 2000/78/EC of 27 November 2000, Equality Act 2006 83, Arbitration Act 1996 33
England and Wales
Citing:
At first instanceJivraj 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 . .
CitedLitster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
Appeal fromJivraj 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 . .
CitedMarleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
CitedPercy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Citedvon Hoffmann v Finanzamt Trier ECJ 16-Sep-1997
An arbitrator’s services are not those of a lawyer for the purposes of determining the place of supply of service for VAT purposes.
ECJ Sixth VAT Directive – Interpretation of Article 9(2)(e), third indent . .
CitedKelly v Northern Ireland Housing Executive; Loughran v Northern Ireland Housing Executive HL 29-Jul-1998
Provisions against discrimination on religious grounds in Northern Ireland, could apply to appointment of a firm to a panel of experts, where one person was designated to carry out that work. ‘it is essential, for there to be ’employment,’ that the . .
CitedDeborah Lawrie-Blum v Land Baden-Wuerttemberg ECJ 3-Jul-1986
The Equal Treatment Directive is concerned with ‘workers’ which is a term of art in Community law: ‘That concept must be defined in accordance with objective criteria which distinguish the employment relationship by reference to the rights and . .
CitedAllonby v Accrington and Rossendale College for Education and Employment ECJ 13-Jan-2004
ECJ Principle of equal pay for men and women – Direct effect – Meaning of worker – Self-employed female lecturer undertaking work presumed to be of equal value to that which is undertaken in the same college by . .
CitedKurz (ne Yuce) v Land Baden-Wurttemberg ECJ 19-Nov-2002
ECJ EEC-Turkey Association Agreement – Freedom of movement for workers – Article 6(1) of Decision No 1/80 of the Association Council – Scope – Registration as duly belonging to the labour force of a Member State . .
CitedQuinnen v Hovells 1984
Waite J said: ‘The concept of a contract for the engagement of personal work or labour lying outside the scope of a master-servant relationship is a wide and flexible one, intended by Parliament in our judgment to be interpreted as such.’ The . .
CitedO’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
CitedLegal Services Commission v Yvonne Patterson CA 11-Nov-2003
The claimant worked as a sole practitioner solicitor. The firm failed the first part of its franchise assessment. She sought to allege race discrimination. The EAT rejected the complaint on the basis that she was not an employee.
Held: The . .
CitedPerceval-Price, and others v Department of Economic Development etc CANI 12-Apr-2000
A full-time a full-time chairman of industrial tribunals, a full time chairman of social security appeal tribunals, and a social security commissioner are workers within the meaning of the European legislation, even though, by domestic legislation . .
CitedMirror Group Newspapers v Gunning CA 1985
The claimant sought to have transferred to her, her father’s agency for the wholesale distribution of Sunday newspapers. The claimant alleging sex discrimination after being refused. The company said that she was not an employee within the 1975 Act. . .
CitedHugh-Jones v St John’s College, Cambridge 1979
An office holder can agree to execute work or labour without becoming an employee. . .
CitedTanna v Post Office EAT 1981
The applicant sought appointment as a post-master, and claimed race discrimination when the respondent failed to interview or appoint him. He was required only to provide premises and to ensure that services were provided without being obliged . .
CitedK/S Norjarl A/S v Hyundai Heavy Industries Co Ltd CA 1992
A third arbitrator appointed by the arbitrators already appointed, accepted office on the basis that the hearing would take place by a specified date and would last for a specified period. Three years later, the plaintiffs’ solicitors requested the . .
CitedByrne Brothers (Formwork) Limited v Baird EAT 18-Sep-2001
EAT The Tribunal was asked whether the claimant was a worker within the meaning of the Regulations and so entitled to their protection in receiving holiday pay.
Held: The appropriate classification of a . .
CitedCentrum Voor Gelijkheid Van Kansen En Voor Racismebestrijding v Firma Feryn NV ECJ 10-Jul-2008
The company declared that it would not employ immigrants to work on certain customers’ houses, saying that the customers would be reluctant to allow access. The Centrum, an anti racist organisation said this was in breach of the Directive, and . .
CitedCentrum Voor Gelijkheid Van Kansen En Voor Racismebestrijding v Firma Feryn NV ECJ 12-Mar-2008
(Social Policy) (Opinion) The defendant company had advertised for workers, but said it was unwilling to employ Morrocans.
Advocate General Maduro expressed the opinion that the Directive must be understood in the framework of a wider policy to . .
CitedMingeley v Pennock and Another (T/A Amber Cars) CA 9-Feb-2004
The claimant taxi driver sought to assert race discrimination. The respondent argued that he had not been an employee, but an independent contractor. The Claimant owned his own vehicle and paid the respondents minicab operators pounds 75 per week . .
CitedStadt Halle, RPL Recyclingpark Lochau GmbH v Arbeitsgemeinschaft Thermische Restabfall- und Energieverwertungsanlage TREA Leuna ECJ 11-Jan-2005
ECJ Directive 92/50/EEC – Public service contracts – Award with no public call for tenders – Award of the contract to a semi-public undertaking – Judicial protection – Directive 89/665/EEC

Cited by:
CitedClyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .
CitedX v Mid Sussex Citizens Advice Bureau and Another SC 12-Dec-2012
The appellant was disabled, had legal qualifications, and worked with the respondent as a volunteer. She had sought assistance under the Disability Discrimination Act, now the 2012 Act, saying that she counted as a worker. The tribunal and CA had . .
CitedHalawi v WDFG UK Ltd (T/A World Duty Free) CA 28-Oct-2014
The claimant said that she had been discriminated against on the grounds of her religion. She worked as a beauty consultant at the airport, but through a limited company. Her airside pass had been withdrawn. She now appealed against rejection of her . .
CitedUber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors were as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .
CitedPimlico Plumbers Ltd and Another v Smith SC 13-Jun-2018
The parties disputed whether Mr Smith had been an employee of or worker with the company so as to bring associated rights into play. The contract required the worker to provide an alternate worker to cover if necessary.
Held: The company’s . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Discrimination, European, Legal Professions

Updated: 10 November 2021; Ref: scu.442225

Clyde and Co Llp and Another v Winkelhof: QBD 22 Mar 2011

The claimant firm of solicitors sought an order requiring the defendant to amend her employment tribunal claim so as to accord with the partnership agreement to which she was party, and to submit to arbitration. The defendant said that statutory provisions said that her freedom to go to court could not be ousted, and that the arbitration clause was void.
Held: The claimant’s request was denied. ‘Clause 41 of the Agreement that arbitration is a final resolution of a Member’s dispute subject only to an appeal on a question of law does in my judgment preclude continuation of proceedings before an Employment Tribunal. The arbitration provided for by Clause 41 is not one falling within ERA Section 203(5) . . Section 144(1) renders unenforceable an agreement to preclude or limit the continuation of sex discrimination proceedings before an Employment Tribunal unless reached in accordance with Section 144(4). It would be surprising if this were not so. There would be no discernable rationale for rendering unenforceable such agreements reached before proceedings have commenced but enforceable once an ET1 had been lodged. Further it would be surprising if employees were given lesser protection in this regard when pursuing discrimination claims under the EA than when pursuing claims under the ERA.’

Slade DBE J
[2011] EWHC 668 (QB), [2011] ArbLR 7, [2011] IRLR 467, [2011] CP Rep 31, [2012] ICR 928
Bailii
Equality Act 2010 120, Employment Rights Act 1996 , Directive 2006/54/EC, Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004
England and Wales
Citing:
CitedChorion Plc and Others v Lane ChD 7-Apr-1999
A former executive director brought a claim for unfair dismissal in the Employment Tribunal. Chorion brought proceedings in the Chancery Division alleging wrongful acts committed by him while he was a senior executive.
Held: There was an . .
CitedAhmad 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 . .
CitedNaqvi v Stephens Jewellers Ltd EAT 1978
The parties had reached an agreement not to continue unfair dismissal proceedings, but the defendant now complained of the claimant’s attempt to do so.
Held: The section renders void an agreement to withdraw a claim already made to the . .
CitedReichhold Norway ASA and Reichhold Chemicals Inc v Goldman Sachs International CA 28-Jun-1999
An application was made to stay proceedings to await the decision of a foreign court. At first instance, Moore-Bick J had held that a Court has an interest in deciding the order in which related proceedings should be tried ‘not only because the . .
CitedAllianz Spa (Anciennement Riunione Adriatica Di Sicurta) v West Tankers Inc (‘the Front Comor’) ECJ 10-Feb-2009
ECJ (Judgment) A West Tankers ship damaged a jetty in Syracuse. An agreement provided for an arbitration in London. The insurers having paid out brought a subrogated action in Italy. West Tankers sought an order . .
CitedSears Plc v Sears Roebuck and Co and others 1993
The court granted an Order against the plaintiff requiring it not to proceed with its case before the Trade Mark Registry until the determination of their High Court action. Lindsay J said: ‘the court should look to the two matters broadly and ask . .

