Category: Arbitration

CGU International Insurance Plc and others v Astrazeneca Insurance Co Ltd.: CA 16 Oct 2006

Whilst the court of appeal did have a residual discretion to review a refusal by a judge of a grant of leave to appeal against an arbitration based upon an allegation of unfairness such as should undermine the fairness of the decision, that discretion should be exercised only in exceptionally rare cases. It did not have the power to grant leave itself. The court must look for not only an error of law, but for such a substantial defect in the fairness of the process as to invalidate the decision. This was something more than perversity.
Rix LJ said: ‘Subject to the question of a residual jurisdiction in cases where what is in question is not a review of the commercial judge’s discretion (which as I have said there is common ground cannot be the subject matter of an appeal from a refusal of leave under section 69(8)) but a matter of unfairness, I do not consider any of this to be now capable of dispute.’
and ‘I am not here concerned with the width of judicial review, but with the distinction between a decision on the merits, right or wrong, and the process by which the decision is supposedly taken, adequate or flawed by unfairness.
In my judgment, the dictum of Mustill LJ demonstrates, even before the Human Rights Act, the limits of the Lane v Esdaile principle, and the need for a residual jurisdiction to deal with misconduct or unfairness (or even mischance) in the decision-making process . .’
Sir Anthony Clarke, Master of the Rolls, Lord Justice Rix and Lord Justice Longmore
Times 03-Nov-2006, [2006] EWCA Civ 1340, [2007] Bus LR 162, [2006] 2 CLC 441, [2007] 1 Lloyd’s Rep 142, [2007] CP Rep 4, [2007] 1 All ER (Comm) 501, [2006] HRLR 43, [2007] 1 Lloyds Rep 142
Bailii
Arbitration Act 1996 69(8)
England and Wales
Citing:
Appeal from – CGU International Insurance Plc and others v Astrazeneca Insurance Company Ltd ComC 1-Dec-2005
. .
Approved – North Range Shipping Ltd v Seatrans Shipping Corporation CA 14-Mar-2002
The parties had been involved in an arbitration. The claimant sought leave to appeal. The judge refused to give leave, but did not say exactly why.
Held: Human Rights law required a right of appeal. That right could only be exercised properly . .
Cited – Geogas SA v Trammo Gas Ltd (The Baleares) HL 1991
Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no . .

Cited by:
Cited – Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.245344

Sumukan 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.
Held: The Court of Appeal did have jurisdiction. The argument that it did not was in practice circular, and ‘although there might be a temptation (in the interest of speed and saving expense) to construe any part of the language of the 1996 Act in a way that renders all decisions under the various sections where permission of the court is required as final, if the first instance court so rules, there is a distinction between those cases where the court is assisting or overseeing the arbitration process and the cases where the question is whether the jurisdiction of the court has been excluded. ‘
Waller LJ, Clarke MR, Sedley LJ
[2007] EWCA Civ 243, Times 13-Apr-2007, [2007] 2 All ER (Comm) 23, [2007] 3 All ER 342, [2007] 2 Lloyd’s Rep 87, [2007] Bus LR 1075, [2007] 1 CLC 282, [2007] ArbLR 56
Bailii
Arbitration Act 1979
England and Wales
Citing:
Cited – Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited CA 25-May-2000
Where a party appealed against an arbitration to the County or High Court, the court which gave judgment was the sole body able to give permission to enter an appeal under the Act. An appellate court did not have jurisdiction to give leave to . .
Appeal from – Sumukan Ltd v Commonwealth Secretariat ComC 14-Feb-2007
The claimant had created a web-site for the defendant. The claimant sought to appeal an arbitration award. . .
Cited – Athletic Union of Constantinople v National Basketball Association and Others CA 28-May-2002
A party had been refused leave to appeal against an arbitration under the Act by the judge, but later obtained leave to appeal.
Held: Such leave could only be granted by the trial judge, and the Court of Appeal could set aside the leave . .
Cited – ASM Shipping Ltd of India v TTMI Ltd of England CA 16-Oct-2006
The court at first instance had dismissed the ship-owner’s application to set aside the arbitration award, and then refused leave to appeal. The court of appeal had to consider whether it had jurisdiction itself to hear an application for leave.
Cited – Cetelem 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. . .
Cited – Arab African v Olieprodukten 1983
By section 3(1) of the 1979 Act, the High Court was precluded from granting permission to appeal on a point of law from an award ‘if the parties to the reference in question have entered into an agreement in writing (in this section referred to as . .
Cited – Circle Freight International Ltd v Medeast Gulf Imports Ltd CA 1988
The court considered the effect of a driver’s behaviour on the ability to claim under his insurance policy, on the basis that his behaviour would constitute ‘wilful misconduct’. Taylor LJ: ‘Mr Malins has sought to argue that although Huggins (the . .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – 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 . .
Cited – Stretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.250453

Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited: CA 25 May 2000

Where a party appealed against an arbitration to the County or High Court, the court which gave judgment was the sole body able to give permission to enter an appeal under the Act. An appellate court did not have jurisdiction to give leave to appeal.
The courts presume that Parliament does not intend an implied repeal.
Swinton Thomas, Waller, Arden LJJ
Times 31-Aug-2000, [2000] EWCA Civ 175, [2001] QB 388
Bailii
Arbitration Act 1996 69(8)
England and Wales
Citing:
Appeal from – Henry Boot Construction v Malmaison Hotel (Manchester) Ltd TCC 1999
. .
Cited – Geogas SA v Trammo Gas Ltd (The Baleares) HL 1991
Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no . .

Cited by:
Cited – North Range Shipping Ltd v Seatrans Shipping Corporation CA 14-Mar-2002
The parties had been involved in an arbitration. The claimant sought leave to appeal. The judge refused to give leave, but did not say exactly why.
Held: Human Rights law required a right of appeal. That right could only be exercised properly . .
Cited – Athletic Union of Constantinople v National Basketball Association and Others CA 28-May-2002
A party had been refused leave to appeal against an arbitration under the Act by the judge, but later obtained leave to appeal.
Held: Such leave could only be granted by the trial judge, and the Court of Appeal could set aside the leave . .
Cited – Cetelem 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. . .
Cited – Sumukan 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.
Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.147208

North Range Shipping Ltd v Seatrans Shipping Corporation: CA 14 Mar 2002

The parties had been involved in an arbitration. The claimant sought leave to appeal. The judge refused to give leave, but did not say exactly why.
Held: Human Rights law required a right of appeal. That right could only be exercised properly if the party knew the basis of the decision. The court should state which of the threshold conditions required under s 69 had not been met. The Court of Appeal did have the power to set aside a first instance judge’s decision for unfairness, and a decision without sufficient reasons was such.
Tuckey LJ said: ‘If, as is accepted, there is a residual jurisdiction in this court to set aside a judge’s decision for misconduct then there can be no reason in principle why the same relief should not be available in a case of unfairness. Each is directed at the integrity of the decision-making process or the decision-maker, which the courts must be vigilant to protect, and does not directly involve an attack on the decision itself.’
Lord Justice Aldous, Tuckey LJ
Times 18-Apr-2002, [2002] EWCA Civ 405, [2002] 1 WLR 2397, [2002] 4 All ER 390
Bailii
Arbitration Act 1996 69(3), Human Rights Act 1988 6, Civil Procedure Rules 52.10(2)(a)
England and Wales
Citing:
Cited – Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited CA 25-May-2000
Where a party appealed against an arbitration to the County or High Court, the court which gave judgment was the sole body able to give permission to enter an appeal under the Act. An appellate court did not have jurisdiction to give leave to . .
Disapproved – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
See Also – North Range Shipping Ltd v Seatrans Shipping Corporation CA 16-Jul-2001
. .

Cited by:
Cited – Sinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .
Approved – CGU International Insurance Plc and others v Astrazeneca Insurance Co Ltd. CA 16-Oct-2006
Whilst the court of appeal did have a residual discretion to review a refusal by a judge of a grant of leave to appeal against an arbitration based upon an allegation of unfairness such as should undermine the fairness of the decision, that . .
Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Cited – Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.169991

Inco Europe Ltd and Others v First Choice Distributors (A Firm) and Others: HL 10 Mar 2000

