Category: Arbitration

Minister of Finance (Incorporated) v 1Malaysia Development Berhad and Others: CA 26 Nov 2019

The court considered an issue as to the primacy of the powers of the court contained in sections 67 and 68 (‘sections 67 and 68’) of the Arbitration Act 1996.

Judges:

Sir Geoffrey Vos, Chancellor of the High Cour

Citations:

[2019] EWCA Civ 2080

Links:

Bailii

Statutes:

Arbitration Act 1996

Jurisdiction:

England and Wales

Arbitration

Updated: 19 September 2022; Ref: scu.645539

Taurus Petroleum Led v State Oil Marketing Company of The Ministry of Oil, Republic of Iraq: ComC 18 Nov 2013

Judges:

Field J

Citations:

[2013] EWHC 3494 (Comm), [2013] CN 1836, [2013] 2 CLC 835

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – 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 . .

Cited by:

At ComC (2) – 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 . .
At ComC (2) – 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, International

Updated: 19 September 2022; Ref: scu.518026

Claxton Engineering Services Ltd v TXM Olaj-ES Gazkutato Ktf: ComC 1 Feb 2011

The claimant applied for an injunction restraining the defendant from pursuing an arbitration commenced in Hungary under the rules of the Court of Arbitration of the Hungarian Chamber of Commerce (‘HCCI’) in reliance upon an alleged arbitration agreement between the parties.

Judges:

Hamblen J

Citations:

[2011] EWHC 345 (Comm), [2011] 1 Lloyd’s Rep 510, [2011] 2 All ER (Comm) 128

Links:

Bailii

Jurisdiction:

England and Wales

Arbitration

Updated: 17 September 2022; Ref: scu.443313

Michael Wilson and Partners Ltd v Sinclair and Another: CA 13 Jan 2017

The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an arbitration beween the claimant and the former partner, which were lost, and the defendants had successfully argued that it was an abuse of process for the claimant now to pursue them, even though they had not been party to the arbitration. The claimants now appealed.
Held: The appeal was allowed. There was indeed a jurisdition for a court to take account of an earlier arbitration (as opposed to a court) award, when considering whether proceedings were an abuse, but the Judge had been wrong to exercise the discretion which arose in these particular circumstances.
The court summarised the relevant principles: (1) In cases where there is no res judicata or issue estoppel, the power to strike out a claim for abuse of process is founded on two interests: the private interest of a party not to be vexed twice for the same reason and the public interest of the state in not having issues repeatedly litigated; see Lord Diplock in Hunter v. Chief Constable, Lord Hoffmann in the Arthur Hall case and Lord Bingham in Johnson v. Gore Wood. These interests reflect unfairness to a party on the one hand, and the risk of the administration of public justice being brought into disrepute on the other, see again Lord Diplock in Hunter v. Chief Constable. Both or either interest may be engaged.
(2) An abuse may occur where it is sought to bring new proceedings in relation to issues that have been decided in prior proceedings. However, there is no prima facie assumption that such proceedings amount to an abuse, see Bragg v. Oceanus; and the court’s power is only used where justice and public policy demand it, see Lord Hoffmann in the Arthur Hall case.
(3) To determine whether proceedings are abusive the Court must engage in a close ‘merits based’ analysis of the facts. This will take into account the private and public interests involved, and will focus on the crucial question: whether in all the circumstances a party is abusing or misusing the court’s process, see Lord Bingham in Johnson v. Gore Wood and Buxton LJ in Taylor Walton v. Laing.
(4) In carrying out this analysis, it will be necessary to have in mind that: (a) the fact that the parties may not have been the same in the two proceedings is not dispositive, since the circumstances may be such as to bring the case within ‘the spirit of the rules’, see Lord Hoffmann in the Arthur Hall case; thus (b) it may be an abuse of process, where the parties in the later civil proceedings were neither parties nor their privies in the earlier proceedings, if it would be manifestly unfair to a party in the later proceedings that the same issues should be relitigated, see Sir Andrew Morritt V-C in the Bairstow case; or, as Lord Hobhouse put it in the Arthur Hall case, if there is an element of vexation in the use of litigation for an improper purpose.
(5) It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process, see Lord Hobhouse in In re Norris . .
(6) An appeal against a decision to strike out on the grounds of abuse, described by Lord Sumption JSC in Virgin Atlantic Airways Ltd v. Zodiac Seats UK Ltd [2014] AC 160 at [17] as the application of a procedural rule against abusive proceedings, is a challenge to the judgment of the court below and not to the exercise of a discretion. Nevertheless, in reviewing the decision the Court of Appeal will give considerable weight to the views of the judge, see Buxton LJ in the Taylor Walton case, at [13].

Judges:

Patten , Simon LJJ, Sir Ernest Ryder SPT

Citations:

[2017] EWCA Civ 3, [2017] WLR(D) 18

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

See Also – Emmott v Michael Wilson and Partners Ltd CA 12-Mar-2008
The court considered the implication of the obligation of confidentiality in banking contracts or in arbitration agreements. It is ‘really a rule of substantive law masquerading as an implied term’. . .
Cited – Reichel v Magrath PC 1889
The new vicar of Sparsholt, Dr Magrath, was able to rely on the abuse of process even though he had not been party to earlier proceedings between Reichel and the Bishop of Oxford and the Queen’s College and so was not bound by any issue estoppel . .
Cited – Arthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
See Also – Michael Wilson and Partners Ltd v Emmott ComC 6-Nov-2008
Challenge to jurisdiction of arbitration proceedings. . .
See Also – Michael Wilson and Partners Ltd v Emmott ComC 8-Jun-2011
The claimant challenged an arbitration award made concerning the agreement under which the defendant had been admitted to partnership. MWP contended that the Tribunal were guilty of a large number of serious irregularities in their conduct of the . .
See Also – Michael Wilson and Partners Ltd v Sinclair and Others ComC 21-Sep-2012
The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .
See Also – Michael Wilson and Partners Ltd v Sinclair and Others CA 16-Jan-2013
Application to stay order for costs. . .
See Also – Michael Wilson and Partners Ltd v Sinclair and Others CA 23-Jul-2015
. .
See Also – Michael Wilson and Partners Ltd v Emmott CA 14-Oct-2015
Appeal against a finding that payments made by the appellant were made in the ordinary course of business and not in breach of a freezing injunction. . .
See Also – Michael Wilson and Partners Ltd v Emmott CA 11-Dec-2015
The court considered a residual jurisdiction to set aside an arbitrator’s award after a first appeal. . .
See Also – Emmott v Michael Wilson and Partners ComC 24-Nov-2016
Application for an anti-suit injunction against the defendant to restrain it from taking any further steps in ongoing proceedings in New South Wales and from commencing or pursuing any other substantive claims against the claimant on the ground that . .
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Bragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd CA 1982
The court considered the ability to prevent relitigation of issues already decided. The Court identified some of the limits of the abuse jurisdiction. Kerr LJ said: ‘To take the authorities first, it is clear that an attempt to relitigate in another . .
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Cited – In re Norris, Application by Norris HL 28-Jun-2001
The applicant’s husband had been made the subject of a drugs confiscation order. Part of this was an order against the house. She had failed in asserting that the house was hers. Her appeal to a civil court had been disallowed as an abuse. It was . .
Cited – The Secretary of State for Trade and Industry v Bairstow CA 11-Mar-2003
The Secretary of State attempted, in the course of director’s disqualification proceedings, to rely upon findings made against Mr Bairstow in an earlier wrongful dismissal action to which he had been a party but the Secretary of State not. The . .
Cited – Taylor Walton (A Firm) v Laing CA 15-Nov-2007
The appellants appealed against a refusal to strike out as an abuse of process the respondent’s claim against them for professional negligence in the drafting of development agreements.
Buxton LJ considered the nature of the enquiry on such an . .
Cited – Taylor Walton (A Firm) v Laing CA 15-Nov-2007
The appellants appealed against a refusal to strike out as an abuse of process the respondent’s claim against them for professional negligence in the drafting of development agreements.
Buxton LJ considered the nature of the enquiry on such an . .
Cited – Kotonou v National Westminster Bank Plc CA 30-Oct-2015
Appeal against summary dismissal of claim against the bank based on Henderson v Henderson.
Gloster LJ, commented on Buxton LJ’s observations in the Taylor Walton case: ‘Thus, in my view, what is required in the present case is ‘an intense focus . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Torts – Other