Cited by:
See AlsoVan Winkelhof v Clyde and Co Llp and Another EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. . .
See AlsoClyde and Co Llp v Van Winkelhof EAT 26-Apr-2012
EAT JURISDICTIONAL POINTS
Worker, employee or neither
Working outside the jurisdiction
Whether LLP equity member was a limb (b) worker under section 230(3). Allowing Claimant’s appeal, she was. . .
See AlsoClyde and Co Llp and Another v Bates van Winkelhof CA 26-Sep-2012
The claimant was a solicitor partner with the appellant limited liability partnership at their offices in Tanzania. She disclosed what she believed to be money laundering by a local partner. She was dismissed. She had just disclosed her pregnancy . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Employment, Arbitration, Company

Updated: 10 November 2021; Ref: scu.430748

Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’): HL 1984

A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the expression ‘purposive construction’ from the interpretation of statutes to the interpretation of private contracts, Lord Diplock said: ‘If detailed semantic and syntactical analysis of a written contract lead to a conclusion that flouts business commonsense the contract must be made to yield to business commonsense.’
Leave to appeal an arbitrator’s award should be given only where there is a strong prima facie case that the arbitrator’s construction of the clause is wrong. Clear contradictions in lines of authority might justify an appeal but conflicting dicta were insufficient. Here the arbitrator had found the error non-repudiatory, and not covered by the relative clause. In any event any withdrawal should have been timely – in this case a maximum of two days.
The House considered the methods and principles of the interpretation of a contract. Lord Diplock said: ‘if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.’

Lord Diplock, Lord Wilberforce
[1985] AC 191, [1984] 3 WLR 592, [1984] 3 All ER 229, [1984] 2 Lloyds Rep 235
Arbitration Act 1979 1(3)
England and Wales
Cited by:
CitedMousaka Inc v Golden Seagull Maritime Inc QBD 30-Jul-2001
There has been no change to the rule that a judge refusing leave to appeal from an arbitration award, need not give his reasons. The rationale is that the question is a threshold one, of whether a particular standard had been reached. It was not a . .
DisapprovedNorth Range Shipping Ltd v Seatrans Shipping Corporation CA 14-Mar-2002
The parties had been involved in an arbitration. The claimant sought leave to appeal. The judge refused to give leave, but did not say exactly why.
Held: Human Rights law required a right of appeal. That right could only be exercised properly . .
CitedMannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
CitedPortsmouth City Football Club v Sellar Properties (Portsmouth) Limited, Singer and Friedlander Properties Plc ChD 17-Sep-2003
Various contracts were entered into for the sale of land, with compensation being paid in certain circumstances. One contract required a calculation of consideration as a set figure less a sum to be calculated as the cost of acquiring land. The sum . .
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
CitedKirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
CitedSirius International Insurance Company (Publ) v FAI General Insurance Limited and others HL 2-Dec-2004
The appellant had taken certain insurance risks on behalf of the respondents, subject to banking indemnities. Disputes arose and were settled under a Tomlin order, which was now itself subject to challenge.
Held: The appeal was allowed. The . .
CitedBHB Enterprises Plc v Victor Chandler (International) Ltd ChD 27-May-2005
The claimant created a very substantial computerised database about horses and the racing industry. It licensed the database to users, including some who were able to grant sub-licenses. It sought to rely on the Database Directive to support its . .
CitedG and S Properties v Donald Francis and Another SCS 13-Jun-2001
The pursuers were contracted to sell a property with sole selling rights. The contract was terminable on two weeks notice. Notice was given, and another company engaged. A buyer confused the two agents and obtained details from the pursuer’s office, . .
CitedInvestors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
CitedE Alton and Company Limited v Orchard (Development) Holdings Limited CA 27-Jan-1998
The court asked whether an option to purchase a development site had been determined by failure of a condition, described as a condition precedent; and so was no longer exercisable by the defendant, as grantee.
Held: The agreement required the . .
CitedPenwith District Council v VP Developments Ltd TCC 2-Nov-2007
The council sought to appeal against an interim arbitration award.
Held: Leave to appeal was refused. The application was wholly unjustified. This was an appeal on the facts dressed up as an appeal on law. . .
CitedMegaro v Di Popolo Hotels Ltd CA 13-Mar-2007
Two properties had been in common ownership, but then divided. A fire escape on one property was to be available to the other. The servient tenement removed the fire escape. The owner of the dominent tenement (a hotel) sought relief.
Held: The . .
CitedOxonica Energy Ltd v Neuftec Ltd PatC 5-Sep-2008
The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal . .
CitedPratt v Aigaion Insurance Company SA (‘the Resolute’) CA 27-Nov-2008
The court considered the interpretation of a term in a contract of insurance to the effect that ‘Warranted Owner and/or Owner’s experienced skipper on board and in charge at all times and one experienced crew member.’, asking whether ‘at all times’ . .
CitedReilly v National Insurance and Guarantee Corporation Ltd CA 19-Dec-2008
The claimant sold fire extinguishers. Three failed, resulting in damage to the purchaser’s properties. His insurers refused to pay an indemnity saying that the failure was the failure of a piece of machinery (the switchgear) and was not covered by . .
CitedChartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .
CitedBank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
CitedMargerison v Bates and Another ChD 30-May-2008
The court considered the construction of a restrictive covenant after the disappearance of the covenantee. The covenant required no additional building without the consent of the covenantee, such consent not to be unreasonably withheld. The term . .
CitedRio Football Services Hungary Kft v Sevilla Futbal Club Sad QBD 6-Oct-2010
The defendant sought leave to appeal against summary judgment on several elements of a claim under a football player financing agreement, arguing that the claims were made under a penalty provision, and otherwise. It was also said that the . .
CitedFarstad Supply As v Enviroco Ltd SC 6-Apr-2011
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless . .
CitedKookmin Bank v Rainy Sky Sa and Others CA 27-May-2010
The defendant bank appealed against summary judgment given on a claim on its obligations under an advance payment bond given to support ship-building contracts.
Sir Simon Tuckey (dissenting) said: ‘There is no dispute about the principles of . .
CitedRainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
CitedCo-operative Wholesale Society Ltd v National Westminster Bank plc CA 1995
The court considered the proper construction of rent review clauses in several cases. The underlying result which the landlords sought in each case was the same.
Held: It was a most improbable commercial result. Where the result, though . .
CitedGolubovich v Golubovich CA 21-May-2010
The court was asked to rule as to the recognition of a foreign (Moscow) decree of divorce obtained in breach of an Hemain injunction. The Russian proceedings had got to a stage requiring H positively to apply to prevent the decree.
Held: The . .
CitedSugarman and Others v CJS Investments Llp and Others CA 19-Sep-2014
The parties were apartment owners in a development, each owning shares in the management company. They disputed the interpreation of the Articles as to whether the owner of more than one apartment was still restricted to one vote at member meetings, . .
CitedRobert Hitchins Ltd, Regina (on The Application of) v Worcesteshire County Council and Others Admn 18-Nov-2014
A planning permission was granted with an agreement under section 106. A second permission was later granted. The court was now asked whether the section 106 agreement applied also to the second permission.
Held: As a matter of law, the . .
CitedArnold v Britton and Others SC 10-Jun-2015
Absurdity did not defeat a clear clause
A standard lease of plots on a caravan park, contained a provision which appeared to increase the rent by 10% in each year. The tenants argued that such a substantial increase could not have been intended.
Held: The tenants’ appeal failed . .
CitedJohn Lewis Properties PLC v Viscount Chelsea ChD 1993
Three Leases of the Peter Jones site to T’s predecessor in 1934 contained covenants by T to redevelop the site in two phases, the second of which related to the MackMurdo and Simon’s Street buildings and was to be completed by December 25 1987. In . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Contract

Leading Case

Updated: 10 November 2021; Ref: scu.183028

National Ability Sa v Tinna Oils and Chemicals Ltd: CA 11 Dec 2009

Implied promise to pay arbitral award

The parties disputed how limitation affects the enforcement of an arbitration award. More than six years had passed since the award had been made, and the defendant said it was out of time.
Held: A party can enforce an award either by ordinary action as an action founded upon the implied promise to pay the award, or in the same manner as a judgment is a statutory process. ‘There is a clear distinction between an arbitration award and a judgment. An arbitration agreement is in essence enforceable because of the implied contractual promise to pay an arbitration award contained in the arbitration agreement; all measures of enforcement essentially rest upon the contract. The provisions of s.26 of the 1950 Act and s.66 of the 1996 Act must be seen in that context. They are simply procedural provisions enabling the award made in consensual arbitral proceedings to be enforced.’