Although the plain words of the Act would not allow an appeal to the Court of Appeal under the circumstances presently applying, it was clear that the parliamentary draftsman had failed to achieve what he had wanted to, that the omission was in error, and words could be and would be read into the Act to allow an appeal to the Court of Appeal from the High Court.
Lord Nicholls of Birkenhead said: ‘I freely acknowledge that this interpretation of section 18(1)(g) [of the SCA 1981] involves reading words into the paragraph. It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words.’
and ‘This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed.’
Lord Nicholls of Birkenhead
Times 10-Mar-2000, Gazette 23-Mar-2000, [2000] UKHL 15, [2000] 1 WLR 586, [2000] CLC 1015, (2000) 2 TCLR 487, [2000] 1 All ER (Comm) 674, [2000] 2 All ER 109, [2000] 1 Lloyd’s Rep 467, 74 Con LR 55, [2000] BLR 259
House of Lords, Bailii
Supreme Court Act 1981 18(1)(g), Arbitration Act 1996 sch 3 para 37
England and Wales
Citing:
Appeal from – Inco Europe Ltd and Others v First Choice Distribution (A Firm) and Others CA 10-Sep-1998
The Court of Appeal has jurisdiction to hear an appeal against a judge’s grant or refusal of an order staying court proceedings where arbitration was sought by one party under an agreement. . .
Cited – Western Bank Ltd v Schindler CA 1977
The mortgagee sought possession in circumstances in which the mortgagor had allowed a life policy, taken as collateral security, to lapse, but where there had been no default under the mortgage itself. The question arose whether the court could . .

Cited by:
Cited – SD, Re Application for Judicial Review OHCS 2-Oct-2003
Parents sought judicial review of a decision not to open a Record of Needs for their child. A report said that the child was dyslexic. The applicants said his condition had not improved after an earlier request to open a record had been refused.
Cited – Crown Prosecution Service, Regina (on the Application of) v Bow Street Magistrates Court and others Admn 18-Jul-2006
The defendants were said to have been found in possession of false passports. They successfully argued that the offence charged under the 1981 Act had been repealed by the 2006 Act. The prosecutor argued that a Schedule only came into effect when . .
Cited – Haw and Another v City of Westminster Magistrates’ Court Admn 12-Dec-2007
The defendants appealed convictions for contempt of court, on the basis of having wilfully interrupted the court. The respondent said that no appeal lay.
Held: The statute was ambiguous, and ‘there can be no good reason why a person convicted . .
Cited – Hughes v Borodex Ltd Admn 25-Mar-2009
hughes_borodexAdmn2009
The tenant under a long lease appealed against a rent assessment which increased the amount payable to a level where she lost her security of tenure. She said that 17 year old improvements she had made should not have been taken into account.
Cited – Hughes v Borodex Ltd CA 27-Apr-2010
The court considered the determination of a new rent on the conversion of a long tenancy protected under Part I of the 1954 Act to an assured periodic tenancy under the 1988 Act. The tenant had carried out improvements which she now wanted to be . .
Cited – Noone, Regina (on The Application of) v Governor of HMP Drake Hall and Another SC 30-Jun-2010
The prisoner had been sentenced to consecutive terms of imprisonment, one for less, and one for more than 12 months. She disputed the date on which she should be released to home detention under curfew under the Guidance issued by the Secretary of . .
Cited – Farstad Supply As v Enviroco Ltd SC 6-Apr-2011
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless . .
Cited – Davies and Another (T/A All Stars Nursery) v The Scottish Commission for The Regulation of Care SC 27-Feb-2013
The appellants ran a day care nursery regulated under the 2001 Act. The Commission, being concerned at the care provided, sought to revoke the registration in proceedings before the Sherriff’s Court. Before they were concluded, the Commission was . .
Applied – OB v The Director of The Serious Fraud Office CACD 2-May-2012
The court considered an application by the defendant for leave to appeal to the Supreme Court, noting that section 13 of the 1960 Act did not provide for such a right after the 2006 Act.
Held: The words could not themselves be construed to . .
Cited – Bogdanic v The Secretary of State for The Home Department QBD 29-Aug-2014
The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the . .
Cited – Crown Prosecution Service v Inegbu Admn 26-Nov-2008
The CPS appealed aganst a decision on a charge under the railway byelaws, that the charge be dismissed, the prosecution not having formally proved in accordance with any applicable statutory provision. The byelaws had in fact been properly . .
Cited – Shahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Cited – McCool, Regina v SC 2-May-2018
The appellants complained that the recovery order made against them in part under the transitional provisions were unlawful. They had claimed benefits as single people but were married to each other and for a house not occupied. The difficulty was . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.82313