Updated: 16 September 2022; Ref: scu.573280

Michael Wilson and Partners Ltd v Sinclair and Others: ComC 21 Sep 2012

The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants said that the claims had in effect already been decided against the claimants in an arbitration. The court was now asked whether abuse of process may be relied upon where the earlier decision is that of an arbitral tribunal, rather than that of a court.
Held: On the particular facts, it would be an abuse of process to allow a collateral attack on the prior decision of the arbitral tribunal to be made, even though the court proceedings were brought against a non-party to the arbitration.
The question in general is whether the process of the court is being abused by a claim being brought before it.
Teare J accepted that the nature of the tribunal which has given the prior decision may be important in deciding whether the subsequent court proceedings are an abuse of process. This allows for the principle that arbitration proceedings are confidential to the parties of the arbitration. But in deciding whether it is the court’s duty to prevent its processes from being abused, he concluded that ‘there can be no rule that the court can have no such duty merely because the tribunal whose decision is under attack is an arbitral tribunal’.
As to the situation where the parties before the court had not all been parties to the arbitration, Teare J said: ‘it will probably be a rare case where an action in this court against a non-party to an arbitration can be said to be an abuse of the process of this court’. Where a claimant has a claim against two persons and is obliged to bring one claim in arbitration, the defeat of the claim in arbitration will not usually prevent him from pursuing his claim against the other person in litigation.

Judges:

Teare J

Citations:

[2013] 1 All ER (Comm) 476, [2012] EWHC 2560 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Emmott v Michael Wilson and Partners Ltd CA 12-Mar-2008
The court considered the implication of the obligation of confidentiality in banking contracts or in arbitration agreements. It is ‘really a rule of substantive law masquerading as an implied term’. . .
See Also – Michael Wilson and Partners Ltd v Emmott ComC 6-Nov-2008
Challenge to jurisdiction of arbitration proceedings. . .
See Also – Emmott v Michael Wilson and Partners Ltd ComC 12-Jan-2009
The claimant, a party to an arbitration, sought first an order requiring the defendant to comply with an order made by the arbitrator for the transfer of certain shares, and second an asset freezing order.
Held: The conditions for a peremptory . .
See Also – Michael Wilson and Partners Ltd v Emmott ComC 8-Jun-2011
The claimant challenged an arbitration award made concerning the agreement under which the defendant had been admitted to partnership. MWP contended that the Tribunal were guilty of a large number of serious irregularities in their conduct of the . .
Cited – Reichel v Magrath PC 1889
The new vicar of Sparsholt, Dr Magrath, was able to rely on the abuse of process even though he had not been party to earlier proceedings between Reichel and the Bishop of Oxford and the Queen’s College and so was not bound by any issue estoppel . .
Cited – Hunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
Cited – Wiltshire v Powell and others CA 7-May-2004
The claimant sought a declaration as to the ownership of an aircraft. Saying he had bought it in good faith from E H and S, who in turn similarly claimed to have bought it from Ebbs. The defendant had obtained a judgment that he was owner as against . .
Cited – Sun Life Assurance Company of Canada and others v The Lincoln National Life Insurance Co CA 10-Dec-2004
The court considered the effect of findings in one arbitration on a subsequent arbitration. The arguments being directed to res judicata.
Held: Mance LJ pointed to important differences between litigation and arbitration as a consensual . .
Cited – Bragg v Oceanus Mutual Underwriting Association (Bermuda) Ltd CA 1982
The court considered the ability to prevent relitigation of issues already decided. The Court identified some of the limits of the abuse jurisdiction. Kerr LJ said: ‘To take the authorities first, it is clear that an attempt to relitigate in another . .
Cited – Arthur JS Hall and Co (A Firm) v Simons; Barratt v Woolf Seddon (A Firm); Harris v Schofield Roberts and Hill (A Firm) HL 20-Jul-2000
Clients sued their solicitors for negligence. The solicitors responded by claiming that, when acting as advocates, they had the same immunities granted to barristers.
Held: The immunity from suit for negligence enjoyed by advocates acting in . .
Cited – Lincoln National Life Insurance Company v Sun Life Assurance Company of Canada and others ComC 26-Feb-2004
. .
Cited – Nesbitt v Citizens Advice Bureau and Holt CA 26-Mar-2007
The claimant sought damages from the defendant saying that they had compromised his employment law damages claim on his behalf, but without his authority. He had unsuccessfully sought to set aside that settlement in the Employment Tribunal on the . .
Cited – Dadourian Group International Inc and others v Simms and others CA 13-Mar-2009
Arden LJ summarised the approach to be taken by a court faced with an allegation of fraud: ‘Their Lordships affirmed the decision in Re H and provided an explanation of what Lord Nicholls’ judgment meant. Baroness Hale (with whom the other Law Lords . .
Cited – Calyon v Michailaidis and Others PC 15-Jul-2009
(Gibraltar) The test for applying an abuse of process argument is an exacting one. . .
Cited – Heaton and Others v AXA Equity and Law Life Assurance Society plc and Another HL 25-Apr-2002
The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
Cited – Sinclair Investments (UK) Ltd v Versailles Trade Finance Ltd and Others CA 29-Mar-2011
The appellant challenged a decision that it was not entitled to a proprietary interest in the proceeds of sale of some shares which had been acquired with the proceeds of a breach of trust. Specifically, the claims gave rise to (i) an issue as to . .
Cited – Cadogan Petroleum Plc and Others v Tolley and Others ChD 7-Sep-2011
The courts considered various interlocutory applications. . .