[2009] EWCA Civ 1330, Times 24-Dec-2009, [2010] CP Rep 18, [2010] 1 Lloyd’s Rep 222, [2009] 2 CLC 982, [2010] 2 All ER 899
Bailii
Arbitration Act 1950 26, Arbitration Act 1996 66, Limitation Act 1980 24
England and Wales
Citing:
CitedRe Boks and Co v Peters, Rushton and Co Ltd CA 1919
The alternative procedure for seeking enforcement of an arbitrator’s award is by an action upon the award. The procedure is to be used only in ‘reasonably clear cases’. . .
CitedMiddlemiss and Gould v Hartley Corporation Pty Ltd CA 1972
The defendant challenged enforcement of an arbitration award.
Held: The challenge had not been made in time, and the award was final and conclusive. Lord Denning MR said that an arbitration award is like a final judgment which should be . .
CitedHall and Woodhouse Ltd v Panorama Hotel Properties Ltd 1974
. .
CitedAgromet Motoimport Ltd v Maulden Engineering Co (Beds) Ltd 1985
Time begins to run on the collection of an arbitration award, not from the date upon which the award is made or published, but from the date when the paying party is in breach of its implied obligation to pay the award. . .
CitedGood Challenger Navegante S A v Metalexportimport SA CA 24-Nov-2003
The claimant sought to enforce an arbitration award made in 1983. Time might otherwise have expired, but the claimants relied on a fax which they said was an acknowledgement of the debt, and also upon a finding in a Romanian court which created an . .
CitedLowsley and Another v Forbes CA 21-Mar-1996
The statutory time limit under the Limitation Act applied only to the right to take substantive proceedings and had nothing whatever to do with the procedural machinery for enforcing a judgment when one was obtained. The Act of 1875 brought about a . .
CitedEx Parte Caucasian Trading Corporation: Bankruptcy Petition CA 1896
A proceeding in bankruptcy was based upon an order to enforce an ordinary civil arbitration award. Under the 1889 Act it was possible to obtain an order in the High Court of England for the enforcement of such an order and all that was held was that . .
CitedNational Westminster Bank v Powney CA 1990
The limitation period has nothing to do with the procedural machinery of enforcing a judgment when one was obtained. . .
CitedErskine, Regina v; Regina v Williams CACD 14-Jul-2009
The defendants had been separately convicted of murder several years ago. They sought the quashing of the convictions and substitution of convictions for manslaughter on the grounds of diminished responsibility.
Held: The appeal of Erskine . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Limitation

Updated: 10 November 2021; Ref: scu.383834

Ashville Investments Ltd v Elmer Contractors Ltd: CA 1987

A clause in the contract refered to arbitration: ‘any dispute or difference as to the construction of this contract or as to any matter or thing of whatsoever nature arising thereunder or in connection therewith.’
Held: The court should adopt a ‘generous’ interpretation of a clause referring disputes between contracting parties to arbitration. One should be slow to attribute to reasonable parties an intention that there should in any foreseeable eventuality be two sets of proceedings. If the parties have confidence in their chosen jurisdiction for one purpose, why should they not have confidence in it for the other?
An arbitration clause which includes the words ‘in connection with’ should be given a wide interpretation and will cover related claims for rectification, negligent mis-statement and the like.
May LJ said: ‘The question whether a dispute between the parties to a contract falls within an agreement to arbitrate is primarily a question of construction of the arbitration clause itself in the circumstances of a particular case: ‘In seeking to construe a clause of a contract, there is not scope for adopting either a liberal or a narrow approach, whatever that may mean. The exercise which has to be undertaken is to determine what the words used mean. It can happen that in doing so one is given to the conclusion that the clause is ambiguous, that it has two possible meanings. In those circumstances the court has to prefer one above the other in accordance with settled principles. If one meaning is more in accord with what the court considers to be the underlying purpose and intent of the contract, or part of it, than the other, then the court would choose the former rather than the latter. In some circumstances the court may reach its conclusion on construction by applying the contra proferentem rule. These are however well recognised principles of construction; they are not the consequences or examples of adopting any particular approach to the question of construction, save to ascertain the true intention of the parties and the correct meaning of the words used.’
and ‘However, I do not think that there is any principle of law to the effect that the meaning of certain specific words in one arbitration clause in one contract is immutable and that those same specific words in another arbitration clause in other circumstances in another contract must be construed in the same way. This is not to say that the earlier decision on a given form of words will not be persuasive, to a degree dependent on the extent of the similarity between the contracts and surrounding circumstances in the two cases. In the interests of certainty and clarity a court may well think it right to construe words in an arbitration agreement, or indeed in a particular type of contract, in the same way as those same words have earlier been construed in another case involving an arbitration clause by another court. But in my opinion the subsequent court is not bound by the doctrine of stare decisis to do so.
If I were wrong, then in any event it must be necessary to compare the surrounding circumstances in each case to ensure that those in the latter case did not require one to construe albeit the same words differently when used in the different context.’
Bingham LJ: ‘I would be very slow to attribute to reasonable parties an intention that there should in any foreseeable eventuality be two sets of proceedings’.
Balcombe LJ said that a dispute about a mistake leading to rectification was not a matter ‘arising’ under the contract but also that all words should as far as possible be given a meaning.

Bingham LJ, May LJ, Balcombe LJ
[1989] 1 QB 488, [1988] 2 All ER 577, (1987) 37 BLR 55, [1988] 3 WLR 867
England and Wales
Cited by:
CitedFiona 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 . .
CitedPremium 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 . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Contract

Leading Case

Updated: 09 November 2021; Ref: scu.245559

Kaneria v The English and Wales Cricket Board Ltd: ComC 6 May 2014

kaneira)ecbComc0514

The claimant, a professional cricketer disciplined for alleged match fixing, sought to challenge the results of an arbitration of his dispute with the respondent. He alleged a serious irregularity in that the Arbitral Panel had exceeded its powers in the punishments imposed.
Held: The application for leave was refused. Though he was bound by the Rules as at the yeaar he signed them, the later procedures under which the later proceedings were brought were correctly applied. Similarly his claim that the life ban imposed was disproportionate was not an assertion that the Tribunal exceeded its powers, but rather only that it exercised powers it had wrongly, and such a claim did not fall within section 68 of the 1996 Act.
The difference in his treatment from thaat imposed on others had been properly considered and explained and was a valid exercise of the absolute discretion given to the Panel.

Hamblin J
[2014] EWHC 1348 (Comm)
Bailii
Arbitration Act 1996 68(3) 69
Citing:
CitedLesotho Highlands Development Authority v Impregilo Spa and others HL 30-Jun-2005
The House had to consider whether the arbitrator had acted in excess of his powers under s38, saying the arbitrator had misconstrued the contract. The arbitrator had made his award in different currencies.
Held: The question remained whether . .

Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 09 November 2021; Ref: scu.525154

Paal Wilson and Co v Partenreederei Hannah Blumenthal (The Hannah Blumenthal): HL 1983

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.’

Lord Brandon, Lord Diplock
[1983] 1 AC 854, [1983] Com LR 20, [1983] 1 All ER 34, [1983] 1 Lloyds Rep 103, [1982] 3 WLR 1149
England and Wales
Cited by:
CitedMartin v Medina Housing Association Ltd CA 31-Mar-2006
The former tenant had set out to buy the council house, but had written to say that she did not intend to go ahead. Her son who had taken over the tenancy after her death now sought, twelve years later, to require the authority to proceed at that . .
CitedMote v Secretary of State for Work and Pensions and Another CA 14-Dec-2007
The appellant was accused of having received income benefits to which he was not entitled. A prosecution was commenced and at the same time he appealed to the tribunal against the decision that there had been an overpayment. The authorities . .
CitedSG and R Valuation Service Co v Boudrais and others QBD 12-May-2008
The claimant sought to require the defendants not to work during their notice period to achieve the equivalent of garden leave despite there being no provision for garden leave in the contracts. It was said that the defendants had conspired together . .

Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Leading Case

Updated: 09 November 2021; Ref: scu.242430

Commission v Thales Developpement And Cooperation: ECFI 12 Jul 2016

ECJ (Judgment) Arbitration clause – Fourth and fifth framework programs for research, technological development and demonstration – Contracts involving projects for the design and development direct methanol fuel cells – contracts void for fraud – Reimbursement financial interests of the Union – Regulation (EC, Euratom) No 2988/95 – Limitation period – Application of French and Belgian rights – rights of the defense – Interest

H. Kanninen, P
ECLI:EU:T:2016:403, [2016] EUECJ T-326/13
Bailii

European, Arbitration

Updated: 09 November 2021; Ref: scu.566855

Delta Reclamation Ltd v Premier Waste Management Ltd: QBD 24 Oct 2008

The claimant sought a stay of the matter and a consolidated arbitration. The defendant said that the litigation having been started by the claimant it was too late to refer the issues to arbitration.
Held: Correspondence between the parties clearly acknowledged the contract and therefore the arbitration clause included, and the breach had not been accepted. Proceedings had been begun only to obtain an emergency injunction, and no further steps had been taken. The court was bound to order the stay.

Behrens J
[2008] EWHC B16 (QB), [2008] EWHC 2579 (QB)
Bailii, Bailii
Arbitration Act 1996 9
England and Wales
Citing:
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. . .
CitedDowning v Al Tameer Establishment and Another CA 22-May-2002
A contractual dispute arguably involved an arbitration clause. Before the proceedings the Defendant denied the contract.
Held: That assertion was a repudiation of the agreement to arbitrate, and the Claimant issued proceedings in Court. The . .

Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 09 November 2021; Ref: scu.277151

Purser and Co (Hillingdon) Limited v Jackson and another: ChD 1971

Forbes J said: ‘Mr Macgregor maintains that arbitrations are concerned with disputes and not with causes of action and he says that within a cause of action there may be many disputes and the arbitrator is only concerned with disputes. He contends boldly, for the view that Conquer v Boot [1928] 2 KB 336 has no application at all to arbitrations in general; Mr Dyson says it does, and that seems to be the first point on which the court should give a decision.
I must confess that I would feel very reluctant to extend the draconian doctrine of Conquer v Boot into fields to which I am not constrained to extend it and neither counsel has been able to put before me any case which constrains me to do so. There is no authority binding upon me, indeed I think counsel say there is no authority at all, which indicates that the doctrine of Conquer v Boot has to be applied in arbitrations. But it seems to me that it is unnecessary to decide this case on this general point, because there are other more particular points which enable the question for the decision of the court to be answered. The first of these arises on Mr Macgregor’s next argument: that where you have a previous arbitration Conquer v Boot can only apply to the matters which were therein referred to the arbitrator. In other words, you have to look at what was in the terms of reference and if an issue arises on the terms of reference, then there is an estoppel per rem judicatam in so far as the arbitrator has made an award upon that issue. Or indeed, I think Mr Macgregor would go so far as to say, whether or not he has made an award upon that issue. What determines the matter is whether it is included within the terms of reference; as he indicated, the fact is that, although it is within the terms of reference, it does not find its way into the points of claim, means that to that extent the general doctrine of Conquer v Boot applies. You are estopped per rem judicatam even though you did not raise the matter in your points of claim, if the matter clearly lies within the ambit of the terms of reference.’
Accepting Mr Macgregor’s submission: ‘the most that can be said for the rule in Conquer v Boot in arbitration proceedings is that the terms of reference of the arbitrator are the matters which determined the issues which the arbitrator has to decide. If those terms of reference include a particular issue, then whether or not, in the end, the arbitrator makes an award in relation to that issue, that issue has been raised and an adjudication has been made in this sense: that if nothing is done about the arbitrator’s award – and due time for appeals and so on and so forth, referring the matter to the High Court in one way or another, has gone – then it is no good the claimant subsequently saying ‘Ah, but the arbitrator did not make an award upon this issue’. The proper remedy would have been to have challenged the award by any of the appropriate methods, and if he does not challenge the award by one of those approved methods, he will find himself estopped per rem judicatam if he seeks to raise such an issue in the subsequent arbitration proceedings.’

Forbes J
[1971] 1 QB 166
England and Wales
Citing:
LimitedConquer v Boot CA 1928
The householder recovered damages in the county court in an action against a builder for breach of a building contract to complete the works in a good and workmanlike manner. He then brought a second action upon the same contract. In the second . .

Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 09 November 2021; Ref: scu.468967

Kabab-Ji Sal (Lebanon) v Kout Food Group (Kuwait): CA 20 Jan 2020

Lord Justice Flaux
[2020] EWCA Civ 6, [2020] 1 Lloyd’s Rep 269
Bailii
England and Wales
Cited by:
Appeal fromKabab-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 . .

Lists of cited by and citing cases may be incomplete.

Jurisdiction, Arbitration

Updated: 09 November 2021; Ref: scu.646345

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
Bailii, Bailii Summary, Bailii Issues and Facts
England and Wales
Citing:
Appeal fromKabab-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: 09 November 2021; Ref: scu.669012

ED and F Man Sugar Ltd v Belmont Shipping Ltd: ComC 18 Nov 2011

Allegation of serious irregularity in arbitration.
Held: The request was refused: ‘the present case can hardly be said to be an extreme case which justice calls out to be corrected.’.
‘Arbitrators are not barred from asking a party whether it has considered raising a different case from that which it has advanced but section 33 of the Arbitration Act 1996 does not oblige them to do so . . they often do so when there is an oral hearing. Such questions may be asked by a tribunal anxious to understand the basis upon which a case is being advanced. Such questions may also be asked where the arbitration is on documents alone. But in such cases the parties are often concerned to keep costs to a minimum because the amount in dispute is modest. In such circumstances it is understandable that a tribunal will be reluctant to ask a party, which has put in a detailed submission in a modest case, whether it wishes to run a different case.’

Teare J
[2011] EWHC 2992 (Comm), [2011] ArbLR 50
Bailii
Arbitration Act 1996 33 68
England and Wales
Citing:
CitedFlacker Shipping Ltd v Glencore Grain Ltd (Happy Day) CA 15-Jul-2002
. .
CitedF Ltd v M Ltd TCC 11-Feb-2009
The claimant sought rmission of part of the final award.
Held: Coulson J said: ‘It is not, I think, for the arbitral tribunal to hunt through the contract and find other ways in which the claimant’s claim might be put, and then offer the . .
CitedBandwidth 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 . .
CitedF Ltd v M Ltd TCC 11-Feb-2009
The claimant sought rmission of part of the final award.
Held: Coulson J said: ‘It is not, I think, for the arbitral tribunal to hunt through the contract and find other ways in which the claimant’s claim might be put, and then offer the . .
CitedLesotho Highlands Development Authority v Impregilo Spa and others HL 30-Jun-2005
The House had to consider whether the arbitrator had acted in excess of his powers under s38, saying the arbitrator had misconstrued the contract. The arbitrator had made his award in different currencies.
Held: The question remained whether . .
CitedPacol Ltd v Joint Stock Co Rossakhar 2000
The respondents to the arbitration admitted breaches of contracts that raised some issue as to the amount of damages payable. The arbitrators made an award on the basis that the admission of liability was not justified.
Held: It was a clear . .

Lists of cited by and citing cases may be incomplete.

Arbitration

Leading Case

Updated: 02 November 2021; Ref: scu.449005

Insula v Commission: ECFI 13 Jun 2012

insulaECFI2012

ECFI Arbitration clause – Contract funding of research and development – Contracts and MEDIS Dias.Net – Absence of evidence and non-compliance with the contractual part of the expenditure declared – Retention of a sum to another contractor – Reimbursement of amounts paid – Partial inadmissibility of the appeal – Counterclaim Commission – No need part on the counterclaim

Czucz P
T-246/09, [2012] EUECJ T-246/09
Bailii

European, Arbitration

Updated: 02 November 2021; Ref: scu.460420

Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan: SC 3 Nov 2010

The claimant had achieved a judgment in arbitration proceedings abroad against the respondent foreign government regarding contracts providing services for the Holy Places in Saudi Arabia. The contract made no express provision for the nationality of applicable law. The respondent had not been party itself to the contract. The ICC award, given according to French law, was sought to be enforced in London. This had been ordered at first instance, but the respondent succeeded at the Court of Appeal.
Held: The appeal failed. A court asked to enforce a foreign arbitration award against a party could, if this was challenged, decide agains whether that party had in fact been a party to the contract, and the tribunal’s own view of its jurisdiction had no legal or evidential value, though a court should examine carefully its reasoning and conclusions. French law, as the governing law required a common intention to treat a non-signatory to a contract as bound by an arbitration agreement. The agreement arrangements had been designed to avoid this result, and therefore the respondent was not to be treated a party, and was not subject to the award.

Lord Hope, Deputy President, Lord Saville, Lord Mance, Lord Collins, Lord Clarke
[2010] UKSC 46, UKSC 2009/0165, [2010] WLR (D) 279, [2011] Bus LR 158, 133 Con LR 1, [2011] 1 All ER 485, [2011] 1 AC 763, [2010] 2 Lloyd’s Rep 691, [2010] 3 WLR 1472, [2011] 1 All ER (Comm) 383, [2010] 2 CLC 793
Bailii, SC Summary, SC, WLRD, Bailii Summary
Arbitration Act 1996 103(2)
England and Wales
Citing:
At first instanceDallah Real Estate and Tourism Holding Company v Ministry of Religious Affairs, Government of Pakistan ComC 1-Aug-2008
The claimant had obtained an arbitration award, and a without notice order for its enforcement. The defendant applied for it to be set aside on the basis that no law had been agreed which would set the basis for the arbitration, and that the award . .
Appeal from.Dallah Estates and Tourism Holding Company v Ministry of Religious Affairs, Government Of Pakistan CA 20-Jul-2009
The claimant sought to enforce an international arbitration award against the defendant in respect of the provision of accommodation for Hajj pilgrims. A without notice order had been made to allow its enforcement, but that had been set aside.
Arbitration

Leading Case

Updated: 02 November 2021; Ref: scu.425743

GL2006 Europe Ltd v European Commission: ECFI 16 Sep 2013

gl206_ecECJ2013

ECJ Arbitration clause – Contracts for financial assistance concluded in the context of the Fifth and Sixth Framework Programmes for Community activities in the field of research and technological development and in the context of the eTEN Programme – Highway, J WeB, Care Paths, Cocoon, Secure-Justice, Qualeg, Lensis, E-Pharm Up, Liric, Grace, Clinic and E2SP projects – Termination of contracts – Reimbursement of amounts paid – Debit notes – Counterclaim – Representation of the applicant

T-435/09, [2013] EUECJ T-435/09
Bailii

European, Arbitration

Updated: 02 November 2021; Ref: scu.515266

Quadro Services Ltd v Creagh Concrete Products Ltd: TCC 28 Sep 2021

Enforcement of adjudication – The Defendant resists enforcement on the ground that the Adjudicator had no jurisdiction because three disputes were referred to him. It is settled law that an adjudicator does not have jurisdiction to adjudicate more than one dispute in a single adjudication.

Her Honour Judge Sarah Watson
[2021] EWHC 2637 (TCC)
Bailii
England and Wales

Arbitration

Updated: 02 November 2021; Ref: scu.668322

Guangzhou Dockyards Co Ltd v Ene Aegiali I: ComC 5 Nov 2010

No appeal on facts from award

The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal would be possible, and that they had been free to make such an agreement.
Held: The appeal was refused. There was no appeal against an arbitrator’s award on the facts. Arbitral tribunals have the right to be wrong on the facts. The words ‘Unless otherwise agreed by the parties’ in section 69 ‘have to do with agreement between the parties in the context of an appeal on a question of law. The words cannot be construed as expanding the jurisdiction of the court to include an appeal to the court on a question of fact on the basis that the parties have agreed to such an appeal.’

