Bouygues UK Limited v Dahl-Jensen UK Limited: TCC 17 Dec 1999

An arbitrator had made an award, the consequence of which, it was claimed, would lead to a retention being released before it was actually due. It was claimed that this part of the award was outside the adjudicator’s jurisdiction.
Held: Adjudication was for this purpose closely analogous to the giving of an opinion by an expert. The particular issue had not been referred for adjudication. Order accordingly.

Judges:

The Hon Mr Justice Dyson

Citations:

[1999] EWHC Technology 182, [2000] BLR 49

Links:

Bailii

Cited by:

CitedC and B Scene Concept Design Ltd v Isobars Ltd CA 31-Jan-2002
The claimant appealed a refusal of summary judgement, in a claim to enforce an arbitration award. Where an award was challenged, enforcement should still be allowed to continue unless the challenge went as to the jurisdiction of the reference. . .
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 . .
Appeal fromBouygues (Uk) Ltd v Dahl-Jensen (Uk) Ltd (In Liquidation) CA 17-Aug-2000
When the decision of an adjudicator was challenged, the court should ask whether the adjudicator had either asked the right question but in the wrong way, or whether he had even answered the wrong question. The procedure was intended to provide a . .
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.

Arbitration, Construction

Updated: 23 May 2022; Ref: scu.135804

Yukos Capital Sarl v OJSC Rosneft Oil Company: CA 27 Jun 2012

The court was asked to enforce an award of a foreign court, but the claimant objected to admission of evidence as to the procedures underlying the obtaining of the judgment which might go to show unfairness.
Held: International comity and the act of state doctrine did not preclude such an examination. Judicial acts were not to be equated to acts of the state itself.
‘The important thing is to recognise that increasingly in the modern world the doctrine is being defined, like a silhouette, by its limitations, rather than to regard it as occupying the whole ground save to the extent that an exception can be imposed.’

Judges:

Rix, Longmore, Davis LJJ

Citations:

[2012] EWCA Civ 855, [2013] 1 All ER 233, [2012] WLR(D) 186, [2012] 2 Lloyds Rep 208, [2013] 3 WLR 1329, [2012] 2 CLC 549, 143 Con LR 1, [2014] 1 QB 458, [2013] 1 All ER (Comm) 327

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

See AlsoYukos Capital SARL v OJSC Rosneft Oil Company and Others ComC 16-Apr-2010
Application to discharge freezing order. . .
Appeal fromYukos Capital Sarl v OJSC Rosneft Oil Company ComC 14-Jun-2011
Determination of preliminary issues in application to enforce arbitration awards. . .

Cited by:

At CAYukos Capital Sarl v OJSC Rosneft Oil Company ComC 3-Jul-2014
Preliminary questions relating to the entitlement of the Claimant to recover interest on principal sums awarded in four awards by arbitration tribunals with a Russian seat. . .
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 23 May 2022; Ref: scu.461730

Westland Helicopters Ltd v Arab Organisation for Industrialisation: 1995

International arbitration proceedings under a joint venture agreement had led to an award in Westland’s favour against the Organisation. The award was converted into a judgment and Westland obtained garnishee orders nisi against six London banks. Colman J was faced with a claim by an Egyptian intervener to be the same as (or a successor to) the Organisation by virtue of domestic Egyptian laws. The justification for such laws was in issue but was said by the intervener to lie in an international law principle of necessity which was in turn said to be invoked by breach by the other member states setting up the Organisation of the treaty by which it was set up. Colman J held such issues to be non-justiciable.

Citations:

[1995] QB 282

Jurisdiction:

England and Wales

Cited by:

CitedOccidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
CitedRegina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 22 May 2022; Ref: scu.230258

International Bulk Shipping and Services Ltd v The Mineral and Metals Trading Company of India; International Bulk Shipping and Services Ltd v The President of India; Himoff Maritime Enterprises Ltd v The President of India: ComC 16 Feb 1994

cw Arbitration – award – limitation period – cause of action arising – implied promise to perform award – breach – RSC Order 15 r.6 – misjoinder and non-joinder of party – principles – RSC Order 15 r.6 – joinder of party – proceedings a nullity – no power

Judges:

Waller J

Citations:

16 February 1994, Unreported, [1996] 2 Lloyds Rep 474

Jurisdiction:

England and Wales

Cited by:

AffirmedInternational Bulk Shipping and Services Ltd v President of India and Another CA 11-Dec-1995
Actions to enforce arbitration awards were brought, each in the name of a ship-owning company. At the time of the arbitrations the assets of each company had vested in a trustee in bankruptcy appointed under New York law, but the trustee had . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 22 May 2022; Ref: scu.182567

Stiell Ltd v Riema Control Systems Ltd: IHCS 28 Jun 2000

Contractors had been called upon to carry out work beyond that originally requested, and sought payment, and had arrested a payment in the hands of a third party. Before raising the action they had referred the matter to adjudication under the Act.
Held: The fact of the reference did not change the fact of the claim, and the effect of the arbitrator’s decision in rejecting the claim was not like that of a certifying engineer or architect.

Citations:

Times 28-Jun-2000

Statutes:

Housing Grants Construction and Regeneration Act 1996

Jurisdiction:

Scotland

Arbitration, Construction, Scotland

Updated: 20 May 2022; Ref: scu.89556

Channel Island Ferries Ltd v Cenargo Navigation Ltd (The Rozel): QBD 5 Apr 1994

Arbitrator to award all costs even if award much less than original claim.
Phillips J said: ‘It is always necessary to exercise the greatest care before applying the reasoning in one case to a different factual situation, and this is particularly true in the field of damages. The majority of the Court in Ruxley Electronics did not hold that a plaintiff can recover in damages the cost of remedial measures which are unreasonable. They held that, in the circumstances of that case it was not unreasonable for the plaintiff to spend the substantial sum necessary to have what he had contracted for. The test of what was reasonable had to have regard to his personal preference, as expressed in the depth of water that he had contractually required. This reasoning can be applied to a requirement which is incorporated in a contract as an end in itself, reflecting a personal preference of the contracting party. It does not apply where the contractual requirement is not an end in itself, but is inserted into a commercial contract because it has financial implications. If, in such a case, the contractual requirement is not met, the costs of remedial measures will not normally be recoverable as damages if they are disproportionate to the financial consequences of the breach. If that is the case it will not be reasonable to incur those costs. The damages recoverable will be those necessary to compensate for the financial consequences of the breach.’

Judges:

Phillips J

Citations:

Times 05-Apr-1994, [1994] 2 Lloyd’s Rep 161

Citing:

CitedRuxley Electronics and Construction Ltd v Forsyth CA 7-Jan-1994
In 1986, the defendant, wanted a swimming pool adjoining his house. He contracted with the plaintiffs. The contract price for the pool, with certain extras, was 17,797.40 pounds including VAT. The depth of the pool was to be 6 ft 6 in at the deep . .

Cited by:

CitedRuxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Damages, Construction

Updated: 19 May 2022; Ref: scu.78974

Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd and Others: HL 17 Feb 1993

The court has the power to stay an action which pursued a remedy which was outside the terms of the arbitration agreement determining the dispute. The contract between the parties provided for disputes to be settled by arbitration in Belgium. The plaintiff sought injunctive relief from an English court. The defendant requested a stay.
Held: The 1950 Act did not give power to a court to provide injunctive relief operative over a foreign arbitration, but such was available under the 1981 Act, but the effect here would be to pre-empt the arbitration and relief was not appropriate. As to the Siskina case: ‘the doctrine of The Siskina, put at its highest, is that the right to an interlocutory injunction cannot exist in isolation, but is always incidental to and dependent on the enforcement of a substantive right, which usually although not invariably takes the shape of a cause of action’.
Lord Browne-Wilkinson: ‘Although the respondents have been validly served (i.e., there is jurisdiction in the court) and there is an alleged invasion of the appellants’ contractual rights (i.e., there is a cause of action in English law), since the final relief (if any) will be granted by the arbitrators and not by the English court, the English court, it is said, has no power to grant the interlocutory injunction. In my judgment that submission is not well founded.’ and ‘ . . the court has power to grant interlocutory relief based on a cause of action recognised by English law against a defendant duly served where such relief is ancillary to a final order whether to be granted by the English court or by some other court or abitral body.’

Judges:

Lord Browne-Wilkinson

Citations:

Gazette 17-Feb-1993, [1993] 2 WLR 262, [1993] 1 All ER 664, [1993] AC 334

Statutes:

Arbitration Act 1979 1, Supreme Court Act 1981 37(1), Arbitration Act 1950 12(6)

Citing:

CitedSiskina (owners of Cargo lately on Board) v Distos Compania Naviera SA HL 1979
An injunction was sought against a Panamanian ship-owning company to restrain it from disposing of a fund, consisting of insurance proceeds, in England. The claimant for the injunction was suing the company in a Cyprus court for damages and believed . .
CitedBremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corp Ltd HL 1981
Where both parties to a contract are in breach of a mutual obligation owed by each to the other, neither can rely upon the other’s breach as giving him a right to terminate. The Court of Appeal has an inherent power to control its own procedure to . .
Appeal fromChannel Tunnel Group Ltd and Another v Balfour Beatty Construction Ltd and Others CA 1-Apr-1992
The arbitration agreement specified that disputes were to be arbitrated in Brussels, therefore there was no jurisdiction in an English court. . .

Cited by:

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 . .
CitedLegal Services Commission v Aaronson and others QBD 24-May-2006
The Commission sought to enforce an order requiring the defendant solicitors firm to produce to it all files on which bills had not yet been submitted. The defendant said that the request was in breach of an arbitration agreement. The commission . .
CitedFourie v Le Roux and others HL 24-Jan-2007
The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 19 May 2022; Ref: scu.78976

Bankers Trust Company v P T Jakarta International Hotels and Development: ComC 12 Mar 1999

Where an arbitration agreement referred to an arbitration under the rules of a major international scheme, by virtue of a standard form master agreement, this was sufficient and good reason to grant an injunction to enforce the reference.
ComC Injunction restraining proceedings in a foreign court in breach of an arbitration agreement.

Judges:

Cresswell J

Citations:

Times 10-May-1999, [1999] 1 All ER (Comm) 785, [1999] 1 Lloyd’s Rep 910

Arbitration, Litigation Practice

Updated: 18 May 2022; Ref: scu.78163

Astro 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 consequence of an alleged breach of the contract.
Lord Denning MR said: ‘The arrest of the ship was the direct consequence of the charterers’ claim for damages against the shipowners. . The arrest was simply the follow-up to that claim. It was so closely connected with it that the rightness or wrongness of the arrest is also within the scope of the arbitration. This is borne out by the practice of the Admiralty Court. There have not been many claims for wrongful arrest recently. But the practice of the Court of Admiralty is to deal with a claim for wrongful arrest at the same time as the claim for which the arrest was made. In The Evangelismos . . the Privy Council said that such procedure is very ‘convenient’.’

