Appeal against the grant of an injunction to restrain the appellants from pursuing an arbitration in Lebanon.
Lord Justice David Richards
[2019] EWCA Civ 1219
England and Wales
Updated: 13 July 2022; Ref: scu.639667
Toulmin QC
[2007] EWHC 3015 (TCC), [2008] 2 All ER (Comm) 831, [2007] ArbLR 31, [2008] Bus LR D49, 119 Con LR 155
England and Wales
See Also – Heifer International Ltd v Christiansen and Another TCC 9-Apr-2013
The court was asked whether a charging order placed on the Claimant’s property in Surrey should be discharged. The real issue is whether or not the debt, which related to a costs order made against the Claimant, has been or is to be considered as . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 July 2022; Ref: scu.263268
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 federal court an award secured by the insured in a London arbitration, and the insured obtained an anti-suit injunction from the Commercial Court. The insurers appealed, arguing that the choice of English law as the curial law of the arbitration did not exclude a challenge under the law of New York, which had been expressly chosen to govern the parties’ obligations. The insured argued that, because the parties had chosen London as the seat of the arbitration and therefore English law as the curial law, the law of the arbitration was English and an award could be challenged only in the English courts.
Held: The anti-suit injunction was upheld.
Longmore LJ said that ‘by choosing London as the seat of the arbitration, the parties must be taken to have agreed that proceedings on the award should be only those permitted by English law’ and ‘the choice of a seat for the arbitration must be a choice of forum for the remedies seeking to attack the award’. He distinguished the proper law of the underlying insurance contract and the arbitration agreement, observing that the latter was ‘a separable and separate agreement’, and said that the law of the seat of the arbitration ‘will also be relevant’. He then formulated the question for consideration as being this: ‘if there is no express law of the arbitration agreement’, whether the law with which that agreement has its closest and most real connection is that of the seat of the underlying contract or the law of the seat of the arbitration. He considered that ‘the answer is more likely to be the law of the seat of the arbitration than the law of the underlying contract’.
Lord Clarke of Stone-cum-Ebony MR, Longmore, Jacob LJJ
[2007] EWCA Civ 1282, [2008] 1 Lloyd’s Rep 239, [2007] ArbLR 10, [2008] 1 All ER (Comm) 1001, [2007] All ER (D) 61, 116 Con LR 230
England and Wales
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: . .
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 . .
Cited – Arsanovia Ltd and Others v Cruz City 1 Mauritius Holdings ComC 20-Dec-2012
. .
Lists of cited by and citing cases may be incomplete.
Updated: 12 July 2022; Ref: scu.261800
[2008] EWHC 829 (Comm)
England and Wales
Updated: 12 July 2022; Ref: scu.267063
An arbitrator hearing a case, and who appreciated that counsel had failed to take a point, should draw counsel’s attention to the point. No duty could arise if the arbitrator did not himself see the point.
An applicant under section 68 faces a high hurdle in establishing serious irregularity, reflecting the reluctance of the courts to interfere with the conduct of arbitration by the relevant tribunal.
Waller LJ observed: ‘In my view the authorities have been right to place a high hurdle in the way of a party to an arbitration seeking to set aside an award or its remission by reference to section 68 and in particular by reference to section 33. Losers often think that injustice has been perpetrated when their factual case has not been accepted. It could be said to be ‘unjust’ if arbitrators get the law wrong but if there is no appeal to the court because the parties have agreed to exclude the court, the decision is one they must accept. It would be a retrograde step to allow appeals on fact or law from the decisions of arbitrators to come in by the side door of an application under section 33 and section 68.’
Lawrence Collins LJ said of the first instance hearing: ‘As Christopher Clarke J observed, paragraph 280 of the Departmental Advisory Committee Report on the Arbitration Bill has been referred to often in this context. It is unnecessary to set it out again. What it emphasises is that what became section 68 was intended for cases where it could be said that what had happened was so far removed from what could reasonably be expected of the arbitral process that the court could be expected to take action. It was ‘really designed as a longstop, only available in extreme cases where the tribunal has gone so wrong in its conduct of the arbitration that justice calls out for it to be corrected.”
Waller, Lawrence Collins, Gage LJJ
[2007] EWCA Civ 998, Times 31-Oct-2007, [2008] 1 Lloyd’s Rep 7, [2008] Bus LR 702, [2007] ArbLR 7
England and Wales
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 – Interbulk Limited v Aiden Shipping Co Limited (The ‘Vimeira’) CA 1984
The court considered whether an arbitrator had a duty to raise a point missed by counsel.
Held: Robert Goff LJ: ‘In truth, we are simply talking about fairness. It is not fair to decide a case against a party on an issue which has never been . .
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.
Updated: 12 July 2022; Ref: scu.259899
Christopher Clarke J
[2007] 2 Lloyd’s Rep 579, [2008] 1 All ER 952, [2007] EWHC 2268 (Comm), [2008] 1 All ER (Comm) 359, [2007] All ER (D) 115, [2007] ArbLR 17, [2008] Bus LR D81
Cited – AB v CD QBD 3-Jan-2014
The parties were contracted to each other in respect of an internet based marketing system for metals and other resources. The claimant had contracted in effect to promote the system. The claimant sought an injunction to prevent termination of . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 July 2022; Ref: scu.259787
Arbitrator to award all costs even if award much less than original claim.
Phillips J said: ‘It is always necessary to exercise the greatest care before applying the reasoning in one case to a different factual situation, and this is particularly true in the field of damages. The majority of the Court in Ruxley Electronics did not hold that a plaintiff can recover in damages the cost of remedial measures which are unreasonable. They held that, in the circumstances of that case it was not unreasonable for the plaintiff to spend the substantial sum necessary to have what he had contracted for. The test of what was reasonable had to have regard to his personal preference, as expressed in the depth of water that he had contractually required. This reasoning can be applied to a requirement which is incorporated in a contract as an end in itself, reflecting a personal preference of the contracting party. It does not apply where the contractual requirement is not an end in itself, but is inserted into a commercial contract because it has financial implications. If, in such a case, the contractual requirement is not met, the costs of remedial measures will not normally be recoverable as damages if they are disproportionate to the financial consequences of the breach. If that is the case it will not be reasonable to incur those costs. The damages recoverable will be those necessary to compensate for the financial consequences of the breach.’
Phillips J
Times 05-Apr-1994, [1994] 2 Lloyd’s Rep 161
England and Wales
Cited – Ruxley Electronics and Construction Ltd v Forsyth CA 7-Jan-1994
In 1986, the defendant, wanted a swimming pool adjoining his house. He contracted with the plaintiffs. The contract price for the pool, with certain extras, was 17,797.40 pounds including VAT. The depth of the pool was to be 6 ft 6 in at the deep . .
Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 July 2022; Ref: scu.78974
The charterers hired for a period of five years an oil tank steamship. Two and a quarter years of the contract had expired when the ship was requisitioned by the British Government, who made structural alterations upon it. The shipowners claimed that this determined the contract.
Held (dis. Viscount Haldane and Lord Atkinson) that the contract continued to subsist, and the requisition did not suspend it or affect the rights of the owners or charterers under it.
Lord Chancellor (Buckmaster), Earl Loreburn, Viscount Haldane, Lords Atkinson and Parker
[1916] UKHL 433, 54 SLR 433
England and Wales
Updated: 11 July 2022; Ref: scu.630687
Each party challenged elements of an arbitration award.
Ramsey J
[2007] EWHC 1749 (TCC), [2007] 2 All ER (Comm) 694, [2006] 2 Lloyds 1, [2006] 1 All ER (Comm) 529, [2007] ArbLR 39, [2007] BLR 391, (2007) 114 Con LR 1
England and Wales
Cited – Penwith District Council v VP Developments Ltd TCC 2-Nov-2007
The council sought to appeal against an interim arbitration award.
Held: Leave to appeal was refused. The application was wholly unjustified. This was an appeal on the facts dressed up as an appeal on law. . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 July 2022; Ref: scu.258384
The claimant sought to enforce an arbitration award for construction work it had carried out for the defendant. The defendant denied that there had been a contract under which an arbitration could properly have been commenced, and was without jurisdiction.
Thornton QC J
[2007] EWHC 1626 (TCC)
England and Wales
Updated: 11 July 2022; Ref: scu.258367
In what circumstances, if any, should a temporary stay be granted to restrain court proceedings until an adjudication of the underlying dispute has taken place?
[2007] EWHC 1584 (TCC)
Updated: 11 July 2022; Ref: scu.258382
Appeal against refusal to set aside arbitration award for want of jurisdiction.
[2007] EWCA Civ 656
England and Wales
See Also – 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 . .
See Also – Ecuador v Occidental Exploration and Production Co ComC 2-Mar-2006
. .
Lists of cited by and citing cases may be incomplete.
Updated: 11 July 2022; Ref: scu.254442
Challenge to arbitrator’s jurisdiction.
Cooke J
[2007] EWHC 1363 (Comm)
England and Wales
Updated: 10 July 2022; Ref: scu.253762
The court was asked whether an arbitrator had been validly appointed under a charterparty on an amended Centricon form and, if not, whether an extension of time should be granted for such an appointment.
Toulson J
[2005] EWHC 1345 (QB)
England and Wales
Updated: 10 July 2022; Ref: scu.263173
[2007] EWHC 503 (Comm)
Updated: 10 July 2022; Ref: scu.250611
Lightman J
[2007] EWHC 327 (Ch)
England and Wales
Updated: 10 July 2022; Ref: scu.250014
Jurisdiction of arbitrator.
Langley J
[2007] EWHC 421 (Comm)
England and Wales
Updated: 10 July 2022; Ref: scu.249968
Challenge to arbitration.
[2019] EWHC 1176 (Ch)
England and Wales
Updated: 10 July 2022; Ref: scu.638186
The claimant argued that the proposed arbitral tribunal lacked jurisdiction because the reference was based upon an unenforceable agreement to negotiate.
Held: The agreement to negotiate contained in the contract amounted to an enforceable condition precedent to the referral of a dispute to arbitration. As the condition precedent had been satisfied, the arbitral tribunal had jurisdiction to hear and determine the claim.
Teare J
[2014] EWHC 2104 (Comm), [2014] WLR(D) 293
England and Wales
Updated: 09 July 2022; Ref: scu.533679
Outer House – Court of Session
Lord Malcolm
[2008] ScotCS CSOH – 39, [2008] CSOH 39
Scotland
See Also – James Scott Limited v Apollo Engineering Limited and others SCS 24-Jan-2000
. .
