Category: Arbitration

Cetelem Sa v Roust Holdings Ltd: QBD 29 Dec 2004

Choses in action including contractual rights are ‘assets’ within the meaning of section 44(3).

Citations:

[2004] EWHC 3175 (QB), [2005] 2 Lloyds Rep 494

Links:

Bailii

Statutes:

Arbitration Act 1996 44(3)

Jurisdiction:

England and Wales

Cited by:

Appeal from – 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. . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 12 November 2022; Ref: scu.467231

Clark and Another v In Focus Asset Management and Tax Solutions Ltd: QBD 19 Dec 2012

The court was asked whether it is open to parties, having accepted a favourable determination of the Financial Services Ombudsman, later to claim in court for damages to cover what they allege is their full loss.

Judges:

Cranston J

Citations:

[2012] EWHC 3669 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Clark and Another v In Focus Asset Management and Tax Solutions Ltd and Another CA 14-Feb-2014
The doctrine of res judicata was applicable to prevent a complainant who had once accepted an award from the Financial Ombudsman Service from starting additional legal proceedings to pursue complaints already been submitted to the ombudsman and on . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Financial Services

Updated: 12 November 2022; Ref: scu.467227

Progress Bulk Carriers Ltd v Tube City IMS Llc: ComC 17 Feb 2012

The claimant sought to set aside an arbitration saying that the arbitrator had misapplied the test for economic duress.

Judges:

Cooke HHJ

Citations:

[2012] EWHC 273 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Pace Shipping Co Ltd of Malta v Churchgate Nigeria Ltd of Nigeria ComC 7-Oct-2010
The courts do not approach arbitration awards with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults or with the object of upsetting or frustrating the process of arbitration. . .
Cited – Dalwood Marine Co v Nordana Line A/S (‘The Elbrus’) ComC 21-Dec-2009
. .
Cited – Pao On and Others v Lau Yiu Long and Others PC 9-Apr-1979
(Hong Kong) The board was asked whether a contract of guarantee had been obtained by duress.
Held: Lord Scarman said: ‘Duress, whatever form it takes, is a coercion of the will so as to vitiate consent. Their Lordships agree with the . .
Cited – Huyton SA v Peter Cremer Gmbh and Co ComC 21-Oct-1998
Mance J discussed the law of economic duress saying it was established law that economic pressure could amount to duress and referred to two basic ingredients for duress of that character. He identified those ingredients as first, ‘illegitimate . .
Cited – Mutual Finance Ltd v John Wetton and Sons Ltd 1937
A relative of a forger gave a guarantee in circumstances where the forger had been threatened with prosecution. He now pleaded economic duress.
Held: The guarantee should be set aside. The court considered the distinction between dures and . .
Cited – Thorne v Motor Trade Association HL 1937
The House confirmed a declaration granted as to validity of a rule of association notwithstanding the absence of any dispute. The House considered the nature of the threat required to establish a defence of duress.
Lord Wright observed that the . .
Cited – Universe Tankships Inc of Monrovia v International Transport Workers Federation HL 1-Apr-1981
A ship belonging to the appellants had been blacked by the defendant union. Negotiations to clear the threat resulted in payment by the appellants to a welfare fund of the defendant. The company sought its refund saying that it had been paid under . .
Cited – DSND Subsea Ltd v Petroleum Geo Services Asa TCC 28-Jul-2000
Dyson J set out the principles applicable in establishing a pleading of commercial duress:
(i) Economic pressure can amount to duress, provided it may be characterised as illegitimate and has constituted a ‘but for’ cause inducing the claimant . .
Cited – Dimskal Shipping Co SA v International Transport Workers Federation (‘The Evia Luck’) HL 1991
The Plaintiff shipowners had been induced by industrial action against a vessel in Sweden, which actions would be lawful under Swedish law, to undertake to enter into written agreements with the ITF under which, inter alia, more generous agreements . .
Cited – CTN Cash and Carry v Gallaher CA 15-Feb-1993
The buyer paid a sum demanded by the seller who threatened otherwise to withdraw the credit facilities it provided to the buyer. The sum was not in fact due, but the demand had been made honestly. The buyer said the agreement was voidable for . .
Cited – Adam Opel Gmbh and Another v Mitras Automotive (UK) Ltd QBD 18-Dec-2007
The parties had agreed for the supply of automotive parts by the defendant to the claimant under a sole supply arrangement. None were in fact ordered for the first few years. The manufacturer then changed its design and made a new arrangement with a . .
Mentioned – Carillion Construction Ltd v Felix (UK) Ltd 2001
. .
Lists of cited by and citing cases may be incomplete.

Arbitration, Contract

Updated: 10 November 2022; Ref: scu.451393

Ali Shipping Corporation v Jugobanka D D Beograd Jugobanka Split: CA 13 Nov 1997

Citations:

[1997] EWCA Civ 2705

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 10 November 2022; Ref: scu.143104

Newcastle United Football Company Ltd v Football Association Premier League Ltd and Others: ComC 5 Mar 2021

The degree to which if at all the substantive judgment in these proceedings should be published un-anonymised and unredacted (the claimant’s preferred position) or not published at all or at any rate not published until after publication of the Final award in the pending arbitration between the claimant and the first defendant.

Judges:

HH Judge Pelling QC

Citations:

[2021] EWHC 450 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Arbitration, Litigation Practice

Updated: 10 November 2022; Ref: scu.660095

Bunge Sa v Kyla Shipping Company Ltd: ComC 10 Dec 2012

Judges:

Flaux J

Citations:

[2012] EWHC 3522 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bank Line Ltd v Arthur Capel and Co HL 12-Dec-1918
The defendant ship-owners contracted to lease the ship on charter to the plaintiffs. Before the term, the ship was requisitioned for the war effort. The plaintiffs did not exercise the contractual right given to them to cancel the charterparty. The . .

Cited by:

Appeal from – Kyla Shipping Company Ltd v Bunge Sa CA 20-Jun-2013
. .
Lists of cited by and citing cases may be incomplete.

Arbitration, Contract

Updated: 09 November 2022; Ref: scu.467262

China Agribusiness Development Corporation v Balli Trading: 1998

The plaintiff sought to enforce a Chinese award following an arbitration in which the arbitration rules current at the time when the dispute arose rather than the old rules current at the time of agreement had been applied.
Held: The court enforced a foreign award although a defence within the Arbitration Act 1975 and the New York Convention had been established. The objection point had only been raised at the time of enforcement, and any relevant change in the rules (in their fee structure) was insufficient to prejudice the defendant.
Longmore J said: ‘It is clear from the terms of the statute that refusal to enforce a Convention award is a matter for the discretion of the Court. In that context it must be relevant to assess the degree of prejudice to Balli by the arbitration being conducted under the current, rather than the provisional, rules. Mr Justice Kaplan so decided in the Chen Jen case and I gratefully follow his lead. (See [1992] I H.K. Cases 328 at p. 336.) . . A party who, only at the door of the enforcing Court, dreams up a reason for suggesting that a convention award should not be enforced is unlikely to have the Court’s sympathy in his favour, and for this reason also I would not on the facts of this case be prepared to refuse the enforcement of the award.’

Judges:

Longmore J

Citations:

[1998] 2 Lloyd’s Rep 76

Statutes:

Arbitration Act 1975

Jurisdiction:

England and Wales

Cited by:

Cited – Dallah Estates and Tourism Holding Company v Ministry of Religious Affairs, Government Of Pakistan CA 20-Jul-2009
The claimant sought to enforce an international arbitration award against the defendant in respect of the provision of accommodation for Hajj pilgrims. A without notice order had been made to allow its enforcement, but that had been set aside.
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 09 November 2022; Ref: scu.373983

Davies Middleton and Davies Ltd v Toyo Engineering Corporation: CA 29 Aug 1997

Parties to a dispute agreed a way of resolving issues before arbitration. One party then sought to say that the agreement was void for uncertainty, being an agreement to agree.
Held: The agreement merely set a mechansim for resolving the dispute and was valid.