Blair J
[2010] EWHC 2826 (Comm), [2011] 1 Lloyd’s Rep 30, 133 Con LR 139
Bailii
Arbitration Act 1996
England and Wales
Citing:
CitedBurnard v Wainwright 1850
B had succeeded in the arbitration award. W later discovered a letter written (he aid) by B which he said should require the re-opening of the arbitration.
Held: The court remitted it saying that the arbitrators should decide the issue of . .
CitedE v Secretary of State for the Home Department etc CA 2-Feb-2004
The court was asked as to the extent of the power of the IAT and Court of Appeal to reconsider a decision which it later appeared was based upon an error of fact, and the extent to which new evidence to demonstrate such an error could be admitted. . .
CitedBarton v Fincham CA 1921
Where the court lacks jurisdiction, jurisdiction cannot be conferred merely by the consent of the parties. Atkin LJ said: ‘but apart from such an admission the Court cannot give effect to an agreement, whether by way of compromise or otherwise, . .
CitedGeogas SA v Trammo Gas Ltd (The Baleares) HL 1991
Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no . .
CitedGeogas SA v Trammo Gas Ltd (The Baleares) CA 26-Nov-1990
Judge Wrong to Accept Appeal of Fact
The charterers had sought to appeal the arbitrators’ findings on foreseeability and remoteness. The judge had set aside the arbitration award. Though he certified that a point of law existed which was of general public importance, he had refused . .
CitedKammins Ballrooms Co Limited v Zenith Investments (Torquay) Limited HL 1970
The tenant had served his section 26 notice under the 1954 Act, but then began the court proceedings before the minumum two month period had expired. The landlord did not take the point at first, and delivered an answer and negotiated compensation. . .
CitedFinelvet AG v Vinava Shipping Co Ltd (‘The Chrysalis’) 1983
The Chrysalis was trapped in the Shatt-al-Arab waterway in the course of the Iran-Iraq war, and the parties disputed the frustration of the charter contract.
Held: Mustill J set out stages for considering an appeal from an arbitration award by . .

Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 01 November 2021; Ref: scu.425789

National Navigation Co v Endesa Generacion Sa (The Wadi Sudr): CA 17 Dec 2009

The court was asked whether a judgment of a fellow member state of the European Union ruling against a stay of proceedings on the basis that an arbitration clause was not incorporated in the contract can be relied on as creating an issue estoppel so as to prevent the English court deciding the point differently. The Spanish court had decided that the arbitration clause had not been incorporated, but the claimant now sought to enforce the arbitration clause.
Held: The arbitration proceedings were dismissed. The English court was bound to apply the decision as taken. The decision by the Spanish court counted as a judgment within article 3 of the Regulation. A regulation judgment could give rise to an issue estoppel as much in arbitration proceedings excluded from the regulation as in any other proceedings in an English court.
Moore Bick LJ stated: ‘In my view the question whether the courts of this country should recognise a foreign judgment given in proceedings taken in breach of an arbitration agreement is also essentially one of jurisdiction. There is apparently no common law authority on the point (see Dicey, Morris and Collins), but if the court in question is regarded as being of competent jurisdiction (for example, because both parties were resident within the territorial area of its jurisdiction) I do not think that it would be contrary to public policy to recognise the judgment even if an English court would have held that the parties had agreed to refer the dispute to arbitration. Different considerations might arise if the judgment had been obtained through conscious wrong doing, for example by pursuing proceedings in defiance of an injunction, but that is not this case.’

Waller LJ VP, Carnwath LJ, Moore-Bick LJ
[2009] EWCA Civ 1397, Times 08-Feb-2010, [2009] 2 CLC 1004
Bailii
Council Regulation (EC) 44/2001 of December 22, 2000, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Civil Jurisdiction and Judgments Act 1982 32(4)
England and Wales
Citing:
Appeal fromNational Navigation Co v Endesa Generacion Sa ComC 1-Apr-2009
. .

Cited by:
CitedGolubovich v Golubovich CA 21-May-2010
The court was asked to rule as to the recognition of a foreign (Moscow) decree of divorce obtained in breach of an Hemain injunction. The Russian proceedings had got to a stage requiring H positively to apply to prevent the decree.
Held: The . .

Lists of cited by and citing cases may be incomplete.

European, Arbitration

Updated: 01 November 2021; Ref: scu.384331

Whitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd: HL 1970

The parties disagreed as to the curial law of an arbitration agreement. The proper law of the building contract and the arbitration agreement was English but the reference was conducted in Scotland.
Held: Evidence of behaviour after a contract had been made is inadmissible to assist in the construction of an entirely written contract. An application for the appointment of an arbitrator stated that there was a submission to arbitration within the meaning of the Arbitration Act 1950, but the arbitration was held to be subject to the law of Scotland. While evidence of subsequent conduct is admissible to determine the existence of a contract, it is not admissible to determine the terms of a contract.
Lord Reid: ‘It has been assumed in the course of this case that it is proper, in determining what was the proper law, to have regard to actings of the parties after their contract had been made. Of course the actings of the parties (including any words which they used) may be sufficient to show that they made a new contract. If they made no agreement originally as to the proper law, such actings may show that they made an agreement about that at a later stage. Or if they did make such an agreement originally such actings may show that they later agreed to alter it. But with regard to actings of the parties between the date of the original contract and the date of Mr. Underwood’s appointment I did not understand it to be argued that they were sufficient to establish any new contract, and I think they clearly were not. As I understood him, counsel sought to use those actings to show that there was an agreement when the original contract was made that the proper law of that contract was to be the law of England. I must say that I had thought that it is now well settled that it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made. Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later.’
Lord Hodson: ‘I should add that I cannot assent to the view which seems to have found favour in the eyes of the Master of the Rolls and Widgery LJ. that as a matter of construction the contract can be construed not only in its surrounding circumstances but also by reference to the subsequent conduct of the parties.’
Viscount Dilhorne: ‘I do not consider that one can properly have regard to the parties’ conduct after the contract has been entered into when considering whether an inference can be drawn as to their intention when they entered into the contract, though subsequent conduct by one party may give rise to an estoppel.’
Lord Wilberforce said: ‘once it was seen that the parties had made no express choice of law, the correct course was to ascertain from all relevant contemporary circumstances including, but not limited to, what the parties said or did at the time, what intention ought to be imputed to them on the formation of the contract. Unless it were to found an estoppel or a subsequent agreement, I do not think that subsequent conduct can be relevant to this question.’

Lord Reid, Lord Hodson, Viscount Dilhorne, Lord Wilberforce,
[1970] AC 572, [1970] 1 Lloyds Rep 269, [1970] 1 All ER 796, [1970] AC 583
England and Wales
Citing:
Appeal fromWhitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd CA 1969
The parties, one in England and one in Scotland agreed to perform certain actions in Scotland. Any dispute was to be settled by arbitration, but it was not said whether this would be in England or Scotland. The curial law of arbitration would decide . .

Cited by:
CitedMontgomery v Johnson Underwood Ltd CA 9-Mar-2001
A worker who had strictly been employed by an agency but on a long term placement at a customer, claimed to have been unfairly dismissed by the customer when that placement ended.
Held: To see whether she was an employee the tribunal should . .
CitedHalpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
CitedBeale v Harvey CA 28-Nov-2003
Land had been divided into three lots on its development, but the site plan did not match the line of a fence actually erected.
Held: The court was not bound by the Watcham case, and would not follow it to allow reference to the later . .
CitedF L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
CitedAB and others v British Coal Corporation (Department of Trade and Industry) QBD 27-Jun-2007
The parties disputed the effect of the Claims Handling Agreement (CHA) which regulated claims for compensation for respiratory diseases incurred by people working for the defendant as regards the circumstances for claimants with chronic bronchitis. . .
CitedSattar v Sattar and Another ChD 20-Feb-2009
The parties disputed the effect of a Tomlin order settling litigation between them. Under the order, if certain sums were not paid, the company was to be sold.
Held: Later behaviour could not be used to help interpret an agreement, and in this . .
CitedLexington Insurance Co v AGF Insurance Ltd HL 30-Jul-2009
The respondent insurers had been held liable in Washington, and had been granted indemnity against the appellants by the Court of Appeal. The insurance contract had been under the law of Pennsylvania, but that of the re-insurance under the law of . .
CitedRadford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .

Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Leading Case

Updated: 01 November 2021; Ref: scu.194302

Rees v Windsor-Clive and Others: ChD 11 Nov 2020

Alleged Serious Irregularity in Arbitration

The claimant as tenant challenged an arbitration award alleging serious irregularities in the arbitration process under section 68 of the 1996 Act. The court considered whether at the time of service of the notice the land must then be required for use.
Held: No serious irregularity was shown.

Jarman QC HHJ
[2020] EWHC 2986 (Ch)
Bailii
Agricultural Holdings Act 1986, Arbitration Act 1996 68 69
England and Wales

Landlord and Tenant, Agriculture, Arbitration

Updated: 01 November 2021; Ref: scu.655629

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 had been confidential to the parties to it.
Held: The application was refused.
Independently of the res judicata doctrine, it can be an abuse of process for a party to later proceedings to seek to relitigate issues determined in previous proceedings: ‘It can, in my view, be an abuse of process for a party which was successful overall in earlier proceedings to seek to relitigate an issue on which it was unsuccessful. Likewise, whilst it may be decisive under the doctrine of res judicata to identify whether or not a particular finding was obiter, there is no reason to take such a restrictive view in the case of abuse of process. The focus in the latter case is not so much on the binding nature of the finding, but upon the undesirability of having the same matter adjudicated upon again where it would be manifestly unfair to do so, or would bring the administration of justice into disrepute.’ However, in this case, there were significant doubts as to the effect of the order sought by Petrom as regards the issues that would, and would not, remain live at trial.