See Also – Apollo Engineering Ltd v James Scott Ltd SCS 21-May-2009
Application for judicial review of arbitration . .
See Also – Apollo Engineering Ltd (In Liquidation) v James Scott Ltd SCS 18-Jan-2012
The parties had for several years been involved in litigation and arbitration. Apollo’s funds had run out and a director sought permission to represent the company before the court. He had asked the court to make an order under article 6 of the . .
See Also – Apollo Engineering Ltd v James Scott Ltd SCS 27-Nov-2012
Application for leave to appeal to the Supreme Court against order refusing permission for a shareholder and director of a party to represent the company.
Held: Leave was refused. . .
See Also – Apollo Engineering Ltd v James Scott Ltd (Scotland) SC 13-Jun-2013
After long running litigation between the parties, a shareholder and director of Apollo sought to represent the company in person. He was refused leave by the Court of Session, and now sought to appeal. The Court considered the possibility of an . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.266150
Application of the 1996 Act when one or more of those involved are foreign parties.
[2001] EWHC QB 461
England and Wales
Updated: 09 July 2022; Ref: scu.263142
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.
Held: English authority and European thought differed, and the matter should be referred to the European Court of Justice. The rule preventing such orders as regards full court proceedings did not apply, since the seat of arbitration was a matter of choice by the parties. These proceedings were to protect the contractual right to have the dispute determined by arbitration, and fell outside the Regulation and cannot be inconsistent with its provisions. An arbitration agreement lies outside the system of allocation of court jurisdictions which the Regulation creates: ‘the most important consideration is the practical reality of arbitration as a method of resolving commercial disputes. People engaged in commerce choose arbitration in order to be outside the procedures of any national court. They frequently prefer the privacy, informality and absence of any prolongation of the dispute by appeal which arbitration offers. Nor is it only a matter of procedure. The choice of arbitration may affect the substantive rights of the parties, giving the arbitrators the right to act as amiables compositeurs, apply broad equitable considerations, even a lex mercatoria which does not wholly reflect any national system of law. The principle of autonomy of the parties should allow them these choices. ‘ The ability to make such an order was itself an advantage of arbitration.
Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Mance
[2007] UKHL 4, [2007] ILPr 20, [2007] 1 Lloyd’s Rep 391, [2007] 1 All ER (Comm) 794, (2007) 23 Const LJ 458, [2007] ArbLR 61
EC Regulation 44/2001, Lugano Convention
England and Wales
Appeal from – West Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa and Another (‘The Front Comor’) ComC 21-Mar-2005
Appeal against anti-suit order. The court ordered that since the question of whether an anti-suit injunction could be made to restrain proceedings abroad had been decided in Through Transport, that issue could go straight to the House of Lords. . .
Cited – Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Association Company Ltd CA 2-Dec-2004
. .
Cited – Aggeliki Charis Compania Maritima SA v Pagnan SpA The Angelic Grace QBD 1994
The court considered whether a claim for a collision between two ships was governed by an arbitration clause which read ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying . .
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 . .
Cited – Van Uden Maritime v Kommanditgesellschaft in Firma Deco-Line and others (Judgment) ECJ 17-Nov-1998
Applications under the Brussels Convention for Interim Measures were capable of being heard by courts notwithstanding a clause referring disputes under the contract in issue exclusively to arbitration. Even in the case of Article 24 of the Brussels . .
Cited – Pena Copper Mines Ltd v Rio Tinto Co Ltd 1911
The court exercised its jurisdiction to make an order restraining the commencement of proceedings abroad. . .
Cited – Erich Gasser GmbH v MISAT Srl ECJ 9-Dec-2003
The claimant Austrian company had for many years sold goods to the defendant an Italian company. Eventually it presented a claim before the court in Italy. Having obtained judgement, it later sought to enforce the order through the Austrian court . .
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: . .
See Also – West Tankers Inc v Ras Riunione Adriatica Sicurta Spa and Another ComC 2-Oct-2007
. .
At House of Lords – Allianz Spa (Anciennement Riunione Adriatica Di Sicurta) v West Tankers Inc (‘the Front Comor’) ECJ 10-Feb-2009
ECJ (Judgment) A West Tankers ship damaged a jetty in Syracuse. An agreement provided for an arbitration in London. The insurers having paid out brought a subrogated action in Italy. West Tankers sought an order . .
At House of Lords – Allianz Spa (Anciennement Riunione Adriatica Di Sicurta) v West Tankers Inc (Judgments Convention/Enforcement of Judgments) (‘the Front Comor’) ECJ 4-Sep-2008
Europa (Opinion) Regulation (EC) No 44/2001 Scope Arbitration Order restraining a person from commencing or continuing proceedings before the national courts of another Member State instead of before an arbitral . .
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 . .
Cited – Starlight Shipping Co v Allianz Marine and Aviation Versicherungs Ag and Others CA 20-Dec-2012
The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 July 2022; Ref: scu.248962
The defendant state could not now claim state immunity to avoid enforcement of an arbitration award, having agreed to the reference to arbitration in writing.
Held: A person against whom an award has been made is not bound to challenge it before the supervisory court in order to challenge its enforcement in another jurisdiction.
‘In our view the expression ‘relating to’ is capable of bearing a broader or narrower meaning as the context requires. Section 3 is one of a group of sections dealing with the courts’ adjudicative jurisdiction and it is natural, therefore, to interpret the phrase in that context as being directed to the subject matter of the proceedings themselves rather than the source of the legal relationship which has given rise to them. To construe section 3 in this way does not give rise to any conflict with section 9, which is concerned with arbitration as the parties’ chosen means of resolving disputes rather than with the underlying transaction. In our view AIC Ltd v Federal Government of Nigeria was correctly decided and Gloster J was right to follow it in the present case.’
Sir Anthony Clarke MR, Scott Baker LJ, Moore-Bick LJ
[2006] EWCA Civ 1529, Times 17-Nov-2006, [2007] QB 886, [2007] 1 Lloyd’s Rep 193, [2007] 1 All ER (Comm) 909, [2006] 2 CLC 797, [2007] 2 WLR 876
England and Wales
Appeal from – Svenska Petroleum Exploration Ab v Lithuania and Another (No 2) ComC 4-Nov-2005
The court was asked whether a claim to enforce an arbitration award constituted ‘proceedings relating to’ the transaction that gave rise to the award for the purposes of section 3(1)(a).
Held: It did not. . .
See Also – Svenska Petroleum Exploration Ab v Government of the Republic of Lithuania and Another ComC 11-Jan-2005
The claimant sought enforcement of a final award. The Government of Lithuania had not attempted to challenge the tribunal’s first award in Denmark.
Held: Nigel Teare QC said that that, where a person has unsuccessfully contested the issue of . .
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.
Approved – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 July 2022; Ref: scu.245992
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 arbitrator does not have jurisdiction to decide this issue; the court alone does. Nor was there no overlap between what the claims of a routine nature involve and the issue of bribery. Also issues as to jurisdiction were for the court not for the arbitrator. In this case the claimants had a good case for saying they had a right to elect to rescind the contract, and had exercised that right timeously. There was also sufficient circumstantial evidence to justify the joining of further defendants as requested.
Morison J
[2006] EWHC 2583 (Comm), [2007] 1 All ER (Comm) 81
England and Wales
Cited – 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 . .
Cited – Aggeliki Charis Compania Maritima SA v Pagnan SpA The Angelic Grace QBD 1994
The court considered whether a claim for a collision between two ships was governed by an arbitration clause which read ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying . .
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 – Chimimport Plc v G d’Alesio SAS 1994
The phrase ‘arising under’ in a clause referring matters to arbitration is narrower than ‘arising out of’ and the court doubted whether a tortious claim could easily give rise to a dispute ‘under the contract’. . .
Cited – Ashville Investments Ltd v Elmer Contractors Ltd CA 1987
A clause in the contract refered to arbitration: ‘any dispute or difference as to the construction of this contract or as to any matter or thing of whatsoever nature arising thereunder or in connection therewith.’
Held: The court should adopt . .
Cited – Aggeliki Charis Compania Maritima SA v Pagnan SpA The Angelic Grace QBD 1994
The court considered whether a claim for a collision between two ships was governed by an arbitration clause which read ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying . .
Cited – 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 . .
Approved – Ahmad Al-Naimi (T/a Buildmaster Construction Services) v Islamic Press Agency Incorporated CA 28-Jan-2000
The court has an inherent power to stay proceedings. The court could refer a matter to arbitration where there was an arbitration clause, but could also do so under its inherent discretion, where this was not quite clear, but it was clear that good . .
Cited – Newbigging v Adam CA 1886
A party seeking rescission of a contract must give back all that he received. The purpose of rescission is still to restore the parties as nearly as possible to the position in which they were before the contract was made. Bowen LJ said: ‘when you . .
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 – Logicrose Ltd v Southend United Football Club Ltd CA 5-Feb-1988
The agent required the contractual counterparty to pay a bribe of pounds 70,000 to an offshore account.
Held: The bribe was held to be recoverable by the principal whether the principal rescinded or affirmed the contract because it was a . .
Cited – Clough v London and North Western Railway Co 1871
When considering an application for rescission the court must ask whether the representee has elected to affirm the contract, elected to rescind the contract or made no election. Mellor J said: ‘In such cases the question is, has the person on whom . .
Cited – O’Sullivan v Management Agency and Music Limited CA 1985
The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the . .
Cited – Senanayake v Cheng PC 1966
A representee, to whom a fraudulent misrepresentation had been made was ‘entitled to make all inquiries and to endeavour to learn all the facts.’
In a claim for rescission in equity for innocent misrepresentation, the questions are ‘whether . .
Cited – Armstrong v Jackson 1917
Rescission was available to a defrauded principal even where the contract had been fully performed. . .
Cited – B v Chief Constable of Avon and Somerset Constabulary QBD 5-Apr-2000
The defendant appealed the making of a sex offender order under 1998 Act. The justices had found that the defendant was a sex offender within section 2(1)(a) and that he had acted on a number of occasions in a way which brought him within section . .
Cited – Sphere Drake Insurance Ltd and Another v Euro International Underwriting Ltd ComC 8-Jul-2003
Relationships between Lloyds underwiters and others in the market rather than just names, could also bind the underwriter to a fiduciary relationship. Here the claimant had granted to the defendant a binding authority. This was in effect a similar . .