Citations:

[1997] EWCA Civ 2318

Statutes:

Arbitration Act 1996 9

Jurisdiction:

England and Wales

Citing:

Cited – Didymi Corporation v Atlantic Lines and Navigation Co Inc ‘The Didymi’ CA 1988
A contract contained a clause covering the rate of hire of a 5 year time charter: ’30(1) The … speed and fuel consumption of the vessel as stipulated in this charter-party are representations by the owners. Should the actual performance of the . .
Cited – A and B v D and C CA 1989
The phrase ‘may arise in connection with this agreement’ covered a dispute as to inspection and repair work carried out under a contract with no arbitration clause which related to the supply of a liquified gas plant pursuant to a different contract . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Contract

Updated: 09 November 2022; Ref: scu.142716

Wallace v C Brian Barratt and Son Limited and Lock: CA 19 Mar 1997

The court was asked whether the defendant company, which was the tenant under an agricultural tenancy agreement of land comprising arable fields, was in breach of a covenant in the tenancy not to assign, underlet, or part with or share possession or occupation of the whole or any part of the holding by virtue of farming the holding through a partnership. The individual partners were related and held most of the shares in the tenant company.
Held: There was no breach of the covenant since, among other things, the partnership activities were carried out as agent for the tenant company.

Citations:

[1997] EWCA Civ 1281, [1997] EGLR 1, (1997) 74 P and CR 408, [1997] EG 40

Links:

Bailii

Statutes:

Agricultural Holdings (Arbitration on Notice) Order 1987

Jurisdiction:

England and Wales

Cited by:

Cited – Clear Channel United Kingdom Ltd, Regina (on the Application of) v First Secretary of State and Another Admn 14-Oct-2004
The claimant sought a declaration that it had a tenancy for its occupation by an advertising station, and that it had protection under the 1954 Act. The defendant council said that only a licence had been granted.
Held: The grants included the . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Agriculture, Arbitration

Updated: 06 November 2022; Ref: scu.141677

PC Harrington Contractors Ltd v Systech International Ltd: CA 23 Oct 2012

The court considered the recoverability of the fees an arbitrator appointed under the 1996 Act, were the award had been determined unenforceable for a breach of the rules of natural justice.
Held: The appeal against an order for payment of he fees succeeded. The arbitrator had not fulfilled the contract for which he had been employed.

Judges:

Lord Neuberger MR, Davis, Treacy LJJ

Citations:

[2012] EWCA Civ 1371, [2012] WLR(D) 284, [2013] BUS LR 970

Links:

Bailii, WLRD

Statutes:

Housing Grants, Construction and Regeneration Act 1996

Jurisdiction:

England and Wales

Arbitration, Costs, Natural Justice

Updated: 05 November 2022; Ref: scu.465114

Laker Airways Inc v FLS Aerospace Ltd: ComC 20 Apr 1999

The court was asked: ‘whether a barrister who has been appointed an arbitrator by one party to the arbitration should be removed by the court on the ground that another barrister from the same chambers has been instructed in the arbitration by the appointing party’. The arbitrator had offered to recuse himself if both parties requested, but not only at the request of one. The claimant said that the members of chambers shared office space and administration, and that there was no formal system to protect confidential materials.

Judges:

Rix J

Citations:

[1999] EWHC B3 (Comm), [2000] 1 WLR 113

Links:

Bailii

Statutes:

Arbitration Act 1996 24(1)(a)

Cited by:

Cited – O’Leary International Ltd v North Wales Police Admn 31-May-2012
The company employed drivers to cross the UK. They were stopped and did not have the requisite drivers records. Instead they produced certificates as to having had rest days. These proved false, and the drivers said that the had been produced for . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Legal Professions

Updated: 05 November 2022; Ref: scu.464592

Comdel Commodities Limited v Siporex Trade S a: CA 5 Feb 1997

Comdel sought recovery of sums due under a performance bond.
Held: Potter LJ discussed the authorities and said: ‘Those authorities are to the effect that it is implicit in the nature of a performance bond that, in the absence of some clear words to a different effect, when the bond is called, there will at some stage in the future be an ‘accounting’ between the parties to the contract of sale in the sense that their rights and obligations will finally be determined at some future date. The bond is a guarantee of due performance; it is not to be treated as representing a pre-estimate of the amount of damages to which the beneficiary may be entitled in respect of the breach of contract giving rise to the right to call for payment under the bond. If the amount of the bond is not enough to satisfy the seller’s claim for damages, the buyer is liable to the seller for damages in excess of the amount of the bond. On the other hand, if the amount of the bond is more than enough to satisfy the seller’s claim for damages, the buyer can recover from the seller the amount of the bond which exceeds the seller’s damages.
It does not appear that there is anything in the words of the contracts of sale in this case to exclude the implication that there would at some stage be an ‘accounting’ between the parties in the sense that their rights and obligations would be finally determined at some future date.’

Judges:

Butler-Sloss LJ, Peter Gibson LJ, Potter LJ

Citations:

[1997] EWCA Civ 925, [1997] 1 Lloyd’s Rep 424, [1997] 1 LLR 424

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Van Der Merwe and Another v IIG Capital Llc ChD 13-Nov-2007
The parties had entered into a debt factoring agreement, under which repayment was sought of some $30m, and the claimants were said to have guaranteed the loan by the factor to their company. The court was asked whether the guarantors had the same . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Jurisdiction, Contract

Updated: 05 November 2022; Ref: scu.141321

Beck Interiors Ltd v UK Flooring Contrcators Ltd: TCC 4 Jul 2012

Adjudication enforcement raising issues, the first being whether all or part of a dispute or disputes had crystallised before the adjudication was commenced and the second being whether part of the adjudicator’s decision can be severed leaving the rest to be enforced.

Judges:

Akenhead J

Citations:

[2012] EWHC 1808 (TCC), [2012] BLR 417

Links:

Bailii

Jurisdiction:

England and Wales

Construction, Arbitration

Updated: 03 November 2022; Ref: scu.463091

North Range Shipping Ltd v Seatrans Shipping Corporation: CA 16 Jul 2001

Citations:

[2001] EWCA Civ 1260

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – 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 . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Human Rights

Updated: 03 November 2022; Ref: scu.201270

Trustee of Property of Andrews v Brock Buildings (Kessingland) Limited: CA 21 Nov 1996

An impecunious plaintiff who resisted an application to stay proceedings in order to allow an arbitration can be required to show the cause of his inability to fund the action.

Judges:

Master of the Rolls, Aldous and Brooke LJJ

Citations:

Gazette 05-Feb-1997, Times 09-Dec-1996, [1996] EWCA Civ 1023, [1997] QB 674

Links:

Bailii

Statutes:

Arbitration Act 1950 4

Jurisdiction:

England and Wales

Citing:

Cited – Fakes v Taylor Woodrow Construction Limited 1973
The plaintiff resisted an application for a stay of his action for an arbitration on the basis that his lack of funds would make it impossible to take part in an arbitration. . .

Cited by:

Cited – Malekout v Medical Sickness Annuity and Life Assurance Society Limited CA 21-May-1998
The plaintiff sought to appeal against a stay of his action so that it could be referred to arbitration. His claim was under insurance policies containing clauses providing for arbitration of disputes.
Held: The judge had failed to take . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 03 November 2022; Ref: scu.140890

Nisshin 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 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.