Bunge Sa v Nidera Bv: CA 12 Dec 2013

The court heard an appeal from an order upholding an award made by the Board of Appeal of the Grain and Feed Trade Association concerning the effect of the Prohibition clause in the GAFTA standard form of contract for delivery on f.o.b. terms of goods from Central and Eastern Europe in bulk or bags, generally known as Gafta 49.
Held: The sellers abandoned their arguments on mitigation. On the remaining issues, the Court affirmed the decision below.
Moore-Bick, Floyd, Chrisopher Clarke LJJ
[2013] EWCA Civ 1628, [2014] 1 Lloyd’s Rep 404
Bailii
England and Wales
Citing:
Appeal from – Bunge Sa v Nidera Bv ComC 29-Jan-2013
The Court was asked: ‘2.1 Is the application of the GAFTA prohibition clause limited to a case where it can be seen after the event that performance of the contract has in fact been prevented by the prohibition in question?
2.2. Does the GAFTA . .

Cited by:
Appeal from – Bunge Sa v Nidera Bv SC 1-Jul-2015
The court considered the effect of the default clause in a standard form of contract which is widely used in the grain trade. On 10 June 2010 the respondents, Nidera BV, whom I shall call ‘the buyers’, entered into a contract with the appellants, . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.518934

Republic of Kazakhstan v World Wide Minerals Ltd and Another: ComC 23 Nov 2020

Challenge by the claimant under s.68 of the 1996 Act to an award entitled ‘Final Award on Merits’ founded on an assertion by TRK that the Tribunal awarded damages to the defendants by reference to an argument that the defendants had not advanced during the hearing or prior written procedure leading to the Award and in respect of which it did not have any or any fair opportunity to respond. TRK maintains that by acting in this manner the Tribunal breached its duty under AA, s.33 resulting in a serious irregularity within the meaning of AA, s.68(2)(a).
HH Judge Pelling QC
[2020] EWHC 3068 (Comm)
Bailii
Arbitration Act 1996 33 68
England and Wales

Updated: 04 July 2021; Ref: scu.657587

The London Steam-Ship Owners’ Mutual Insurance Association Ltd v Spain (M/T ‘Prestige’): ComC 18 Jun 2020

Application by the Kingdom of Spain under CPR Part 11 to set aside an order granting the Claimant/Respondent permission to serve an arbitration claim form out of the jurisdiction. The arbitration claim form seeks the appointment of an arbitrator.
Mr Justice Henshaw
[2020] EWHC 1582 (Comm)
Bailii
England and Wales

Updated: 14 June 2021; Ref: scu.652430

Alexander Brothers Ltd (Hong Kong Sar) v Alstom Transport Sa and Another: ComC 18 Jun 2020

Application of the Defendants to set aside the without notice Order enforcing an arbitration award in favour of the Claimant on the basis that it was contrary to public policy; alternatively for a trial of the public policy issue: failure to make full and frank disclosure on the without notice application and underlying consultancy agreements tainted by illegality in ABL’s performance.
Mrs Justice Cockerill
[2020] EWHC 1584 (Comm), [2020] WLR(D) 375
Bailii, WLRD
England and Wales

Updated: 14 June 2021; Ref: scu.652426

Glencore Grain Ltd v Agros Trading Co Ltd; Agros Trading Co Ltd v Glencore Grain Ltd: CA 1 Jul 1999

Even though a debt under commercial washout agreements between the parties was acknowledged, it was not enforceable in the context of unrelated arbitration awards between the parties. The non-payment of the washout agreement invoices created a dispute which had to be dealt with under GAFTA form 64 clause 11.
Times 12-Jul-1999, Gazette 11-Aug-1999, [1999] EWCA Civ 1731, [1999] 2 All ER 288
Arbitration Act 1950
England and Wales
Cited by:
Cited – Benford Ltd and Another v Lopecan Sl QBD 30-Jul-2004
The parties disputed the coverage agreed under a distribution agreement.
Held: ‘The counterclaim operated as a defence by way of set off. In order to establish that defence the defendant will have to prove the losses pleaded . . . Until the . .