See Also – 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.
At first instance – 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 . .
Appeal from – 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.
See Also – Fiona Trust Holding Corporation and others v Privalov and others ComC 19-Jan-2007
. .
See Also – Fiona Trust Holding Corp and others v Privalov and others ComC 21-May-2007
Allegations were made of different varieties of fraud. Applications were made for freezing orders. . .
See Also – Fiona Trust and Holding Corporation and others v Privalov and others ComC 22-Jul-2008
. .
Lists of cited by and citing cases may be incomplete.
Updated: 08 July 2022; Ref: scu.245438
Request for order to remit arbitration award for reconsideration.
[2006] EWHC 2532 (Comm)
England and Wales
Updated: 07 July 2022; Ref: scu.245373
The court at first instance had dismissed the ship-owner’s application to set aside the arbitration award, and then refused leave to appeal. The court of appeal had to consider whether it had jurisdiction itself to hear an application for leave.
Held: A decision that a right has been waived under section 73 is a decision under section 68 and thus unappealable if the judge has refused permission. It had been argued that a decision as to waiver was not a decision on the asserted irregularity. Longmore LJ (referring to Cetelem): ‘That case is very different from the present case. Here there is no doubt that Morison J had jurisdiction either to accede to the application or to refuse it. Whichever way the decision went, it was still a decision under section 68 of the Act and a refusal of permission to appeal was likewise a decision under the section. It cannot, therefore be challenged by way of appeal even if the decision is wrong or, even, obviously wrong. The fact that waiver (or indeed estoppel) can be said to operate as a defence to a prima facie entitlement is, in our view, nothing to the point. A decision to refuse relief (for whatever reason) is still a decision under section 68 just as much as a decision to grant relief would have been, if the decision had gone the other way.’
[2006] EWCA Civ 1341
England and Wales
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. . .
Appeal from – ASM Shipping Ltd of India v TTMI Ltd of England ComC 19-Oct-2005
The court upheld an objection to one member of the arbitration panel for apparent bias, but refused to set aside a preliminary decision of the panel. . .
See Also – TTMI Ltd of England v ASM Shipping Ltd of India ComC 23-Nov-2005
. .
See Also – ASM Shipping Ltd of India v TTMI Ltd of England Admn 20-Apr-2007
Application to remove arbitrators. . .
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.
See Also – ASM Shipping Ltd of India v TTMI Ltd of England ComC 20-Apr-2007
. .
See Also – ASM Shipping Ltd v Harris and others ComC 28-Jun-2007
Objection was made the panel selected to undertake an arbitration. It was said that one member of the panel had been found to be subject to proper objectin for an apparent bias, and that the remaining panel members should recuse themselves for . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 July 2022; Ref: scu.245343
Peter Coulson QC
[2006] EWHC 1708 (TCC)
Housing Grants Construction & Regeneration Act 1996
England and Wales
Updated: 07 July 2022; Ref: scu.244136
[2005] EWCA Civ 814
England and Wales
Updated: 06 July 2022; Ref: scu.228222
[2001] EWCA Civ 34
England and Wales
Updated: 06 July 2022; Ref: scu.200736
B had succeeded in the arbitration award. W later discovered a letter written (he aid) by B which he said should require the re-opening of the arbitration.
Held: The court remitted it saying that the arbitrators should decide the issue of whether B had written the letter and then decide what difference it should make. An arbitration clause is capable of governing isues as to jurisdiction.
(1850) 19 LJ QB 423, [1850] LMandP 455
England and Wales
Cited – Guangzhou Dockyards Co Ltd v Ene Aegiali I ComC 5-Nov-2010
No appeal on facts from award
The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 July 2022; Ref: scu.430591
[2006] EWCA Civ 323
England and Wales
Updated: 05 July 2022; Ref: scu.240134
The court considered an appeal against an award under the 1996 Act. The appeal had been brought under Part 8 of the Civil Procedure Rules.
Held: The appeal was by virtue of the 1996 Act, and as such was a statutory appeal, and should have been brought under Part 52, not Part 8.
Sir Peter Gibson
[2006] EWCA Civ 341, Times 24-Apr-2006
Party Wall etc Act 1996, Civil Procedure Rules Part 8 Part 52
England and Wales
Cited – E I Du Pont De Nemours and Company v S T Dupont; Du Pont Trade Mark CA 10-Oct-2003
The court considered the circumstances under which a Hearing Officer’s decision could be reversed on appeal: ‘Those experienced in cases such as these, such as the Hearing Officer, would have known that the sort of evidence normally adduced on . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 July 2022; Ref: scu.240110
Morison J
[2006] EWHC 483 (Comm)
Updated: 05 July 2022; Ref: scu.239124
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 an issue which is not ‘in play’ between the parties.
Tomlinson J
[2006] EWHC 388 (Comm), [2006] 2 LLoyds Rep 1, [2006] 1 All ER (Comm) 529, [2006] ArbLR 2
England and Wales
Cited – Bandwidth Shipping Corporation v Intaari (‘Magdalena Oldendorrf’) CA 17-Oct-2007
An arbitrator hearing a case, and who appreciated that counsel had failed to take a point, should draw counsel’s attention to the point. No duty could arise if the arbitrator did not himself see the point.
An applicant under section 68 faces a . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 July 2022; Ref: scu.239122
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 or voidable.
Held: An English court should not grant the injunction sought. The natural consequence of the arbitration agreement was that any issue as to its validity would fall to be considered in Switzerland according to Swiss law. For the English Court to restrain the arbitration whose seat was in a foreign jurisdiction would infringe the principles of international arbitration agreed under the New York Convention and recognised in the Arbitration Act 1996.
The Lord Chief Justice of England & Wales Master of the Rolls The Honourable Mr Justice Moses
[2006] EWCA Civ 218, [2006] 1 Lloyd’s Rep 716
England and Wales
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.
Updated: 05 July 2022; Ref: scu.238899
The A company, who were the owners of a mineral field, through which two water-pipes, known respectively as the C. and M. pipes, were laid in 1821 and 1877 respectively, but in the same pipe-track, received a notice under the Waterworks Clauses Act 1847 from the Water Trustees, to whom the pipes belonged, requiring them to abstain from working the minerals in the vicinity of the pipes, and undertaking to make compensation therefor, ‘in so far as you are entitled thereto,’ subject to the following reservation:-‘Declaring that the foregoing notice is given without prejudice to and under reservation of . . all objections to your working out the said minerals competent to us, and of our right of support of the C. pipe passing through the said mineral field.’ The amount of compensation to be paid in respect of the non-working of the minerals was fixed by the oversman in an arbitration after the usual procedure. Subsequently the Water Trustees obtained decree in an action, whereby it was found that, independently of the provisions of the Waterworks Clauses Act, the Water Trustees had a common law right of support for the C. pipe, and that the A Company were not entitled to work the minerals adjacent or subjacent to the C. pipe in such manner as to injure the said pipe or interfere with the continuous flow of water through it. The Water Trustees thereupon refused to implement the oversman’s award, on the ground that the minerals, for which compensation had been awarded, could not be worked out without causing the C. pipe to subside; that under the reservation above quoted it was now open to them to refuse implement of the award; and that the oversman in making his award had not taken the Water Trustees’ right to support for the C. pipe into account. Held ( aff. judgment of the First Division- dub. Lord Chancellor) that the Water Trustees were not entitled upon these grounds to refuse implement of the award, in respect that the effect to be allowed to the right of support for the C. pipe was a matter affecting the question of amount of compensation, and therefore a question for the oversman, and that the oversman having decided upon the question of the amount payable, his decision thereon was not subject to review.
Lord Chancellor (Halsbury), Lord Macnaghten, Lord Davey, Lord Brampton, Lord Robertson, and Lord Lindley
[1902] UKHL 860, 39 SLR 860
Scotland
Updated: 05 July 2022; Ref: scu.630803
Application for enforcement of three arbitration awards.
Akenhead J
[2008] EWHC 370 (TCC)
England and Wales
Updated: 04 July 2022; Ref: scu.317990
Cresswell J
[2005] EWHC 2755 (Comm)
England and Wales
Appeal from – CGU International Insurance Plc and others v Astrazeneca Insurance Co Ltd. CA 16-Oct-2006
Whilst the court of appeal did have a residual discretion to review a refusal by a judge of a grant of leave to appeal against an arbitration based upon an allegation of unfairness such as should undermine the fairness of the decision, that . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 July 2022; Ref: scu.236584
The contract provided for arbitration under the International Arbitration Rules of the Zurich Chamber of Commerce. The arbitrators considered an assertion of illegality by NKAP, and rejected it with reasons. Thereafter a decision of a Russian court, in proceedings at which only NKAP and the public prosecutor were present, held that the contract was illegal. A Swiss court was then asked to have the arbitration award revised and refused to do so. The issue was whether NKAP should have an extension of time for applying to set aside an order that a Swiss arbitration award be enforced as a judgment.
Held: Waller LJ: ‘I am unpersuaded that it is arguable that under English law enforcement of this award would be contrary to English public policy. The reasons are separate and distinct. First it is the award with which the English court is concerned and not the underlying contract . The question of illegality having been raised and dealt with by the Arbitrators, and there being no requirement as a result to perform some act which English law would regard as illegal under English law or contrary to the recognised morals of this country, the public policy is if anything in favour of abiding by the terms of the convention and enforcing the award. Second in any event if an offence will be committed by NAKP in Russia as a party to the award in paying the same, that is the result of their own failure to obtain the requisite consents, and English public policy would in my view be offended if that relieved that party from its obligation to meet the award.’
Waller LJ, Chadwick, Phillips LJJ
[1997] EWCA Civ 3014
England and Wales
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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 July 2022; Ref: scu.143413
Sir Michael Burton QC
[2019] EWHC 799 (Comm)
England and Wales
Updated: 04 July 2022; Ref: scu.637496
[2004] EWHC 3319 (TCC)
Updated: 04 July 2022; Ref: scu.235377
The parties had agreed for the provision of security for costs to cover thr proceedings save for any appeal. The defendant appealed an order refusing jurisdiction to vary that order.
Held: The appeal succeeded. The court retained a jurisdictio to make an order for security for costs, and that jurisdiction was not lost for the fact that the parties had made their own arrangements. It had to do what was just in all the circumstances. That now required an increase in the amount to be provided by way of security.