Blair J
[2014] EWHC 242 (Comm)
Bailii
Limitation Act 1980 32
England and Wales
Citing:
CitedThe Secretary of State for Trade and Industry v Bairstow CA 11-Mar-2003
The Secretary of State attempted, in the course of director’s disqualification proceedings, to rely upon findings made against Mr Bairstow in an earlier wrongful dismissal action to which he had been a party but the Secretary of State not. The . .
CitedGleeson v J Wippell and Co Ltd ChD 1977
The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. ‘Second, it seems to me that the sub-stratum of the doctrine is that a man ought . .
CitedArts 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. . .
CitedMichael Wilson and Partners Ltd v Sinclair and Others ComC 21-Sep-2012
The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .
CitedNorth West Water Ltd v Binnie and Partners 1990
In relation to court proceedings, it can be an abuse of process for a defendant to seek to reopen issues decided against it as defendant in previous court proceedings. . .
CitedSun Life Assurance Company of Canada and others v The Lincoln National Life Insurance Co CA 10-Dec-2004
The court considered the effect of findings in one arbitration on a subsequent arbitration. The arguments being directed to res judicata.
Held: Mance LJ pointed to important differences between litigation and arbitration as a consensual . .
CitedSimms v Conlon and Another CA 20-Dec-2006
Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .
CitedHunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
CitedCalyon v Michailaidis and Others PC 15-Jul-2009
(Gibraltar) The test for applying an abuse of process argument is an exacting one. . .

Cited by:
See AlsoOMV Petrom Sa v Glencore International Ag ComC 13-Mar-2015
. .
Appeal fromOMV Petrom Sa v Glencore International Ag CA 21-Jul-2016
‘This case concerns the measure of damages for deceit.’ . .
Appeal fromOMV Petrom Sa v Glencore International Ag CA 27-Mar-2017
This appeal raises a straightforward but important point concerning the interest that the court may award when a claimant’s CPR Part 36 offer is rejected, but the claimant achieves a greater award at trial.
Sir Geoffrey Vos C said: ‘The parties . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Contract, Litigation Practice

Updated: 01 November 2021; Ref: scu.521089

Lesotho Highlands Development Authority v Impregilo Spa and others: HL 30 Jun 2005

The House had to consider whether the arbitrator had acted in excess of his powers under s38, saying the arbitrator had misconstrued the contract. The arbitrator had made his award in different currencies.
Held: The question remained whether the arbitrator had exceeded its powers, not whether they had been wrongly exercised. An error of law on its own did not constitute an excess of power. The House allowed the appeal, set aside the order for remission of the award, and dismissed the employer’s application.
Lord Steyn stated: ‘But the issue was whether the tribunal ‘exceeded its powers’ within the meaning of section 68(2) (b). This required the courts below to address the question whether the tribunal purported to exercise a power which it did not have or whether it erroneously exercised a power that it did have. If it is merely a case of erroneous exercise of power vesting in the tribunal no excess of power under section 68(2) (b) is involved. .
section 68(2) (b) does not permit a challenge on the ground that the tribunal arrived at a wrong conclusion as a matter of law or fact. It is not apt to cover a mere error of law . .
In order to decide whether section 68(2)(b) is engaged it will be necessary to focus intensely on the particular power under an arbitration agreement, the terms of reference, or the 1996 Act which is involved, judged in all the circumstances of the case. In making this general observation it must always be borne in mind that the erroneous exercise of an available power cannot by itself amount to an excess of power. A mere error of law will not amount to an excess of power under section 68(2) (b).’

Lord Steyn, Lord Hoffmann, Lord Phillips of Worth Matravers, Lord Scott of Foscote, Lord Rodger of Earlsferry
[2005] UKHL 43, Times 06-Jul-2005, [2005] 27 EG 220, [2005] 3 WLR 129, [2006] AC 221, [2005] 3 All ER 789, 101 Con LR 1, [2005] 2 All ER (Comm) 265, [2005] BLR 351, [2005] 2 Lloyd’s Rep 310, [2005] 2 CLC 1
Bailii, House of Lords
Arbitration Act 1996 48(4) 68
England and Wales
Citing:
First InstanceLesotho Highlands Development Authority v Impreglio SpA and Others QBD 15-Nov-2002
The parties had submitted their dispute to arbitration. The arbitrator had made his award payable in certain currencies. The payer contended that this was in excess of his jurisdiction.
Held: The reference to the arbitrator continued the . .
Appeal fromLesotho Highlands Development Authority v Impregilo Spa and others CA 31-Jul-2003
The parties went to arbitration to resolve disputes in a construction contract. The award appeared to have been made for payment in currencies different from those set out in the contract. The question was asked as to whether the award of interest . .
ApprovedSeabridge Shipping AB v AC Orssleff’s EFtF’s A/S QBD 1999
The court discussed the policies underlying the 1996 Act: ‘One of the major purposes of the Arbitration Act 1996 was to set out most of the important principles of the law of arbitration of England and Wales in a logical order and expressed in a . .
CitedIn re United Railways of the Havana v Regla Warehouses Ltd CA 1960
There had been a financing transaction by way of a lease by a Pennsylvania corporation, as trustee for foreign bondholders, to an English company carrying on business in Cuba, of assets in Cuba. By a Cuban decree the assets were transferred to the . .
CitedPatel v Patel CA 24-Mar-1999
A party applying to set a default judgment aside with associated leave to defend did not thereby take any substantial step in proceedings which would debar him from insisting that the matter be stayed pending a referral to arbitration. . .
CitedJugoslavenska Oceanske Plovidba v Castle Investment Co Inc CA 1974
London arbitrators had made an award for unpaid hire in US dollars, being the currency of the hire contract. An issue arose whether an English court could give leave under the Act to enforce the award in the same manner as a judgment to the same . .
CitedHarbour 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 . .
CitedMiliangos v George Frank (Textiles) Ltd HL 1975
The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign . .
CitedServices Europe Atlantique Sud (SEAS) v Stockholms Rederiaktiebolag Svea HL 1979
. .
CitedAnisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .
CitedK/S A/S Bill Biakh v Hyundai Corporation 1988
. .
CitedBank Mellat v GAA Development and Construction Co 1988
. .
CitedServices Europe Atlantique Sud (SEAS) v Stockholms Rederiaktiebolag Svea HL 1979
. .

Cited by:
CitedED and F Man Sugar Ltd v Belmont Shipping Ltd ComC 18-Nov-2011
Allegation of serious irregularity in arbitration.
Held: The request was refused: ‘the present case can hardly be said to be an extreme case which justice calls out to be corrected.’.
‘Arbitrators are not barred from asking a party . .
CitedKaneria v The English and Wales Cricket Board Ltd ComC 6-May-2014
kaneira)ecbComc0514
The claimant, a professional cricketer disciplined for alleged match fixing, sought to challenge the results of an arbitration of his dispute with the respondent. He alleged a serious irregularity in that the Arbitral Panel had exceeded its powers . .

Lists of cited by and citing cases may be incomplete.

Arbitration

Leading Case

Updated: 01 November 2021; Ref: scu.228062

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 to arbitration ‘any dispute arising under this charter’. The issue of bribery could be dealt with within that arbitration.
Lord Hoffmann said: ‘It depends upon the intention of the parties as expressed in their agreement. Only the agreement can tell you what kinds of disputes they intended to submit to arbitration. But the meaning which the parties intended to express by the words which they used will be affected by the commercial background and the readers’ understanding of the purpose for which the agreement was made. Businessmen in particular are assumed to have entered into agreements to achieve some rational commercial purpose and an understanding of this purpose will influence the way in which one interprets their language’.
and ‘the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator’s jurisdiction.’

Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood
[2007] ArbLR 24, [2007] UKHL 40, [2008] 1 Lloyd’s Rep 254, [2007] 4 All ER 951, [2007] Bus LR 1719, [2007] 114 Con LR 69, [2007] 2 CLC 553, [2007] 2 All ER (Comm) 1053, [2007] CILL 2528
Bailii
Arbitration Act 1996 7 9
England and Wales
Citing:
At first instanceFiona 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 AlsoFiona 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. . .
Appeal fromFiona 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.
CitedOverseas 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 . .
CitedHarbour 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 . .
CitedFillite (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 . .
CitedUnion 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 . .
CitedHeyman 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 . .
CitedMackender 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 . .
CitedAshville Investments Ltd v Elmer Contractors Ltd CA 1987
A clause in the contract refered to arbitration: ‘any dispute or difference as to the construction of this contract or as to any matter or thing of whatsoever nature arising thereunder or in connection therewith.’
Held: The court should adopt . .
See AlsoFiona Trust Holding Corporation and others v Privalov and others ComC 19-Jan-2007
. .