Cited by:

Appeal from – Michael Wilson and Partners Ltd v Sinclair and Others CA 16-Jan-2013
Application to stay order for costs. . .
Cited – OMV Petrom Sa v Glencore International Ag ComC 7-Feb-2014
The claimant sought to have struck out as abuse of process parts of the defence, saying that the factual issues raised had already been resolved in arbitration proceedings, but as against a different oarty. The defendant replied that the arbitration . .
See Also – Michael Wilson and Partners Ltd v Sinclair and Others CA 23-Jul-2015
. .
See Also – Michael Wilson and Partners Ltd v Emmott CA 14-Oct-2015
Appeal against a finding that payments made by the appellant were made in the ordinary course of business and not in breach of a freezing injunction. . .
See Also – Michael Wilson and Partners Ltd v Emmott CA 11-Dec-2015
The court considered a residual jurisdiction to set aside an arbitrator’s award after a first appeal. . .
See Also – Emmott v Michael Wilson and Partners ComC 24-Nov-2016
Application for an anti-suit injunction against the defendant to restrain it from taking any further steps in ongoing proceedings in New South Wales and from commencing or pursuing any other substantive claims against the claimant on the ground that . .
See Also – Michael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .
Lists of cited by and citing cases may be incomplete.

Company, Trusts, Arbitration

Updated: 16 September 2022; Ref: scu.464407

Barclays Bank Plc v Nylon Capital Llp: CA 18 Jul 2011

The parties disputed whether a disagreement between them fell within the terms of a clause providing for expert determination, and therefore whether the instant proceedings should be stayed.

Judges:

Lord Neuberger MR, Thomas, Etherton LJJ

Citations:

[2011] EWCA Civ 826

Links:

Bailii

Jurisdiction:

England and Wales

Arbitration

Updated: 16 September 2022; Ref: scu.441887

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 granted in excess of jurisdiction. The parties had argued that the arbitration itself was in excess of jurisdiction, but that did not affect the current issue.

Judges:

Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Robert Walker and Lord Justice Clarke

Citations:

Times 13-Jun-2002, Gazette 18-Jul-2002, [2002] EWCA Civ 830, [2002] 1 WLR 2863

Links:

Bailii

Statutes:

Arbitration Act 1996 76, Civil Procedure Rules 52.9

Jurisdiction:

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 . .

Cited by:

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

Arbitration, Litigation Practice

Updated: 16 September 2022; Ref: scu.174002

Excalibur Ventures Llc v Texas Keystone Inc and Others: ComC 28 Jun 2011

The court gave its reasons for the grant of an order restraining the claimant from also pursuing arbitration proceedings at the International Court of Arbitration.
Held: Gloster J was, found on the evidence then before her a strong arguable case that Gulf was not a party to the alleged contract with Excaliburnd described the grounds put forward by Excalibur to assert the contrary as not, at least at that stage, legally or evidentially convincing.

Judges:

Gloster DBE J

Citations:

[2011] EWHC 1624 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Excalibur Ventures Llc v Texas Keystone Inc and Others ComC 10-Sep-2013
Excalibur claimed to be entitled to an interest in a number of oil fields in Kurdistan, which are potentially extremely profitable, and of which the Shaikan field is the most important. The claim was for specific performance of a ‘Collaboration . .
Cited – Excalibur Ventures Llc v Texas Keystone Inc and Others CA 18-Nov-2016
Excalibur had entered into a conditional fee agreement with its solicitors to suport its intended claim against the respondents. Funders had advanced some andpound;13m to take the mater forward. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration

Updated: 15 September 2022; Ref: scu.441246

AMEC Capital Projects Ltd v Whitefriars City Estates Ltd: TCC 27 Feb 2004

Citations:

[2004] EWHC 393 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – AMEC Capital Projects Ltd v Whitefriars City Estate Ltd TCC 19-Sep-2003
Application to enforce adjudicators award, and application to stay same. . .

Cited by:

Appeal from – AMEC Capital Projects Ltd v Whitefriars City Estates Ltd CA 28-Oct-2004
Alleged bias and procedural unfairness by an adjudicator appointed to determine a dispute in relation to a construction contract.
Held: The principles of the common law rules of natural justice and procedural fairness were two-fold. A . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Construction

Updated: 14 September 2022; Ref: scu.219228

Michael Wilson and Partners Ltd v Emmott: ComC 8 Jun 2011

The claimant challenged an arbitration award made concerning the agreement under which the defendant had been admitted to partnership. MWP contended that the Tribunal were guilty of a large number of serious irregularities in their conduct of the reference and of making numerous errors of law, in respect of each of which they were obviously wrong.
Held: Despite the irregularities, the complaints did not undermine the decision. It stood.

Judges:

Andrew Smith J

Citations:

[2011] EWHC 1441 (Comm), [2011] ArbLR 55

Links:

Bailii

Statutes:

Arbitration Act 1996

Jurisdiction:

England and Wales

Citing:

See Also – Emmott v Michael Wilson and Partners Ltd CA 12-Mar-2008
The court considered the implication of the obligation of confidentiality in banking contracts or in arbitration agreements. It is ‘really a rule of substantive law masquerading as an implied term’. . .
See Also – Michael Wilson and Partners Ltd v Emmott ComC 6-Nov-2008
Challenge to jurisdiction of arbitration proceedings. . .
See Also – Emmott v Michael Wilson and Partners Ltd ComC 12-Jan-2009
The claimant, a party to an arbitration, sought first an order requiring the defendant to comply with an order made by the arbitrator for the transfer of certain shares, and second an asset freezing order.
Held: The conditions for a peremptory . .
Cited – Alghussein Establishment v Eton College HL 1985
A literal construction of the relevant provision of a lease would have led to an absurd result that a contractor who failed to complete a development without fault could not call for a lease, whereas a contractor who wilfully defaulted could do so. . .
Cited – Zermalt Holdings SA v NuLife Upholstery Repairs Ltd 1985
The court considered its general approach to appeals against awards in arbitrations. Bingham J said: ‘as a matter of general approach the courts strive to uphold arbitration awards. They do not approach them with a meticulous legal eye endeavouring . .
Cited – National Westminster Bank Plc and Another v Inland Revenue Commissioners HL 24-Jun-1994
Shares are allotted to a person when that person acquires an unconditional right to be entered on a company’s register of members. The issue of shares only becomes complete after they are registered in the company’s books for the purposes of the BES . .
Cited – Checkpoint Ltd v Strathclyde Pension Fund CA 6-Feb-2003
The tenants sought to challenge the arbitrator’s award setting the rent payable under the lease. They claimed that he had improperly refered to his own experience of the market, to support his decision, and this committed a serious irregularity . .
Cited – Tesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
Cited – Warborough Investments Ltd v S Robinson and Sons (Holdings) Ltd CA 10-Jun-2003
The applicant sought remission of the decision of the arbitrator on a rent review. The arbitrator had taken a different approach from that suggested by either party’s expert.
Held: Arbitrators should be give a wide margin of appreciation. Even . .
Cited – Cameroon Airlines v Transnet Ltd ComC 29-Jul-2004
Where it is claimed that the arbitral tribunal adopted improper procedures to determine an issue, the court should decline to try the issue in order to establish whether substantial injustice has in fact been caused . .
Cited – Vee Networks Limited v Econet Wireless International Limited QBD 14-Dec-2004
The court considered a complaint that the arbitration award was faulty or lack of jurisdiction under the agreement founding it. . .
Cited – London Underground Ltd v Citylink Telecommunications Ltd TCC 20-Jul-2007
Each party challenged elements of an arbitration award. . .
Cited – Industrial Development Consultants Ltd v Cooley 1972
Mr Cooley was the managing director of the claimant. His duties included procuring business in the field of developing gas depots. The company had unsuccessful negotiations with the Eastern Gas Board for the development of four depots. However, the . .
Cited – Conlon and Another v Simms ChD 9-Mar-2006
Partners in a solicitors practice fell out after one was struck off by the Law Society. The remaining partners claimed damages alleging that they had been drawn into the partnership after misrepresentations by the defendant about it, and sought to . .
Cited – ABB Ag v Hochtief Airport Gmbh and Another ComC 8-Mar-2006
The court considered the authorities on when an applications to set aside an arbitration award might succeed under section 68.
Held: Any such application faced a high hurdle. It can constitute a serious irregularity that a tribunal determines . .
Cited – Murad and Another v Al Saraj and Another CA 29-Jul-2005
An account of profits is available without proof of loss, and the onus is upon the defaulting party to show that profits are not ones for which he should account . .
Cited – Hunter Kane Ltd v Watkins 2003
. .
Cited – Canson Enterprises Ltd v Boughton and Co 21-Nov-1991
Canlii Supreme Court of Canada – Canada – Damages — Breach of fiduciary duty — Solicitor preparing conveyance not advising purchasers of secret profit made on a flip — On agreed facts, purchasers fully . .

Cited by:

See Also – Michael Wilson and Partners Ltd v Sinclair and Others ComC 21-Sep-2012
The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .
See Also – Michael Wilson and Partners Ltd v Sinclair and Others CA 16-Jan-2013
Application to stay order for costs. . .
See Also – Michael Wilson and Partners Ltd v Sinclair and Others CA 23-Jul-2015
. .
See Also – Michael Wilson and Partners Ltd v Emmott CA 14-Oct-2015
Appeal against a finding that payments made by the appellant were made in the ordinary course of business and not in breach of a freezing injunction. . .
See Also – Michael Wilson and Partners Ltd v Emmott CA 11-Dec-2015
The court considered a residual jurisdiction to set aside an arbitrator’s award after a first appeal. . .
See Also – Emmott v Michael Wilson and Partners ComC 24-Nov-2016
Application for an anti-suit injunction against the defendant to restrain it from taking any further steps in ongoing proceedings in New South Wales and from commencing or pursuing any other substantive claims against the claimant on the ground that . .
See Also – Michael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 13 September 2022; Ref: scu.440446

AES UST-Kamenogorsk Hydropower Plant Llp v UST-Kamenogorsk Hydropower Plant Jsc: CA 27 May 2011

The parties disputed the right to prevent a foreign court action where the agreement required arbitration in London

Judges:

Rix, Wilson, Stanley-Burnton LJJ

Citations:

[2011] EWCA Civ 647

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – AES Ust-Kamenogorsk Hydropower Plant Llp v Ust-Kamenogorsk Hydropower Plant Jsc ComC 16-Apr-2010
The parties contracte for works relating to a power plant. The applicable law was Khazak, but the agreement provided that any dispute between the parties was to be settled by arbitration in London. The claimant now sought an anti-suit injunction to . .

Cited by:

Appeal from – UST-Kamenogorsk Hydropower Plant Jsc v AES UST-Kamenogorsk Hydropower Plant Llp SC 12-Jun-2013
Arrangements between the parties owners and operators of a power plant in Kazakhstan required disputes to be arbitrated in London under ICC Rules. That clause was governed by English law, and the remainder by Kazakh law. A ruling by the Supreme . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 13 September 2022; Ref: scu.440214

Sutcliffe v Thackrah and Others: HL 1974

In acting under clause 66 of the ICE conditions, the Engineer was in the intermediate position of a quasi-arbitrator. The House described in terms of ‘fairness’ the duty of an architect when acting not as an arbitrator or quasi-arbitrator but in the role of valuer or certifier.
An action for damages for negligence will lie against a valuer to whom the parties have referred the question of valuation if one of them suffers loss as the result of his negligent valuation.
Lord Reid spoke of a duty to act in a fair and unbiased manner or fairly and impartially. Viscount Dilhorne regarded an honest exercise of professional skill and judgment as enough.

Judges:

Lord Reid, Lord Hodson, Lord Morris and Lord Salmon, Viscount Dilhorne

Citations:

[1974] AC 727, [1974] 1 All ER 859, [1974] 2 WLR 295, [1974] 1 Lloyds Rep 318

Jurisdiction:

England and Wales

Cited by:

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

Construction, Arbitration, Professional Negligence

Updated: 12 September 2022; Ref: scu.224303

In The Matter of The Arbitration between Jamieson and Binns and Dean: 5 May 1836

Where arbitrators have decided the choice of an umpire by tossing up, the acquiescence of parties, subsequently to the choice, and before the reference is proceeded in, does not render the appointment valid, unless the parties acquiescing have knowledge of all the circumstances under which the choice was made. Therefore, where one of two arbitrators objected to S. as umpire, and afterwards the two arbitrators tossed up, and the other arbitrator won, and named S, and the attorney of one of the parties, knowing that the arbitrators had tossed up, but not knowing that one of them had objected to S, proceeded in the reference, it was held that the irregularity was not cured. And this, though the ground of the arbitrator’s objection to S. was negatived by affidavit.

Citations:

[1836] EngR 667, (1836) 4 Ad and E 945, (1836) 111 ER 1039

Links:

Commonlii

Jurisdiction:

England and Wales

Arbitration

Updated: 11 September 2022; Ref: scu.314999

Westminster Building Company Ltd v Beckingham: TCC 20 Feb 2004

Court Service Enforcement of an adjudicator’s decision; adjudication not subject to Housing Grants, Regeneration and Construction Act 1996; jurisdiction where terms of contract in dispute; applicability of Shepherd v Mecright; applicability of Unfair Terms in Consumer Contracts Regulations 1999.
Held: The contract was governed by an adjudication clause, the adjudicator had jurisdiction to determine whether the contract varying the construction contract was enforceable or lacked consideration, the adjudication clause was not unfair and was binding on Mr Beckingham, the adjudicator’s decision would be enforced and there would be judgment for Westminster in the sum claimed. This judgment was made in writing and was handed down by the court. For the purposes of paragraph 5.12 of 52PD-19 (Practice Direction – Appeals), this written judgment is to be taken as replacing an official recording and approved transcript of the judgment.

Judges:

His Honour Judge Thornton QC

Citations:

[2004] EWHC 138 (TCC), 94 Con LR 107, [2004] BLR 163, [2004] BLR 265, [2004] TCLR 8

Links:

Bailii

Jurisdiction:

England and Wales

Arbitration, Construction

Updated: 11 September 2022; Ref: scu.201843

The Messiniaki Bergen: 1983

In an agreement between the parties, the English Courts were given jurisdiction over disputes but either party had a right to elect that the dispute be referred to arbitration. It was argued that there was no existing binding agreement to arbitrate but at best an agreement to agree, and that the 1950 Act did not apply.
Held: The court rejected the submission.
Bingham J said: ‘I see force in the contention that until an election is made there is no agreement to arbitrate, but once an election is duly made (and the option exercised) I share the opinion of the High court of Delhi in the Bharat case, that a binding arbitration agreement comes into existence.’

Judges:

Bingham J

Citations:

[1983] 1 Lloyds Law Rep 424

Statutes:

Arbitration Act 1950

Jurisdiction:

England and Wales

Cited by:

Approved – The Stena Pacifica 1990
A clause in an agreement gave both parties an option or election to refer disputes to arbitration.
Held: The agreement was valid and allowed an arbitration . .
Cited – NB Three Shipping Ltd. v Harebell Shipping Ltd ComC 13-Oct-2004
Under charterparty agreements, certain disputes were to be referred to arbitration. The claimant sought to pursue a dispute before the court.
Held: The lack of mutuality on the arbitration clause did not prevent its validity. The party had the . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 09 September 2022; Ref: scu.216400

Parsons Plastics (Research and Development) Ltd v Purac Ltd: CA 12 Apr 2002

The claimants were main contractors on a construction project. The respondents were sub-contractors. After difficulties, the sub-contractor was ejected from the site. The issue was as to the jurisdiction of the adjudicator. Was the project, to create a sewage station, a ‘construction operation’ within the Act?
Held: The sum was due under the contract irrespective of whether an adjudicator also found it to be due. The contract could not be re-read to exclude the arbitration requirement. In this case the contractors were unlikely to succeed in any attempt to deny the sub-contractors their right to payment for works done, and payment should not be delayed for a set off claim. The judge was entitled, in her discretion, to make an interim award.

Judges:

The Hon Mr Justice Latham

Citations:

[2002] EWCA Civ 459, (2002) 93 Con LR 26

Links:

Bailii

Statutes:

Housing Grants, Construction and Regeneration Act 1996

Jurisdiction:

England and Wales

Citing:

Cited – Swain v Hillman CA 21-Oct-1999
Strike out – Realistic Not Fanciful Chance Needed
The proper test for whether an action should be struck out under the new Rules was whether it had a realistic as opposed to a fanciful prospect of success. There was no justification for further attempts to explain the meaning of what are clear . .
Lists of cited by and citing cases may be incomplete.

Construction, Contract, Arbitration

Updated: 09 September 2022; Ref: scu.171203

CMA-CGM Marseille v Petro Broker International: CA 19 Apr 2011

Petro sought to enforce an arbitration award in its favour under a bunker contract. CMA obtained a stay on enforcement. It then offered to release the stay but on terms unacceptable to Petro.

Judges:

Laws, Jackson, Tomlinson LJJ

Citations:

[2011] EWCA Civ 461

Links:

Bailii

Statutes:

Arbitration Act 1996 44

Jurisdiction:

England and Wales

Citing:

Cited – Totsa Total Oil Trading Sa v Bharat Petroleum Corp Ltd ComC 14-Jan-2005
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration

Updated: 06 September 2022; Ref: scu.432835

Pacol Ltd v Joint Stock Co Rossakhar: 2000

The respondents to the arbitration admitted breaches of contracts that raised some issue as to the amount of damages payable. The arbitrators made an award on the basis that the admission of liability was not justified.
Held: It was a clear case, and only necessary for Mr Justice Colman to state the central principle of the old law without discussing the refinements of the 1996 Act. Colman J said: ‘It is particularly important in arbitrations which are conducted on documents alone that arbitrators should be alive to the dangers of introducing into their awards matters which have never been, or have ceased to be, matters in issue between the parties. This case is a particularly glaring example of the arbitrators simply ignoring the definition of issues which had been arrived at prior to the time when they had to determine the issues then referred to them . . In a paper arbitration the temptation to arrive at a conclusion which may not have been envisaged by either party by reference to matters upon which the parties have not had the opportunity of addressing the arbitrators or in respect of which they have not had the opportunity of adducing further evidence, may be a particular temptation which arbitrators should be careful to avoid.’

Judges:

Colman J

Citations:

[2000] 1 Lloyds Rep 109

Statutes:

Arbitration Act 1996

Jurisdiction:

England and Wales

Cited by:

Cited – ED and F Man Sugar Ltd v Belmont Shipping Ltd ComC 18-Nov-2011
Allegation of serious irregularity in arbitration.
Held: The request was refused: ‘the present case can hardly be said to be an extreme case which justice calls out to be corrected.’.
‘Arbitrators are not barred from asking a party . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 03 September 2022; Ref: scu.470572

Gas Natural SDG SA v The Argentine Republic: ICSID 2003

‘The scheme of both the ICSID Convention and the bilateral investment treaties is that in this circumstance, the foreign investor acquires rights under the Convention and Treaty, including in particular the standing to initiate international arbitration.’

Citations:

ARB/03/10

Jurisdiction:

England and Wales

Cited by:

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

International, Arbitration

Updated: 02 September 2022; Ref: scu.230257

Camuzzi International SA v The Argentine Republic (No 2): ICSID 11 May 2005

(Spanish Text) Diplomatic protection ‘cannot be considered the general rule in the system of international law presently governing the matter, but as a residual mechanism available when the affected individual has no direct channel in its own right.’

Citations:

ARB/03/2

Links:

ICSID

Jurisdiction:

England and Wales

Citing:

Cited – In re Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (second phase) ICJ 5-Feb-1970
ICJ The claim arose out of the adjudication in bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada. Its object was to seek reparation for damage alleged by Belgium to have been sustained . .

Cited by:

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

International, Arbitration

Updated: 02 September 2022; Ref: scu.230255

Alexander and Law Ltd v Coveside (21BPR) Ltd: TCC 12 Dec 2013

The claimant sought to enforce an arbitration award. The respondent resisted, saying that the claimant faced unresolved insolvency proceedings, and may be unable to repay any sum later found due.

Judges:

Coulson J

Citations:

[2013] EWHC 3949 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Macob Civil Engineering Ltd v Morrison Construction Ltd TCC 12-Feb-1999
Once made, an award by an adjudicator under the Scheme was enforceable immediately and should be enforced by writ and application for summary judgment, provided only that the arbitrator had jurisdiction to make the award. It remained payable . .
Cited – Bouygues UK Limited v Dahl-Jensen UK Limited TCC 17-Dec-1999
An arbitrator had made an award, the consequence of which, it was claimed, would lead to a retention being released before it was actually due. It was claimed that this part of the award was outside the adjudicator’s jurisdiction.
Held: . .
Cited – Wimbledon Construction Company 2000 Ltd. v Vago TCC 20-May-2005
. .
Cited – Carillion Construction Ltd v Devonport Royal Dockyard Ltd CA 16-Nov-2005
The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
Held: The dispute was complex and . .
Cited – Mead General Building Ltd v Dartmoor Properties Ltd TCC 4-Feb-2009
. .
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 . .
Cited – Straw Realisations (No 1) Ltd v Shaftsbury House (Developments) Ltd TCC 20-Oct-2010
The applicant sought summary judgment on two construction arbitration decisions. The defendant objected saying that the claimant was impecunious.
Held: Edwards-Stuart J considered the position applying to an impecunious claimant seeking to . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 31 August 2022; Ref: scu.518948

Westland Helicopters Ltd v Sheikh Al-Hejailan: QBD 13 Jul 2004

Judges:

The Honourable Mr Justice Colman

Citations:

[2004] EWHC 1625 (Comm)

Links:

Bailii

Statutes:

Arbitration Act 1996 67

Jurisdiction:

England and Wales

Cited by:

Cited – Wiltshire v Powell and others CA 7-May-2004
The claimant sought a declaration as to the ownership of an aircraft. Saying he had bought it in good faith from E H and S, who in turn similarly claimed to have bought it from Ebbs. The defendant had obtained a judgment that he was owner as against . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Legal Professions

Updated: 29 August 2022; Ref: scu.198717

Tame Shipping Ltd v Easy Navigation Ltd: QBD 28 Jul 2004

The parties had agreed to an arbitration subject to the condition that the reasons given were not to form any basis for appeal. The reasons were published separately from the award.
Held: The appeal was based upon an assertion which could only be supported by reference to the reasons. The parties were bound by their agreement, and the reasons could not be referred to.

Judges:

The Hon Mr Justice Moore-Bick

Citations:

[2004] EWHC 1862 (Comm), Times 08-Nov-2004, [2004] 2 Lloyd’s Rep 626, [2004] 2 CLC 1155, [2004] 2 All ER (Comm) 521

Links:

Bailii

Statutes:

Arbitration Act 1996 68

Jurisdiction:

England and Wales

Citing:

Cited – Intermare Transport GmbH v International Copra Export Corporation (The ‘Ross Isle’ and ‘Ariel’) ChD 1982
Disputes arose from the carriage of two cargoes of copra from the Philippines to Europe in the vessels Ross Isle and Ariel. The disputes were referred to the same arbitrator and heard together, but with separate awards. After the hearing the owners . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 26 August 2022; Ref: scu.199560

Straw Realisations (No 1) Ltd v Shaftsbury House (Developments) Ltd: TCC 20 Oct 2010

The applicant sought summary judgment on two construction arbitration decisions. The defendant objected saying that the claimant was impecunious.
Held: Edwards-Stuart J considered the position applying to an impecunious claimant seeking to enforce an arbitration award: ‘If, at the date of the hearing of the application to enforce an adjudicator’s decision, the successful party is in liquidation, then the adjudicator’s decision will not be enforced by way of summary judgment: see Bouygues v Dahl Jensen and Melville Dundas. The same result follows if a party is the subject of the appointment of administrative receivers: see Melville Dundas.
For the same reasons, I consider that if a party is in administration and a notice of distribution has been given, an adjudicator’s decision will not be enforced.
If a party is in administration, but no notice of distribution has been given, an adjudicator’s decision which has not become final will not be enforced by way of summary judgment. In my view, this follows from the decision in Melville Dundas as well as being consistent with the reasoning in Integrated Building Services v PIHL.
If the circumstances are as in paragraph (4) above but the adjudicator’s decision has, by agreement of the parties or operation of the contract, become final, the decision may be enforced by way of summary judgment (subject to the imposition of a stay). I reach this conclusion because I do not consider that the reasoning of the majority in Melville Dundas extends to this situation.
There is no rule of English law that the fact that a party is on the verge of insolvency (‘vergens ad inopiam’) triggers the operation of bankruptcy set-off: see Melville Dundas, per Lord Hope at paragraph 33. However, the law in Scotland appears to be different on this point (perhaps because the Scottish courts do not enjoy the power to grant a stay in such circumstances).
If a party is insolvent in a real sense, or its financial circumstances are such that if an adjudicator’s decision is complied with the paying party is unlikely to recover its money, or at least a substantial part of it, the court may grant summary judgment but stay the enforcement of that judgment.
. . the factors affecting the discretion of the court when considering whether or not to grant a stay where it appears that the successful party would be unable to repay an award if it was subsequently held to be wrong are clearly set out in the judgments of Coulson J in Wimbledon Construction Ltd v Derek Vago [2005] BLR 374, Mead General Building Ltd v Dartmoor Properties Ltd [2009] EWHC 200 (TCC) and Pilon Ltd v Breyer [2010] BLR 452 – the last two involving a Company or Creditor’s Voluntary Arrangement. Broadly speaking, Coulson J said that where a party is in insolvent liquidation or there is no dispute on the evidence that it is insolvent (or unlikely to be able to repay the sum awarded by the adjudicator), a stay of execution will usually be granted unless either that party’s financial situation was the same or similar to its financial situation at the time when the relevant contract was made or its insolvency is due, either wholly or in significant part, to the other party’s failure to pay the sums awarded by the adjudicator (this is just a broad summary in my own words for convenience: where the point arises reference should be made to Coulson J’s judgments).’

Judges:

Edwards-Stuart J

Citations:

[2010] EWHC 2597 (TCC), [2011] BLR 47, 133 Con LR 82

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Alexander and Law Ltd v Coveside (21BPR) Ltd TCC 12-Dec-2013
The claimant sought to enforce an arbitration award. The respondent resisted, saying that the claimant faced unresolved insolvency proceedings, and may be unable to repay any sum later found due. . .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration

Updated: 25 August 2022; Ref: scu.425363

Broda Agro Trade (Cyprus) Ltd v Alfred C. Toepfer International Gmbh: CA 11 Oct 2010

Challenge to validity of arbitration agreement

Judges:

Mummery, Lloyd, Stanley Burnton LJJ

Citations:

[2010] EWCA Civ 1100, [2011] CP Rep 3, 132 Con LR 1, [2011] 1 Lloyd’s Rep 243, [2011] Bus LR 825

Links:

Bailii

Jurisdiction:

England and Wales

Construction, Arbitration

Updated: 25 August 2022; Ref: scu.424976

Accentuate Ltd v Asigra Inc (A Company Incorporated In Canada): QBD 30 Oct 2009

The court considered questions as to the relationship between EU law and the law of arbitration. The parties disputed the compensation payable on the termination of an agency distributorship agreement. The distributor said that the agreement purported to contract out of the Regulations and that any such contract, and any arbitration pursuant to it were void. The licensor’s arbitration had been heard in Canada, which disapplied the European law.

Judges:

Mr Justice Tugendhat

Citations:

[2009] EWHC 2655 (QB)

Links:

Bailii

Statutes:

Commercial Agents (Council Directive) Regulations 1993

Jurisdiction:

England and Wales

European, Arbitration

Updated: 22 August 2022; Ref: scu.377357

Downing v Al Tameer Establishment and Another: CA 22 May 2002

A contractual dispute arguably involved an arbitration clause. Before the proceedings the Defendant denied the contract.
Held: That assertion was a repudiation of the agreement to arbitrate, and the Claimant issued proceedings in Court. The issue of those proceedings was acceptance of the repudiatory breach with the result that the agreement to arbitrate was at an end. Accordingly the application by the Defendant for a stay failed as the agreement had become inoperable. The Court approved the application of ordinary contractual principles to the agreement to arbitrate.
Potter LJ said: ‘it is of course the position that the existence of an arbitration agreement does not prevent either party from instituting court proceedings in respect of the underlying dispute. That is a principle based upon the rule that the parties may not agree to oust the jurisdiction of the court: see Scott -v- Avery (1856) 5HL Cas 811. However, it is inaccurate to speak of a right to commence proceedings in any more general sense. Whether or not such commencement is a breach of the arbitration agreement by the party instituting the proceedings will depend upon the circumstances. If satisfied that a breach is involved, as it usually will be, then the court will grant a stay. If not so satisfied, but the position is arguable, the court will grant a stay on the basis that the issue raised is not clear and that the arbitrator has the power to rule upon his own jurisdiction (see s.30 of the 1996 Act). However, the fact that a party is in broad terms free to commence proceedings despite the existence of a valid arbitration clause, at the risk of stay being granted, does not mean that, in the circumstances of a particular case and in the light of pre-writ correspondence, such commencement cannot constitute an acceptance of the defendant’s previous refusal to arbitrate, so that the court is satisfied that a stay should not be granted.’

Judges:

Potter LJ, Keene LJ, Sumner LJ

Citations:

[2002] EWCA Civ 721, [2002] 2 All ER (Comm) 545

Links:

Bailii

Statutes:

Arbitration Act 1996 9

Jurisdiction:

England and Wales

Cited by:

Cited – Delta Reclamation Ltd v Premier Waste Management Ltd QBD 24-Oct-2008
The claimant sought a stay of the matter and a consolidated arbitration. The defendant said that the litigation having been started by the claimant it was too late to refer the issues to arbitration.
Held: Correspondence between the parties . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 20 August 2022; Ref: scu.172234

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

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

Judges:

Nourse LJ, Slade LJ

Citations:

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

Jurisdiction:

England and Wales

Cited by:

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 . .
Cited – Aspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration

Updated: 20 August 2022; Ref: scu.245557

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.

Citations:

Times 26-Dec-1997, [1997] EWCA Civ 2811, 143179, [1998] 1 Lloyd’s Rep 379

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Arbitration

Updated: 19 August 2022; Ref: scu.143210

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 the parties have also agreed to be bound by the result of the adjudicator’s investigation into his own jurisdiction, his ruling on that issue will not be determinative, and the challenger can defeat any subsequent enforcement proceedings by showing a respectable case that the adjudicator had reached an erroneous conclusion as to jurisdiction: see, in particular, paragraph 10 of the judgment of May LJ in Pegram Shopfitters Limited v Tally Weijl (Uk) Limited [2003] EWCA Civ 1750.
Accordingly, there needs to be either an express agreement between the parties that the adjudicator’s decision on jurisdiction is to be binding or, at the very least, an implied agreement to the same effect, which may arise where the objecting party fails to reserve its position, or there has been a unilateral waiver of any jurisdictional objection. In both JW Hughes Building Contractors Limited v GB Metal Work Limited [2003] EWHC 2421 (TCC) and Nordot Engineering Limited v Siemens Plc [2001] CILL 1778, the court found an ad hoc agreement between the parties that they would be bound by the adjudicator’s decision as to jurisdiction, but such cases are rare. Generally speaking, as Dyson LJ put it in Amec Projects Limited v Whitefriars City Estates Limited [2004] EWCA Civ 1418, ‘the ‘decision’ of an adjudicator as to his jurisdiction is of no legal effect and cannot affect the rights of the parties . . .”