These lists may be incomplete.
Updated: 14 June 2021; Ref: scu.146646

Aedifice 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.
Akenhead J
[2010] EWHC 2106 (TCC), [2010] CILL 2905, (2010) 132 Con LR 100
Bailii
England and Wales
Citing:
Cited – 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 . .
Cited – Thomas-Fredric’s (Construction) Ltd v Wilson CA 21-Oct-2003
The court considered the situation where a defendant to an arbitration award enforcement application now challenged the arbitrator’s jurisdiction.
Held: Simon Brown LJ said: ‘The position can I think be summarised in the following two . .
Cited – Euro Construction Scaffolding Ltd v SLLB Construction Ltd TCC 19-Dec-2008
False . .
Cited – Pilon Ltd v Breyer Group Plc TCC 23-Apr-2010
Coulson J said: ‘The law on this topic is clear. Jurisdictional issues often arise during the course of an adjudication, and it is usually sensible for the parties to ask the adjudicator to investigate the issue and state his conclusion. But, unless . .

These lists may be incomplete.
Updated: 11 June 2021; Ref: scu.424986

Syska (Elektrim Sa) v Vivendi Universal Sa and Others: CA 9 Jul 2009

Mummery, Longmore, Patten LJJ
[2009] EWCA Civ 677, [2009] WLR (D) 236, [2009] 2 CLC 10, [2009] BPIR 1304, [2009] 28 EG 84, [2009] Bus LR 1494, [2009] 2 All ER (Comm) 891
Bailii, WLRD
England and Wales
Citing:
Appeal From – Syska v Vivendi Universal Sa and others ComC 2-Oct-2008
In the course of an international arbitration under which a claim for Euros 1.9 billion, one party declared itself bankrupt in the court in Warsaw. The court was asked as to the effect of this on the arbitration. . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.347472

Syska v Vivendi Universal Sa and others: ComC 2 Oct 2008

In the course of an international arbitration under which a claim for Euros 1.9 billion, one party declared itself bankrupt in the court in Warsaw. The court was asked as to the effect of this on the arbitration.
Christopher Clarke J
[2008] EWHC 2155 (Comm), [2008] 2 CLC 459, [2009] BPIR 163, [2009] 1 All ER (Comm) 244, [2009] ILPr 35, [2008] 2 Lloyd’s Rep 636, [2009] Bus LR 367
Bailii
England and Wales
Cited by:
Appeal From – Syska (Elektrim Sa) v Vivendi Universal Sa and Others CA 9-Jul-2009
. .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.276538

Jureidini v National British and Irish Millers Insurance Company Limited: HL 1915

An insurance company disputed liability of a claim arising out of a fire, alleging fraud and arson. These allegations were not sustained. The insurer then sought to resist liability on the basis that, by litigating, the insured was in breach of an arbitration clause in the policy. The arbitration clause applied only ‘if any difference arises as to the amount of any loss or damage’ and provided that ‘it shall be a condition precedent to any right of action or suit upon this policy that the award by such arbitrator, arbitrators or umpire of the amount of the loss or damage if disputed shall be first obtained’.
Held: the insurance company was not entitled to rely on the arbitration clause. The arbitration clause applied only to differences concerning the amount of loss and, therefore, not to a claim that was repudiated by the insurer altogether. (Haldane obiter) ‘there has been in the proceedings throughout a repudiation on the part of the respondents of their liability based upon charges of fraud and arson, the effect of which, if they are right, is that all benefit under the policy is forfeited. But one of the benefits is the right to go to arbitration under this contract, and to establish your claim in a way which may, to some people, seem preferable to proceeding in the Courts; and accordingly that is one of the things which the appellants have, according to the respondents, forfeited with every other benefit under the contract. Now my Lords, speaking for myself, when there is a repudiation which goes to the substance of the whole contract I do not see how the person setting up that repudiation can be entitled to insist on a subordinate term of the contract still being enforced.’
References: [1915] AC 499
Judges: Viscount Haldane, LC, Lord Dunedin, Lord Atkinson, Lord Parmoor, Lord Parker of Waddington
Jurisdiction: England and Wales
This case is cited by:

  • Restricted – Super Chem Products Limited v American Life and General Insurance Company Limited and Others PC 12-Jan-2004
    PC (Trinidad and Tobago) A fire occurred at premises in which the stock was insured under two policies. Both insurers denied the claims alleging arson, and that it was out of time. The claimant said that the . .
    (, [2004] UKPC 2, Times 28-Jan-04, , , , [2004] 2 All ER 358)
  • Dicta distinguished – Woodall v Pearl Assurance Co Ltd CA 1919
    . .
    ([1919] 1 KB 593)
  • Explained – Sanderson and Son v Amour and Co Ltd HL 1922
    ‘I should say a single word as to the case of Jureidini. That case has in my view no application, for the simple reason that the clause of reference there was not a reference of all disputes, but only a reference as to the evaluation of loss. In . .
    (1922 SC (HL) 117)
  • Explained – Heyman v Darwins Limited HL 1942
    An arbitration clause will survive a repudiatory breach: ‘I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of . .
    ([1942] AC 356, [1942] 1 All ER 337)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193381

Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc: CA 29 Nov 2013

The appeal succeeded. The Scheme implied that any overpayment could be recovered.
References: [2013] EWCA Civ 1541, 151 Con LR 72, [2013] WLR(D) 463, [2014] BLR 79, [2014] 1 WLR 1220, [2013] 2 CLC 1019, [2014] CILL 3449, [2014] Bus LR 367, [2013] 49 EG 77
Links: Bailii
Judges: Longmore, Rimer, Tomlinson LJJ
Statutes: Housing Grants, Construction and Regeneration Act 1996 108(5), Scheme for Construction Contracts (England and Wales) Regulations 1998
Jurisdiction: England and Wales
This case cites:

This case is cited by:

  • Appeal from – Aspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015 (, [2015] UKSC 38, [2015] 4 All ER 482, [2015] WLR(D) 261, 160 Con LR 28, [2015] BLR 503, [2015] 1 WLR 2961, [2015] 2 All ER (Comm) 965, [2015] Bus LR 830, , , UKSC 2014/0021, , , )
    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 . .
  • Cited – Aspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015 (, [2015] UKSC 38, [2015] 4 All ER 482, [2015] WLR(D) 261, 160 Con LR 28, [2015] BLR 503, [2015] 1 WLR 2961, [2015] 2 All ER (Comm) 965, [2015] Bus LR 830, , , UKSC 2014/0021, , , )
    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 . .

These lists may be incomplete.
Last Update: 23 September 2020; Ref: scu.518494

Nisshin Shipping Co Ltd v Cleaves and Company Ltd and others: Comm 7 Nov 2003

References: [2003] EWHC 2602 (Comm), [2004] 1 All ER (Comm) 481, [2004] 1 Lloyd’s Rep 38
Links: Bailii
Coram: The Honourable Mr Justice Colman
Ratio: 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 right of action against the promisor and because, by reason of the underlying policy of section 1(4), he is confined to the means of enforcement provided by the contract to the promisee, namely arbitration. He is to be treated as standing in the shoes of that promisee for the purpose only of the enforcement of the substantive term. In this case, the scope of the disputes covered by the arbitration agreements was wide enough to embrace a dispute between owners and charterers about payment of the brokers’ commission, and they fell to be resolved by arbitration.
Statutes: Contracts (Rights of Third Parties) Act 1999 1(4), Arbitration Act 1996 67
Jurisdiction: England and Wales
This case cites:

  • Cited – Robertson v Wait ((1853) 8 Ex 299)
    . .
  • Cited – Les Affreteurs Reunis SA v Leopold Walford (London) Ltd HL ([1919] AC 801)
    With regard to Robertson -v- Wait: ‘My Lords, so far as I am aware, that case has not before engaged the attention of this House, and I think it right to say plainly that I agree with that decision and I agree with the reasoning, shortly as it is . .
  • Cited – The Jordan Nicholev ([1990] 2 Lloyds Rep 11)
    The court was asked as to the position resulting from the assignment of a contract including an arbitration clause: ‘Where the assignment is the assignment of the cause of action, it will, in the absence of some agreement to the contrary include as . .
  • Cited – The Padre Island ([1984] 2 Lloyds Rep 408)
    The 1930 Act creates a statutory assignment of any rights of action in a case where the assured has become bankrupt or been wound up, the party to whom the benefit of a right of action under the liability insurance contract has been transferred may . .
  • Cited – T W Thomas and Co Ltd v Portsea Steamship Co Ltd PC ([1912] AC 1)
    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. . .
  • Cited – The Mahkutai PC (Times 24-Apr-96, [1996] AC 650, [1996] 3 WLR 1)
    (Hong Kong) The question was whether shipowners, who were not parties to the bill of lading contract between the charterers and carriers on the one part, and the cargo-owners, the bill of lading being a charterer’s bill, could enforce against the . .
  • Cited – Schiffahrtsgesellschaft Detlev von Appen GmbH v Voest Alpine Intertrading GmbH (‘The Jay Bola’) CA ([1997] 2 Lloyds Rep 279)
    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 . .