Judges:

Lord Denning MR

Citations:

[1971] Lloyd’s R 502, [1971] 2 QB 588

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Transport

Updated: 18 May 2022; Ref: scu.375637

Case 252: 30 Jul 1748

To a bill brought against an arbitrator. seeking a discovery of the grounds on which he made his award, he pleaded in bar that he was not obliged to set them forth ; the court thought it unreasonable he should be put to so much trouble and expence, and allowed the plea.

Citations:

[1748] EngR 385, (1748) 3 Atk 644, (1748) 26 ER 1170 (B)

Links:

Commonlii

Arbitration

Updated: 18 May 2022; Ref: scu.379947

A T and T Corporation and Another v Saudi Cable Co: CA 23 May 2000

The test as to whether an arbitrator should declare an interest before adjudicating is the same as the test for a judge, namely whether there was any real danger that he was biased. The Act allowed a court to investigate whether a breach had occurred. Here the adjudicator had been a director of a company which had failed in a bid for the same contract out which arose the dispute at issue. The consensual nature of arbitration did not require a different test.

Judges:

Lord Woolf MR, Potter, May LJJ

Citations:

Times 23-May-2000, [2000] EWCA Civ 154

Links:

Bailii

Statutes:

Arbitration Act 1996 23, International Chamber of Commerce Rules of Conciliation and Arbitration 1988

Jurisdiction:

England and Wales

Citing:

Appeal fromAT and T v Saudi Cable (No. 1) ComC 13-Oct-1999
Arbitrator – apparent or unconscious bias – non-executive director of company – whether Gough principle applies to arbitrators. . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Natural Justice

Updated: 17 May 2022; Ref: scu.77933

Ahmad Al-Naimi (T/a Buildmaster Construction Services) v Islamic Press Agency Incorporated: CA 28 Jan 2000

The court has an inherent power to stay proceedings. The court could refer a matter to arbitration where there was an arbitration clause, but could also do so under its inherent discretion, where this was not quite clear, but it was clear that good sense and proper management of litigation would suggest such a referral. Although there remained a risk that the matter could come back to the court because of the question about the Arbitrator’s jurisdiction, in this case that remained unlikely.
Waller LJ observed: ‘a stay under the inherent jurisdiction may in fact be sensible in a situation where the Court cannot be sure of those matters but can see that good sense and litigation management makes it desirable for an arbitrator to consider the whole matter first.’

Judges:

Waller LJ

Citations:

Times 16-Mar-2000, [2000] EWCA Civ 17, [2000] 1 Lloyd’s Law Reports 522

Links:

Bailii

Statutes:

Arbitration Act 1996 9

Jurisdiction:

England and Wales

Cited by:

ApprovedFiona 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 . .
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.
CitedClyde 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 . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 17 May 2022; Ref: scu.77764

Chimimport Plc v G d’Alesio SAS: 1994

The phrase ‘arising under’ in a clause referring matters to arbitration is narrower than ‘arising out of’ and the court doubted whether a tortious claim could easily give rise to a dispute ‘under the contract’.

Judges:

Rix J

Citations:

[1994] 2 Lloyd’s Law Reports 366

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 . .
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.
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 . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 17 May 2022; Ref: scu.245556

Fillite (Runcorn) Ltd v Aqua-Lift: CA 1989

The court considered whether claims arising from misrepresentation or breach of a collateral contrat were claims arising ‘under’ the contract so as to be governed by the disputes provisions in it.
Held: The disputes did not arise ‘under the contract as such. Slade LJ said that the phrase ‘under a contract’ was not wide enough to include disputes which did not concern obligations created by or incorporated in the contract. Nourse LJ agreed.
Nourse LJ: ‘The preposition ‘under’ presupposes that the noun which it governs already has some existence. It operates in time as well as in space. I think that it means ‘as a result of’ and with reference to’. The disputes as to express or implied terms in the composite Peterborough contract arise both as a result of and with reference to that contract and are therefore within clause 14 of the heads of agreement. The disputes as to negligent misstatement, misrepresentation under the misrepresentation Act 1967 and collateral warranty or contract, while they may in a loose sense be said to arise with reference to the contract, cannot be said to arise as a result of it. They all relate to matters which either preceded the contract or were at best contemporaneous with it. Those disputes are therefore outside clause 14 and I agree with Slade LJ that the material words are not wide enough to include disputes which do not concern obligations created by or incorporated in the contract.’
Slade LJ held the phrase ‘disputes arising under a contract’ to be not wide enough to include disputes which do not concern obligations created by or incorporated in that contract.

Judges:

Nourse LJ, Slade LJ

Citations:

(1989) CLR 66, (1989) 26 Const LR 66, (1989) 45 BLR 27

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 . .
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.
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 . .
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 . .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration

Updated: 17 May 2022; Ref: scu.245557

Frank H Wright (Contractors) Ltd v Frodoor Ltd: 1967

There was an error on the face of the certifcate of an accountant. The court looked at when it might go behind the certificate of an accountant on a question referred to him by agreement of the parties.
Held: In this case the error was immaterial, but the court can in approriate circumstances look behind the certificate: ‘If this error had been material, it would have been enough to vitiate the whole of the certificate, small as it might be and regrettable as the consequences might be.’

Judges:

Roskill J

Citations:

[1967] 1 All ER 433, [1967] 1 WLR 506

Jurisdiction:

England and Wales

Cited by:

CitedSmith v Gale ChD 1974
Three solicitors were in partnership. It was agreed that one would retire. He would take 10,000 pounds on retirement and his share of undrawn profits after an account had been taken. When the accountant certified the profits in line with previous . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 17 May 2022; Ref: scu.245123

Balfour Beatty Building Ltd v Chestermount Properties Ltd: 1993

It was argued that the party seeking a referral to arbitration need only rely on the existence of relevant events for its entitlement to an extension of time and has no regard for any delay for which it may be culpable and which may impact at the same time as the relevant event.
Held: A limitation to be placed on the approach suggsted was that the net delay of the event should be added to the time for completion, rather than the gross delay including prior culpable delay.

Judges:

Colman J

Citations:

(1993) 62 BLR 12

Jurisdiction:

England and Wales

Cited by:

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 . .
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. . .
QuestionedHenry Boot Construction v Malmaison Hotel (Manchester) Ltd TCC 1999
. .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration

Updated: 17 May 2022; Ref: scu.235379

Aoot Kalmneft v Glencore International AG and Another: QBD 27 Jul 2001

When asking whether the time for appeal against an arbitrator’s award should be extended, the court should look at several circumstances, including the length of the delay; whether the party was acting reasonably in all the circumstances in delaying; whether the other party had contributed to the delay; whether other party would suffer irremediable prejudice from the delay over and above mere loss of time if the application proceeded; whether the arbitration had continued during the period of delay what impact on progress or costs might arise from the extension; the strength of the application; and whether it would be unfair to deny the applicant opportunity to have the application determined.

Judges:

Colman J

Citations:

Times 20-Nov-2001

Statutes:

Arbitration Act 1996 67 68 69, Civil Procedure Rules 3.1(2)

Arbitration, Civil Procedure Rules

Updated: 16 May 2022; Ref: scu.166832

Middlemiss 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 enforced unless it can be shown to be invalid: ‘Once an Award has been made — and not challenged in the court — it should be entered as a judgment and given effect accordingly. It should not be held up because the losing party says he wants to argue some point or other or wants to set up a counterclaim or anything on that sort. He would not be allowed to do so in the case of a judgment not appealed from, nor should he do so in the case of an Award that he has not challenged. I am in agreement with what Diplock J said in [Margulies]: I think that it would be contrary to the purpose of section 26 of the Arbitration Act 1950 if in a case where the validity of the Award and the right to proceed upon it is beyond doubt, it should be given less effect than a judgment. In this case the judge was impressed by In Re Boks and Co and Peters, Rushton and Co Ltd [1919] 1 KB 491. But in that case the validity of the award was doubtful — very doubtful I would say — because of the illegality of the whole transaction. Naturally enough, no leave was given. But I think that Scrutton LJ went a good deal too far. He said at p497 that ‘this summary method of enforcing awards is only to be used in reasonably clear cases.’ I would put it just the opposite. I would say that it is to be used in nearly all cases. Leave should be given to enforce the award as a judgment unless there is real ground for doubting the validity of the award.’

Judges:

Lord Denning MR, dmund Davies and Stephenson LJJ

Citations:

[1972] 1 WLR 1643

Jurisdiction:

England and Wales

Cited by:

CitedNational 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 . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 15 May 2022; Ref: scu.384110

Prosser, Clerk, v Goringe: 4 May 1811

An arbitrator to whom the question of the right of two rectors to the tithe of certain lands was referred, had power to devise ail means to prevent future litigation between the parties, and to settle all matters in difference between them, and to determine what he should think fit to be done by either of the parties, touching the
matters in dispute. Held, that he did not exceed his power by awarding undivided moieties of the tithes to the two rectors.

Citations:

[1811] EngR 261, (1811) 3 Taunt 426, (1811) 128 ER 169 (B)

Links:

Commonlii

Jurisdiction:

England and Wales

Ecclesiastical, Arbitration

Updated: 15 May 2022; Ref: scu.339345

Jephson And Another v Howkins And Another: 27 Jan 1841

In an action upon a bond, the condition of which was, for the honest and faithful service of a banker’s clerk, three breaches were assigned, viz, general misconduct, irregular and unbusinesslike conduct, and not faithfully accounting. An arbitrator to whom the cause was referred found specially that, on a certain day, the clerk made an erroneous balance sheet, failing to exhibit, as it should have done, a surplus of 100l, but that there was no proof that such sum came to the hands of the clerk: and also that, on another occasion, the clerk having received from a customer 213l, entered it in the books of the bank as 113l, exhibiting on that day’s balance sheet a false and unaccounted for surplus of 100l. : Held, that these facts did not shew conclusively that the condition of the bond had been broken, so as to call upon the court to interfere with the inference drawn by the arbitrator. An arbitrator to whom a cause was referred, with liberty, if he should think fit, to report specially to the court, set out in his award a long statement of the evidence, leaving the court to draw inferences of fact : Held, that this was not a due exercise by the arbitrator of the authority intrusted to him.