Judges:

Coulson J

Citations:

[2010] EWHC 837 (TCC), [2010] BLR 452, [2010] CILL 2865, [2011] Bus LR D42, 130 Con LR 90

Links:

Bailii

Cited by:

Cited – 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. . .
Cited – Alexander and Law Ltd v Coveside (21BPR) Ltd TCC 12-Dec-2013
The claimant sought to enforce an arbitration award. The respondent resisted, saying that the claimant faced unresolved insolvency proceedings, and may be unable to repay any sum later found due. . .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration

Updated: 17 August 2022; Ref: scu.412289

AES Ust-Kamenogorsk Hydropower Plant Llp v Ust-Kamenogorsk Hydropower Plant Jsc: ComC 16 Apr 2010

The parties contracte for works relating to a power plant. The applicable law was Khazak, but the agreement provided that any dispute between the parties was to be settled by arbitration in London. The claimant now sought an anti-suit injunction to prevent the respondent, effectively the Khazak government from pursuing a dispute in the Khazak courts. The respondent replied that since no arbitration was planned, there was no jurisdiction to grant such an order.
Held: The court had such a jurisdiction, and the application to dismiss the request was rejected, though the injunction itself was restricted.

Judges:

Burton J

Citations:

[2010] EWHC 772 (Comm), [2010] 2 Lloyd’s Rep 493

Links:

Bailii

Statutes:

Arbitration Act 1996 33

Jurisdiction:

England and Wales

Cited by:

Appeal from – AES UST-Kamenogorsk Hydropower Plant Llp v UST-Kamenogorsk Hydropower Plant Jsc CA 27-May-2011
The parties disputed the right to prevent a foreign court action where the agreement required arbitration in London . .
At first instance – UST-Kamenogorsk Hydropower Plant Jsc v AES UST-Kamenogorsk Hydropower Plant Llp SC 12-Jun-2013
Arrangements between the parties owners and operators of a power plant in Kazakhstan required disputes to be arbitrated in London under ICC Rules. That clause was governed by English law, and the remainder by Kazakh law. A ruling by the Supreme . .
Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 17 August 2022; Ref: scu.408674

Dalwood Marine Co v Nordana Line A/S (‘The Elbrus’): ComC 21 Dec 2009

Judges:

Teare J

Citations:

[2009] EWHC 3394 (Comm), [2010] 1 CLC 1, [2010] 2 Lloyds Law Rep 315

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Arbitration, Transport

Updated: 13 August 2022; Ref: scu.396536

Jivraj v Hashwani (Rev 2): CA 22 Jun 2010

The court was asked whether parties to an arbitration agreement in a commercial contract can stipulate that the tribunal is to be drawn from members of a particular religious group, in this case the Ismaili community.
Held: The defendant’s appeal succeeded. The Directive was concerned with discrimination in several fields many of which were already provided for under UK law. The Regulations had a much more limted scope. An arbitrator’s appointment created a contract for services and ‘a contract personally to do any work’. It was therefore within the definition of ’employment’ in regulation 2(3), and the appointor was an ’employer’ within 6(1). The restriction of appointments to members of the Ismaili community was unlawful discrimination on religious grounds, both in making ‘arrangements . . for the purpose of determining to whom he should offer employment’ contrary to regulation 6(1)(a), and by ‘refusing to offer, or deliberately not offering’ employment contrary to regulation 6(1)(c). Being a member of the Ismaili community was not ‘a genuine occupational requirement for the job’ within the meaning of the exception in regulation 7(3).

Judges:

Moore-Bick, Aikens LJJ, Sir Richard Buxton

Citations:

[2010] EWCA Civ 712, [2010] 2 Lloyd’s Rep 534, [2010] IRLR 797, [2010] ICR 1435

Links:

Bailii

Statutes:

Employment Equality (Religion or Belief) Regulations 2003, Council Framework Directive 2000/78/EC of 27 November 2000

Jurisdiction:

England and Wales

Citing:

Appeal from – Jivraj v Hashwani ComC 26-Jun-2009
The claimant said that the requirement in an arbitration clause for all the arbitrators to be members of the Ismaili community was unlawful under the 2003 Regulations.
Held: The appointment was not discriminatory. An arbitrator’s employment . .
Cited – von Hoffmann v Finanzamt Trier ECJ 16-Sep-1997
An arbitrator’s services are not those of a lawyer for the purposes of determining the place of supply of service for VAT purposes.
ECJ Sixth VAT Directive – Interpretation of Article 9(2)(e), third indent . .

Cited by:

Appeal from – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Discrimination

Updated: 11 August 2022; Ref: scu.417106

Kanoria and others v Guinness: CA 21 Feb 2006

Lord Phillips CJ expressed his own doubts about whether section 103(2) gives the court a broad discretion to allow enforcement of an award where one of the grounds set out in that subsection has been established.

Citations:

[2006] EWCA Civ 222, [2006] 1 Lloyd’s Rep 701

Links:

Bailii

Statutes:

Arbitration Act 1996 101(2)

Jurisdiction:

England and Wales

Citing:

Approved – Yukos Oil Company v Dardana Ltd CA 18-Apr-2002
The claimant sought to enforce an arbitration award made in Sweden, even though it had yet to give its final adjudication on the defence under the New York Convention argued by the defendant.
Held: The Act cannot have been intended to give the . .

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: 06 August 2022; Ref: scu.239211

Vale Do Rio Doce Navegacao SA and another v Shanghai Bao Steel Ocean Shipping Co Ltd and Others: QBD 14 Apr 2000

An arbitration process which sought to join parties who denied being part of the contract for arbitration could not itself decide the contractual power to enforce the arbitration. Accordingly the High Court had no jurisdiction either to apply the arbitration exception to the Convention, or to act under its own practice direction, or to serve proceedings abroad under the Act.
Thomas J observed that it could not have been the intention that a party to a disputed arbitration agreement could obtain the decision of the courts on its existence without being subject to the restrictions contained in section 32 by the simple step of not appointing an arbitrator.

Judges:

Thomas J

Citations:

Times 16-May-2000, [2000] 2 All ER (Com) 70, [2000] EWHC 205 (Comm), [2000] 2 Lloyd’s Rep 1

Links:

Bailii

Statutes:

Arbitration Act 1996, Civil Jurisdiction and Judgments Act 1982, Arbitration Act 1996 32

Jurisdiction:

England and Wales

Cited by:

Cited – J T Mackley and Company Ltd v Gosport Marina Ltd TCC 3-Jul-2002
The claimant challenged the validity of a notice to refer a case to arbitration. The respondent challenged saying that the court had no jurisdiction to hear the objection, and that such issues were to be decided by the arbitrator. The claim related . .
Cited – UST-Kamenogorsk Hydropower Plant Jsc v AES UST-Kamenogorsk Hydropower Plant Llp SC 12-Jun-2013
Arrangements between the parties owners and operators of a power plant in Kazakhstan required disputes to be arbitrated in London under ICC Rules. That clause was governed by English law, and the remainder by Kazakh law. A ruling by the Supreme . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Jurisdiction

Updated: 06 August 2022; Ref: scu.90099