Sir Anthony Carke MR, Rix, Richards LJJ
Times 17-Nov-2005, [2005] EWCA Civ 1468, [2006] 1 WLR 596
England and Wales
Updated: 04 July 2022; Ref: scu.235144
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 substantial. Nevertheless, the adjudicator ‘not only took the initiative in ascertaining the facts but also applied his own knowledge and experience to an appreciation of them and thus, in effect, did BB’s work for it.’ The arbitration system was intended to provide speedy resolution of disputes. They dealt with cases which would often be necessarily complex, and parties should not be encouraged to trawl through judgments for minor errors. Awards should be set aside only in a case of clear error, which was not present here. Leave refused.
Chadwick LJ said: ‘the objective which underlies the Act and the statutory scheme [for adjudication] requires the courts to respect and enforce the adjudicator’s decision unless it is plain that the question in which he is decided was not the question referred to him or the manner in which he has gone about his task is obviously unfair. It should be only in rare circumstances that the court will interfere with the decision of an adjudicator.’
Sir Anthony Clarke MR, Chadwick LJ, Moore-Bick LJ
Times 24-Nov-2005, [2005] EWCA Civ 1358, [2006] BLR 15, (2005) 104 Con LR 1
Housing Grants, Construction and Regeneration Act 1996 108, Scheme of Construction Contracts (England and Wales) Regulations 1998 (SI 1998/649).
England and Wales
Cited – Tally Wiejl (UK) Ltd v Pegram Shopfitters Ltd CA 21-Nov-2003
. .
Appeal from – Carillion Construction Ltd v Devonport Royal Dockyard TCC 26-Apr-2005
Application for leave to appeal against arbitrator’s award in construction dispute.
Held: The appeal was declined. . .
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 – Bouygues (Uk) Ltd v Dahl-Jensen (Uk) Ltd (In Liquidation) CA 17-Aug-2000
When the decision of an adjudicator was challenged, the court should ask whether the adjudicator had either asked the right question but in the wrong way, or whether he had even answered the wrong question. The procedure was intended to provide a . .
Cited – C and B Scene Concept Design Ltd v Isobars Ltd CA 31-Jan-2002
The claimant appealed a refusal of summary judgement, in a claim to enforce an arbitration award. Where an award was challenged, enforcement should still be allowed to continue unless the challenge went as to the jurisdiction of the reference. . .
Cited – Ferson Contractors Limited v Levolux A T Limited CA 22-Jan-2003
. .
Cited – 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 . .
Cited – Discain Project Services Ltd v Opecrime Development Ltd TCC 1-Aug-2000
The applicant sought leave to defend the enforcement of an arbitration award.
Held: The adjudicator had accepted oral and written communications with one party, from which the other party was excluded. This was such a serious breach of the . .
Cited – Balfour Beatty Building Ltd v Chestermount Properties Ltd 1993
It was argued that the party seeking a referral to arbitration need only rely on the existence of relevant events for its entitlement to an extension of time and has no regard for any delay for which it may be culpable and which may impact at the . .
Cited – Henry Boot Construction v Malmaison Hotel (Manchester) Ltd TCC 1999
. .
Cited – Royal Brompton Hospital National Health Trust v Hammond etc TCC 8-Jan-1999
. .
Cited – Discain Project Services Ltd v Opecrime Development Ltd TCC 11-Apr-2001
. .
Cited – Fox v Wellfair Ltd CA 1981
An expert arbitrator should not in effect give evidence to himself without disclosing the evidence on which he relies to the parties, or if only one to that party. He should not act on his private opinion without disclosing it. It is undoubtedly . .
Cited – Interbulk Limited v Aiden Shipping Co Limited (The ‘Vimeira’) CA 1984
The court considered whether an arbitrator had a duty to raise a point missed by counsel.
Held: Robert Goff LJ: ‘In truth, we are simply talking about fairness. It is not fair to decide a case against a party on an issue which has never been . .
Cited – Glencot Development and Design Ltd v Ben Barrett and Son (Contractors) Ltd TCC 13-Feb-2001
. .
Cited – Kye Gbangbola and Lisa Lewis v Smith Sherriff Limited TCC 20-Mar-1998
‘A tribunal does not act fairly and impartially if it does not give a party an opportunity of dealing with arguments which have not been advanced by either party’. . .
Cited – John Barker Construction Ltd v London Portman Hotel Ltd 1996
An architect who had to decide whether to grant an extension of time under clause 25 of the JCT conditions would not have acted fairly and lawfully and his decision would be fundamentally flawed if he had not carried out a logical analysis in a . .
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 . .
Cited – Shaw and Another v Massey Foundation and Pilings Ltd TCC 12-Mar-2009
The appellants had argued that they were not subject to the construction arbitration system because they were residential occupiers. They now said that as consumers vis a vis the construction contract. . .
Cited – Cantillon Ltd v Urvasco Ltd TCC 27-Feb-2008
After referring to the Carillion Construction case, the court held: ‘Whilst that case is, obviously, not authority for the proposition that a ‘good’ challenge to a decision on jurisdiction or natural justice grounds will be excluded on some . .
Cited – CRJ Services Ltd v Lanstar Ltd (T/A CSG Lanstar) TCC 19-Apr-2011
The claimant hired out recycling plant and equipment and the defendant had been a customer. A local agent of the defendant had properly entered into certain contracts with the claimant acting as the company’s agent, but then created three long term . .
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.
Updated: 04 July 2022; Ref: scu.234994
The court was asked whether a claim to enforce an arbitration award constituted ‘proceedings relating to’ the transaction that gave rise to the award for the purposes of section 3(1)(a).
Held: It did not.
Gloster J, DBE
[2005] EWHC 2437 (Comm), [2006] 1 Lloyd’s Rep 181
See Also – Svenska Petroleum Exploration Ab v Government of the Republic of Lithuania and Another ComC 11-Jan-2005
The claimant sought enforcement of a final award. The Government of Lithuania had not attempted to challenge the tribunal’s first award in Denmark.
Held: Nigel Teare QC said that that, where a person has unsuccessfully contested the issue of . .
Applied – AIC Limited v The Federal Government of Nigeria, the Attorney General of the Federation of Nigeria QBD 13-Jun-2003
AIC had used the 1920 Act to register a judgment obtained in Nigeria against the Nigerian Government. The underlying matter was a commercial transaction. Nigeria applied to set the registration aside, saying that registration was an adjudicative act . .
Appeal from – Svenska Petroleum Exploration Ab v Lithuania and Another (No 2) CA 13-Nov-2006
The defendant state could not now claim state immunity to avoid enforcement of an arbitration award, having agreed to the reference to arbitration in writing.
Held: A person against whom an award has been made is not bound to challenge it . .
Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 July 2022; Ref: scu.234738
Application to stay arbitration in France.
[2005] EWHC 2115 (Comm)
Updated: 04 July 2022; Ref: scu.234540
Application for leave to appeal against refusal to grant witness orders to attend arbitration. The respondent had argued that the request was too vague and broad.
Held: Moore-Bick LJ said: ‘In order to answer the question raised in this case I think it is necessary to return to first principles with such assistance as may be gained from the earlier authorities. A witness summons, unlike an order for disclosure, requires the person to whom it is addressed to attend court on a specified occasion and to produce to the court the documents to which it refers. It is a requirement reinforced with a penal sanction. Justice demands, therefore, that the person to whom it is addressed should be told clearly when and where he must attend and what he must bring with him. Anything less is unfair to the witness; it also makes supervision and enforcement by the court extremely difficult, as Miss Reffin was forced to admit. For these reasons I consider that the view put forward in Phipson, to which I referred earlier, is to be preferred. Ideally each document should be individually identified, but I do not think it is necessary to go that far in every case. In In re Asbestos Insurance Coverage Cases [1985] 1 WLR 331 the court was concerned with an application under section 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 under which the High Court is empowered to make orders for the production of documents for use as evidence in proceedings abroad pursuant to a request from a foreign court. Subsection (4) of section 2 expressly provides that an order made under that section shall not require the person to whom it is addressed to state what documents are or have been in his possession, custody or power or to produce any documents other than particular documents specified in the order and subsection (5) provides for the payment of conduct money, expenses and loss of time. This strongly suggests that the draftsman was seeking to equate an order to produce documents made under section 2 with the writ of subpoena duces tecum and to draw a distinction between such an order and what at that time would have been an order for discovery. However, despite the express requirement that an order under this section must specify particular documents, Lord Fraser of Tullybelton, with whom the other members of their Lordships’ House agreed, considered that ‘a compendious description of several documents’ would suffice provided that the exact document in each case was clearly indicated. By way of example he drew a distinction between an order for the production of ‘monthly bank statements for the year 1984 relating to [your] current account’ with a named bank, which he thought would satisfy the requirements of the Act, and ‘all [your] bank statements for 1984’, which he thought would not: see pp 337-338.
Rule 34.2 does not contain any provision comparable to section 2(4) of the Evidence (Proceedings in Other Jurisdictions) Act 1975, but Lord Fraser’s observations are none the less helpful because they provide an example of the ways in which, without describing them individually, it may be possible to identify the documents to be produced with sufficient certainty to leave no real doubt in the mind of the person to whom the summons is addressed about what he is required to do. In my view that is the test that should be applied when considering whether documents have been sufficiently identified in a witness summons. Whether it has been met is likely to depend, at least in part, on the particular circumstances of the case. It is unlikely to be met if the documents are described simply by reference to a particular transaction or event which is itself described in broad terms, although in cases where the transaction is self-contained and sufficiently well-defined that might be satisfactory. In general, I think that doubts about the adequacy of the description should be resolved in favour of the witness.
In the present case the documents are described in the schedule to each of the witness summonses in broad terms of the kind that would be appropriate to an application for disclosure but which fail to identify the documents with sufficient certainty to enable the witness to know what is required of him. I am satisfied, therefore, that the judge was right to set aside the witness summonses on this ground and that it is unnecessary to consider the other matters on which the witnesses relied in support of their applications.’
[2005] EWCA Civ 1218
England and Wales
Cited – In re Asbestos Insurance Coverage HL 1985
A London insurance brokerage company had been ordered to produce documents pursuant to a letter of request issued by a Californian court in proceedings brought by manufacturers of asbestos against their insurers. The 1975 Act empowered the court to . .