Judges:

The Honourable Mr Justice Colman

Citations:

[2003] EWHC 2602 (Comm), [2004] 1 All ER (Comm) 481, [2004] 1 Lloyd’s Rep 38

Links:

Bailii

Statutes:

Contracts (Rights of Third Parties) Act 1999 1(4), Arbitration Act 1996 67

Jurisdiction:

England and Wales

Citing:

Cited – Robertson v Wait 1853
. .
Cited – Les Affreteurs Reunis SA v Leopold Walford (London) Ltd HL 1919
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
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
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
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 24-Apr-1996
(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
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 . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport, Arbitration

Updated: 01 November 2022; Ref: scu.187699

Amec 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 valid engineer’s decision within the time limit provided.
Held: The court must avoid an over-legalistic approach to interpretation of the contract. The engineer has a duty to act independently honestly and with fairness, but the rules of natural justice as such did not apply to his decision.

Judges:

May, Rix, Hooper, LJJ

Citations:

[2005] EWCA Civ 291, Times 22-Mar-2005, [2005] 1 WLR 2339, [2005] BLR 227, (2005) 21 Const LJ 640, 101 Con LR 26, [2005] 12 EG 219

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Amec Civil Engineering Ltd v The Secretary of State for Transport TCC 11-Oct-2004
The court affirmed an interim arbitration award as to jurisdiction in an arbitration commenced by the Secretary of State against the contractors in relation to work carried out by them on the Thelwall viaduct. The court identified seven applicable . .
Cited – Tradax International v Cerrahogullari 1981
An express rejection of a claim is not required in every case to generate a dispute allowing a reference to arbitration. . .
Cited – Monmouthshire County Council v Costelloe CA 1965
A question arose under a contract including the ICE conditions as to whether there had historically been claims by the contractor which the Engineer had already determined under clause 66.
Held: There had been no such earlier dispute or . .
Cited – 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 . .
Cited – Collins (Contractors) Ltd v Baltic Quay Management (1994) Ltd CA 7-Dec-2004
The claimant sought payment under its invoice for construction works. The contractor gave notice of its intention to withhold payment, and then also sought to refer the matter to arbitration. The claimant said that the notice had prevented the . .
Cited – Halki Shipping Corporation v Sopex Oils Limited CA 19-Dec-1997
The court was aked whether there was a dispute sufficient to sustain a stay of court proceedings for arbitration under the Act.
Held: There was a dispute once money is claimed unless and until the defendants admit that the sum is due and . .
Cited – 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 . .
Cited – F and G Sykes (Wessex) v Fine Fare Ltd CA 1967
There was an agreement by which the plaintiffs agreed to breed and provide chicks to nominated growers, the number of chicks to be provided to be ‘not less than 30,000 per week nor more than 80,000 per week during the first year of the agreement and . .
Cited – Beaufort Developments (NI) Limited v Gilbert-Ash NI Limited and Others HL 26-Feb-1998
The contractual ability given to an arbitrator under standard JCT terms did not oust the court from assessing and prejudging the acts of the architect under a building contract. As to the means for interpreting documents, Lord Hoffmann said: ‘I . .
Cited – Canterbury Pipe Lines v The Christchurch Drainage Board 1979
(New Zealand Court of Appeal) ‘In Hatrick the term ‘fairness’ was avoided in the judgments, Richmond J saying that he resisted it partly because of its vagueness and partly because it might be regarded as equivalent to natural justice. . . . In our . .
Cited – Hounslow 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 . .

Cited by:

Appealed to – Amec Civil Engineering Ltd v The Secretary of State for Transport TCC 11-Oct-2004
The court affirmed an interim arbitration award as to jurisdiction in an arbitration commenced by the Secretary of State against the contractors in relation to work carried out by them on the Thelwall viaduct. The court identified seven applicable . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Construction

Updated: 31 October 2022; Ref: scu.224061

Systech International Ltd v PC Harrington Contractors Ltd: TCC 27 Oct 2011

The court was asked as to the recoverability of adjudicators’ fees in circumstances where the decision of the adjudicator is said to be unenforceable by reason of a failure to comply with the rules of natural justice.

Judges:

Akenhead J

Citations:

[2011] EWHC 2722 (TCC), [2012] 1 All ER (Comm) 381, [2012] BLR 47, 139 Con LR 102, [2012] Bus LR 1013

Links:

Bailii

Jurisdiction:

England and Wales

Arbitration, Costs

Updated: 31 October 2022; Ref: scu.447621

The Frotanorte: CA 1996

The discretion in the court to to appoint an arbitrator under section 19(1) should not be narrowed without good reason. He continued: ‘In every such case there must come a time when the Court can properly refuse to grant [the relief sought] not because its dignity has been affronted nor in order to punish the applicant, but simply because it is wrong to grant a remedy to someone who has for so long neglected his right to seek it. The power to refuse relief in such circumstances is one which every Court in the land would wish to preserve. Accordingly, I cannot accept that inordinate and inexcusable delay is only capable of defeating an application under s.10(1) if it has caused serious prejudice to the other party.’

Judges:

Nourse LJ

Citations:

[1996] 2 Lloyds LR 461

Statutes:

Arbitration Act 1950 10(1) 19(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Crystal Eye Management (Pty) Limited v Entertainment Guarantees Limited and Broad CA 15-Jan-1997
The plaintiffs underwrote a film. The excesses for which they were liable were insured. The plaintiffs came to claim under the insurance, and Lloyds sought to intervene. The plaintiffs obtained judgement against the defendants by default. It later . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 27 October 2022; Ref: scu.193405

Secretary of State for the Environment v Euston Centre Investments Ltd: CA 6 Jul 1994

Arbitration appeal may be struck out for delay without the need to show evidence of prejudice from that delay. Nevertheless relief against an order striking out an appeal should given where some substantial part of the fault for the delay was the court’s fault.

Citations:

Times 06-Jul-1994, Independent 10-Aug-1994, Gazette 03-Aug-1994

Statutes:

Arbitration Act 1979 1

Jurisdiction:

England and Wales

Citing:

Appeal from – Secretary of State for the Environment v Euston Centre Investments Ltd ChD 5-Jan-1994
Appeals from arbitrators must be prosecuted speedily or will risk being struck out. The tests will be applied stringently. . .

Cited by:

Appealed to – Secretary of State for the Environment v Euston Centre Investments Ltd ChD 5-Jan-1994
Appeals from arbitrators must be prosecuted speedily or will risk being struck out. The tests will be applied stringently. . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 26 October 2022; Ref: scu.89099

Mercury Communications Ltd v Director General of Telecommunications and Another: CA 3 Aug 1994

Parties having contracted to resolve differences by an agreed procedure, could not go back on that agreement. The court will not replace an agreement for a resolution method chosen by parties with own advice and freely.

Citations:

Independent 19-Aug-1994, Times 03-Aug-1994, Gazette 07-Oct-1994

Jurisdiction:

England and Wales

Citing:

Appealed to – Mercury Communications Ltd v Director General of Telecommunications and Another HL 10-Feb-1995
The Secretary of State’s decision on the grant of a Telecommunications licence was challengeable by Summons and not by Judicial Review. A dispute between Mercury and BT as to charges as set by the Director General is a private not a public dispute. . .