Citations:

[1841] EngR 304, (1841) 2 Man and G 366, (1841) 133 ER 787

Links:

Commonlii

Arbitration

Updated: 15 May 2022; Ref: scu.308482

Vitol Sa v Norelf Ltd: HL 10 Jul 1996

(The Santa Clara) The seller was to deliver propane by a ship set to leave on a certain date. The market was falling. The buyer, when it was clear that the ship would be unable to leave on the day fixed, sent a telex to say that the contract was repudiated. The seller did nothing, but later sued for the loss on a later sale. The buyer said that the seller’s mere failure to carry out his side of the contract was sufficient to be an acceptance of the repudiation, thus excusing the buyer from the purchase.
Held: The seller’s appeal succeeded. A party suffering a repudiation of a contract can notify his election to accept or affirm the contract in any way: ‘a failure to perform may sometimes signify to a repudiating party an election by the aggrieved party to treat the contract as at an end.’ Silence can be held to be an acceptance of a contract, and it can exceptionally, and as a question of fact, also amount to an acceptance of a repudiation. All that is required for acceptance of a repudiation at common law is for the injured party to communicate clearly and unequivocally his intention to treat the contract as discharged
Lord Steyn said: ‘The primary purpose of the Act of 1979 was to reduce the extent of the court’s supervisory jurisdiction over arbitration awards. It did so by substituting for the special case procedure a limited system of filtered appeals on questions of law.’ and ‘It is now possible to turn directly to the first issue posed, namely whether non-performance of an obligation is ever as a matter of law capable of constituting an act of acceptance. On this aspect I found the judgment of Phillips J. entirely convincing. One cannot generalise on the point. It all depends on the particular contractual relationship and the particular circumstances of the case. But, like Phillips J., I am satisfied that a failure to perform may sometimes signify to a repudiating party an election by the aggrieved party to treat the contract as at an end. Postulate the case where an employer at the end of a day tells a contractor that he, the employer, is repudiating the contract and that the contractor need not return the next day. The contractor does not return the next day or at all. It seems to me that the contractor’s failure to return may, in the absence of any other explanation, convey a decision to treat the contract as at an end. Another example may be an overseas sale providing for shipment on a named ship in a given month. The seller is obliged to obtain an export licence. The buyer repudiates the contract before loading starts. To the knowledge of the buyer the seller does not apply for an export licence with the result that the transaction cannot proceed. In such circumstances it may well be that an ordinary businessman, circumstanced as the parties were, would conclude that the seller was treating the contract as at an end. Taking the present case as illustrative, it is important to bear in mind that the tender of a bill of lading is the pre-condition to payment of the price. Why should an arbitrator not be able to infer that when, in the days and weeks following loading and the sailing of the vessel, the seller failed to tender a bill of lading to the buyer he clearly conveyed to a trader that he was treating the contract as at an end?’

Judges:

Steyn, Mackay, Griffiths, Nolan, Hoffmann LL

Citations:

Gazette 10-Jul-1996, Times 01-Jul-1996, [1996] AC 800, [1996] 2 Lloyds Rep 225

Statutes:

Arbitration Act 1979

Jurisdiction:

England and Wales

Citing:

At first instanceVitol Sa v Norelf Ltd (the ‘Santa Clara’) QBD 30-Apr-1993
The parties chartered for delivery of molasses. The ship was not going to be ready for the intended start date and the charterer repudiated the contract in a telex alleging breach of condition. The market was falling rapidly. The sellers did . .
Appeal fromVitol Sa v Norelf Ltd (‘the Santa Cara’) CA 26-May-1995
The parties agreed to buy and sell molasses to be delivered on the Santa Clara which was set to leave on a certain date. The market was falling, and when the buyer saw that the ship would not be ready in time, it sent a telex saying that this was a . .
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 . .
CitedFercometal v Mediterranean Shipping Co SA, The Simona HL 1988
The House considered the options available to a party faced with an anticipatory repudiation of a contract.
Held: Affirmation or election requires an unequivocal choice between two inconsistent causes of action.
Lord Ackner said: ‘When A . .
Went too farState Trading Corporation of India Ltd v M Golodetz Ltd CA 1989
Kerr LJ said: ‘What is commonly referred to as an acceptance of a repudiation must be communicated to the party in breach or at least overtly evinced. . An unequivocal act which is inconsistent with the subsistence of the contract may be sufficient, . .
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:

CitedForce India Formula One Team Ltd v Etihad Airways PJSC and Another QBD 4-Nov-2009
The parties had entered into a sponsorship agreement, with the claimants undertaking to display the name of the defendants on their car. After the agreement, the claimant company had been taken over by parties with interests competing with those of . .
CitedPhones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 15 May 2022; Ref: scu.90181

Danae Air Transport Sa v Air Canada: ComC 8 Feb 1999

Where an arbitrator made a mathematical error in his decision, that error was one of fact or law, and it was not possible for the high court to remit the case to the arbitrator for re-consideration. The old section’s ambit is too narrow to permit this.
ComC Award – attacked for error in arithmetic in comparing open offer and value of award – whether such error is fact or law – whether award can be remitted or set aside – President of India v Jadranska followed.

Judges:

Longmore J

Citations:

Times 31-Mar-1999, Gazette 14-Apr-1999, [1999] 1 All ER (Comm), [1999] 2 Lloyd’s Rep. 105

Statutes:

Arbitration Act 1979 1(1), Arbitration Act 1950 22

Cited by:

Appeal fromDanae Air Transport Societie Anonyme v Air Canada CA 29-Jul-1999
The court had power to remit a case to the arbitrator for reconsideration where there appeared to be a simple mathematical error in the award, even though the error was not admitted either by the arbitrator or by the party who had benefited from the . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 15 May 2022; Ref: scu.79788

Cleveland Structural Engineering (Hong Kong) Ltd v Advanced Specialist Treatment Engineering Ltd: ComC 7 Feb 2000

An arbitration claim is said to be commenced when the claim is filed, and not when served. Because of this the respondents to an appeal in such proceedings were to be allowed to see the papers filed in support of an application for leave to appeal, as persons who were an interested party in such an application.
ComC Circumstances in which there may be inspection of arbitration claim forms filed in the Commercial Court Registry which have not yet been served on the respondent. Application of CPR 5-4(1) and (2).

Judges:

Colman J

Citations:

Times 07-Feb-2000, [2000] 1 WLR 558, [2000] 2 All ER (Comm) 189

Arbitration, Litigation Practice

Updated: 15 May 2022; Ref: scu.79219

Tabernacle Permanent Building Society v Knight: 1892

The court considered (obiter) it’s lack of jurisdiction to make an order directing arbitrators to state their award in the form of a special case, at a time when the award had already been published earlier on the same day and the arbitrators therefore had discharged their obligations in relation to it.

Citations:

[1892] AC 298

Jurisdiction:

England and Wales

Cited by:

CitedRe Palmer (A Deceased Debtor), Palmer v Palmer CA 6-Apr-1994
Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. . .
CitedLancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration

Updated: 15 May 2022; Ref: scu.267522

Channel Tunnel Group Ltd and Another v Balfour Beatty Construction Ltd and Others: CA 1 Apr 1992

The arbitration agreement specified that disputes were to be arbitrated in Brussels, therefore there was no jurisdiction in an English court.

Citations:

Gazette 01-Apr-1992

Statutes:

Arbitration Act 1950 12 (6) (h)

Cited by:

Appeal fromChannel Tunnel Group Ltd v Balfour Beatty Construction Ltd and Others HL 17-Feb-1993
The court has the power to stay an action which pursued a remedy which was outside the terms of the arbitration agreement determining the dispute. The contract between the parties provided for disputes to be settled by arbitration in Belgium. The . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Jurisdiction

Updated: 15 May 2022; Ref: scu.78975

Transmountana Armadora v Atlantic Shipping: 1978

Donaldson J discussed the nature of a sealed offer in arbitration proceedings: ‘Although the respondents’ offer of settlement has been referred to as an ‘open offer’, this is a misnomer. Offers of settlement in arbitral proceedings can be of three kinds, namely, ‘without prejudice’, ‘sealed’ and ‘open’.
A ‘without prejudice’ offer can never be referred to by either party at any stage of the proceedings, because it is in the public interest that there should be a procedure whereby the parties can discuss their differences freely and frankly and make offers of settlement without fear of being embarrassed by these exchanges if, unhappily, they do not lead to a settlement.
A ‘sealed offer’ is the arbitral equivalent of making a payment into Court in settlement of the litigation or of particular causes of action in that litigation. Neither the fact, nor the amount, of such a payment into Court can be revealed to the Judge trying the case until he has given judgment on all matters other than costs. As it is customary for an award to deal at one and the same time both with the parties’ claims and with the question of costs, the existence of a sealed offer has to be brought to the attention of the arbitrator before he has reached a decision. However, it should remain sealed at that stage and it would be wholly improper for the arbitrator to look at it before he has reached a final decision on the matters in dispute other than as to costs, or to revise that decision in the light of the terms of the sealed offer when he sees them.’

Judges:

Donaldson J

Citations:

[1978] 1 Ll R 391

Cited by:

CitedCutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
FollowedArchital v Boot Construction 1981
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration

Updated: 14 May 2022; Ref: scu.254331

Czarnikow v Roth Schmidt and Co: 1922

It is aganst public policy to allow the parties to seek to oust the jurisdiction of the court. An agreement to submit disputes to arbitration does not, apart from statute, take from a party the power to invoke the jurisdiction of the courts to enforce that party’s rights by instituting an action to determine a dispute of a kind that the parties have agreed should be arbitrated.

Citations:

[1922] All ER 45, [1922] 2 KB 478

Cited by:

CitedSumukan Ltd v The Commonwealth Secretariat CA 21-Mar-2007
The appellants sought to challenge a finding that they had by their contract with the defendants excluded the right to appeal to a court on a point of law. The defendants replied that the appeal court had no jurisdiction to hear such an appeal.
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 14 May 2022; Ref: scu.251562

Aggeliki Charis Compania Maritima SA v Pagnan SpA The Angelic Grace: QBD 1994

The court considered whether a claim for a collision between two ships was governed by an arbitration clause which read ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying on business in London.’
Held: The proceedings in a foreign jurisdiction were to be restrained by reason of agreement to submit to arbitration in England.
Rix J said: ‘collision claims I n the present case raised disputes which are within the arbitration clause. To some extent the claims in contract and in tort are true alternatives (for example the charterers’ counterclaim). To some extent they may not be true alternatives, but they clearly overlap (as in the owners’ claims for breach of the warranty of safety and for fault in collision) In any event all claims and cross-claims arise out of the same incident, the identical set of facts which have to be investigated by the arbitrators . . The parties clearly contemplated that a collision or other accident of navigation could give rise to a charterparty dispute.’

Judges:

Rix J

Citations:

[1994] 1 Lloyds Rep 168

Jurisdiction:

England and Wales

Citing:

FollowedEmpresa Exportadora de Azucar v Industria Azucarera Nacional S.A, The Playa Larga CA 1983
There had been a theft by Cuban sellers of one cargo of sugar, property in which had already passed to the buyers, and non-delivery of a second combined with trickery whereby the intended buyers were nonetheless induced to pay its price. The first . .

Cited 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 . .
Appeal fromAggeliki 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 . .
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 . .
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.
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. . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract, Arbitration

Updated: 14 May 2022; Ref: scu.245558

The National Insurance and Guarantee Corporation Ltd v M Young Legal Services Ltd: 2004

In an urgent case, the court can make an order under section 44(3) notwithstanding that it involved making at least some determination of the rights of the parties under a contract in which the parties had agreed that the determination of their rights should be submitted to arbitration.