Cited – Financial Services Authority (FSA) and Others v AMRO International Sa and Another CA 24-Feb-2010
The FSA appealed against an order refusing its request for inquiries and production of accounting records by the defendant accountants to satisfy a request issued by the US Securities and Exchange Commission.
Held: The FSA had properly . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 July 2022; Ref: scu.231465
Sir Ross Cranston
[2019] EWHC 1219 (Comm)
England and Wales
Updated: 03 July 2022; Ref: scu.637517
Challenge to an arbitration award on the ground of serious irregularity.
Sir Jeremy Cooke
[2019] EWHC 589 (Comm)
England and Wales
Updated: 03 July 2022; Ref: scu.637501
Mr Justice Popplewell
[2019] EWHC 1118 (Comm)
England and Wales
Updated: 03 July 2022; Ref: scu.637516
Thomas J
[1999] EWHC 276 (QB), [2000] 1 All ER (Comm) 415, [2000] CLC 656, [1999] 2 Lloyd’s Rep 685
England and Wales
Updated: 01 July 2022; Ref: scu.314328
[2005] EWHC 1601 (Ch)
England and Wales
Appeal from – Co-Operative Group (CWS) Ltd v Stansell Ltd and Another CA 9-May-2006
. .
Lists of cited by and citing cases may be incomplete.
Updated: 01 July 2022; Ref: scu.229015
[2005] EWHC 1086 (TCC)
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.
Updated: 01 July 2022; Ref: scu.228354
[2005] EWHC 1370 (TCC)
England and Wales
Updated: 01 July 2022; Ref: scu.228356
ECJ Law Governing The Institutions – Arbitration clause – Insurance contracts – Termination for aggravating the insured risk – Abuse – Contractual liability – Damages
C-125/02, [2005] EUECJ C-125/02
European
Updated: 01 July 2022; Ref: scu.226966
ECJ Law Governing The Institutions -Arbitration clause – Insurance contracts – Termination for aggravating the insured risk – Abuse – Contractual liability – Damages
C-124/02, [2005] EUECJ C-124/02
European
Updated: 01 July 2022; Ref: scu.226965
The defendants had obtained world-wide Mareva injunctions in support of substantive proceedings by way of their counterclaim to enforce an arbitration award against the plaintiffs under section 26 against two companies, Aiglon Limited and L’Aiglon SA (a Swiss company).
Held: There was no basis under section 26 for enforcement of the arbitration award against SA, but the question arose whether any other basis for a freezing order against SA existed, having regard to the fact that the defendants’ only contractual entitlement was against Limited. There were two bases. It was well arguable that a transfer of assets from Limited to SA fell foul of section 423 of the Insolvency Act 1986, thereby giving the defendants a direct cause of action against SA as victims of the transaction. Second, since an administrator or liquidator of Limited (if appointed) could apply to set aside the relevant transaction under section 238 of the Insolvency Act 1986 with the consequence that SA would hold the assets transferred as trustee for Limited, the case fell within the Chabra jurisdiction since it was arguable that SA held assets beneficially belonging to Limited, against which the defendants had a good cause of action. It mattered not that Limited’s arguable beneficial interest in assets transferred to SA was contingent both upon the appointment of an administrator or liquidator of Limited, and the successful pursuit by the officeholder of a claim under section 238.
Hirst J
[1993] BCLC 1321
Arbitration Act 1950 26, Insolvency Act 1986 423
England and Wales
Cited – HM Revenue and Customs v Egleton and others ChD 19-Sep-2006
The claimants had applied for the winding up of a company for very substantial sums of VAT due to it. Anticipating that hearing, it now sought restraining orders against the director defendants, alleging that there had been a carousel or missing . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 July 2022; Ref: scu.245162
Whether contract for adjudication empowered order for payment of costs.
May LJ, Keene LJ, Scott Baker LJ
[2006] EWCA Civ 64
England and Wales
Updated: 30 June 2022; Ref: scu.238376
The shipowner appealed the award against them of an injunction requiring them not to act inconsistently with a time charterparty. The company said that such a form of order was improper.
Held: The existence of the contract to do what was required did not prevent an injunction being granted to achieve the same result. Scaptrade was authority for the proposition that specific performance would not be ordered in respect of a time charterparty. However the relief appealed against was jurisdictionally different. Though a time charterparty was seen as a contract for services, there was no principle to exclude negative injunctive relief to prevent activity inconsistent with the terms: ‘neither the fact that the contracts involved were for services in the form of a time charter nor the existence under such contracts of a fiduciary relationship of mutual trust and confidence represents in law any necessary or general objection in principle to the grant of injunctive relief precluding the appellants from employing their vessels outside the pool pending the outcome of the current arbitration. Nor does it afford any such objection to the grant of such relief that the only realistic commercial course which it left to the appellants was, as I am prepared to assume, to do what they have done, namely to continue to provide the vessels to the pool and to perform the charters. In my judgment, therefore, the present appeal by each appellant should be dismissed. ‘
Judge, Manse, Thomas LJJ
[2005] EWCA Civ 579, Times 26-May-2005
England and Wales
Cited – De Mattos v Gibson 1859
The purchaser of an interest in property may not use it so as to breach contractual rights of which he was aware when he acquired the interest. . .
Appeal from – Lauritzencool Ab v Lady Navigation Inc ComC 12-Nov-2004
The court awarded interim injunctive relief to the effect that the shipowners should not act inconsistently with a time charterparty of two vessels. . .
Cited – Lumley v Wagner 1852
A girl (under age) and her father contracted for her to perform at a theatre abroad, and later not to use her talents without the consent of her manager. She contracted with a competing theatre. She resisted an action by the manager saying that the . .
Cited – Scandinavian Trading Tanker Co AB v Flota Petrolera Ecuatoriana (The Scaptrade) HL 1983
The House considered giving relief from forfeiture where an owner had justifiably withdrawn his vessel in accordance with the terms of the charter.
Held: A withdrawal clause under a time charter, exercised on the ground of the charterer’s . .
Cited – Lord Strathcona Steamship Co Ltd v Dominion Coal Co Ltd HL 1926
. .
Cited – Whitwood Chemical Co v Hardman 1891
The court looked to an appointment for a 10 year term as a manufacturing chemist as manager of the plaintiff company’s works.
Held: If negative injunctive relief was granted ‘the man must either be idle, or specifically perform the agreement . .
Cited – In re Regent Hotels (UK) Ltd v Pageguide Ltd CA 10-May-1985
The court was concerned with a long-term management contract for the Dorchester Hotel between Regent as managers and Pageguide. When Regent sold the hotel to Pageguide the management contract would continue and be novated (with some amendment) as . .
Cited – Warren v Mendy CA 1989
A boxing manager and promoter sought injunctive relief to restrain the defendant from interfering with a management contract between himself and B, a talented young boxer, and from acting for B in B’s professional career. B was at his request joined . .
Cited – Page One Records Ltd v Britton 1967
The court was asked to consider a five year contract to manage a pop group, in respect of which contract the manager claimed injunctive relief to prevent the group working outside the agreement.
Held: The injunction was refused. The manager . .
Cited – Associated Portland Cement Manufacturers Ltd v Teigland Shipping A/S (The Oakworth) 1975
. .
Mentioned – Empresa Cubana de Fletes v Lagonisi Shipping Co Ltd (The Georgios C) 1971
. .
Lists of cited by and citing cases may be incomplete.
Updated: 30 June 2022; Ref: scu.224922
Contract – Agreement – Arbitration – Award – Corruption – Fraud – Reduction.
By agreement between the parties in 1884 it was provided that the Holmes Oil Company should sell to the Pumpherston Oil Company the whole crude oil distilled by them for a period of three years; that the price to be paid therefor should be the one-half of the average net naked price received by the Pumpherston Oil Company for the products obtained by them from the crude oil; that this average net naked price should be ascertained by an accountant named, acting for and on behalf of both parties, who should be bound to accept the Pumpherston Oil Company’s business books ‘as final and conclusive evidence of the varying prices received by them during the year for the said product;’ and that all questions as to the meaning or due implement of the contract should be referred to an arbiter named. One of the products obtained from crude oil is paraffin scale, which itself yields hard scale and soft scale, of which two the former is considerably the more valuable commodity. In 1886 the Holmes Oil Company objected that the accountant had included in his report products not sold by the Pumpherston Oil Company but retained by them in stock. The arbiter sustained the objection and declared as follows:-‘In ascertaining the net naked price it is not competent under the agreement to take into account a valuation of unsold stocks or anything else than prices received during the year.’ The arbiter thereafter refused a motion by the Holmes Oil Company that the accountant should be ordered to furnish the proportions of hard and soft scale sold by the defenders during the past year, and the prices obtained therefor.
The Holmes Oil Company again objected to the report for 1887, and maintained to the arbiter that the Pumpherston Oil Company had only sold the soft scale, and had retained for their own purposes the hard scale, worked it into other products, and sold it beyond the market price of hard scale, and that the hard scale though not sold must be included in fixing the average price. The objectors moved for a proof, but the arbiter disallowed it, and thus disposed of the objection-‘The admissibility of taking into consideration the different qualities of scale was decided by me in the negative in a previous stage of the reference. . . In the absence of any allegation of fraudulent dealing, I think the principle must be followed of estimating the price according to the amount received from the various products during each year.’
The Holmes Oil Company sued the Pumpherston Oil Company for reduction of the decree-arbitral and the accountant’s reports on the grounds (1) that the arbiter had acted corruptly in not allowing proof, and (2) that the defenders obtained the reports by fraudulently and falsely stating to the accountant that the amount of crude scale actually appearing in the books as sold consisted in fair proportions of hard and soft scale. There was no averment of error either in the accountant’s statements or his calculations.
Held ( aff. the decision of the Court of Session) that the arbiter had pronounced judgment on a question fairly raised by the parties before him, and (2) that the reporter had settled the average price in conformity with the provisions of the contract; that therefore the averments of the pursuers were irrelevant, and the action fell to be dismissed.
Lord Chancellor (Halsbury), and Lords Watson, Herschell, and Morris
[1891] UKHL 940, 28 SLR 940
Scotland
Updated: 29 June 2022; Ref: scu.636779
Arbiter – Decree-Arbitral – Reduction – Act of Regulations 1695, sec. 25 – ‘Constructive Corruption.’
While the Act of Regulations 1695 was intended to put an end to the practice of reviewing any decreet-arbitral on the merits, and limits the grounds of reduction to corruption, bribery, or falsehood of the arbiters, the Court can set aside the award of an arbiter who has exceeded the fines compromissi, shown misconduct in the course of the case, or disregarded the conditions of the submission expressed in the contract or implied by law, but the word ‘corruption must be understood in its ordinary sense, and does not cover any action of the arbiter which is free from corrupt motives.
A contract for the construction of two sections of a railway provided that the second section should be ready by the 30th September 1884, or on or before such respective days thereafter as might be respectively fixed by an arbiter; that the contractors should be liable for damages arising from failure to finish the works, and payment of pounds 20 per day as compensation for loss of profits in case the sections were not open for traffic by the dates stipulated; and that ‘all disputes and differences which should arise between the parties in reference to the contract or in regard to the construction of it, or of the specifications, conditions, and schedules,’ should be referred to the arbiter. The specifications and conditions for the second section provided that a certain embanked portion of the line should not be formed until a separate contractor for a certain bridge had finished certain works in connection therewith. The contractors only got access to the ground in February 1886. The line was not finished till May 1, 1886.
In a question between the contractor and the railway company the arbiter found that the contractors were entitled to an extension of six months for the completion of the second section, but that they were liable in penalties for each day’s delay from 30th March 1885 to 1st May 1886.
Held ( aff. the judgment of the First Division) that the award was good, and that there were no facts which suggested that the arbiter had awarded damages in respect of any default caused by the railway company.
Lord Chancellor (Halsbury), and Lords Watson, Bramwell, Herschell, and Morris
[1891] UKHL 579, 28 SLR 579
Scotland
Updated: 29 June 2022; Ref: scu.636785
Challenge under s67 of the Arbitration Act 1996 to arbitrator’s jurisdiction
Burton J
[2010] EWHC 195 (Comm), [2010] 2 Lloyd’s Rep 209
England and Wales
Updated: 29 June 2022; Ref: scu.396750
Appeal against anti-suit order. The court ordered that since the question of whether an anti-suit injunction could be made to restrain proceedings abroad had been decided in Through Transport, that issue could go straight to the House of Lords.
Mr Justice Colman
[2005] EWHC 454 (Comm)
EC Regulation 44/2001, Administration of Justice Act 1969 12, Supreme Court Act 1981 37(1)
England and Wales
Cited – Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Association Company Ltd CA 2-Dec-2004
. .
Appeal from – 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. . .
See Also – West Tankers Inc v Ras Riunione Adriatica Sicurta Spa and Another ComC 2-Oct-2007
. .
At High Court – Allianz Spa (Anciennement Riunione Adriatica Di Sicurta) v West Tankers Inc (‘the Front Comor’) ECJ 10-Feb-2009
ECJ (Judgment) A West Tankers ship damaged a jetty in Syracuse. An agreement provided for an arbitration in London. The insurers having paid out brought a subrogated action in Italy. West Tankers sought an order . .
At High Court – Allianz Spa (Anciennement Riunione Adriatica Di Sicurta) v West Tankers Inc (Judgments Convention/Enforcement of Judgments) (‘the Front Comor’) ECJ 4-Sep-2008
Europa (Opinion) Regulation (EC) No 44/2001 Scope Arbitration Order restraining a person from commencing or continuing proceedings before the national courts of another Member State instead of before an arbitral . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.223752
The defendant had repudiated the building contract in 2002. The claimant now resisted a request for arbitration, saying the request was an abuse of process after such delay.
Held: The defendant’s appeal succeeded. The Arbitration Act explicitly allowed a reference at any time, and there was nothing in the Act to indicate any restrictive interpretation of the phrase.
Lord Justice Ward Lord Justice Dyson Lord Justice Carnwath
[2005] EWCA Civ 193, Times 13-May-2005
Housing Grants, Construction and Regeneration Act 1996, Arbitration Act 1996 108(1)
England and Wales
Updated: 29 June 2022; Ref: scu.223283
[2005] EWHC 138 (TCC)
Updated: 29 June 2022; Ref: scu.223114
Cooke The Honourable Mr Justice Cooke
[2005] EWHC 219 (Comm)
Updated: 29 June 2022; Ref: scu.223083
(Law Governing The Institutions) Arbitration clause – Reimbursement of an advance payment – Default interest – Default proceedings
C-279/03, [2005] EUECJ C-279/03
European
See Also – Commission v Implants ECJ 26-Jan-2006
26-Jan-06 . .
Lists of cited by and citing cases may be incomplete.
Updated: 29 June 2022; Ref: scu.222948
[2005] EWHC 92 (Comm)
England and Wales
Updated: 29 June 2022; Ref: scu.222220
The court considered a complaint that the arbitration award was faulty or lack of jurisdiction under the agreement founding it.
Mr Justice Colman
[2004] EWHC 2909 (Comm), [2005] 1 Lloyd’s Law Reports 192
England and Wales
See Also – Econet Wireless Ltd v Vee Networks Ltd and others ComC 28-Jun-2006
. .
See Also – Econet Satellite Services Ltd v Vee Networks Ltd ComC 13-Jul-2006
. .
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 – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.221500
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 reference, and appealed a stay pending the arbitration.
Held: The appeal failed. There was nothing in section 111(1) to prevent a party seeking arbitration and a stay for that arbitration.
Brooke LJ, Clarke LJ, Neuberger LJ
[2004] EWCA Civ 1757, Times 03-Jan-2005
Arbitration Act 1996 9, Housing Grants, Construction and Regeneration Act 1996 111(1)
England and Wales
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 . .
Approved – 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 – 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 . .
Mentioned – 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.
Updated: 28 June 2022; Ref: scu.220662
His Honour Peter Coulson Q.C.
[2004] EWHC 3051 (TCC)
England and Wales
Cited – Bulfracht (Cyprus) Ltd v Boneset Shipping Company Ltd ‘Mv Pamphilos’ ComC 7-Nov-2002
Appeal against charterer’s contract arbitration award: ‘Although applications for leave to appeal under Section 69 are normally on paper without an oral hearing, the course adopted in the present case of hearing oral argument on the application for . .
Cited – Fence Gate Ltd v NEL Construction Ltd 2001
An Arbitrator’s Award on costs was altered by the Court for a variety of errors by the Arbitrator in his original Award, which were held matters of law.
Held: The court set out the principles for such applications: i) For the complaint about a . .
Cited – Weldon Plant Ltd v The Commission for the New Towns TCC 14-Jul-2000
The mere fact that there was an error in the arbitration award which was unfair to a party did not mean that there must have been a failure to comply with Section 33 of the Act and therefore a serious irregularity for the purposes of Section . .
Cited – Egmatra A G v Marco Trading Corporation 1999
The test of ‘substantial injustice’ is intended to be applied by a way of support of the arbitral process, not by way of interference with that process. It is only in those cases where it can be said that what has happened is so far removed from . .
Cited – Aoot Kalmnefv v Gencore International 27-Jul-2001
‘Further, intervention under Section 68 should be invoked only in a clear case of serious irregularity. The court’s powers to interfere with an arbitrator’s discretionary decision as to how he should exercise his discretion under Section 30(1) . .
Cited – Petroships Pte Ltd of Singapore v Petec Trading and Investment Corporation of Vietnam and others ComC 22-May-2001
. .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.220764
The claimants claimed the sum due under an adjudication award of andpound;43,984.66. The claimants had originallyy told the defendant they would take andpound;6,000 in settlement of the award. They were sent a cheque for andpound;5,000 expressed to be ‘in full and final settlement’ of the debt. The defendant now said that the letter sent by their solicitors clearly stipulated that ‘The payment is tended as an offer of settlement which will deemed to have accepted by you and therefore be contractually binding if it is presented to your bank and cleared for payment. If you are not willing to accept the payment on these terms, would you please return the payment and we will assume therefore that the dispute will have to continue’. The claimants waited two weeks before presenting it. Then two days after clearance they wrote to inform the defendant that they would not accept the lesser sum in satisfaction of the debt. The claimant sought summary judgment.
Held: The request was refused. This was too long a period of time for the claimant to have held the cheque without informing the defendant of their intentions. Also, since the offer and payment were made by a third party, the presentation of the cheque was taken to be a clear acceptance of the offer of compromise.
Wilcox J
[2003] EWHC 1333 (TCC), [2003] CILL 2039, [2004] TCLR 4
Cited – Day v McLea CA 1889
The fact alone that a person receives and accepts a cheque offered in full and final settlement of the person’s claim for a higher sum does not create an accord and satisfaction. There is only an accord if there is an agreement whereby the person . .
Lists of cited by and citing cases may be incomplete.
Updated: 28 June 2022; Ref: scu.220590
[2002] EWCA Civ 1145
England and Wales
Updated: 28 June 2022; Ref: scu.217480
Arbitration – Reference to Arbiter Unnamed – Reference to Person Holding Office for Time Being – Delectus Personae
Custom – Usage of Trade – Contract – Proof Inadmissible where Language not Technical
The arbitration clause in a contract for the construction of a bridge provided that any question that might arise as to the meaning and intent of the contract should be settled, in the case of difference, by the engineer for the time being of one of the parties.
Held ( aff. the judgment of the First Division) that the reference was invalid, there being no appointment of a referee inferring a delectus personae on the part of the contracting parties.
A contract was entered into by which manufacturers of steel offered to supply the contractors, who were constructing a bridge, with ‘the whole of the steel required by’ them for the bridge at prices which were stated and subject to certain terms and conditions, inter alia, ‘The estimated quantity of the steel we understand to be 30,000 tons more or less.’ The offer was accepted by the contractors, who repeated this estimate in their letter of acceptance. In an action at the instance of the manufacturers to compel the contractors to take from the pursuers the whole of the steel required for the construction of the bridge, the defenders averred that by the custom and practice of the iron and steel trade the contract was to be regarded only as a contract for the estimated quantity with a certain margin for variation.
Held ( aff. the judgment of the First Division) that evidence of the alleged custom or usage of trade was inadmissible, as the words of the contract were unambiguous.
Lord Chancellor (Halsbury), and Lords Watson, Bramwell, Herschell and Morris
[1890] UKHL 463, 27 SLR 463
Scotland
Updated: 28 June 2022; Ref: scu.636732
Lord Justice Longmore
[2007] EWCA Civ 414, [2007] ArbLR 23
England and Wales
Updated: 28 June 2022; Ref: scu.470482
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 private affair between the particular parties to a particular arbitration agreement. The fact that, except by consent, other parties cannot be joined, and connected arbitrations cannot be heard together, meant that, ‘Different arbitrations on closely inter-linked issues may as a result lead to different results, even where, as in the present case, the evidence before one tribunal is very largely the same as that before the other’.
Mance LJ said that even if an arbitral tribunal had power to prevent its process from being abused certain considerations would have excluded its use on the facts of the case before the court. First, it was not obviously just to allow a stranger to an arbitration to enjoy a one-sided entitlement to hold a party to an award with a concomitant right to challenge its correctness whenever it appeared favourable to do so. Second, there was no reason why the reinsurer should gain any benefit from an award to which it was not party. Third, there are important differences between arbitration and litigation. In litigation different parties can be joined and trials heard together. By contrast arbitration is a consensual process and there is no ability to join different parties or to try connected matters together save by consent. Thus different conclusions may be reached by different arbitrators on the same evidence
Mance, Longmore, Jacob LJJ
[2004] EWCA Civ 1660, [2005] Lloyd’s LR 606, [2006] 1 All ER (Comm) 675, [2005] 2 CLC 664
England and Wales
Appealfrom – Lincoln National Life Insurance Company v Sun Life Assurance Company of Canada and others ComC 26-Feb-2004
. .
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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.220179
His Honour David Wilcox
[2004] EWHC 2326 (TCC)
England and Wales
Updated: 27 June 2022; Ref: scu.219667
[2004] EWHC 2227 (Comm)
England and Wales
Updated: 27 June 2022; Ref: scu.219342
The court awarded interim injunctive relief to the effect that the shipowners should not act inconsistently with a time charterparty of two vessels.
Cooke J
[2004] EWHC 2607 (Comm)
England and Wales
Appeal from – Lady Navigation Inc v Lauritzencool Ab and Another CA 17-May-2005
The shipowner appealed the award against them of an injunction requiring them not to act inconsistently with a time charterparty. The company said that such a form of order was improper.
Held: The existence of the contract to do what was . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.219343
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 professional person acting as arbitrator is bound by the principles of natural justice just as would be a judge in court. However, since the appointment itself was invalid, the decision was not open to challenge on this basis. The decision of an adjudicator as to his own standing was of no effect, and therefore a party was not affected by his decision.
Kennedy LJ, Chadwick LJ, Dyson LJ
[2005] BLR 1, [2004] EWCA Civ 1418, Times 08-Nov-2004, [2004] EWCA Civ 1535
Housing Grants, Construction and Regeneration Act 1996
England and Wales
Appeal from – AMEC Capital Projects Ltd v Whitefriars City Estates Ltd TCC 27-Feb-2004
. .
Cited – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
Cited – London Borough of Ealing and others v Jan CA 7-Feb-2002
Appeal from findings of breaches of injunctions. . .
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 – 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 – Carillion Construction Ltd v Devonport Royal Dockyard TCC 26-Apr-2005
Application for leave to appeal against arbitrator’s award in construction dispute.
Held: The appeal was declined. . .
Cited – Henry v London Metropolitan University EAT 19-Sep-2006
EAT The Appellant was found by the Tribunal to have been victimised and discriminated against in three respects; in two cases at the hands of Mr Williams who commenced disciplinary proceedings against him and in . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.218864
[2002] EWCA Civ 1158
England and Wales
Updated: 27 June 2022; Ref: scu.217465
Whether the adjudicator in the eighth adjudication arising out of the contract between the parties has jurisdiction to decide what sums are properly payable for additional works that were carried out by the Defendant – whether earlier adjudication.
[2019] EWHC 495 (TCC)
England and Wales
Updated: 27 June 2022; Ref: scu.634363
[2018] EWHC 2630 (TCC)
England and Wales
Updated: 27 June 2022; Ref: scu.635828
The claimant company sought leave whilst in administration to bring arbitration proceedings against the defendant insurers.
Held: In exercising the discretion given by the section, the court had only to decide whether the claim was so bad that it would be a waste of resources to allow it to proceed to arbitration. It was the same test as the summary judgment test. Though the method of resolving this dispute as chosen by the parties precluded the court investigating the merits, that had to be done to a limited extent to consider whether leave was apropriate. In this case a sufficient case had not been shown, and leave was refused.
Pumfrey J
Times 06-Apr-2005
England and Wales
Cited – Capita Financial Group Ltd v Rothwells Ltd 20-Apr-1989
(New South Wales) The parties had guaranteed borrowings of a third party. The plaintiff had paid on call, and now sought a contribution from the defendant. After issue, the defedant began a winding up petition. The plaintiff sought leave to continue . .
Cited – In Re Hartlebury Printers Ltd 1992
Insolvency, at least per se, does not amount to a special circumstance exempting an employer from consulting employees on redundancy. Morritt J noted the distinction in the Directive between contemplated and projected redundancies and section 99 to . .
Lists of cited by and citing cases may be incomplete.
Updated: 27 June 2022; Ref: scu.225878
Renewed application for permission to appeal against a decision that the district judge had correctly ordered a stay of proceedings instituted by the applicant under section 9 of the 1996 Act.
Lws LJ
[2002] EWCA Civ 1858
England and Wales
Updated: 27 June 2022; Ref: scu.217773
Renewed application for leave to appeal.
[2002] EWCA Civ 1117
England and Wales
See Also – ABCI v Banque Franco-Tunisienne ComC 28-Aug-2002
. .
See Also – ABCI v Banque Franco-Tunisienne ComC 28-Aug-2002
. .
See Also – ABCI v Banque Franco-Tunisienne and others CA 27-Feb-2003
‘The thinking behind the CPR was that they would speak for themselves and that courts would not have to refer to an ever increasing body of authority in order to apply them.’ . .
Cited – Booth v Phillips and Others ComC 17-Jun-2004
The claimant was widow of an engineer who died on the defendant’s vessel in Egypt. She sought damages, but first had to establish jurisdiction.
Held: Permission to serve out of the jurisdiction The ordinary and natural meaning of damage was . .
Lists of cited by and citing cases may be incomplete.
Updated: 23 June 2022; Ref: scu.217338
Claimant’s application for summary judgment in order to enforce an adjudication decision in its favour. The defendant resists the application for summary judgment on the grounds that the adjudicator did not have jurisdiction to deal with the dispute, and therefore the decision was an invalid one.
[2019] EWHC 384 (TCC)
England and Wales
Updated: 23 June 2022; Ref: scu.634355
[2004] EWCA Civ 1236
England and Wales
Updated: 21 June 2022; Ref: scu.215991
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 declaration that this was to exclude only the rental value, not other provisions as to rent.
Held: The lease was to be construed according to its underlying commercial purpose, and the review should assume a lease containing the same review provisions. As to the general purpose of a rent review clause: ‘There is really no dispute that the general purpose of a provision for rent review is to enable the landlord to obtain from time to time the market rental which the premises would command if let on the same terms on the open market at the review dates. The purpose is to reflect the changes in the value of money and real increases in the value of the property during a long term.’
Browne Wilkinson VC
[1986] 1 All ER 978, [1986] 1 WLR 398
England and Wales
Cited – 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 . .
Applied – Laura Investments v Havering ChD 1992
The land was undeveloped when let to the tenant, who covenanted to build on it. On the rent review, the landlord contended that the rent should be calculated on the developed value, rather than in the condition as originally let.
Held: In the . .
Cited – Basingstoke and Deane Borough Council v Host Group Limited CA 1988
A lease of various buildings including a public house required the rent review to be carried out on the premise that the demise consisted of a bare site. The issue was whether the terms of the hypothetical letting and the valuation formula were to . .
Cited – Hemingway Realty Ltd v Clothworkers’ Company ChD 8-Mar-2005
The lease provided for a rent review under which the rent might either be increased or decreased. The landlord had chosen not to exercise the clause in view of falling rents. The tenant purported to do so. The landlord said that it alone had the . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 June 2022; Ref: scu.180567
[2018] EWHC 3060 (TCC)
England and Wales
Updated: 21 June 2022; Ref: scu.635835
The appellant sought to enforce a international arbitration award against the respondent. The award was made under an arrangement which later became unlawful on Romania’s accession to the EU, and Romania obtained s stay pending resolution by the CJEU.
Held: The stay was lifted.
Lady Hale, Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lord Sales
[2020] UKSC 5, [2020] Bus LR 659, [2020] 3 CMLR 11, [2020] 2 All ER 637, [2020] WLR(D) 115, [2020] 1 WLR 1033, [2020] 2 All ER (Comm) 1, UKSC 2018/0177
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary, SC Summary Video, SC 2019 Jun 18am Video, SC 2019 Jun 18 pm Video, SC 2019 Oct 7 am Video, SC 2019 Oct 7 pm Video, SC 2019 Oct 8 am Video, SC 2019 Oct 08 pm Video, SC 2019 Oct 9 am video, SC 2019 Oct 9 pm Video
England and Wales
At ComC – Micula and Others v Romania and Another ComC 20-Jan-2017
. .
At ComC (2) – Micula and Others v Romania ComC 15-Jun-2017
Claimant’s application for security or leave to appeal.
Held: Leave given. . .
Cited – Regina v Minister of Agriculture, Fisheries and Food and Secretary of State For Health, ex Parte Fedesa and Others ECJ 13-Nov-1990
ECJ 1. Community law – Principles – Legal certainty – Protection of legitimate expectations – Prohibition of the use in livestock farming of certain substances having a hormonal action in the absence of unanimity . .
Cited – Spain v Commission C-415/96 ECJ 12-Nov-1998
ECJ (Judgment) State aid for undertakings in the textile sector – Consequences of an annulling judgment for acts preparatory to the act annulled . .
Cited – Masterfoods Ltd v HB Ice Cream Ltd ECJ 14-Dec-2000
Masterfoods Ltd, a subsidiary of Mars Inc, brought proceedings in Ireland against HB Ice Cream Ltd, a subsidiary of Unilever, for a declaration that its agreements to provide retailers with freezer cabinets on terms that they stocked only HB ice . .
Cited – Deutsche Lufthansa Ag v Flughafen Frankfurt-Hahn Gmbh, Intervener Ryanair Ltd ECJ 21-Nov-2013
ECJ State aid – Articles 107 TFEU and 108 TFEU – Benefits granted by a public airport operator to a low-cost airline – Decision to initiate a formal investigation procedure in respect of that measure – Obligation . .
Cited – ArcelorMittal Tubular Products Ostrava and Others v Commission ECJ 18-Oct-2018
Dumping – Imports of certain seamless pipes and tubes of iron or steel originating in China – Modification of the TARIC additional code for a company – Action for annulment – Challengeable act – Whether directly concerned – Individual concern – . .
Cited – European Food and Others v Commission ECFI 18-Jun-2019
State aid – Award made by an arbitral tribunal established under the auspices of the International Centre for Settlement of Investment Disputes (ICSID) – Payment of compensation granted to certain economic operators – Decision declaring the aid . .
Cited – Inntrepreneur Pub Company (CPC) and others v Crehan HL 19-Jul-2006
The tenant had taken on pub leases with ties requiring him to buy beer from companies associated with the landlords. The European Commission had issued a decision and the House was asked whether this was binding on the parties.
Held: . .
Cited – Air Canada and Others v Emerald Supplies Limited and Others CA 14-Oct-2015
Appeal against case management directions given by Peter Smith J. . .
Cited – Van Munster v Rijksdienst voor Pensioenen ECJ 5-Oct-1994
(Judgment) security – Freedom of movement for workers – Equal treatment for men and women – Old-age pension – Increase for dependent spouse. . .
Cited – Kernkraftwerke Lippe-Ems GmbH v Hauptzollamt Osnabruck ECJ 7-Dec-2011
Constitutions Compatibility with EU law
ECJ (Judgment) Reference for a preliminary ruling – Article 267 TFEU – Interlocutory procedure for review of constitutionality – Examination of whether a national law complies with both EU law and with the . .
Cited – Budejovicky Budvar National Corporation v Rudolf Ammersin GmbHr ECJ 5-Feb-2009
Europa Geographical indications and designations of origin Interpretation of the judgment of the Court of Justice of 18 November 2003 in Case C’216/01 Budejovicky Budvar Exclusive nature of Regulation No . .
Cited – Pham v Secretary of State for The Home Department SC 25-Mar-2015
The court was asked: ‘whether the Secretary of State was precluded under the British Nationality Act 1981 from making an order depriving the appellant of British citizenship because to do so would render him stateless. This turns on whether (within . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Cited – Shindler and Another v Chancellor of The Duchy of Lancaster and Another CA 20-May-2016
UK free to disenfranchise citizens resident abroad
The claimants appealed against rejection of their challenges to the 2015 Act. As British citizens who had lived abroad for more than fifteen years, they were not to be allowed to vote.
Held: The claim failed. The Act was not in breach of . .
Cited – Commission EEC v Italy ECJ 27-Feb-1962
ECJ 1. It follows from a literal interpretation of articles 12 and 14 of the EEC Treaty that the term ‘duties applied’, as used in these two articles, means the duties actually applied rather than those legally . .
Cited – Ministere public and Direction du travail and de l’emploi v Levy (Rec 1993,p I-4287) (SV93-295) (Judgment) ECJ 2-Aug-1993
The national court is under an obligation to ensure that Article 5 of Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working . .
Cited – Regina v Secretary of State for the Home Department, ex parte Evans Medical and Macfarlan Smith ECJ 28-Mar-1995
ECJ 1. Article 30 of the Treaty applies to a national practice prohibiting importation of narcotic drugs covered by the 1961 Single Convention on Narcotic Drugs and marketable under that convention.
In so . .
Cited – Commission of the European Communities v United Kingdom of Great Britain and Northen Ireland, supported by the Kingdom of The Netherlands, Intervener ECJ 5-Nov-2002
The defendant state had entered into agreements with the USA before entering the EU, which agreements regulated the rights of airplanes flying between the UK and America to land at British airports. The agreements were challenged by the Commission. . .
Lists of cited by and citing cases may be incomplete.
Updated: 21 June 2022; Ref: scu.648173
Challenge to arbitration award
Jonathan Acton Davis QC
[2018] EWHC 2475 (TCC)
England and Wales
Updated: 18 June 2022; Ref: scu.635826
[2018] EWHC 2802 (TCC)
England and Wales
Updated: 18 June 2022; Ref: scu.635825
An interlocutory order is generally not regarded as final in the sense of barring a further application on the ground of res judicata: ‘Execution is essentially a matter of procedure – machinery which the Court can, subject to the rules from time to time in force, operate for the purpose of enforcing its judgments or orders.’ The right to sue on a judgment is a matter quite distinct from the right to issue execution under it.
Scott LJ and Romer J
[1948] 2 KB 331, [1948] 2 All ER 402
England and Wales
Applied – National Westminster Bank v Powney CA 1990
The limitation period has nothing to do with the procedural machinery of enforcing a judgment when one was obtained. . .
Lists of cited by and citing cases may be incomplete.
Updated: 18 June 2022; Ref: scu.384112
Recorder Andrew Singer QC
[2018] EWHC 3366 (TCC)
England and Wales
Updated: 17 June 2022; Ref: scu.635822
Application to extend time for bringing arbitral proceedings
[2018] EWCA Civ 2494
England and Wales
Updated: 17 June 2022; Ref: scu.628695
[2019] EWHC 704 (Ch)
England and Wales
Updated: 14 June 2022; Ref: scu.635187
[2006] EWCA Civ 369, [2006] ArbLR 30
England and Wales
Updated: 14 June 2022; Ref: scu.467063
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the Association had agreed to postpone disciplinary proceedings pending the result of other litigation between the parties.
Held: The appeal was dismissed. There was nothing in the exchanges to amount to such an agreement. The court considered the complaint that the arbitration proceedings would not provide a fair trial, and said ‘where parties have voluntarily or (as some of the cases put it) freely entered into an arbitration agreement they are to be treated as waiving their rights under article 6. ‘ Given the greater protection afforded to those subject to arbitration than that given in other countries whose systems had been approved by the ECHR, no infringement of the claimant’s human rights would follow from the referral to arbitration.
Sir Anthony Clarke MR, Waller LJ, Sedley LJ
[2007] EWCA Civ 238, Times 13-Apr-2007
England and Wales
Appeal from – Stretford v Football Association Ltd and Another ChD 17-Mar-2006
. .
Cited – Deweer v Belgium ECHR 27-Feb-1980
The applicant, a Belgian butcher, paid a fine by way of settlement in the face of an order for the closure of his shop until judgment was given in an intended criminal prosecution or until such fine was paid.
Held: Since the payment was made . .
Cited – Mullins v Mcfarlane and the Jockey Club QBD 5-May-2006
Whether horse had been wrongly disqualified in a race. . .
Cited – Mullins, Regina (on the Application of) v The Jockey Club Admn 17-Oct-2005
The claimant’s horse had been found after a race to have morphine in his system. It was not thought that the claimant was at fault, but the horse was disqualifed. He sought judicial review of the decision.
Held: The decision was a disciplinary . .
Cited – R v Switzerland ECHR 4-Mar-1987
(Commission) ‘whereas the inclusion of an arbitration clause in an agreement between individuals amounts legally to partial renunciation of the exercise of those rights defined by Article 6 para. 1; whereas nothing in the text of that Article nor of . .
Cited – Edwards v The United Kingdom ECHR 16-Dec-1992
The fact that the elderly victim of the robbery of which the defendant had been convicted had failed to pick out Mr Edwards when she was shown two volumes of photographs of possible burglars which included his photograph was not disclosed to the . .
Cited – Regina v Disciplinary Committee of the Jockey Club, ex parte Aga Khan CA 4-Dec-1992
No Judicial Review of Decisions of Private Body
Despite the wide range of its powers, the disciplinary committee of the Jockey Club remains a domestic tribunal. Judicial review is not available to a member. Tne relationship is in contract between the club and its member. Sir Thomas Bingham MR: . .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – Nordstrom-Janzon v The Netherlands ECHR 1996
The parties had settled an earlier dispute under a joint venture agreement on terms which included a provision that disputes between them should not be settled by the ordinary courts but by a special arbitration procedure. The arbitrators rejected . .
Cited – Oberschlick v Austria ECHR 23-May-1991
A journalist was convicted by a court which regarded itself as bound by the opinion of the court of appeal which had remitted his case to the lower court for trial after it had been dismissed by that court. The judge who presided over the court of . .
Cited – Di Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
Cited – Millar v Dickson PC 24-Jul-2001
The Board was asked whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that . .
Cited – Pfeifer And Plankl v Austria ECHR 25-Feb-1992
Two of the judges who had acted in Mr Pfeifer’s case also presided at his trial, despite a clear provision of the Code of Criminal Procedure disqualifying them. The Commission dealt with whether the court was ‘established by law’ separately from . .
Cited – Schuler-Zgraggen v Switzerland ECHR 24-Jun-1993
The court considered a contributory invalidity scheme: ‘today the general rule is that Article 6(1) does apply in the field of social insurance, including even welfare assistance . . State intervention is not sufficient to establish that Article . .
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.
Updated: 14 June 2022; Ref: scu.250448
A firm of jute merchants contracted to ship a specified number of bales of jute from Calcutta to Buenos Ayres. The contract contained, inter alia, the following provisions:-‘Any delay in shipment caused by fire, strike, breakages, and accidents . . and for any other unforeseen circumstances, to be excepted, and the quantity short produced in consequence thereof to be deducted from the quantity named in this contract, or delivered soon as possible thereafter, buyers having the option of refusing it after time. . . Should the vessel by which freight has been engaged be commandeered or delayed by the Government, sellers shall not be responsible for any late shipment or other consequences arising therefrom, and the goods shall be sent forward as early as possible. . . ‘ It also contained an arbitration clause in the following terms:-‘Any dispute that may arise under this contract to be settled by arbitration in Dundee.’ Before all the bales of jute had been shipped, further export of jute from India to the Argentine was prohibited by an Order in Council of the Governor-General of India. A dispute having arisen between the parties as to whether the contract was rendered void and unenforceable quoad the balance of the bales of jute, the sellers maintained that the arbitration clause was inapplicable on the ground that the dispute as to whether the contract had been ended was not a dispute arising under the contract. Held ( aff. the judgment of the Second Division) that as the dispute which had arisen was a dispute as to the meaning of the contract, viz., whether the contract had specifically provided for the events which had happened, it was a dispute under the contract, and that accordingly it fell to be determined by arbitration.
Lord Chancellor, Lord Dunedin, Lord Shaw, Lord Buckmaster, and Lord Carson
[1923] UKHL 437, 60 SLR 437
Scotland
Updated: 13 June 2022; Ref: scu.633254