Cited by:

Appeal from – Mercury Communications Ltd v Director General of Telecommunications and Another HL 10-Feb-1995
The Secretary of State’s decision on the grant of a Telecommunications licence was challengeable by Summons and not by Judicial Review. A dispute between Mercury and BT as to charges as set by the Director General is a private not a public dispute. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration

Updated: 26 October 2022; Ref: scu.83653

Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Ltd: CA 7 Apr 1993

An action was brought by re-insurers for a declaration that reinsurance policies were void for illegality, and that the plaintiffs were not liable under them. The illegality alleged was that the defendants were not registered or approved to carry on insurance or reinsurance business under the Insurance Companies Acts. The illegality was denied, and the defendant sought a stay and reference to arbitration.
Held: A stay was granted. An arbitration clause in an insurance contract was separate from the main contract with the effect that (a) invalidity of the main contract did not deprive the arbitrator of jurisdiction, and (b) the arbitrator had jurisdiction to decide the question of illegality of the main contract.
Ralph Gibson LJ: ‘Mr Longmore pointed out that a party to a contract the making of which he says was induced by fraud, would be surprised to be told that he is bound to have the issue tried by an arbitrator appointed under a clause in that contract. He also pointed out that when such a party alleges that the contract is void for illegality, he might well be astonished to be told that the issue of that illegality is to be determined by an arbitrator appointed under it.
There is, I think, force in these comments, but I add that in my view they are no more than forceful comments. Mr Justice Steyn said that the question of fraud or initial illegality was capable of being referred to arbitration. He did not qualify the clearly stated principle that if the validity of the arbitration clause itself is attacked the issue cannot be decided by the arbitrator. His reference to direct impeachment was, as I understand his judgment, to distinguish an attack upon the clause otherwise than by the logical proposition that the clause falls within the containing contract. When it is said that the contract was induced by fraud it may well be clear that, if it was, the making of the independent arbitration clause was also induced by fraud.’
Hoffmann LJ: ‘Mr Longmore therefore accepts, as he must, that for some purposes the arbitration clause is treated as severable and may survive the termination or even the avoidance with retrospective effect of all the other obligations under the contract .. He submits however that the severability doctrine cannot apply to any rule which prevents the contract from coming into existence or makes it void ab initio. In particular, it does not apply to a statute or other rule of law which makes the contract void for illegality.
It seems to me impossible to accept so sweeping a proposition. There will obviously be cases in which a claim that no contract came into existence necessarily entails a denial that there was any agreement to arbitrate. Cases of non est factum or denial that there was a concluded agreement, or mistake as to the identity of the other contracting party suggest themselves as examples. But there is no reason why every case of initial invalidity should have this consequence.’

Judges:

Ralph Gibson LJ, Hoffmann LJ

Citations:

Gazette 07-Apr-1993, [1993] 1 QB 701, [1993] 1 Lloyd’s Law Reports 455

Statutes:

Arbitration Act 1979 1

Jurisdiction:

England and Wales

Citing:

Appeal from – Harbour Assurance Co (Uk) Ltd v Kansa General International Insurance Co Ltd 1993
The Court said that older (pre Heyman v Darwins Ltd) authorities about the width of arbitration clauses had to be approached with some care and that the words ‘arising from the contract’ have almost invariably been treated as ‘words of very wide . .

Cited by:

Cited – Soleimany 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 . .
Cited – Lesotho Highlands Development Authority v Impregilo Spa and others HL 30-Jun-2005
The House had to consider whether the arbitrator had acted in excess of his powers under s38, saying the arbitrator had misconstrued the contract. The arbitrator had made his award in different currencies.
Held: The question remained whether . .
Cited – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
Cited – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Cited – Premium Nafta Products Ltd (20th Defendant) and others v Fili Shipping Company Ltd and others; Fiona Trust and Holding Corporation v Privalov HL 17-Oct-2007
The owners of a ship sought to rescind charters saying that they had been procured by bribery.
Held: A claim to rescind a contract by reason of bribery fell within the scope of an arbitration clause under which the parties had agreed to refer . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Insurance

Updated: 26 October 2022; Ref: scu.81228

Arnold and Others v National Westminster Bank Plc: CA 14 Mar 1994

There was no power to remit a case to an arbitrator after a later court decision decision which showed that the law applied by the arbitrator was wrong. The arbitrator’s award was on the basis that a new lease should contain a rent review, but the basis was not followed in British Gas. The judge had remitted the award to the arbitrator to be assessessed on the British Gas basis.
Held: The court did not have that power. Decisions of arbitrators were not to be acceoted for review easily, and remission was available only in certain limited cases. A change in the law was not to be seen as equivalent to new evidence.

Citations:

Ind Summary 14-Mar-1994, [1994] NPC 37 CA, [1994] CLY 2807

Statutes:

Arbitration Act 1950 22

Jurisdiction:

England and Wales

Citing:

Cited – British Gas Corporation v Universities Superannuation Scheme ChD 1986
The lease had a five yearly rent review, to be the highest of the current rent the rack rental value at the relevant rate. The rack rent was calculated under a hypothetical lease containing the same provisions (save for rent). The tenant sought a . .
Cited – King v Thomas McKenna 1991
. .
Lists of cited by and citing cases may be incomplete.

Arbitration, Landlord and Tenant

Updated: 26 October 2022; Ref: scu.77871

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

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

Judges:

Hamblen J

Citations:

[2013] EWHC 3413 (Comm)

Links:

Bailii

Statutes:

Arbitration Act 1996 9

Jurisdiction:

England and Wales

Arbitration

Updated: 25 October 2022; Ref: scu.517480

Nanjing Tianshun Shipbuilding Co Ltd v Orchard Tankers Pte Ltd: ComC 11 Feb 2011

The parties had agreed for a ship to be built. The sellers now challenged an arbitral award, saying that the arbitrators did not have jurisdiction.

Judges:

David Steel J

Citations:

[2011] EWHC 164 (Comm), [2011] ArbLR 4, [2011] 2 All ER 789, [2011] 2 All ER (Comm) 789

Links:

Bailii

Statutes:

Arbitration Act 1996 67

Jurisdiction:

England and Wales

Arbitration

Updated: 24 October 2022; Ref: scu.429636

Walkinshaw and others v Diniz: CA 25 May 2001

Citations:

[2001] EWCA Civ 836

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Walkinshaw v Diniz ComC 19-May-1999
Sports dispute – Formula 1 – scope of jurisdiction of the international panel – was the reference to arbitration or to another form of consensual dispute resolution – meaning of ‘arbitration’. . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 24 October 2022; Ref: scu.201098

Sinclair v Woods of Winchester Ltd Harrison: QBD 14 Jul 2005

The court set out the principles applicable in an application under section 68: ‘a) Perhaps the best summary of the applicable principles relating to section 68 generally, which lies at the heart of these applications is by His Honour Judge Humphrey Lloyd QC in Weldon Plant Ltd. v. The Commission for the New Towns [2000] BLR 496, approved by Colman J. in World Trade Corporation v. Czarnikow Sugar Ltd. [2004] 2 All E.R. Comm: ‘ 28. I do not accept the proposition that simply because the award contains an error which is unfair to a party there must have been a failure to comply with s 33 of the 1996 Act on the part of the tribunal and thus a serious irregularity for the purposes of s 68(2)(a). First, there is nothing in the 1996 Act to suggest that it is intended to allow the court to intervene to put right mistakes of fact or of law which could not have been put right under earlier legislation. The 1996 Act was intended to ‘ restate and improve the law in relation to arbitration’ , and in view of the well-established policy of the courts to intervene only in cases where there had been some unfair treatment or result which warranted intervention, the grounds must remain limited. Secondly, such a proposition, if correct, would enable a dissatisfied party to challenge an award on the grounds of an error of fact or of law under s 68(2) and thereby to open up the whole course of the arbitral proceedings so as to invite the court to conclude that there was some unfairness, whereas it is in my view plain from the Act that the only method of appealing against a decision, as such, is provided by s 69 of the 1996 Act (appeal on point of law). Whilst there will be occasions when there is an overlap between an appeal under section 69 and a challenge under s 68 of that Act the latter should not be used as an indirect method of appealing against a decision of fact, other than in an exceptional case. Thirdly, s 33 is primarily concerned with the tribunal’s failure to conduct the proceedings fairly and impartially, and although a failure to comply with section 33 is placed first in s 68(2), it is in reality more in the nature of a general provision of which section 68(2) contains further examples
Similarly, section 68(2)(d) of the 1996 Act is not to be used as a means of launching a detailed inquiry into the manner in which the tribunal considered the various issues. It is concerned with a failure, that is to say where the arbitral tribunal has not dealt at all with the case of a party so that substantial injustice has resulted, eg where a claim has been overlooked or where the decision cannot be justified as a particular key issue has not been decided which is crucial to the result. It is not concerned with a failure on the part of the tribunal to arrive at the right answer to an issue. In the former instance the tribunal has not done what it was asked to do, namely to give the parties a decision on all the issues necessary to resolve a dispute or disputes (which does not of course mean decisions on all the issues that were ventilated but only those required for the award). In the latter instance the tribunal will have done what it was asked to do (or will have purported to do so) but its decision or reasoning may be wrong or flawed. The arbitral tribunal may therefore have failed to deal properly with issues but it will not have failed to deal with them.
b) The most recent authority under section 68 is the decision of the House of Lords in Lesotho Highlands Development Authority v. Impregilo SPA and Ors [2005] UKHL 43. The proper operation of section 68 is summarised by Lord Steyn at paragraph 28 of his speech: ‘ First, unlike the position under the old law, intervention under s 68 is only permissible after an award has been made. Secondly, the requirement is a serious irregularity. It is a new concept in English arbitration law. Plainly a high threshold must be satisfied. Thirdly, it must be established that the irregularity caused or will cause substantial injustice to the applicant. This is designed to eliminate technical and unmeritorious challenges. It is also a new requirement in English arbitration law. Fourthly, the irregularity must fall within the closed list of categories set out in paragraphs (a) to (i).’

Judges:

His Honour Peter Coulson Q.C.

Citations:

[2005] EWHC 1631 (QB)

Links:

Bailii

Statutes:

Arbitration Act 1996 68

Jurisdiction:

England and Wales

Cited by:

Cited – O’Donoghue v Enterprise Inns Plc ChD 29-Sep-2008
The tenant sought to appeal against an arbitration award as to his rent. He said that the arbitrator should have allowed him an oral hearing.
Held: The claim failed: ‘the fact that the Arbitrator might have come to a different conclusion if . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 23 October 2022; Ref: scu.236286

Isabella Shipowner Sa v Shagang Shipping Co Ltd: ComC 26 Apr 2012

The claimant ship owners challenged an award on two grounds. First, with permission, the owners appealed under section 69 of the Arbitration Act 1996 on the following question of law: ‘Whether, as a matter of law, owners were entitled to refuse early re-delivery of the Aquafaith (the vessel) at Jintang on 9 August 2011 and affirm the charter, or whether they were bound in law to accept early re-delivery and merely entitled to sue for damages’. Secondly, the owners contended that there was serious irregularity affecting the proceedings and/or the Award, within the meaning of s68 of the Arbitration Act, inasmuch as the arbitrator failed to give any, or any sufficient, weight to the owners’ submissions when deciding the issues which arose between the parties. In so doing, he failed to comply with section 33 of the same Act.

Judges:

Cooke J

Citations:

[2012] EWHC 1077 (Comm), [2012] 2 Lloyds Rep 61, [2012] 1 CLC 899, [2012] 2 All ER (Comm) 461

Links:

Bailii

Statutes:

Arbitration Act 1996 69 68

Jurisdiction:

England and Wales

Citing:

Cited – Attica Sea Carriers Corporation v Ferrostaal Poseidon Bulk Reederei GmbH, The Puerto Buitrago CA 1976
The parties entered into a charterparty by demise of a bulk carrier. It was in a state of disrepair. The owners required the charterers to repair it before redelivery, and claimed hire losses until it was returned repaired. The extensive repairs . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 21 October 2022; Ref: scu.457625

Commission of the European Communities v Jan Zoubek: ECJ 18 Dec 1986

ECJ Procedure – action brought before the court under an arbitration clause -jurisdiction to hear and determine a counterclaim – basis – conditions (ECSC treaty, art. 42; EEC treaty, art. 181; EAEC treaty, art. 153). Although under an arbitration clause the court is called upon to resolve a dispute in accordance with the national law governing the contract, the question whether it has jurisdiction to hear and determine a counterclaim and to consider whether it is admissible must be assessed solely in the light of article 42 of the ECSC treaty, article 181 of the EEC treaty, article 153 of the EAEC treaty and the court ‘ s rules of procedure. The jurisdiction of the court, where it is based on an arbitration clause, derogates from the ordinary rules of law and must therefore be given a restrictive interpretation. The court may hear and determine only claims arising from the contract containing the arbitration clause, which was concluded with the community, or claims that are directly connected with the obligations arising from that contract.

Citations:

C-426/85, [1986] EUECJ C-426/85

Links:

Bailii

Jurisdiction:

European

Arbitration

Updated: 15 October 2022; Ref: scu.134309

Expofrut Sa and Others v Melville Services Inc and Another: ComC 8 Jul 2015

Application by the Claimants for an extension of time of some three years and eight months in respect of the expiry of the one year Hague/Hague Visby limitation period in accordance with the terms of Arbitration Clause 19 in the relevant Charter Party incorporated by the relevant Bills of Lading. The Claimants pursued their claims in respect of damage to a consignment of fresh pears shipped from Argentina to Antwerp on board the AFRICA REEFER in the Belgian courts, which have now found that the claims were required to be brought in arbitration.

Judges:

Burton J

Citations:

[2015] EWHC 1950 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Arbitration, Limitation

Updated: 15 October 2022; Ref: scu.550070

Dhanani v Crasnianski: ComC 15 Apr 2011

The parties disputed the terms of a contract between them under which the defendant was to provide substantial sums for the claimant to invest.

Judges:

Teare J

Citations:

[2011] EWHC 926 (Comm), [2011] ArbLR 13

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – IBM v Rockware Glass Ltd CA 1980
The court considered the meaning on a promise by one party to use its best endeavours to obtain a relevant planning permission.
Held: The obligation included an obligation to appeal from an initial refusal of permission so long as the . .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 12 October 2022; Ref: scu.432789

JSC BTA Bank v Ablyazov and Others: ComC 28 Mar 2011

The Third Defendant sought a stay of the claims against it pursuant to section 9 of the Arbitration Act 1996, and the Seventh Defendant asked for a stay of the claims against it on case management grounds.

Judges:

Christopher Clarke J

Citations:

[2011] EWHC 587 (Comm), [2011] ArbLR 6

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Arbitration

Updated: 12 October 2022; Ref: scu.431652

Claxton Engineering Services Ltd v TXM Olaj-Es Gazkutato Kft: ComC 15 Oct 2010

Application for stay under the 1996 Act or alternatively under the Regulation.

Judges:

Gloster DBE J

Citations:

[2010] EWHC 2567 (Comm), [2011] ILPr 13, [2011] 1 Lloyds Rep 252

Links:

Bailii

Statutes:

Council Regulation (EC) 44/2001, namely the Jurisdiction and Judgments Regulation 2, Arbitration Act 1996 9

Jurisdiction:

England and Wales

European, Arbitration

Updated: 12 October 2022; Ref: scu.425309

John Paterson and Son Ltd v Corporation of Glasgow: HL 29 Jul 1901

A firm of contractors undertook a contract to construct a sewer for the Corporation of Glasgow at certain scheduled rates. During the progress of the work it was found impossible owing to the nature of the soil to drive a tunnel by the ordinary method. The contractors were then instructed to continue the work by means of the air pressure system, which was more costly, and the Corporation agreed to refer the question of the amount to be paid to them ‘in respect of the extra cost incurred by the necessary adoption of the said system of air-pressure’ to a certain arbiter who was a civil engineer in Glasgow. No formal submission was entered into. The parties subsequently agreed to submit to the arbiter certain items of the contractors’ account, other than those relating to the use of air-pressure, which they were unable to adjust. After hearing parties and examining the accounts and making certain measurements, the arbiter issued a note of proposed findings at which he had arrived without hearing evidence, but intimated that, although he did not consider it essential he was prepared to hear proof if desired. Thereafter he made an order for proof, and in a note appended thereto he added-‘Both parties having distinctly agreed that they were not to be represented by law-agents, the arbiter cannot now see his way to allow this arrangement to be broken unless mutually agreed upon.’ In the proceedings up to this time the parties had not been represented by law-agents. The contractors refused to accept a proof upon these conditions, and denied that they had entered into such an arrangement. The arbiter thereupon cancelled the order for proof, and issued a note of proposed findings, in which he awarded a gross sum ‘as the total amount due in respect of the work done by the claimants in connection with this contract.’ After allowing time for representations the arbiter issued a formal decree-arbitral. The findings and the decree-arbitral did not show what sums were respectively awarded in respect of the use of air-pressure and in respect of the disputed items of the account.
In an action by the contractors for reduction of the decree-arbitral upon the ground (1) that the arbiter had refused to hear evidence as to the actual cost of using air-pressure; (2) that he had proceeded ultra fines compromises by finding what was a reasonable sum to be allowed for the use of air-pressure instead of determining the actual extra cost of using it; (3) that the decree-arbitral did not distinguish between the amount allowed for the use of air-pressure and for the other disputed items; and (4) that he had acted illegally in refusing to hear proof except on condition that parties should not be represented by law-agents- held ( rev. judgment of the Second Division, and restoring judgment of the Lord Ordinary, Kyllachy) that the defenders were entitled to absolvitor, in. respect that this was an informal arbitration in which the matter in dispute was referred to the personal skill and local knowledge of the arbiter, and in which proof was not essential; that in the circumstances the arbiter was entitled to refuse to allow parties to be represented by law-agents-the understanding between parties acted on up to that time being that law-agents were not to be employed, and the question of whether law-agents should be allowed in an arbitration being one of procedure for the consideration of the arbiter; and that although he gave an opportunity of making representations against his proposed findings, no request was made to him by the contractors to divide the amount of the award into separate items.

Judges:

Lord Chancellor (Halsbury), Lord Macnaghten, Lord James of Hereford, Lord Brampton, Lord Robertson, and Lord Lindley

Citations:

[1901] UKHL 855, 38 SLR 855

Links:

Bailii

Jurisdiction:

Scotland

Arbitration, Contract

Updated: 11 October 2022; Ref: scu.630992

The Republic of Korea v Dayyani and Others: ComC 20 Dec 2019

Application by the Claimant, Republic, to set aside an award made by Professor Bernard Hanotiau (President), Mr Philippe Pinsolle and Dr Gavan Griffith QC pursuant to s. 67 Arbitration Act 1996, on the grounds that the Tribunal lacked substantive jurisdiction over the claims made by the Defendants in the arbitration.

Judges:

Butcher J

Citations:

[2019] EWHC 3580 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Arbitration

Updated: 06 October 2022; Ref: scu.646103

Sprunt Ltd v London Borough of Camden: TCC 6 Dec 2011

The court heard applications in adjudication enforcement proceedings between consultants and their employer, issues being raised about the extent to which the construction contract between the parties was in writing for the purposes of Section 107 of the Housing Grants, Construction and Regeneration Act 1996 (‘HGCRA’) and in relation to the extent and scope of the incorporation of the Scheme for Construction Contracts in circumstances in which the underlying contract does not comply with Section 108 of the HGCRA. This latter issue encompasses another issue which is whether the adjudicator was appointed by the correct nominating body

Judges:

Akenhead J

Citations:

[2011] EWHC 3191 (TCC), [2012] 9 EG 152, [2012] CILL 3124,, 140 Con LR 111, [2012] BLR 83

Links:

Bailii

Arbitration, Construction

Updated: 05 October 2022; Ref: scu.451492

Sheffield 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: The defendant had agreed to a binding arbitration. The claimant was enttled to the injunctive relief it sought.

Judges:

Teare J

Citations:

[2008] EWHC 2855 (Comm), 2009] 1 Lloyd’s Rep 167, [2008] 2 CLC 741

Links:

Bailii

Statutes:

Arbitration Act 1996 9 44

Jurisdiction:

England and Wales

Citing:

Cited – Compagnie Eurpeene de Cereals SA v Tradax Export SA 1986
. .
Cited – Aggeliki 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 . .
Cited – Compagnie Eurpeene de Cereals SA v Tradax Export SA 1986
. .
Cited – Alfred C Toepfer International Gmbh v Societe Cargill France CA 25-Nov-1997
A clause in a contract requiring the parties to have recourse to arbitration before initiating legal action, (Scott v Avery) cannot be used to prevent injunction proceedings to enforce the clause itself. . .
Cited – C v D CA 5-Dec-2007
The court considered an appeal under the Bermuda Form of international Liability Insurance which provided for arbitration in London subject to the internal laws of New York. The insurers threatened to challenge under US federal arbitration law in a . .
Cited – Starlight Shipping Co and Another v Tai Ping Insurance Co Ltd., Hubei Branch and Another ComC 1-Aug-2007
In an application for an interim anti-suit injunction, Cooke J said: ‘Damages would, for all the reasons given in the authorities, be an inadequate remedy for breach of such a clause since its very nature requires the parties to have their disputes . .
Cited – West 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. . .
Cited – National Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
Cited – Weissfisch v Julius, Weisfisch, Davis CA 8-Mar-2006
An arbitration was to be governed by Swiss law with its seat in Geneva. One the party sought here an injunction restraining the arbitrator from acting as arbitrator on the grounds that the agreement had been induced by misrepresentation and was void . .
Cited – American International Speciality Lines Insurance Co v Abbott Laboratories 2003
. .
Cited – Turner v Grovit ECJ 27-Apr-2004
The claimant had been employed as a solicitor by the respondent at locations across Europe, and came to claim in England that they had wrongly implicated him in unlawful activity. The company sought to issue proceedings in Spain.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 04 October 2022; Ref: scu.278294

Law Debenture Trust Corporation Plc v Elektrim Finance Bv and others: ChD 1 Jul 2005

A bond contained an arbitration clause subject to a further clause giving the claimant an ‘exclusive right at its option to apply to the courts of England to settle any disputes which may arise out of or in connection with these presents’. The defendants started an arbitration challenging the claimant’s assertion that events of default had occurred; the claimant then started proceedings to recover the full amount due under the bond to which it added a section 72 claim asking for an injunction to restrain the arbitration. The defendants retaliated with an application for a stay under section 9, CPR 62.8(3) and section 49(3) Supreme Court Act 1981.
Held: The court rejected the general submission that the 1996 Act required the court to allow the arbitrators to decide whether they had jurisdiction. The claimant could therefore invoke section 72 (if it applied) to ask the court to decide the jurisdiction issue. The court rejected the defendants’ arguments that the claimant could not bring itself within section 72 because once the claimant opted for litigation, there was no longer an arbitration agreement. The decision depended on the deed: if, as he found, the claimant was entitled to litigate then obviously he would not grant a stay and vice versa. Thus the section 9 point did ‘not really arise as a contentious point’. The judge had no need to consider the separability of the arbitration clause but only had to decide if the litigation option had been rightly exercised by the party seeking to litigate. He decided that it had been and that accordingly the section 72 application for a declaration and an injunction should be granted and the stay application should be dismissed.

Judges:

Mann J

Citations:

[2005] EWHC 1412 (Ch), [2005] 2 Lloyds Rep 755

Links:

Bailii

Statutes:

Arbitration act 1996 72, Supreme Court Act 1981 49(3)

Jurisdiction:

England and Wales

Cited by:

Cited – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Lists of cited by and citing cases may be incomplete.

Financial Services, Arbitration

Updated: 04 October 2022; Ref: scu.228237

Glencore Grain Rotterdam BV v Lebanese Organisation for International Commerce: CA 25 Jun 1997

The court was asked: ‘(1) What approach should the Court adopt on seeking to ascertain, by a process of implication, what terms of a letter of credit are contractual under an FOB sale which provides for payment to be made by an irrevocable and confirmed letter of credit but does not otherwise specify the terms which that letter of credit should contain?
(2) Whether the principle that a party, giving a wrong or inadequate reason for refusal to perform a contract, may justify his refusal by relying on some other reason not relied on at the time, is qualified by a further principle
(a) that such other reason is one which, if relied on at the time of refusal to perform, could not have been put right; and/or
(b) that a party who gives one ground for his refusal to perform may by his conduct be precluded from setting up a different ground if it would be unjust or unfair to allow him to do so’.

Judges:

Nourse, Evans LJJ, Sir Ralph Gibson

Citations:

[1997] EWCA Civ 1958, [1997] 4 ALL ER 514, [1997] CLC 1274, [1997] 2 Lloyds Rep 386

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Force 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 . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Commercial

Updated: 04 October 2022; Ref: scu.142354

West Tankers Inc v Allianz Spa and Another: CA 24 Jan 2012

The Court was asked whether there was power under section 66 of the 1996 Act to order judgment to be entered in the terms of an arbitral award in a case where the award is declaratory in form and more particularly where it takes the form of a negative declaration, i.e. a declaration that the successful party has no legal liability to the other party in respect of the subject matter of the arbitration.

Judges:

Carnwath, Lloyd, Toulson LJJ

Citations:

[2012] Bus LR 1701, [2012] WLR(D) 9, 140 Con LR 45, [2012] EWCA Civ 27

Links:

Bailii

Statutes:

Arbitration Act 1996 6

Jurisdiction:

England and Wales

Arbitration

Updated: 04 October 2022; Ref: scu.450468

Kastner v Jason, Sherman, Sherman and Sherman, Sherman and Kastner: ChD 23 Mar 2004

The parties had a dispute arbitrated by the Beth Din, who ordered the sale of a property. In apparent breach of that order the owner purported to sell the property. The claimant had registered a caution which the defendants now sought to be vacated.
Held: Provisional awards by arbitrators were not directly enforceable unless the parties agreed otherwise, and such an agreement was found here. However, the parties had not agreed that the award should create any proprietary interest in or charge against the property.

Judges:

The Hon Mr Justice Lightman

Citations:

[2004] EWHC 592 Ch, Times 26-Apr-2004

Links:

Bailii

Statutes:

Arbitration Act 1996 39(1) 48

Jurisdiction:

England and Wales

Citing:

Cited – Elias v Mitchell 1972
A caution against dealings can only be registered to protect some form of interest in land . .
Cited – Edwards, Drummond Smith v Flightline Limited CA 5-Feb-2003
The applicant company obtained an injunction against another company. That freezing injunction was discharged upon the payment of a sum into the names of the respective parties’ solicitors. The company went into liquidation, and the claimant . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Land

Updated: 01 October 2022; Ref: scu.194842

Phoenix Finance Limited v Federation Internationale De L’automobile, Formula One Management Limited, Formula One Administration Limited: ChD 22 May 2002

The claimant had purchased the interests of a failed Formula One car racing team, including, it said, the right to enter a team in Formula One races. It claimed to have been unlawfully excluded from racing.
Held: The claimant had failed to comply with the requirements imposed upon participants, and was not entitled to race. Since the claimant sought rights under the contract, it was bound by the agreement to refer disputes to arbitration. As to costs, there was still a need to serve a letter before action, and in the absence of such a letter, even in a case where there was no pre-action protocol, a party could not complain if he was ordered to pay the other party’s costs on an indemnity basis.

Judges:

The Vice Chancellor

Citations:

Times 27-Jun-2002, Gazette 27-Jun-2002, EWHC 1028 (Ch), [2002] EWHC 1028 (Ch)

Links:

Bailii

Statutes:

Arbitration Act 1996 9 44, Civil Procedure Rules

Jurisdiction:

England and Wales

Citing:

Cited – Schiffahrtsgesellschaft Detlef Von Appen Gmbh v Wiener Allianz Versichrungs Ag and Voest Alpine Intertrading Gmbh CA 16-Apr-1997
. .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration, Costs, Civil Procedure Rules

Updated: 01 October 2022; Ref: scu.171275

Taurus Petroleum Limited v State Oil Marketing Company of The Ministry of Oil, Republic of Iraq: SC 25 Oct 2017

The parties disputed their contract arrangements. It was referred to an arbitration in London, but applying Iraqi law. The respondent failed to meet the award made against it, and the claimant sought to enforce the award here by means of third party debt orders. Issues arose as to who could take the benefit of the letters of credit.
Held: (Lord Mance DPSC and Lord Neuberger of Abbotsbury dissenting) The appeal was allowed. The defendant was, under the contract, and remained the beneficiary of the letters and was the only proper owner of the debts due from the French bank. The Central Bank of Iraq, having no beneficial interest in the contract had no say in the chosen means of execution.
The situs in law of this debt was London, being the legal residence of the debtor.

Judges:

Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Hodge

Citations:

[2017] UKSC 64, UKSC 2015/0199, [2017] WLR(D) 701, [2018] AC 690, [2017] 3 WLR 1170

Links:

Bailii, Bailii Summary, SC, SC Summary, SC 20170321 am Video, SC Summary Video, SC 20170321 pm Video, SC 20170322 am Video, SC 20170322 pm Video, WLRD

Jurisdiction:

England and Wales

Citing:

At ComC (1) – Taurus Petroleum Ltd v State Oilmarketing Company ComC 18-Nov-2013
The parties referred their contract disputes to an arbitration in London which was to apply Iraqi law. As to enforcement of the award, the defendant denied that they were situated in London.
Held: The debts were situated in London rather than . .
At ComC (2) – Taurus Petroleum Led v State Oil Marketing Company of The Ministry of Oil, Republic of Iraq ComC 18-Nov-2013
. .
Appeal from – Taurus Petroleum Ltd v State Oil Company of The Ministry of Oil, Republic of Iraq CA 28-Jul-2015
The parties had contractual disputes as to letters of credit governed by Iraqi law. The arbitration was in London applying Iraqi law. They now disputed whether the Enforcement of arbitration award was as an award made in London. Each appealed . .
Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Overruled – Power Curber International Ltd v The National Bank of Kuwait CA 1981
The advising bank on a letter of credit was situated in Florida. The place where the credit was payable was North Carolina, and the place where the issuing bank had its place of business was Kuwait.
Held: (Waterhouse J dissenting) The contract . .
Cited – HL Boulton Co v Banque Royale du Canada 1994
(Superior Court of Quebec) The defendant asked the court to decline jurisdiction under article 3135 of the Civil Code, which provides that even though a Quebec authority has jurisdiction to hear a dispute, it may exceptionally decline jurisdiction . .
Cited – Alessandra Yarns llc v Tongxiang Baoding Textile Co Ltd 6-Feb-2015
(Superior Court of Quebec) The Court was asked whether the fraud exception to a letter of credit had been met such that the court should issue an interlocutory injunction to prevent the beneficiary claiming under the letter of credit. There were . .
Cited – Re General Horticultural Company, Ex parte Whitehouse ChD 1886
Wills, to whom a sum had been allowed in a winding up for work done for the liquidator, charged the amount due to him as security for the payment of three debts, the total amount of which exceeded the sum due to him from the company. Notice of the . .
Cited – Rogers v Whitely QBD 1889
Money in a bank account included money of which the judgment debtor was trustee.
Held: That money could not be ordered to be paid to the judgment creditor who obtained the charging order: ‘he can only obtain payment out of the debtor’s own . .
Cited – Williams v Everett And Others 25-Nov-1811
. .
Cited – Gibson v Minet And Another 28-Feb-1824
. .
Cited – Webb v Stanton CA 1883
A garnishee order was obtained against a trustee purporting to attach the beneficiary’s share of the trust income. No income was however in the trustee’s hands which he was at that time due to pay to the beneficiary.
Held: The garnishee order . .
Cited – Rekstin v Severo Sibirsko Gosudarstvennoe Aksionernoe Obschestvo Koseverputj and the Bank for Russian Trade Ltd CA 1932
The plaintiff sought to enforce payment of a judgment in his favour against the defendant (the Severo Sibirsko Bureau) by service of a garnishee order nisi on the Bureau’s bank, the Bank for Russian Trade. The order was served less than an hour . .
Cited – Dunlop and Ranken Ltd v Hendall Steel Structures Ltd CA 1957
There was no debt arising under a building contract which could be the subject of a garnishee order where there was no ’cause of action’ and no debt until an architect’s certificate had been issued.
Lord Goddard CJ said: ‘. . until the . .
Cited – Merchant International Company Ltd v Natsionalna Aktsionerna Kompaniia Naftogaz Ukrainy and Another CA 10-Dec-2014
he debt sought to be attached was said to be owed by a bank to the judgment debtor Naftogaz. But the bank had received the money from Naftogaz as the agent bank under a loan agreement for distribution to the loanholders. It was not therefore, in the . .
Cited – Ferrera v Hardy CA 7-Oct-2015
H appealed from a decision to set aside a third party debt order which he had obtained over a debt he said was due to F from Liverpool City Council in respect of housing benefit owed to F as rent for one of F’s tenants.
Held: A judgment . .
Cited – Wood v Capita Insurance Services Ltd SC 29-Mar-2017
Construction of term of contract for the sale and purchase of the entire issued share capital of a company.
Held: The appeal was dismissed: ‘the SPA may have become a poor bargain, as it appears that it did not notify the sellers of a warranty . .
Lists of cited by and citing cases may be incomplete.

Banking, International

Updated: 01 October 2022; Ref: scu.597671

Taurus Petroleum Ltd v State Oil Company of The Ministry of Oil, Republic of Iraq: CA 28 Jul 2015

The parties had contractual disputes as to letters of credit governed by Iraqi law. The arbitration was in London applying Iraqi law. They now disputed whether the Enforcement of arbitration award was as an award made in London. Each appealed against elements of the orders made at first instance.
Held: The appeals and cross appeals failed.
Although a bank must carefully assess the creditworthiness of its own customer before agreeing to open a letter of credit, the process of doing so is essentially mechanical. The terms of the credit are likely to be determined largely, if not entirely, by the seller and will be communicated by the buyer to its bank. The bank in its turn will then issue the credit in the terms required, undertaking a liability to the beneficiary against which it will seek an indemnity from its customer. Moore-Bick LJ added that one should therefore be very cautious before construing letters of credit by reference to extraneous circumstances and there was no evidence before the court of the extent to which those engaged in financing the trade in Iraqi oil were or were not generally aware of the arrangements.
The parties disputed the terms of their contract and had undertaken an arbitration in London, but under Iraqi law. There was no reason in principle why a letter of credit should not be issued in favour of joint beneficiaries, as for example if goods or property were being sold by joint owners.

Judges:

Moore-Bick VP CA, Sullivan, Briggs LJJ

Citations:

[2015] EWCA Civ 835, [2016] 1 Lloyd’s Rep 42, [2015] CP Rep 48

Links:

Bailii

Statutes:

State Immunity Act 1978 13(2) 14(4)

Jurisdiction:

England and Wales

Citing:

Appeal from – Taurus Petroleum Ltd v State Oilmarketing Company ComC 18-Nov-2013
The parties referred their contract disputes to an arbitration in London which was to apply Iraqi law. As to enforcement of the award, the defendant denied that they were situated in London.
Held: The debts were situated in London rather than . .
At ComC (2) – Taurus Petroleum Led v State Oil Marketing Company of The Ministry of Oil, Republic of Iraq ComC 18-Nov-2013
. .
Binding – Power Curber International Ltd v The National Bank of Kuwait CA 1981
The advising bank on a letter of credit was situated in Florida. The place where the credit was payable was North Carolina, and the place where the issuing bank had its place of business was Kuwait.
Held: (Waterhouse J dissenting) The contract . .
Cited – Rogers v Whitely QBD 1889
Money in a bank account included money of which the judgment debtor was trustee.
Held: That money could not be ordered to be paid to the judgment creditor who obtained the charging order: ‘he can only obtain payment out of the debtor’s own . .

Cited by:

Appeal from – Taurus Petroleum Limited v State Oil Marketing Company of The Ministry of Oil, Republic of Iraq SC 25-Oct-2017
The parties disputed their contract arrangements. It was referred to an arbitration in London, but applying Iraqi law. The respondent failed to meet the award made against it, and the claimant sought to enforce the award here by means of third party . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Banking, International

Updated: 01 October 2022; Ref: scu.550645

BNP Paribas Sa v Open Joint Stock Company Russian Machines and Another: ComC 24 Nov 2011

Blair J said: ‘These proceedings in the English Court comprise a claim for anti-suit relief in connection with an arbitration agreement between the claimant and the first defendant.’

Judges:

Blair J

Citations:

[2011] EWHC 308 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Arbitration, Jurisdiction

Updated: 28 September 2022; Ref: scu.449004

Bilta (UK) Ltd (In Liquidation) v Nazir and Others: ChD 17 May 2010

The sixth defendant resisted a claim against it saying that matters between them were governed by a framework agreement which provided for matters to be resolved by arbitration. The claimant resisted, denying the arbitration agreement and saying that the defendant was out of time to make such a claim.
Held: Two arguments were directed to be tried as preliminary issues. There was an arguable case that Bilta had traded with Jetivia with notice that the Framework Agreement contained Jetivia’s standard terms and conditions applied, and that the Framework Agreement (including clause 8.7) became part of the contractual terms binding on Bilta.

Judges:

Sales J

Citations:

[2010] Bus LR 1634, [2010] 2 Lloyd’s Rep 29, [2010] EWHC 1086 (Ch)

Links:

Bailii

Statutes:

Arbitration Act 1996 9(3)

Jurisdiction:

England and Wales

Cited by:

See Also – Bilta (Uk) Ltd v Nazir and Others ChD 24-Nov-2010
The company had been wound up by the Revenue on the basis that it had been used for a substantial VAT fraud. The liquidators now sued those said to have participated. A defendant denied the jurisdiction because of a disputed arbitration agreement. . .
See Also – Bilta (UK) Ltd and Others v Nazir and Others ChD 30-Jul-2012
The company was said to have engaged in a fraud based on false European Trading Scheme Allowances, and had been wound up by the Revenue. The liquidators, in the company name, now sought recovery from former directors and associates.
Held: The . .
At first instance (1) – Jetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .
At first Instance (1) – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 25 September 2022; Ref: scu.415085