(This list may be incomplete)

Last Update: 26 March 2020
Ref: 187699

Interbulk Limited v Aiden Shipping Co Limited (The ‘Vimeira’): CA 1984

References: [1984] 2 Lloyd’s Rep 66
Coram: Robert Goff LJ, Ackner LJ
Ratio:The court considered whether an arbitrator had a duty to raise a point missed by counsel.
Held: Robert Goff LJ: ‘In truth, we are simply talking about fairness. It is not fair to decide a case against a party on an issue which has never been raised in the case without drawing the point to his attention so that he may have an opportunity of dealing with it, either by calling further evidence or by addressing argument on the facts or the law to the tribunal.’ Ackner LJ: ‘Where there is a breach of natural justice as a general proposition it is not for the courts to speculate what would have been the result if the principles of fairness had been applied. I adopt, with respect, the words of Mr Justice Megarry in John v Rees [1969] 2 All ER 275 at p 309 where he said: ‘As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.’ But, in this case, speculation does not arise. If the arbitrators had informed the parties of what they had in mind, the consequences would have been obvious. Firstly, the charterers would have sought to persuade the arbitrators that it was common ground on the evidence that there was adequate room to turn the vessel and that, therefore, the arbitrators should decide the dispute according to the evidence. If they failed so to persuade the arbitrators, they would have sought, and would have been entitled to, an adjournment. Having obtained an adjournment, the charterers would have called the evidence which in fact was called at the sub-arbitration and would have satisfied the arbitrators that the turning area was adequate.’
This case cites:

  • Cited – John -v- Rees and Others; Martin and Another -v- Davis and Others ChD ([1970] 1 Ch 345, [1969] 2 All ER 275)
    The Court was asked as to the validity of proceedings at a meeting of the members of the local Labour Party which had broken up in disorder. The proceedings were instituted by the leader of one faction on behalf of himself and all other members of . .

(This list may be incomplete)
This case is cited by:

  • Appeal from – Aiden Shipping Co Ltd -v- Interbulk Ltd (The ‘Vimeira’) HL ([1986] AC 965, [1986] 2 WLR 1051, [1986] 2 All ER 409)
    A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
  • Cited – Carillion Construction Ltd -v- Devonport Royal Dockyard Ltd CA (Bailii, [2005] EWCA Civ 1358, Times 24-Nov-05, [2006] BLR 15, (2005) 104 Con LR 1)
    The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
    Held: The dispute was complex and . .
  • Cited – Bandwidth Shipping Corporation -v- Intaari (‘Magdalena Oldendorrf’) CA (Bailii, [2007] EWCA Civ 998, Times 31-Oct-07, [2008] 1 Lloyd’s Rep 7, [2008] Bus LR 702, [2007] ArbLR 7)
    An arbitrator hearing a case, and who appreciated that counsel had failed to take a point, should draw counsel’s attention to the point. No duty could arise if the arbitrator did not himself see the point.
    An applicant under section 68 faces a . .

(This list may be incomplete)

Last Update: 06-Jul-16
Ref: 235381

Norton v Mascall; 1 May 1687

References: [1687] EngR 971, (1687) 2 Vern 24, (1687) 23 ER 626 (B)
Links: Commonlii
Ratio:The plaintiff and dfeendant had submitted to an arbitrament by bond and an award was made, not binding by form of law, by which the plaintiff was to pay the defendant £900 and to seal a release to the defendant ; and the defendant was to assign several securities he had from the plaintiff. The plaintiff sold some lands to raise the £900, expecting the defendant would receive it, as he gave him intimation he would, and tendered him the £900 and a release executed by the plaintiff ; and though there was no other execution on the plaintiff’s part of the award, and though the award was extra judicial, and not good in strictness of law, yet the Lord Chancellor decreed it should be performed in specie

Last Update: 17-Jun-16
Ref: 396023

Case 252; 30 Jul 1748

References: [1748] EngR 385, (1748) 3 Atk 644, (1748) 26 ER 1170 (B)
Links: Commonlii
Ratio 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.

Last Update: 01-Jun-16
Ref: 379947

Jephson And Another v Howkins And Another; 27 Jan 1841

References: , [1841] EngR 304, (1841) 2 Man & G 366, (1841) 133 ER 787
Links: Commonlii
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.
Last Update: 22-Dec-15 Ref: 308482

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

References: Unreported, 17 October 1997
Coram: Clarke J
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.