Citations:

[2004] EWHC 2972 (QB)

Statutes:

Arbitration Act 1996 44(3)

Jurisdiction:

England and Wales

Cited by:

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. . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 13 May 2022; Ref: scu.226191

Barnes and Elliot Ltd v Taylor Woodrow Holdings Ltd: 2004

Whether a minor failure of an arbitrator was sufficient to vitiate his decision.

Citations:

[2004] BLR 111

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration

Updated: 13 May 2022; Ref: scu.225459

Aoot Kalmnefv v Gencore International: 27 Jul 2001

‘Further, intervention under Section 68 should be invoked only in a clear case of serious irregularity. The court’s powers to interfere with an arbitrator’s discretionary decision as to how he should exercise his discretion under Section 30(1) should not be engaged unless it is clear that in exercising his discretion he has failed to have regard to the relevant facts and to his duty under Section 33. Unless he has arrived at a conclusion which no reasonable arbitrator could have arrived at in the case in question having regard to his duties under Section 33, it cannot be said that his decision is capable of being characterised as a serious irregularity.’

Judges:

Colman J

Citations:

Unreported, 27 July 2001

Statutes:

Arbitration Act 1986 68

Jurisdiction:

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: 13 May 2022; Ref: scu.221024

Owners of the cargo lately laden on board the ship or vessel “ELPIS” v Owners of the ship or vessel “ELPIS”: AdCt 17 Oct 1997

ComC Arbitration – letter of undertaking – Arbitration section (14) of the Arbitration Act 1996 – Appeal from Admiralty Registrar – Cargo claim – application to add Plaintiff – were Defendants entitled to a stay or was the Arbitration Agreement inoperative because of the terms of a letter of undertaking? – was the expression ‘owners of cargo’ wide enough to include the new Plaintiff? It was – it followed that the parties agreed to submit the new Plaintiff’s claim to the exclusive jurisdiction of the court, that its Arbitration Agreement was inoperative and that its application succeeded. Appeal dismissed.

Judges:

Clarke J

Citations:

Unreported, 17 October 1997

Jurisdiction:

England and Wales

Arbitration

Updated: 13 May 2022; Ref: scu.220803

Agro Allied Development Enterprises Ltd v United Shipping and Trading Company Inc: ComC 7 Nov 1997

Charterparty, Cesser Arbitrators held that it was impossible for owners to exercise a lien for demurrage and that the charterers could not therefore successfully rely upon the cesser clause. Appeal failed because it was a decision on the facts which could not be challenged.

Judges:

Clarke J

Citations:

Unreported, 7 November 1997

Jurisdiction:

England and Wales

Arbitration

Updated: 13 May 2022; Ref: scu.220807

Metalfer Corporation v Pan Ocean Shipping Co Ltd: ComC 7 Oct 1997

ComC Reference to arbitration to be within 30 days of completion of voyage – whether incorporated into charterparty – whether barring any further claim in court – whether express arbitration clause to prevail over Hague Rules, Article III, rule 6 incorporated by clause paramount.

Judges:

Longmore J

Citations:

[1998] 2 Lloyd’s Rep 632, [1997] CLC 1574

Jurisdiction:

England and Wales

Arbitration

Updated: 13 May 2022; Ref: scu.220802

Evans v Motor Insurance Bureau: ComC 29 Jul 1997

ComC Untraced Drivers Scheme of the Motor Insurers Bureau – obligation to award interest – power to award interest under section 19A of the 1950 Act.

Judges:

Thomas J

Citations:

Times 10-Nov-1997

Statutes:

Arbitration Act 1950 19A

Jurisdiction:

England and Wales

Citing:

Appealed toMighell v Reading and Another and Evans v Motor Insurers Bureau and White v White and Another CA 30-Sep-1998
Passengers were injured in motor vehicles. The drivers were uninsured, and the MIB had declined to make payment. The doctrine of direct effect did not apply where the allegation was that the Motor Insurers Bureau arrangement did not comply with a . .

Cited by:

Appeal fromMighell v Reading and Another and Evans v Motor Insurers Bureau and White v White and Another CA 30-Sep-1998
Passengers were injured in motor vehicles. The drivers were uninsured, and the MIB had declined to make payment. The doctrine of direct effect did not apply where the allegation was that the Motor Insurers Bureau arrangement did not comply with a . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Insurance

Updated: 13 May 2022; Ref: scu.220787

Cukurova Celik Endustrisi as Istanbul v Jennyship S.A. Panama: ComC 27 Jun 1997

Motion for declaration that party not bound by contract and agreement to arbitrate – application to strike out motion – principles applicable where one party disputes arbitrator’s jurisdiction – that party’s voluntary contribution in the proceedings – whether amounting to a reference of the issue of jurisdiction

Judges:

Colman J

Citations:

Unreported, 27 June 1997

Jurisdiction:

England and Wales

Arbitration

Updated: 13 May 2022; Ref: scu.220784

Hayton S A v Jail SPA: ComC 16 Sep 1997

ComC Appeal from award. Leave granted. Duty to prosecute appeal and any necessary remission ‘with all deliberate speed’. Relevant principles discussed. Importance of finality. Appeal struck out not withstanding absence of prejudice.

Judges:

Clarke J

Citations:

Unreported, 16 September 1997

Jurisdiction:

England and Wales

Arbitration

Updated: 13 May 2022; Ref: scu.220794

Ali Shipping Corporation v Sour Brodgradevina Industrija ‘Jozo Lozovina – Mosor’ and Others: ComC 18 Sep 1997

Arbitration – confidentiality – implied term – no term implied because not necessary to make contract work. Ali refused injunction against yard to restrain it from disclosing evidence and reasons in award between Ali and yard to other buyers in the same group as Ali or to the arbitrators in arbitrations between the yard and those buyers.

Judges:

Clarke J

Citations:

Unreported, 18 September 1997

Jurisdiction:

England and Wales

Cited by:

Appeal fromAli Shipping Corporation v Jugobanka D D Beograd Jugobanka Split CA 13-Nov-1997
. .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 13 May 2022; Ref: scu.220795

Living Waters Christian Centres Ltd v Fetherstonehaugh: ComC 26 Sep 1997

Rent review. Whether misconduct by reason of the admission of hearsay evidence and evidence not proved by affidavit in non-compliance with previous procedural directions. Circumstances in which evidence of comparable inadmissible as hearsay. Distinction between weight and admissibility.

Judges:

Colmore J

Citations:

Unreported, 26 Sep 1997

Jurisdiction:

England and Wales

Arbitration, Landlord and Tenant

Updated: 13 May 2022; Ref: scu.220797

London Export Corporation v Jubilee Coffee Roasting Co Ltd: 1958

The court considered any discretion not to enforce a valid arbitration award: ‘When the arbitration agreement has been construed and no breach of the agreed procedure found there may nevertheless arise a second and quite separate question: that is, whether, as a matter of public policy, a particular award, made pursuant to that agreed procedure, ought not to be enforced and ought, therefore, to be set aside; for an arbitrator’s award, unless set aside, entitles the beneficiary to call upon the executive power of the State to enforce it, and it is the function of the court to see that that executive power is not abused.’

Judges:

Diplock J

Citations:

[1958] 1 WLR 271

Jurisdiction:

England and Wales

Cited by:

ApprovedJames Laing Son and Co Ltd v Eastcheap Dried Fruit Company 1962
McNair J said: ‘An English court exercises control over the enforcement of the arbitral award as part of the lex fori, whatever the proper law of the arbitration agreement or the place where the arbitration is conducted. If a claimant wishes to . .
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 . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 13 May 2022; Ref: scu.219316

Joe Lee Ltd v Lord Dalmeny: 1927

Bets were disputed, and particularly the status of a clause in the bookmaker’s book of rules which provided: ‘Should unfortunately any dispute arise we stipulate that the matter be referred within 30 days to the editor of any paper in which we advertise or another responsible arbitrator by mutual agreement.’
Held: ‘That the rules in this book, if accepted, expressly or by conduct, would constitute a contract or agreement by way of gaming or wagering would not be disputed, but it has been argued that the paragraph I have read is not included under the heading ‘Rules’, and ought to be treated as a separate agreement, and as one not tainted with the illegality attaching to rules regulating betting transactions. I cannot take that view. The paragraph is, in my opinion, an integral part of the terms upon which alone the plaintiffs were willing to do business with the persons to whom this book was sent . . I cannot separate that part of the document from the rules and treat the agreement to refer as one distinct and apart from the other contents of this book. There is only one contract and that a contract or agreement by way of gaming or wagering, a contract therefore which is void and cannot be made the foundation of any successful application in these Courts.’

Judges:

Eve J

Citations:

[1927] 1 Ch 300

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 13 May 2022; Ref: scu.219315

Chandris v Isbrandtsen-Moller Co Inc: CA 1950

Although section 3(1) of the 1934 Act expressly empowered only courts of record to include interest in sums for which judgment was given for damages or debt, arbitrators were nevertheless empowered by the agreement of reference to apply English law, including so much of that law as is to be found in the section. The Hague Rules were designed to achieve a part harmonisation of the diverse laws of trading nations. It achieved this by regulating freedom to contract on certain topics only.
Devlin J said: ‘A rule of construction cannot be more than a guide to enable the court to arrive at the true meaning of the parties.’

Judges:

Devlin J

Citations:

[1951] 1 KB 240, (1950) 2 All ER 618, (1950) 84 Lloyds Rep 347

Statutes:

Hague-Visby Rules, Law Reform (Miscellaneous Provisions) Act 1934 3(1)

Jurisdiction:

England and Wales

Cited by:

CitedJindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
CitedJindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
CitedCosco Bulk Carrier Co Ltd and Another v M/V ‘Saldanha’ C/P Dated 25/06/08 ComC 11-Jun-2010
The court considered the effect of a ship being taken by pirates at sea on the obligations in the charterparty contract. The insurers said that a claim for ‘average accident’ must include an element of physical damage – absent in this case.
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 13 May 2022; Ref: scu.219886

Re 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’.

Judges:

Scrutton LJ

Citations:

[1919] 1 KB 491

Cited by:

CitedCarter (T/A Michael Carter Partnership) v Harold Simpson Associates (Architects) Ltd (Jamaica) PC 14-Jun-2004
(Jamaica) A joint venture partnership dispute was referred to arbitration. Certain elements were appealed and remitted. One party claimed that the entire arbitration was deprived of legal effect.
Held: The amended award following remittal was . .
CitedNational 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 . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 13 May 2022; Ref: scu.198416

Margulies Brothers Ltd v Dafnis Thomaides and Co (UK) Ltd: 1958

A court has power to amend an award to put it into a form which is enforceable.

Judges:

Diplock J

Citations:

[1958] 1 WLR 398

Jurisdiction:

England and Wales

Cited by:

CitedCarter (T/A Michael Carter Partnership) v Harold Simpson Associates (Architects) Ltd (Jamaica) PC 14-Jun-2004
(Jamaica) A joint venture partnership dispute was referred to arbitration. Certain elements were appealed and remitted. One party claimed that the entire arbitration was deprived of legal effect.
Held: The amended award following remittal was . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 13 May 2022; Ref: scu.198417

Agromet 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.

Citations:

[1985] 2 All ER 436

Jurisdiction:

England and Wales

Cited by:

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 . .
CitedNational 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 . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Limitation

Updated: 12 May 2022; Ref: scu.188225

Schiffahrtsgesellschaft Detlev von Appen GmbH v Voest Alpine Intertrading GmbH (‘The Jay Bola’): CA 1997

The insurance company claimant had insured a cargo under a voyage charter made by the defendant as charterer with the claimant as time charterer and disponent owner of the vessel. The charter had an arbitration clause. The cargo was damaged in a fire and steps taken to extinguish it. The insurers began proceedings in Brazil in their own name against the disponent owners to avoid the statutory provisions in England giving effect to the international convention limiting the liability of owners of seagoing ships. The disponent owners applied to the court for an anti-suit injunction, contending that the insurers had no cause of action which would found a claim for relief.
Held: An assignee of rights under a contract which contains an arbitration clause must pursue his claim in arbitration in accordance with the terms of the contract. The court will normally protect a right not to have proceedings brought against him in another forum by granting an anti-suit injunction.
Hobhouse LJ rejected the argument of the disponent owners: ‘Miss Bucknall submits that, even so, there is no right which can be asserted by the timecharterers against the insurance company which gives a cause of action by the former against the latter. She submitted that to recognize any such cause of action would amount to treating the burden of the contract as having been transferred, something which would only occur if there had been a novation. In the present case all that had been transferred was a right of the voyage charterers against the timecharterers. The burden of the contract was not transferred. The insurance company came under no actionable liability to the timecharterers. In my judgment this argument fails to understand the nature of the equitable remedy which is being sought in this action. The simplest way in which to illustrate this is to take a simple analogy. If the assignee of a legal right in action seeks to enforce that right against the debtor without taking into account an equitable set-off which the debtor was entitled to raise against the assignor, the debtor’s remedy, prior to the Common Law Procedure Acts and the Judicature Acts of the last century, would have been to apply in the Court of Chancery for an injunction to restrain the assignee from asserting the common law right in the common law courts unless and until he recognized the equitable right of the debtor. The injunction was granted to provide the debtor with the appropriate protection from the unconscionable conduct of the assignee; it does not depend upon any liability of the assignee for the sums to be set-off. The right to apply for an injunction is not a ’cause of action’ of the same character as the right to sue for damages for breach of contract or tort or to collect a legal debt. It is an application for an equitable remedy to protect the plaintiff against the consequences of unconscionable conduct. Since the fusion of the jurisdiction of the Chancery and Common Law courts, the need of the aggrieved party to apply for an injunction no longer arises and the common injunction has been abolished by statute. He can raise the equity in response to and in the same proceedings as the common law action. However, where the action is brought by the assignee in another jurisdiction which does not recognize the equitable right of the debtor, the debtor’s only remedy is (just as it was in the first half of the last century) to apply for an injunction to restrain the assignee from refusing to recognize the equity of the debtor. The present case is such a case. The insurance company is failing to recognize the equitable rights of the timecharterers. The equitable remedy for such an infringement is the grant of an injunction.’
Hobhouse LJ explained the position of an assignee: ‘But the plaintiff in the Brazilian proceedings and the relevant defendant in the present action is the insurance company. The insurance company has made no contract with the timecharterers. The insurance company is the assignee or the transferee of the rights of the voyage charterers against the timecharterers. It is submitted on behalf of the insurance company that as a result the insurance company is entitled to enforce the voyage charterers’ contractual rights without any obligation to refer the dispute to arbitration. This submission is unsound and contrary to decided authority.
The proper law which governs the voyage charterparty and the contractual rights which the insurance company is seeking to enforce in Brazil is English law. Under s.136 of the Law of Property Act 1925 rights of action are assignable subject to equities, for example, rights of equitable set-off. (Lawrence v Hayes [1927] 2 KB 111) Similarly under s.4 of the Arbitration Act 1950 and s.1 of the Arbitration Act 1975 the stay of an action may be ordered on the application not only of the contracting party but also ‘any person claiming through or under him’. (The position is the same under the 1996 Act: see s.82(2).) An example of such a stay being granted against an assignee is The Leage [1984] 2 Lloyds 259. The assignee takes the assigned right with both the benefit and the burden of the arbitration clause.’
Sir Richard Scott VC agreed: ‘Miss Bucknall argued that, because WAV were not parties to the sub-charterparty and because the subrogation which entitled WAV to sue on Voest’s contractual causes of action did not constitute a novation under which WAV became a party to the sub-charterparty, WAV were not bound by the arbitration agreement. The premises on which this argument is based are correct but the conclusion drawn therefrom is not. WAV is bound by the arbitration agreement not because there is any privity of contract between WAV and DVA but because Voest’s contractual rights under the sub-charter party, to the benefit of which WAV has become entitled by subrogation, are subject to the arbitration agreement which, too, is part of the sub-charter party. WAV cannot enforce those contractual rights without accepting the contractual burden, in the form of the arbitration agreement to which those rights are subject (c/f Halsall v Brizell [1957] Ch. 169 and Tito v Waddell (No. 2) [1977] Ch. 106 at p. 309). WAV is, through subrogation, an assignee from Voest of Voest’s contractual rights against DVA. DVA is contractually entitled, whether as against Voest or any assignee from Voest, to require the enforcement of those rights to be pursued by arbitration. WAV’s attempt to enforce those rights otherwise than by arbitration is a breach of DVA’s contractual entitlement. I agree with Lord Justice Hobhouse that DVA’s remedy is, prima facie, the grant of an injunction to restrain the attemp

Judges:

Hobhouse LJ, Sir Richard Scott VC Morritt LJ

Citations:

[1997] 2 Lloyds Rep 279

Statutes:

Arbitration Act 1996 8(1)

Jurisdiction:

England and Wales

Cited by:

CitedNisshin Shipping Co Ltd v Cleaves and Company Ltd and others ComC 7-Nov-2003
One party sought a declaration that arbitrators should have no jurisdiction to determine claims for commission said to be due to the Respondent chartering brokers.
Held: Because he has in effect become a statutory assignee of the promisee’s . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 12 May 2022; Ref: scu.187710

T W Thomas and Co Ltd v Portsea Steamship Co Ltd: PC 1912

The board discussed the approach to the incorporation of arbitration clauses and jurisdiction clauses from one contract into another such as a bill of lading.

Citations:

[1912] AC 1

Cited by:

CitedNisshin Shipping Co Ltd v Cleaves and Company Ltd and others ComC 7-Nov-2003
One party sought a declaration that arbitrators should have no jurisdiction to determine claims for commission said to be due to the Respondent chartering brokers.
Held: Because he has in effect become a statutory assignee of the promisee’s . .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 12 May 2022; Ref: scu.187714

Profilati Italia S R L v Painewebber Incorporated, Painewebber International Futures Limited: ComC 12 Sep 2001

CS Arbitration – Award – Application to set aside award on the grounds of serious irregularity – Arbitration Act 1996 s. 68(2)(g) – whether inadvertent failure to disclose relevant documents resulted in award being procured in a way contrary to public policy – whether respondents suffered substantial injustice. Arbitration – Disclosure – Arbitration under Rules of the London Metal Exchange – duty of respondent to give disclosure – whether respondent failed to disclose relevant documents
The Applicant challenged an arbitration award made under the rules of the London Metal Exchange. They claimed that they had incurred losses through the wrongful closure of its credit line and by closing out the business between them. They claimed the award would not have been made had the defendants made full disclosure of documents which later came to light. They claimed this to be in breach of public policy rather than by fraud. This applied for the most serious of cases where justice called out for a remedy. In this case disclosure may not have included these documents, and they may not have had the substantial effect claimed. The application failed.

Judges:

Moore-Bick J

Citations:

[2001] 1 All ER 1065

Statutes:

Arbitration Act 1996 68(2)(g)

Jurisdiction:

England and Wales

Arbitration, Financial Services

Updated: 11 May 2022; Ref: scu.166138

Thyssen inc v Calypso Shipping Corporation SA: QBD 6 Jul 2000

A claim had been brought in the US, in respect of damage to materials being carried on board a ship. The claim was begun within the one year limit, but the respondents had the US action stayed after the one year, by virtue of a breach of the arbitration clause. The claimant sought to renew the application in London, but failed.
Held: The time limit had passed, and the action which had been stayed could not count as having begun proceedings because the way in which it came to an end meant it was no longer valid and effective.

Citations:

Gazette 06-Jul-2000, Times 17-Aug-2000

Jurisdiction:

England and Wales

Transport, Arbitration

Updated: 11 May 2022; Ref: scu.89896

RC Pillar and Sons v Edwards and another: TCC 11 Jan 2001

The parties had disputed the final value of works of construction. The dispute was referred to an arbitration, the costs of which came vastly to exceed the sums at issue. An application was now made for the award to be remitted.
Held: A request for an extension of time for an application under section 60 of the 1996 Act was governed by section 80. Once asked under section 57 to make one correction to his award, the arbitrator had a duty to consider the entire award for other possible corrections. The arbitrator had a duty to adopt procedures which were proportionate to the sums inviolved. He had failed in that duty.
He had failed to take control of the prolix pleadings and schedules lodged by the partes. The schedules were not in appropriate Scott schedule form, and items had not been consolidated. The award was produced only after delay and was itself diffuse and lacking focus with significant errors and omissions.

Judges:

Anthony Thornton QC HHJ

Citations:

[2001] All ER (D) 232

Statutes:

Arbitration Act 1996 57 68 70 76 79 80

Arbitration

Updated: 11 May 2022; Ref: scu.536639

Metall und Rohstoff AG v Donaldson Luftkin and Jenrette Inc: CA 1991

Citations:

[1991] QB 391

Cited by:

CitedAB 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 . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 11 May 2022; Ref: scu.519433

Project Consultancy Group v Trustees of the Gray Trust: 1999

It was said there had been an ad hoc agreement to refer jurisdictional issue to the adjudicator. The defendant said that he had objected to the arbitrator’s jurisdiction.
Held: Dyson said, on these particular facts: ‘In my view, the defendants’ solicitor’s letter of 9 March 1999 stated in the clearest terms that the defendants protested the adjudicator’s jurisdiction, and that they would not recognise and comply with any decision to award money to the claimant. The letter also made it clear that, if the adjudication proceeded, they reserved their rights to participate, but without prejudice to their contention that there was no jurisdiction. I do not consider that there can be any reasonable doubt as to the meaning of that letter. The only real question is whether, by participating in the adjudication process, the defendants waived the jurisdiction point, and agreed to submit to abide by the decision of the adjudicator on that issue. The only material relied on by Ms Rawley [Counsel] is the content of the defendants’ response . . But, in their response, the defendants continued to assert that the adjudicator had no jurisdiction . . It is a matter of fact whether a parties submit to the jurisdiction of the third person . .’

Judges:

Dyson J

Citations:

(1999) 65 Con LR 14

Jurisdiction:

England and Wales

Cited by:

CitedAedifice Partnership Ltd v Shah TCC 10-Aug-2010
The defendant challenged the arbitration enforcement saying that there had been no contract and therefore no jurisdiction for the arbitration. . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 11 May 2022; Ref: scu.509975

Irvani v Irvani: CA 10 Feb 2000

An arbitration award should be refused where a party could show that he had not been allowed to present his case properly. The claimant had acted as a litigant in person. The judge hearing the appeal had refused to hear certain aspects of the case, but those aspects revealed cases coming under the heading of making the party ‘unable to present his case’. Some of the findings suggested that she had taken into account matters not disclosed to the applicant.

Citations:

Times 10-Feb-2000

Statutes:

Arbitration Act 1996 103(2)(c)

Jurisdiction:

England and Wales

Arbitration, Natural Justice

Updated: 10 May 2022; Ref: scu.82428

Harbour and General Works Ltd v The Environment Agency: CA 22 Oct 1999

Where parties operated under a contract which provided for arbitration provided reference was claimed within a certain time scale, the failure of one party to apply for a reference in time because he had failed to read that part of the contract was not a sufficient reason to allow an extension of time. This applied even though the term was incorporated by reference, and that such applications need not be construed strictly.

Citations:

Times 22-Oct-1999, Gazette 10-Nov-1999, [1999] BLR 409

Jurisdiction:

England and Wales

Cited by:

CitedJ T Mackley and Company Ltd v Gosport Marina Ltd TCC 3-Jul-2002
The claimant challenged the validity of a notice to refer a case to arbitration. The respondent challenged saying that the court had no jurisdiction to hear the objection, and that such issues were to be decided by the arbitrator. The claim related . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Contract, Construction

Updated: 10 May 2022; Ref: scu.81226

Grammer v Lane and Others: CA 2 Dec 1999

A partnership involving the plaintiff took a tenancy of agricutural land. The plaintiff then said that the tenency had been extended to other land. The successor to the freehold denied that extension, but served a rent demand and for repairs both ‘without prejudice’ to the question of the existence of the tenancy. Matters were referred to the arbitrator.
Held: Where there was a dispute as to the existence of an agricultural tenancy, a party could nevertheless make use of notices and procedures for the protection of the tenancy on a ‘without prejudice’ basis. Where there were statutory arbitration proceedings also, the arbitrator had the choice of delaying those proceedings pending resolution of the issues as to the existence of the tenancy, of stating a case for the county court, or declining jurisdiction.

Judges:

Peter Gibson LJ, Mance LJ, Wilson J

Citations:

Times 02-Dec-1999, Gazette 17-Dec-1999

Statutes:

Agricultural Holdings Act 1986

Jurisdiction:

England and Wales

Citing:

CitedRegina v Fulham, Hammersmith and Kensington Rent Tribunal, ex parte Zerek 1951
A rent tribunal could not give itself jurisdiction over an unfurnished letting. Devlin J said: ‘While they will not allow every empty threat to their jurisdiction to deter them from their proper business of fixing reasonable rents, they will . .
Lists of cited by and citing cases may be incomplete.

Agriculture, Landlord and Tenant, Arbitration

Updated: 10 May 2022; Ref: scu.80966

Dubai Islamic Bank Pjsc v Paymentech Merchant Services Inc: QBD 24 Nov 2000

The place of arbitration, the juridical seat, was necessarily and inherently established at the time when an arbitration began, and could not subsequently be moved, save with the consent of the parties. Until the point where the arbitration commenced, the juridical seat could be established as required under the Act by looking at all the circumstances, but to allow it to be reviewed and changed after commencement would allow it to become peripatetic.

Citations:

Gazette 07-Dec-2000, Times 24-Nov-2000

Statutes:

Arbitration Act 1996 67 68 69

Arbitration, International

Updated: 10 May 2022; Ref: scu.80152

Britten Norman Ltd (In Liquidation) v State Ownership Fund of Romania and Another: ChD 27 Jul 2000

A letter of guarantee specified no place of payment. The debtor’s obligation to seek out the creditor had no relevance in this situation, and the stipulation of an account in Romania for the payment was merely administrative. The obligation to pay crystallised only when the demand was made in accordance with the contract, and the place for payment was the place where the demand was made.

Citations:

Gazette 27-Jul-2000, Times 03-Aug-2000

Jurisdiction:

England and Wales

International, Arbitration

Updated: 10 May 2022; Ref: scu.78658

Bouygues (Uk) Ltd v Dahl-Jensen (Uk) Ltd (In Liquidation): CA 17 Aug 2000

When the decision of an adjudicator was challenged, the court should ask whether the adjudicator had either asked the right question but in the wrong way, or whether he had even answered the wrong question. The procedure was intended to provide a quick and summary disposal, but that procedure might not be appropriate in cases involving insolvency of one party and or cross claims. Any creditor who owes a debt to an insolvent company, no matter how long overdue, may set off that debt in full against his own claim in the liquidation.

Judges:

Chadwick LJ

Citations:

Times 17-Aug-2000, Gazette 14-Sep-2000, [2000] BLR 522

Statutes:

Housing Grants Construction and Regeneration Act 1996 108

Jurisdiction:

England and Wales

Citing:

Appeal fromBouygues UK Limited v Dahl-Jensen UK Limited TCC 17-Dec-1999
An arbitrator had made an award, the consequence of which, it was claimed, would lead to a retention being released before it was actually due. It was claimed that this part of the award was outside the adjudicator’s jurisdiction.
Held: . .

Cited by:

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 . .
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. . .
CitedMelville Dundas Ltd and others v George Wimpey UK Ltd and others HL 25-Apr-2007
The appellant sought an interim payment for works of construction undertaken for the respondents under a JCT contract. The respondents contended that, having terminated the contract on their receivership, the contract and Act meant that the interim . .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration, Commercial, Insolvency

Updated: 10 May 2022; Ref: scu.78510

Andrews (Trading As BA Contractors) v Bradshaw and Another: CA 11 Oct 1999

Although an arbitrator had failed to hide his irritation and impatience with one side on a case referred to him, that was insufficient to justify taking the reference away. However an agreement reached with one side only as to his costs could suggest a need for impartiality. The arbitrator had expressed himself unwisely, but had conducted the arbitration itself fairly, and his appointment would not be set aside.

Citations:

Times 11-Oct-1999

Jurisdiction:

England and Wales

Arbitration

Updated: 10 May 2022; Ref: scu.77794

Compagnie Eurpeene de Cereals SA v Tradax Export SA: 1986

Citations:

[1986] 2 Lloyd’s Rep 301

Jurisdiction:

England and Wales

Cited by:

CitedSheffield United Football Club Ltd v West Ham United Football Club Plc ComC 26-Nov-2008
The claimant sought an order to prevent the defendant company from pursuing further an appeal against a decision made by an independent arbitator in their favour as regards the conduct of the defendant in the Premier League in 2006/2007.
Held: . .
CitedSheffield United Football Club Ltd v West Ham United Football Club Plc ComC 26-Nov-2008
The claimant sought an order to prevent the defendant company from pursuing further an appeal against a decision made by an independent arbitator in their favour as regards the conduct of the defendant in the Premier League in 2006/2007.
Held: . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 10 May 2022; Ref: scu.278407

Toepfer v Warinco AG: 1978

The buyer’s representatives had failed to see that the cargo was coarse-ground meal rather than fine-ground meal. The seller defended pleading waiver, based on this omission.
Held: The defence failed because the buyer’s supervisor had failed to spot the discrepancy. The omission amounted to a failure to mitigate such that the buyers were only entitled to nominal damages. It is not necessary that an arbitration award should contain express findings of fact, provided that the necessary findings may be ‘spelled out’.

Judges:

Brandon J

Citations:

[1978] Lloyds Rep 569

Jurisdiction:

England and Wales

Cited by:

CitedPersimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 10 May 2022; Ref: scu.277766

Union of India v Aaby’s Rederi A/S, The Evje: HL 1975

Lord Dilhorne said of the words ‘to be settled in London’: ‘At first sight those words appear to me to mean no more and no less than that the contributions to be made have to be determined in London and paid there, and that implies determined in accordance with English law.’ The phrase ‘to be settled in London’ did not to take the dispute out of the scope of an arbitration clause.
Neither Lord Salmond nor Lord Dilhorne could see a difference between clauses poviding for arbitration of disputes ‘arising under’ and ‘arising out of’ a contract.

Judges:

Viscount Dilhorne, Lord Salmon

Citations:

[1975] AC 797

Jurisdiction:

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.
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.

Contract, Arbitration

Updated: 10 May 2022; Ref: scu.248209

Tote Bookmakers Ltd v Development and Property Holding Co. Ltd.: 1985

Peter Gibson J defined the phrase undue hardship as ‘hardship . . not warranted by the circumstances’.

Judges:

Peter Gibson J

Citations:

[1985] Ch 261

Statutes:

Arbitration Act 1950 27

Cited by:

CitedSecretary of State for Work and Pensions v Roach CA 20-Dec-2006
The court considered the reduction of state benefits payable to a mother asking the Child Support Agencey not to pursue a claim against the father where there has been a history of domestic violence. The mother said she was frightened of retribution . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 10 May 2022; Ref: scu.247525

Aiglon Limited and another v Gau Shan Co Limited: ChD 1993

The defendants had obtained world-wide Mareva injunctions in support of substantive proceedings by way of their counterclaim to enforce an arbitration award against the plaintiffs under section 26 against two companies, Aiglon Limited and L’Aiglon SA (a Swiss company).
Held: There was no basis under section 26 for enforcement of the arbitration award against SA, but the question arose whether any other basis for a freezing order against SA existed, having regard to the fact that the defendants’ only contractual entitlement was against Limited. There were two bases. It was well arguable that a transfer of assets from Limited to SA fell foul of section 423 of the Insolvency Act 1986, thereby giving the defendants a direct cause of action against SA as victims of the transaction. Second, since an administrator or liquidator of Limited (if appointed) could apply to set aside the relevant transaction under section 238 of the Insolvency Act 1986 with the consequence that SA would hold the assets transferred as trustee for Limited, the case fell within the Chabra jurisdiction since it was arguable that SA held assets beneficially belonging to Limited, against which the defendants had a good cause of action. It mattered not that Limited’s arguable beneficial interest in assets transferred to SA was contingent both upon the appointment of an administrator or liquidator of Limited, and the successful pursuit by the officeholder of a claim under section 238.

Judges:

Hirst J

Citations:

[1993] BCLC 1321

Statutes:

Arbitration Act 1950 26, Insolvency Act 1986 423

Cited by:

CitedHM Revenue and Customs v Egleton and others ChD 19-Sep-2006
The claimants had applied for the winding up of a company for very substantial sums of VAT due to it. Anticipating that hearing, it now sought restraining orders against the director defendants, alleging that there had been a carousel or missing . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration, Insolvency

Updated: 10 May 2022; Ref: scu.245162

Liberian Shipping v King: CA 1967

The court considered what was meant by undue hardship: ”Undue’ . . simply means excessive. It means greater hardship than the circumstances warrant. Even though a claimant has been at fault himself, it is an undue hardship on him if the consequences are out of proportion to his fault.’

Judges:

Lord Denning MR

Citations:

[1967] 2 QB 86

Cited by:

CitedErnest John Fifield and Another v W and R Jack Limited PC 29-Jun-2000
PC (New Zealand) The tenants sought an extension of time to take their rent review to arbitration. The Landlords appealed a grant of leave.
Held: The grant of leave was discretionary where the court found . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 10 May 2022; Ref: scu.244800

‘The Simonburn’: 1973

A party who may wish to apply for an extension of time for referring an issue to arbitration must do so as soon as possible upon realising the need for an application. The remedy is available as a discretion.

Citations:

[1973] 2 Lloyds 145

Cited by:

CitedErnest John Fifield and Another v W and R Jack Limited PC 29-Jun-2000
PC (New Zealand) The tenants sought an extension of time to take their rent review to arbitration. The Landlords appealed a grant of leave.
Held: The grant of leave was discretionary where the court found . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 10 May 2022; Ref: scu.244801

Esso Petroleum v Texaco Ltd and Others: ComC 19 Oct 1999

Arbitration – preliminary issue – pipeline – Participants Agreement – Articles of Association of company – true construction – meaning of words ‘an amount which . . will give an adequate profit as determined from time to time by the company’.

Judges:

Cresswell J

Citations:

Unreported, 19 October 1999

Arbitration

Updated: 09 May 2022; Ref: scu.225430

Clegg v Fraser: 1982

The court considered at what level a point of law would justify reference from an arbitration to the High Court.

Citations:

[1982] 2 EGLR 7

Jurisdiction:

England and Wales

Cited by:

CitedWilliam Smith (Wakefield) Ltd v Parisride Ltd Admn 23-Mar-2005
The tenant farmer served two notices both referring the landlord’s notice to quit to arbitration (s28(4)) and also a counter-notice (s28(2)). The landlord said he could not serve both and had not identified which he wished to proceed upon. No . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 09 May 2022; Ref: scu.224099

Fence Gate Ltd v NEL Construction Ltd: 2001

An Arbitrator’s Award on costs was altered by the Court for a variety of errors by the Arbitrator in his original Award, which were held matters of law.
Held: The court set out the principles for such applications: i) For the complaint about a costs award to arise in the form of an appeal, it must be one that can be expressed in the form of a clear question of law. ii) If the complaint is that the decision that the Arbitrator arrived at was wrong because of an error in his appreciation or understanding of the material used as the basis of the award, it may amount to a serious irregularity. But it does not give rise to a question of law. iii) The Arbitrator must not take into account matters which the law or the powers given him by the parties or the general law preclude him from acting on and, conversely, he must not fail to take account of, and give effect to matters that the law requires him to take account of. Moreover, since the tribunal must observe and give effect to the law, the overall discretionary exercise must not be perverse nor one that a reasonable arbitration tribunal properly directing itself could not have reached. iv) A question of law can arise, if it is contended that the Arbitrator misdirected himself by taking into account factors which he should not have done or by failing to take into account factors he should have done (Paragraph 40 of the Judgment).

Judges:

His Honour Judge Thornton QC

Citations:

(2001) 82 Con LR 41

Jurisdiction:

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, Costs

Updated: 09 May 2022; Ref: scu.221023

Intermare Transport GmbH v International Copra Export Corporation (The ‘Ross Isle’ and ‘Ariel’): ChD 1982

Disputes arose from the carriage of two cargoes of copra from the Philippines to Europe in the vessels Ross Isle and Ariel. The disputes were referred to the same arbitrator and heard together, but with separate awards. After the hearing the owners asked the arbitrator to state his award in relation to the charterers’ counterclaim in each case in the form of a special case, but he declined to do so saying the questions raised were almost entirely of a factual nature, and he would issue the awards in a non-speaking form. He gave the parties 14 days to apply to court for a special case. The owners’ solicitors mistakenly took the view that their question of law did not in fact arise and made no application. The arbitrator published unreasoned awards, but provided the parties with separate confidential reasons for their information. Seeing their mistake, the owners applied under section 22 to remit the awards for special cases, because as a result of a misunderstanding, there had been a procedural mishap giving rise to injustice, and a cause for intervention. The owners sought to refer to the arbitrator’s confidential reasons, but each expressly said that the reasons did not form part of the award and were issued on the understanding that no use should be made of them in any proceedings arising on or in connection with the award. Could the court properly look at them on an application of that kind?
Held: ‘ Mr. Evans submits that in Court he is entitled to look at those documents and should do so for the purpose of these applications if the Court is not satisfied, merely from looking at the award, that the arbitrator has decided the case on matters of law, that is to say, the interpretation of cl. 35. It is, I think, quite clear, and Mr. Evans does not dispute, that if the application were to set aside or remit the awards for error of law on their face then it would not be permissible to look at these reasons. They are not incorporated in the awards expressly or by reference to anything that is to be found in the awards. But that is not the application which is made here – it is an application to remit or set aside on other grounds. For that purpose Mr. Evans submits that all relevant evidence is admissible. I am disposed to agree with that (although again I have not heard Mr. Thomas on this point) subject to any special restriction that may attach to any particular category of evidence. Is there some special restriction applying to the reasons given by the arbitrator, and if so what is the legal basis of it? Mr. Evans submits, or accepts, that the plaintiffs, by their acceptance of the reasons with that note upon them, agreed to some implied contract that they would not use the reasons, at any rate for some purposes. In my judgment Mr. Evans is right to accept that. It is extremely common practice in maritime arbitrations in London for such documents to be issued together with the award but separate from it. Sometimes the arbitrator will ask the parties before the conclusion of the hearing whether they wish him to issue separate reasons and whether they will accept them with such a note upon them. I, indeed, have known of one case where one party said that he would not accept reasons on those terms and the consequence was that no reasons were issued. But in the ordinary way if that is expressly said then there is clearly to my mind a contract that the reasons will be treated in confidence as the note requires. Even where nothing is said by the arbitrator before the conclusion of the hearing (and as far as the evidence goes, nothing was said by the arbitrator in this case) the practice is so commonplace in maritime arbitrations in London that I would regard it as implied by custom that an arbitrator may, if he wishes, issue reasons with such a note upon them and the parties agree to be bound by it. That, as I say, was accepted by Mr. Evans; but he has a powerful point that there is a public interest which overrides any private contract as to the admissibility of evidence in certain cases . . . I accept that there are circumstances in which the public interest requires that notwithstanding the private contract of the parties that they will treat such reasons confidentially, still they may be disclosed to the Court. On the other hand there is, as it seems to me, a strong public interest that arbitrators, if they choose, should be free to publish reasons of a confidential nature and the parties should be free, if they choose, to accept reasons on that basis. Whether, in any particular case, the public interest in favour of disclosure to the Court overrides the general public interest that confidential reasons may be published for the interest of the parties without endangering the rule that there must be an end to litigation, is a matter for decision in that case. If it had arisen in the present case I would have held that the public interest here did not require me to look at the reasons for the purposes of investigating a possible misunderstanding between the arbitrator and the legal advisers of the plaintiffs.’

Judges:

Staughton J

Citations:

[1982] 2 Lloyd’s Rep 589

Statutes:

Arbitration Act 1950 22

Jurisdiction:

England and Wales

Cited by:

CitedTame Shipping Ltd v Easy Navigation Ltd QBD 28-Jul-2004
The parties had agreed to an arbitration subject to the condition that the reasons given were not to form any basis for appeal. The reasons were published separately from the award.
Held: The appeal was based upon an assertion which could only . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 09 May 2022; Ref: scu.219431

Lobb Partnership Limited v Aintree Racecourse Company Limited: 2000

A clause in an agreement provided that disputes might be be dealt with by arbitration but shall otherwise be referred to the English Courts.
Held: Each party had a right of election for arbitration. ‘The English courts have consistently taken the view that, provided that the contract gives a reasonably clear indication that arbitration is envisaged by both parties as a means of dispute resolution, they will treat both parties as bound to refer disputes to arbitration even though the clause is not expressed in mandatory terms.’

Judges:

Colman J

Citations:

[2000] 1 Building Law Reports 65

Cited by:

CitedNB Three Shipping Ltd. v Harebell Shipping Ltd ComC 13-Oct-2004
Under charterparty agreements, certain disputes were to be referred to arbitration. The claimant sought to pursue a dispute before the court.
Held: The lack of mutuality on the arbitration clause did not prevent its validity. The party had the . .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration

Updated: 09 May 2022; Ref: scu.216402

Panamena Europea Navigacion v Frederick Leyland and Co: HL 1947

The parties had entered into an agreement providing for arbitration of any disputes. Lord Thankerton said: ‘By entering into the contract the respondents agreed that the appellant’s surveyor should discharge both these duties and therefore they cannot claim that the appellant’s surveyor must be in the position of an independent arbitrator, who has no other duty which involves acting in the interests of one of the parties.’
and ‘Dr Telfer declined to proceed with the matter unless he was provided with the information to which, on his erroneous view of the contract, he held himself entitled; in this view the Appellants concurred, and this position was maintained up to and after the issue of the writ. This means an illegitimate condition precedent to any consideration of the granting of a certificate was insisted on by Dr. Telfer and by the Appellants. It is almost unnecessary to cite authority to establish that such conduct on the Appellants’ part absolved the Respondents from the necessity of obtaining such a certificate, and that the Respondents are entitled to recover the amount claimed in the action.’
and ‘The view of the function of the appellant surveyor under clause 7 of the contract which I have already expressed, makes it clear beyond dispute that the Respondents have done everything which was necessary for them to do in order to require Dr. Telfer to proceed to consider the granting of a certificate under clause 7, but that Dr. Telfer declined to proceed with the matter unless he was provided with the information to which, on his erroneous view of the contract, he held himself entitled; in this view the Appellants concurred, and this position was maintained up to and after the issue of the writ. This means an illegitimate condition precedent to any consideration of the granting of a certificate was insisted on by Dr. Telfer and by the Appellants. It is almost unnecessary to cite authority to establish that such conduct on the Appellants’ part absolved the Respondents from the necessity of obtaining such a certificate, and that the Respondents are entitled to recover the amount claimed in the action.’

Judges:

Lord Thankerton

Citations:

[1947] AC 428

Jurisdiction:

England and Wales

Citing:

Appeal fromLeyland and Co v Cia Panamena Europea Navigacion CA 1943
Goddard LJ said: ‘He, therefore, was unwilling to carry out the duty assigned by the contract to him. The defendants either were of the same opinion or adopted his view; for this purpose, it matters not which. Consequently, they neither required him . .

Cited by:

CitedAMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
AppliedHounslow London Borough Council v Twickenham Gardens Development Limited 1971
The defendant, a building contractor, had been allowed into occupation of a site owned by the plaintiff council under a building contract. The council had sought to determine the contract by notice under its terms. The contractor refused to vacate . .
CitedAmec Civil Engineering Ltd v Secretary of State for Transport CA 17-Mar-2005
The contractors appealed a decision that an arbitrator had jurisdiction to hear a claim against them in respect of works carried out on the Thelwall viaduct. The contractors denied that there had been a dispute which could found a reference, and no . .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration

Updated: 09 May 2022; Ref: scu.185452

LG Caltex Gas Co Ltd and Another v China National Petroleum Corporation and Another: CA 6 Jun 2001

The arbitrator’s award was to the effect that two parties were not party to the contracts containing the arbitration agreements, and that they were therefore not liable to the applicants. The applicants contended that the award was a finding as to jurisdiction which was susceptible to challenge, and the respondents asserted that it was a finding as to their liability under the contract and was unchallengeable. In this case there had been no ad hoc agreements over and above the contracts at issue, to submit to the jurisdiction of the arbitrator. Where an issue as to jurisdiction also went to liability, it was open to the parties to re-open the award by litigation.

Citations:

Times 06-Jun-2001, Gazette 28-Jun-2001

Statutes:

Arbitration Act 1996 67(1)(a) 73

Jurisdiction:

England and Wales

Citing:

Appeal fromLg Caltex Gas Co Ltd and Another v China National Petroleum Corporation and Another QBD 23-Feb-2001
Parties submitting a dispute to arbitration have the power also to agree that neither should have the power to challenge the decision of the arbitrator in court. That had been the position at common law, and this had survived the Act. The agreement . .

Cited by:

Appealed toLg Caltex Gas Co Ltd and Another v China National Petroleum Corporation and Another QBD 23-Feb-2001
Parties submitting a dispute to arbitration have the power also to agree that neither should have the power to challenge the decision of the arbitrator in court. That had been the position at common law, and this had survived the Act. The agreement . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 08 May 2022; Ref: scu.83060

Da Cooper Lavalin Nv v Ken-Ren Chemicals and Fertilisers Ltd (Liq): HL 9 May 1994

The High Court has power to order security for costs to be given with respect to an international arbitration to take place in London, where there may be doubt as to the plaintiff’s creditworthiness.

Citations:

Times 09-May-1994, Gazette 15-Jun-1994, Ind Summary 16-May-1994

Statutes:

ICC Rules of Conciliation & Arbitration 1988, Arbitration Act 1950 812(6)

Arbitration, International

Updated: 08 May 2022; Ref: scu.79771

Paklito 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 its discretion. Kaplan J discussed an instance when it might be exercised in order to enforce an award: ‘He relied strongly upon the fact that the defendants had taken no steps to set aside the award in China and that this failure to so act was a factor upon which I could rely. I disagree. There is nothing in s.44 nor in the New York Convention which specifies that a defendant is obliged to apply to set aside an award in the country where it was made as a condition of opposing enforcement elsewhere . . It is clear to me that a party faced with a Convention award against him has two options. Firstly, he can apply to the courts of the country where the award was made to seek the setting aside of the award. If the award is set aside then this becomes a ground in itself for opposing enforcement under the Convention . . Secondly, the unsuccessful party can decide to take no steps to set aside the award but wait until enforcement is sought and attempt to establish a Convention ground of opposition.
That such a choice exists is made clear by Redfern and Hunter in International Commercial Arbitration p.474 where they state: ‘He may decide to take the initiative and challenge the award; or he may do nothing and resist any attempts by his adversary to obtain recognition and enforcement of the award. The choice is a clear one – to act or not to act.’ . . I therefore conclude that the defendant’s failure to apply to set aside the award is not a factor upon which I should or could rely in relation to the exercise of my discretion . . In relation to the ground relied on in this case I could envisage circumstances where the court might exercise its discretion, having found the ground established, if the court were to conclude, having seen the new material which the defendant wished to put forward, that it would not affect the outcome of the dispute. This view is supported by Professor Albert Van den Berg in his book, the New York Convention of 1958, at p.302, where he states: ‘Thus only if it is beyond any doubt that the decision could have been the same would a court be allowed to override the serious violation.’
It is not necessary for me in this judgment to decide whether this is the only circumstance where the discretion could be exercised or to lay down circumstances where it would be appropriate for the court to exercise its discretion after finding a serious due process violation.’

Judges:

Kaplan J

Citations:

[1993] HKLR 39

Jurisdiction:

England and Wales

Cited by:

CitedDallah 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.
Lists of cited by and citing cases may be incomplete.

International, Arbitration

Updated: 07 May 2022; Ref: scu.373982

Stotesbury v Turner: 1943

Without prejudice negotiations are, as a matter of public policy, to be protected from disclosure to the court seized of the dispute. An arbitrator has the same discretion as to costs as has a High Court judge.

Citations:

[1943] KB 370

Jurisdiction:

England and Wales

Citing:

AppliedWalker v Wilsher CA 1889
Letters or conversations which were written or declared to be ‘without prejudice’ may not be taken into consideration in determining whether there is good cause for depriving a successful litigant of his costs.
Lord Esher MR said: ‘The letters . .

Cited by:

CitedCutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration

Updated: 07 May 2022; Ref: scu.254330

Bank Mellat v Helliniki Techniki: 1984

In English law every arbitration must have a legal home, i.e. a system of municipal law to which it is subject: ‘Despite suggestions to the contrary by some learned writers under other systems, our jurisprudence does not recognise the concept of arbitral procedures floating in the transnational firmament unconnected with any municipal system of law.’

Citations:

[1984] 1 QB 291

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 07 May 2022; Ref: scu.239599

Naviera Maritima Peruana SA v Compania Internacional de Seguros de Peru: CA 1988

Unless agreed otherwise, the law of the ‘seat’ of the arbitration will govern its conduct. The court overruled a first instance decision that an arbitration was to be conducted in Lima as the agreed forum (and therefore seat), but with English law as the lex fori. LJ Kerr referred to the complexities and inconveniences which such an arrangement would cause, including the impossibility or at best difficulty of the English Court exercising jurisdiction over an arbitration proceeding in Peru.

Judges:

Kerr LJ

Citations:

[1988] 1 Lloyds Rep 1116

Jurisdiction:

England and Wales

Cited by:

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 . .
Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 07 May 2022; Ref: scu.239600

Bremer Vulkan Schiffbau und Maschineenfabrik v South India Shipping Coroporation: HL 1981

The parties had referred their dispute to arbitration, but there had been inordinate delay, and the plaintiffs complained that the delay had prejudiced them, and sought an injunction to prevent further contuance of the arbitration, saying that the delay had discharged the arbitration agreement and reference.
Held: A party aggrieved in this way must first make application to the arbitrator. The plaintiff could not rely upon the defendant’s breach to give them the right to treat the agreement as terminated. Lord Scarman said: ‘the object of arbitration is to obtain the fair solution of disputes by an impartial tribunal without unnecessary delay or expense’.
Lord Diplock discussed the source of the jurisdiction to dismiss an action for want of jurisdiction: ‘My Lords, to test the soundness of this analogy in my view calls for a closer legal analysis . . (1) of the respective sources of the jurisdiction of the High Court (a) to dismiss for want of prosecution an action that is pending before it and (b) to prohibit further proceedings in an arbitration pending before a duly qualified arbitrator; and (2) of the differences between action at law and arbitration as ways of resolving disputes between private parties as to their contractual rights.
The High Court’s power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant. Whether or not to avail himself of this right of access to the court lies exclusively within the plaintiff’s choice; if he chooses to do so, the defendant has no option in the matter; his subjection to the jurisdiction of the court is compulsory. So, it would stultify the constitutional role of the High Court as a court of justice if it were not armed with power to prevent its process being misused in such a way as to diminish its capability of arriving at a just decision of the dispute.
The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an ‘inherent power’ the exercise of which is within the ‘inherent jurisdiction’ of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice.’

Judges:

Lord Diplock, Russell of Killowen, Lord Edmund-Davies; Lord Scarman, Lord Fraser of Tullybelton dissenting

Citations:

[1981] 1 AC 909, [1981] 2 WLR 141, [1981] 2 All ER 289

Jurisdiction:

England and Wales

Cited by:

CitedMcNicholas Plc v AEI Cables Limited TCC 25-May-1999
The claimant had subcontracted to supply cabling on the defendant’s project. The contract provided both for the exclusive jurisdiction of the English courts but also for arbitration. The defendant applied for the action to be stayed and referred to . .
CitedMckie and others v Macrae and Another OHCS 23-Dec-2005
. .
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 . .
CitedYasain, Regina v CACD 16-Jul-2015
The Court was asked as to the powers of the Court of Appeal Criminal Division to re-open an appeal to correct an error which is said to have caused real injustice in that the error led to the quashing of a sentence lawfully imposed in the Crown . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 07 May 2022; Ref: scu.238327

Dallal v Bank Mellat: 1986

Any choice of international law to govern an agreement to arbitrate should be express.

Judges:

Hobhouse J

Citations:

[1986] 1 QB 441

Jurisdiction:

England and Wales

Citing:

CitedHenderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .

Cited by:

CitedOccidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 07 May 2022; Ref: scu.230265

K/S A/S Bill Biakh v Hyundai Corporation: 1988

Citations:

[1988] 1 Lloyds Rep 187

Jurisdiction:

England and Wales

Cited by:

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: 07 May 2022; Ref: scu.228174

Ellerine Bros v Klinger: CA 1982

The court was asked whether there was a dispute sufficient to allow a stay of court proceedings to allow an arbitration to proceed.
Held: If letters were written making some request or demand and the defendant did not reply, there was a dispute. It was not necessary, for a dispute to arise, that the defendants should write back and say ‘I don’t agree’.

Judges:

Templeman LJ

Citations:

[1982] 1WLR 1375

Jurisdiction:

England and Wales

Cited by:

CitedAmec Civil Engineering Ltd v Secretary of State for Transport CA 17-Mar-2005
The contractors appealed a decision that an arbitrator had jurisdiction to hear a claim against them in respect of works carried out on the Thelwall viaduct. The contractors denied that there had been a dispute which could found a reference, and no . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 06 May 2022; Ref: scu.224300

Fletamentos Maritimos Sa v Effjohn Internation Bv (1): ComC 23 Jan 1996

ComC Arbitration – arbitration clause – further agreement subsequent to arbitration clause – incorporation of arbitration clause – separate agreement

Judges:

Langley J

Citations:

[1996] 2 Lloyd’s Rep 304

Jurisdiction:

England and Wales

Cited by:

See AlsoFletamentos Maritimos Sa v Effjohn Internation Bv (2) QBD 8-Oct-1996
A judge has the power to intervene in an arbitration even at interlocutory stage but should do so only rarely. . .
See AlsoFletamentos Maritimos SA v Effjohn International (No. 2) ComC 19-Dec-1997
Arbitration – Alleged misconduct by Umpire – discovery – refusal to adjourn. Principles applicable. . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 06 May 2022; Ref: scu.186001