Cited by:
See AlsoFiona Trust and Holding Corporation and others v Privalov and others ComC 22-Jul-2008
. .
CitedTrident Turboprop (Dublin) Ltd v First Flight Couriers Ltd CA 2-Apr-2009
The appellant entered into two aircraft leasing agreements but were unable to maintain payments. They appealed against rejection of their argument that the agreements were not exempt from the controls under the 1977 Act by being international supply . .
CitedS Ltd v C Ltd ComC 27-Feb-2009
Defamation allegation not subject to arbitration
The parties had an agreement referring disputes between them to arbitration. One party raised an allegation of defamation, but the arbitrator refused jurisdiction. The parties had chosen the London Metal Exchange for its expertise in metals trading, . .
CitedAspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .
CitedEmmott v Michael Wilson and Partners Ltd ComC 12-Jan-2009
The claimant, a party to an arbitration, sought first an order requiring the defendant to comply with an order made by the arbitrator for the transfer of certain shares, and second an asset freezing order.
Held: The conditions for a peremptory . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.259907

RJT Consulting Engineers Ltd v DM Engineering (NI) Ltd: CA 8 Mar 2002

The court considered what would amount to a contract in writing under the 1996 Act. Ward LJ said: ‘Section 107(2) gives three categories where the agreement is to be treated in writing. The first is where the agreement, whether or not it is signed by the parties, is made in writing. That must mean where the agreement is contained in a written document which stands as a record of the agreement and all that was contained in the agreement. The second category, an exchange of communications in writing, likewise is capable of containing all that needs to be known about the agreement. One is therefore led to believe by what used to be known as the eiusdem generis rule that the third category will be to the same effect namely that the evidence in writing is evidence of the whole agreement.
Sub-section (3) is consistent with that view. Where the parties agree by reference to terms which are in writing, the legislature is envisaging that all of the material terms are in writing and that the oral agreement refers to that written record.
Sub-section (4) allows an agreement to be evidenced in writing if it (the agreement) is recorded by one of the parties or by a third party with the authority of the parties to the agreement. What is there contemplated is, thus, a record (which by sub-section (6) can be in writing or a record by any means) of everything which has been said. Again it is a record of the whole agreement.’ and ‘On the point of construction of section 107, what has to be evidenced in writing is, literally, the agreement, which means all of it, not part of it. A record of the agreement also suggests a complete agreement, not a partial one. . . It must be remembered that by virtue of section 107(1) the need for an agreement in writing is the precondition for the application of the other provisions of Part II of the Act, not just the jurisdictional threshold for a reference to adjudication. I say ‘unfortunately’ because, like Auld L.J. whose judgment I have now read in draft, I would regard it as a pity if too much ‘jurisdictional wrangling’ were to limit the opportunities for expeditious adjudication having an interim effect only. No doubt adjudicators will be robust in excluding the trivial from the ambit of the agreement and the matter must be entrusted to their common sense. ‘

Lords Justice Auld, Ward and Robert Walker
Gazette 11-Apr-2002, [2002] CILL 1841, (2002) 18 Const LJ 425, [2002] TCLR 21, 83 Con LR 99, [2002] EWCA Civ 270, [2002] CLC 905, [2002] 1 WLR 2344, [2002] BLR 217
Bailii
Housing Grants, Construction and Regeneration Act 1996 107
England and Wales
Cited by:
FollowedTrustees of the Stratfield SAYE Estate v AHL Construction Limited TCC 6-Dec-2004
The court was asked what was meant by a contract in writing under section 10. Jackson J applied RJT saying: ‘The principle of law which I derive from the majority judgments in RJT is this: an agreement is only evidenced in writing for the purposes . .
CitedAllen Wilson Joinery Ltd v Privetgrange Construction Ltd TCC 17-Nov-2008
The claimant sought summary judgment to enforce an arbitration award in a construction dispute. The defendants argued that the contract was not sufficiently evidenced in writing to accord with the 1996 Act. The claimants replied that any oral . .

Lists of cited by and citing cases may be incomplete.

Construction, Contract, Arbitration

Leading Case

Updated: 01 November 2021; Ref: scu.170039

Sierra Fishing Company and Others v Farran and Others: ComC 30 Jan 2015

Application by the Claimants for the removal of the Third Defendant as an arbitrator pursuant to s.24(1)(a) of the 1996 Act, on the grounds that circumstances exist that give rise to justifiable doubts as to his impartiality. The Defendants dispute the existence of such circumstances, and contend in the alternative that the Claimants have lost the right to raise this objection under s.73 of the Act by taking part in the arbitration.
Held: The application succeeded. There had been connections between the arbitrator and the other defendants, and his behaviour gave rise to additional concerns.

Popplewell J
[2015] EWHC 140 (Comm), [2015] 1 All ER (Comm) 560
Bailii
Arbitration Act 1996 24(1)(a) 73#iuu67yk b
England and Wales

Arbitration

Updated: 31 October 2021; Ref: scu.542027

The Chief Land Registrar v Silkstone and Others: CA 14 Jul 2011

The Chief Land Registrar appealed against the dismissal of his appeal against the adjudicator’s decision on the cancellation of a unilateral notice. On the day of the adjudication, the Silkstones had purported to withdraw their case, wanting to take it forward instead in the High Court. The adjudicator had proceeded in any event, ordering the cancellation of their notice, which had asserted a prescriptive right of way.
Held: The Rules give no express answer to the question posed, beyond imposing a duty to resolve a matter justly. ‘When faced with the withdrawal by either party of his case, the adjudicator will be called upon to make a ‘decision’. That decision is either to be regarded as one made on the reference itself. Alternatively, it will be one made on a ‘substantive issue’ arising in it – namely as to what is to happen to the reference in the light of the withdrawal. The fact that any such decision, let it be assumed, may be to the effect that the adjudicator decides to terminate the reference without ruling on the underlying merits of the issue before him does not mean that he is not making a decision. A decision not to decide a reference on its merits but to bring it to a final conclusion is, I consider, as much a decision on the reference as is a decision on the merits of the issue raised by the reference.’
‘A reference to an adjudicator of a ‘matter’ under section 73(7) confers jurisdiction upon the adjudicator to decide whether or not the application should succeed, a jurisdiction that includes the determination of the underlying merits of the claim that have provoked the making of the application. If the adjudicator does not choose to require the issue to be referred to the court for decision, he must determine it himself. In the case of an application under section 36 to which an objection has been raised, the relevant issue will be the underlying merits of the claim to register the unilateral notice. Neither party can by his unilateral act (including by his expressed withdrawal of his application, objection or case) bring the reference to an end. Equally, neither party can be compelled to advance a case to the adjudicator that he no longer wishes to advance. A party who conveys such a wish to the adjudicator can be regarded as conveying his wish to ‘withdraw’ his application, objection or case but it is then for the adjudicator to rule in his discretion as to how to deal with any such withdrawal.’ The adjudicator was correct to continue.

Mummery, Leveson, Rimer LJJ
[2011] EWCA Civ 801
Bailii
Land Registration Act 2002 32(1) 35 77 108, Land Registration Rules 2003 (SI 2003/1417) 85, The Adjudicator to Her Majesty’s Land Registry (Practice and Procedure) Rules 2003 (SI 2003 No. 2171) 2
England and Wales
Citing:
CitedBlackraven Developments Ltd v Sapphire (Harlow) Nominee Ltd, Sapphire (Harlow) (No 2) Nominee Ltd (Practice and Procedure) LRA 21-Dec-2007
Once an application or objection is withdrawn, the adjudicator’s jurisdiction on a reference (save in respect of costs) comes to an end as there is no longer a dispute upon which to adjudicate. . .
Appeal fromSilkstone and Another v Tatnall ChD 2-Jul-2010
The court was asked whether a Land Registry Adjudicator could refuse to accept a party’s withdrawal from the adjudication. The parties had disputed a right of way. The claimant wanted to add a claim under the 1925 Act, but after this was refused, he . .
CitedJayasinghe v Liyanage ChD 18-Feb-2010
The claimant appealed against cancellation of his application for a restriction against the defendant’s registered title. The adjudicator had found that the claimant’s assertion of an interest in the land was a fiction.
Held: The appeal . .

Lists of cited by and citing cases may be incomplete.

Registered Land, Arbitration

Updated: 31 October 2021; Ref: scu.441818

Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc: TCC 23 May 2013

The claimants had been engaged to provide an asbestos survey. An arbitration claim had gone against them and they appealed.

Akenhead J
[2013] EWHC 1322 (TCC), [2013] WLR(D) 211
Bailii, WLRD
Housing Grants, Construction and Regeneration Act 1996 108(5), Scheme for Construction Contracts (England and Wales) Regulations 1998
Cited by:
Appeal fromAspect Contracts (Asbestos) Ltd v Higgins Construction Plc CA 29-Nov-2013
The appeal succeeded. The Scheme implied that any overpayment could be recovered. . .
At First InstanceAspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .

Lists of cited by and citing cases may be incomplete.

Arbitration, Construction

Updated: 31 October 2021; Ref: scu.510042

X v Y: ComC 7 May 2013

Y sought an order under section 70 of the 1996 Act that X provide security for Y’s costs of resisting X’s challenges (pursuant to sections 67 and 68 of the Arbitration Act 1996) to an award of London arbitrators and make a payment into court of the sum awarded by the arbitrators.

Teare J
[2013] EWHC 1104 (Comm)
Bailii
Arbitration Act 1996 70
England and Wales

Arbitration

Updated: 31 October 2021; Ref: scu.510041

Binder v Alachouzos: CA 1972

A contract recited that the parties had been advised by solicitors and counsel that the Moneylenders Acts did not apply to transactions which were the subject of legal proceedings between them, and went on to provide for a compromise.
Held: There can be a bona fide compromise of an issue as to whether a contract is illegal. Lord Denning: ‘In my judgment, a bona fide agreement of compromise such as we have in the present case (where the dispute is as to whether the plaintiff is a moneylender or not) is binding. It cannot be reopened unless there is evidence that the lender has taken undue advantage of the situation of the borrower. In this case no undue advantage was taken. Both sides were advised by competent lawyers on each side. There was a fair arguable case for each. The agreement they reached was fair and reasonable. It should not be reopened. I agree with the judge below that this agreement of compromise was binding and I would dismiss the appeal.’
Phillimore LJ said: ‘Speaking for myself, I think it is entirely plain that this was a bona fide compromise, and that there is nothing in the evidence here which could make this court say with any confidence that these were moneylending transactions, illegal transactions; and accordingly, as it seems to me, here the court is faced with a bona fide compromise of what was a question of fact. The terms of the agreement are not to be described as colourable. The court ought to be very slow to look behind an agreement reached in such circumstances as these. I cannot think that Mr Jackson has made out anything like a case which would be strong enough to justify this court in looking behind the terms of what was clearly a bona fide compromise, and I also would accordingly dismiss this appeal.’
Lord Denning MR, Phillimore LJ, Roskill LJ
[1972] 2 QB 151
England and Wales
Cited by:
CitedThakrar v Ciro Citterio Menswear Plc In Administration ChD 1-Oct-2002
Disputes arose between shareholders in a family company. Proceedings which expressly excluded the company were settled, but the company became insolvent. A later settlement was refused approval by the judge without the creditors consent. The . .
CitedSoleimany v Soleimany CA 4-Mar-1998
The parties were Iranian Jews, father and son. The son arranged to export carpets from Iran in contravention of Iranian law. The father and son fell into dispute about their contracts and arranged for the issues to be resolved by the Beth Din . .
CitedAttorney General v British Museum ChD 27-May-2005
The trustees brought a claim against the Attorney-General seeking clarification of their duties and powers to return objects which were part of the collection in law, but where a moral duty might exist to return it to a former owner. Here drawings . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.180982

Outwing Construction Ltd v H Randell and Son Ltd: TCC 15 Mar 1999

Abridgement of time in Court proceedings to enforce decision of Adjudicator.
An adjudicator was appointed to decide a dispute pursuant to section 108 of the Housing Grants, Construction and Regeneration Act 1996. Before doing so he decided that the scheme in Part I of the Schedule to the Scheme for Construction Contracts (England and Wales) Regulations, 1998 applied. On 12 February 1999 he made a decision that the defendant should pay the plaintiff approximately pounds 16,000 and that the decision should be complied with peremptorily. Although requested to do so the defendant did not pay so on 8 March the plaintiff issued and served a writ for the amount due plus fixed costs and on 10 March issued and served a summons to abridge the time for acknowledging service of the writ and for taking other steps, including in relation to any application for summary judgment. The summons was returnable at 2 pm on 12 March. At 11 am on 12 March the defendant paid the amount claimed and the fixed costs stated on the writ. The plaintiff sought an assessment of costs that it had incurred. Held, any automatic stay of the action applicable under RSC Order 6, rule 2(1)(b) should be lifted, that the plaintiff was justified in issuing the summons to abridge time and was entitled to the costs in connection with it but not to any costs relating to the writ. The costs were assessed summarily.
[1999] EWHC Technology 248
Bailii
England and Wales

Updated: 16 October 2021; Ref: scu.201774

Quadro Services Ltd v Creagh Concrete Products Ltd: ChD 28 Sep 2021

The Claimant sought summary judgment to enforce an adjudication decision against the Defendant, who resisted enforcement on the ground that the Adjudicator had no jurisdiction because three disputes were referred to him. It is settled law that an adjudicator does not have jurisdiction to adjudicate more than one dispute in a single adjudication.
Held: The Adjudicator was right to conclude that he had jurisdiction because only one dispute had been referred to him. The dispute was whether the Claimant was entitled to payment of the sum of pounds 40,026.
Her Honour Judge Sarah Watson
[2021] EWHC 2589 (Ch)
Bailii
England and Wales

Updated: 12 October 2021; Ref: scu.668256

Rysaffe Trustee Company (CI) Ltd and Another v Ataghan Ltd and others: ChD 8 Aug 2006

Complex family trusts had been created over many years. Various documents were now disputed, and particularly the extent of land demised by a lease, and whether a surender of a lease had occurred. Landslides had disturbed the boundaries of the land. An arbitrator had decided the new rent on the basis of his own findings as to the extent of the land.
Held: There had been an implied surrender of the lease, and in any event an issue estoppel arose from the determination by the arbitrator even though he had been asked only to decide the rent.
C Freedman QC
[2006] EWHC 2324 (Ch)
Bailii
Law of Property Act 1925 62(1)
Citing:
CitedKirkby v Robinson 1965
It is fundamental for an arbitrator asked to settle a rent to adjudicate on the extent of a land holding in order to decide the amount of that rent. If the Parties could not agree it, then the arbitrator would have to do so. Such preliminary issues . .
CitedGray v Owen 1910
Even if one of the parties to a tenancy is acting under a mistake, there can be a surrender of a tenancy by law, provided that the mistake is not induced by the fraud of the other. . .
CitedWheeldon v Burrows CA 17-Jun-1879
Quasi-Easements granted on sale of part of Estate
S owned a workshop and an adjoining plot of land. The workshop had three windows looking out over the plot. The property was sold in separate lots at auction. The land was sold with no express reservation of any easements, and then similarly the . .
CitedHuckvale v Aegean Hotels Ltd CA 1989
Whether there has been an extinguishment of easements is a question of fact and degree in each case. . .
CitedTarjomani v Panther Securities Ltd CA 1983
The tenant disputed whether he had surrendered the property in the lease.
Held: The court considered the basis of an implied surrender: ‘In my judgment, it is indeed estoppel that forms the foundation of the doctrine. The doctrine operates . .
CitedLong v Gowlett 1923
Except where a right claimed is continuous and apparent, there must be diversity of ownership or occupation prior to the conveyance for section 62 (1) to apply. . .
CitedSovmots Investments Ltd v Secretary of State for the Environment 1977
. .
CitedFidelitas Shipping Co Ltd v V/O Exportchleb CA 1965
Where there is an award that is on its face an interim award, then the arbitrator is only functus officio with respect to the issues dealt with in that interim award and retains the authority to deal with the remaining matters. Issue estoppel . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.245070

Koza Ltd and Another v Koza Altin Isletmeleri As: CA 31 Jul 2020

Appeal from the grant of an injunction restraining the appellants, Koza Ltd and Mr Ipek, from using pounds 3 million of assets belonging to Koza Ltd to fund an arbitration claim brought under the auspices of The International Centre for the Settlement of Investment Disputes.
[2020] EWCA Civ 1018
Bailii
England and Wales

Updated: 30 September 2021; Ref: scu.652901

Generali Italia Spa and Others v Pelagic Fisheries Corporation and Another: ComC 18 May 2020

Application to set aside an order made under CPR Part 71 that the director of a company which is a judgment debtor attend court to provide information for the purpose of enabling the judgment creditor to enforce the judgment debt.
[2020] EWHC 1228 (Comm), [2020] WLR(D) 298
Bailii, WLRD
England and Wales

Updated: 30 September 2021; Ref: scu.651167

Orkney Islands Council for Suspension and Interdict: SCS 21 Sep 2001

A notice was served seeking to refer a dispute to arbitration. By the time of the hearing the claim itself would be time barred, unless it could be established that service of the notice was enough to suspend time running. It was argued that the notice served to stop time running only conditional upon an arbitration being begun. The court decided that the issue of limitation could properly be determined by an arbitrator, and the court should not intervene.
[2001] ScotCS 222
Bailii
Prescription and Limitation (Scotland) Act 1973 6
Scotland

Updated: 17 September 2021; Ref: scu.166269

Bouygues (UK) Ltd v Dahl-Jensen (UK) Ltd: CA 31 Jul 2000

Reference to adjudication of differences arising during a construction contract, under the procedure envisaged by section 108 of the Housing Grants and Reconstruction Act 1996.
Peter Gibson, Chadwick, Buxton LJJ
[2000] EWCA Civ 507, [2001] 1 All ER (Comm) 1041, [2001] CLC 927, [2001] 73 Con LR 135, (2001) 3 TCLR 2, [2000] BLR 522, [2001] 1 All ER 1041
Bailii
Housing Grants and Reconstruction Act 1996 108
England and Wales

Updated: 14 September 2021; Ref: scu.276312

Homer Burgess Ltd v Chirex (Annan) Ltd: OHCS 25 Jan 2000

Although an adjudicator’s decision would normally be binding on the parties pending an appeal, that was not the case where the mistake alleged was as to his jurisdiction. In such cases the decision was reviewable, and was ineffective as a decision under the Act.
163696
Times 25-Jan-2000, [1999] ScotCS 264
Bailii
Housing Grants Construction and Regeneration Act 1996 108
Scotland
Citing:
CitedYarmouth v France CA 11-Aug-1887
The plaintiff was employed by the defendant to drive carts. He objected that the horse had a vicious nature, but was obliged to drive it in any event. The horse kicked him.
Held: For the purposes of the 1880 Act, the plaintiff was an employee, . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.81458