Bem Dis A Turk Ticaret S/A Tr v International Agri Co Ltd; ‘SELDA’: ComC 31 Oct 1997

References: [1998] 1 Lloyd’s Rep 416, Times 13-Dec-1997
Coram: Clarke J
At common law the buyer’s remedy for failure to perform a contract of sale of goods is to claim damages for non-delivery. Where, as here, there was an available market, the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered.
Arbitration appeal from Gafta. Construction of default clause 28 in Gafta – Form 100.
This case cites:

This case is cited by:

West Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa and Another (‘The Front Comor’): ComC 21 Mar 2005

References: [2005] EWHC 454 (Comm)
Links: Bailii
Coram: Mr Justice Colman
Appeal against anti-suit order. The court ordered that since the question of whether an anti-suit injunction could be made to restrain proceedings abroad had been decided in Through Transport, that issue could go straight to the House of Lords.
Statutes: EC Regulation 44/2001, Administration of Justice Act 1969 12, Supreme Court Act 1981 37(1)
This case cites:

This case is cited by:

Finelvet AG v Vinava Shipping Co Ltd (The Chrysalis”): 1983″

References: [1983] 1 WLR 1469, [1983] 1 Lloyds Rep 503
Coram: Mustill J
The Chrysalis was trapped in the Shatt-al-Arab waterway in the course of the Iran-Iraq war, and the parties disputed the frustration of the charter contract.
Held: Mustill J set out stages for considering an appeal from an arbitration award by differentiating between points of law and of fact: ‘Starting therefore with the proposition that the court is concerned to decide, on the hearing of the appeal, whether the award can be shown to be wrong in law, how is this question to be tackled? In a case such as the present, the answer is to be found by dividing the arbitrator’s process of reasoning into three stages:
(1) The arbitrator ascertains the facts. This process includes the making of findings on any facts which are in dispute.
(2) The arbitrator ascertains the law. This process comprises not only the identification of all material rules of statute and common law, but also the identification and interpretation of the relevant parts of the contract, and the identification of those facts which must be taken into account when the decision is reached.
(3) In the light of the facts and the law so ascertained, the arbitrator reaches his decision.
In some cases, the third stage will be purely mechanical. Once the law is correctly ascertained, the decision follows inevitably from the application of it to the facts found. In other instances, however, the third stage involves an element of judgment on the part of the arbitrator. There is no uniquely ‘right’ answer to be derived from marrying the facts and the law, merely a choice of answers, none of which can be described as wrong.’
Only items at stage 2 are properly appealable: ‘The second stage of the process is the proper subject matter of an appeal under the 1979 Act. In some cases an error of law can be demonstrated by studying the way in which the arbitrator has stated the law in his reasons. It is, however, also possible to infer an error of law in those cases where a correct application of the law to the facts found would lead inevitably to one answer, whereas the arbitrator has arrived at another: and this can be so even if the arbitrator has stated the law in his reasons in a manner which appears to be correct – for the Court is then driven to assume that he did not properly understand the principles which he had stated.
Whether the third stage can ever be the proper subject of an appeal, in those cases where the making of the decision does not follow automatically from the ascertainment of the facts and the law, is not a matter upon which it is necessary to express a view in the present case. The Nema and The Evia show that where the issue is one of commercial frustration, the Court will not intervene, save only to the extent that it will have to form its own view, in order to see whether the arbitrator’s decision is out of conformity with the only correct answer or (as the case may be) lies outside the range of correct answers. This is part of the process of investigating whether the arbitrator has gone wrong at the second stage. But once the Court has concluded that a tribunal which correctly understood the law could have arrived at the same answer as the one reached by the arbitrator, the fact that the individual judge himself would have come to a different conclusion is no ground for disturbing the award.’
Statutes: Arbitration Act 1979 1(3)
This case is cited by:

  • Cited – Penwith District Council -v- VP Developments Ltd TCC (Bailii, [2007] EWHC 2544 (TCC))
    The council sought to appeal against an interim arbitration award.
    Held: Leave to appeal was refused. The application was wholly unjustified. This was an appeal on the facts dressed up as an appeal on law. . .
  • Cited – Guangzhou Dockyards Co Ltd -v- Ene Aegiali I ComC (Bailii, [2010] EWHC 2826 (Comm))
    The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal . .