Category: Arbitration

Delos, Owners of Cargo v Delos Shipping Ltd: ComC 31 Jan 2001

Claims for breach of duty and bailment could be brought within the phrase ‘any disputes under’ the contract.

Judges:

Langley J

Citations:

[2001] EWHC 486 (Comm), [2001] 1 Lloyds Rep 703

Links:

Bailii

Cited by:

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The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.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

Contract, Arbitration

Updated: 13 June 2022; Ref: scu.201694

Gold Coast Ltd v Caja De Ahorros Del Mediterraneo and others: ComC 2 May 2001

Citations:

[2001] EWHC 504 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Gold Coast Ltd v Caja De Ahorros Del Mediterraneo and others CA 6-Dec-2001
The banks appealed findings as to their liability to pay out under on-demand guarantees they had given in respect of stage payments for the construction of a ship. It was claimed that the delivery times had not been met, and the builder was in . .
Lists of cited by and citing cases may be incomplete.

Banking, Arbitration

Updated: 13 June 2022; Ref: scu.201702

Micula and Others v Romania and Another: ComC 20 Jan 2017

Judges:

Blair J

Citations:

[2017] EWHC 31 (Comm), [2017] WLR(D) 35, [2017] Bus LR 1147

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

See Also – Micula and Others v Romania ComC 15-Jun-2017
Claimant’s application for security or leave to appeal.
Held: Leave given. . .
See Also – Micula and Others v Romania CA 27-Jul-2018
Enforcement of an arbitration award given in accordance with the procedure laid down in the International Convention on the Settlement of Investment Disputes between States and Nationals of Other States . .
At ComC – Micula and Others v Romania SC 19-Feb-2020
The appellant sought to enforce a international arbitration award against the respondent. The award was made under an arrangement which became unlawful on Romania’s accession to the EU, and Romania obtained s stay pending resolution by the CJEU.
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 13 June 2022; Ref: scu.573749

L G Caltex Gas Co Ltd v National Petroleum Corporation and Another: CA 15 May 2001

Section 67(1)(a) applies both when a tribunal finds that it has jurisdiction and also when it declines jurisdiction. The respondent said that an informal agreement with the claimant to allow jurisdiction was limited to certain issues only. While an arbitral tribunal is entitled to determine whether it has jurisdiction, its decision on that issue is not binding on the parties.

Judges:

Lord Phillips MR, Pill, Keene LJJ

Citations:

[2001] 2 All ER (Comm) 97, [2001] EWCA Civ 788, [2001] CLC 1392, [2001] BLR 325, [2001] 4 All ER 875, (2001) 3 TCLR 22, [2001] 1 WLR 1892

Links:

Bailii

Statutes:

Arbitration Act 1996 67 73

Jurisdiction:

England and Wales

Jurisdiction, Arbitration

Updated: 11 June 2022; Ref: scu.201061

Eagleson v Liddell: CA 2 Feb 2001

The court may make costs orders in respect of any recourse the parties may have to an alternative dispute resolution procedure. The costs order included the costs of a mediation.

Citations:

[2001] EWCA Civ 155

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Chantrey Vellacott v The Convergence Group Plc and others ChD 31-Jul-2007
The claimants, a firm of accountants, sued their former clients for unpaid fees. The defendant company counterclaimed for professional negligence. The claimant had expended andpound;5.6m in costs. The claimants now sought a non-party costs order . .
Lists of cited by and citing cases may be incomplete.

Costs, Arbitration

Updated: 11 June 2022; Ref: scu.200802

Carter (T/A Michael Carter Partnership) v Harold Simpson Associates (Architects) Ltd (Jamaica): PC 14 Jun 2004

(Jamaica) A joint venture partnership dispute was referred to arbitration. Certain elements were appealed and remitted. One party claimed that the entire arbitration was deprived of legal effect.
Held: The amended award following remittal was not a new award. In general on such a remittal, the arbitrator’s powers were limited to the terms of the remission.

Judges:

Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Dame Sian Elias

Citations:

Times 29-Jun-2004, [2004] UKPC 29

Links:

Bailii

Citing:

Cited – Johnson v Latham 1851
In an arbitration concerning the right to maintain a weir, one issue was the depth of water which the defendant was entitled to maintain behind the weir. The award directed that, to define the height, marks should be placed as a third party should . .
Cited – Margulies Brothers Ltd v Dafnis Thomaides and Co (UK) Ltd 1958
A court has power to amend an award to put it into a form which is enforceable. . .
Cited – Re Boks and Co v Peters, Rushton and Co Ltd CA 1919
The alternative procedure for seeking enforcement of an arbitrator’s award is by an action upon the award. The procedure is to be used only in ‘reasonably clear cases’. . .

Cited by:

Cited – Gazette Media Company Ltd. and Others, Regina (on the Application Of) v Teeside Crown Court CACD 26-Jul-2005
The claimants appealed an order restricting their reporting of a criminal case so as to identify the defendant.
Held: Orders preventing the naming of a defendant in order to protect associated children are unlikely to enhance any child . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Arbitration

Updated: 11 June 2022; Ref: scu.198249

Lincoln National Life Insurance Company v Sun Life Assurance Company of Canada and others: ComC 26 Feb 2004

Judges:

Toulson J

Citations:

[2004] EWHC 343 (Comm), [2004] 2 CLC 36, [2004] 1 Lloyds Rep 737

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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 . .
Appealfrom – Sun Life Assurance Company of Canada and others v The Lincoln National Life Insurance Co CA 10-Dec-2004
The court considered the effect of findings in one arbitration on a subsequent arbitration. The arguments being directed to res judicata.
Held: Mance LJ pointed to important differences between litigation and arbitration as a consensual . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Insurance

Updated: 10 June 2022; Ref: scu.193948

JSC Zestafoni G Nikoladze Ferroalloy Plant v Ronly Holdings Ltd: ComC 16 Feb 2004

Judges:

Mr Justice Colman

Citations:

[2004] EWHC 245 (Comm)

Links:

Bailii

Statutes:

Arbitration Act 1996 67

Jurisdiction:

England and Wales

Cited by:

See also – Ronly Holdings Ltd. v Jsc Zestafoni G Nikoladze Ferroalloy Plant ComC 22-Jun-2004
. .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 09 June 2022; Ref: scu.193586

SIVU du plan d’eau de la Vallee du Lot v Commission: ECJ 2 Oct 2001

Arbitration clause – Non-performance of a contract – Proceedings to have a judgment by default set aside

Citations:

[2001] ECR I-6699, [2001] EUECJ C-172/97, ECLI:EU:C:2001:501

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – SIVU du plan d’eau de la Vallee du Lot v Commission ECJ 10-Jun-1999
Arbitration clause – Non-performance of a contract – Proceedings to have a judgment by default set aside . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 08 June 2022; Ref: scu.166656

Thomas-Fredric’s (Construction) Ltd v Wilson: CA 21 Oct 2003

The court considered the situation where a defendant to an arbitration award enforcement application now challenged the arbitrator’s jurisdiction.
Held: Simon Brown LJ said: ‘The position can I think be summarised in the following two propositions. (1) If a defendant to a Part 24(2) application has submitted to the adjudicator’s jurisdiction in the full sense of having agreed not only that the adjudicator should rule on the issue of jurisdiction but also that he would then be bound by that ruling, then he is liable to enforcement in the short term, even if the adjudicator was plainly wrong on the issue. (2) Even if the defendant has not submitted to the adjudicator’s jurisdiction in that sense, then he is still liable to a Part 24(2) summary judgment upon the award if the adjudicator’s ruling on the jurisdictional issue was plainly right.’

Judges:

Simon Brown LJ

Citations:

[2003] EWCA Civ 1494

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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

Construction, Arbitration

Updated: 08 June 2022; Ref: scu.187581

Simons Construction Limited v Aardvark Developments Limited: TCC 29 Oct 2003

It was implicit in paragraph 19 that a first adjudicator’s jurisdiction nonetheless continued indefinitely until one of the parties invoked paragraph 19(2).

Judges:

His Honour Judge Richard Seymour Q.C

Citations:

[2003] EWHC 2474 (TCC), [2004] BLR 117

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Ritchie Brothers (Pwc) Limited v David Philp (Commercials) Limited IHCS 24-Mar-2005
The adjudicator had delivered his decision out of time. The pursuer sought to enforce it. The defender aid that if it was delivered out of time it was void.
Held: The expiry of the time limit deprived the arbitrator of jursidcition to decide . .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration, Costs

Updated: 08 June 2022; Ref: scu.187280

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 68(2)(a).

Judges:

His Honour Judge Humphrey Lloyd Qc

Citations:

[2000] EWHC Technology 76, (2000) BLR 496

Links:

Bailii

Statutes:

Arbitration Act 1986 33 68(2)(a)

Jurisdiction:

England and Wales

Cited by:

Cited – Newfield Construction Limited v Tomlinson, Tomlinson TCC 10-Nov-2004
. .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 08 June 2022; Ref: scu.185921

Royal Brompton Hospital National Health Trust v Hammond etc: TCC 8 Jan 1999

Judges:

His Honour Judge John Hicks Qc

Citations:

[1999] EWHC Technology 272, (2000) Lloyd’s Rep 643

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

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 . .
See Also – Royal Brompton Hospital National Health Trust v Hammond and others TCC 9-Dec-1999
. .
See Also – The Royal Brompton Hospital NHS Trust v Hammond and Others TCC 18-Dec-2000
. .
See Also – Royal Brompton Hospital National Health Service Trust v Hammond and others CA 9-Feb-2001
. .
See Also – The Royal Brompton Hospital National Health Service Trust v Hammond and Others (No 5) CA 11-Apr-2001
When looking at an application to strike out a claim, the normal ‘balance of probabilities’ standard of proof did not apply. It was the court’s task to assess whether, even if supplemented by evidence at trial, the claimant’s claim was bound to fail . .
See Also – The Royal Brompton Hospital National Health Service Trust v Hammond and Others CA 23-May-2001
. .
Cited – Royal Brompton Hospital National Health Service Trust v Hammond and others HL 25-Apr-2002
The claimants sought damages against the defendants for their late delivery of a building. The contractors sought to share the damages with the architects who had certified the delays, defeating their own claims.
Held: The Act sought to extend . .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration

Updated: 08 June 2022; Ref: scu.185891

Micula and Others v Romania: CA 27 Jul 2018

Enforcement of an arbitration award given in accordance with the procedure laid down in the International Convention on the Settlement of Investment Disputes between States and Nationals of Other States

Judges:

Lady Justice Arden
Lord Justice Hamblen
And
Lord Justice Leggatt

Citations:

[2018] EWCA Civ 1801, [2019] Bus LR 1394, [2018] WLR(D) 496

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

See Also – Micula and Others v Romania and Another ComC 20-Jan-2017
. .
Appeal from – Micula and Others v Romania ComC 15-Jun-2017
Claimant’s application for security or leave to appeal.
Held: Leave given. . .
Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 08 June 2022; Ref: scu.620470

Micula and Others v Romania: ComC 15 Jun 2017

Claimant’s application for security or leave to appeal.
Held: Leave given.

Judges:

Blair J

Citations:

[2017] EWHC 1430 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Micula and Others v Romania and Another ComC 20-Jan-2017
. .

Cited by:

Appeal from – Micula and Others v Romania CA 27-Jul-2018
Enforcement of an arbitration award given in accordance with the procedure laid down in the International Convention on the Settlement of Investment Disputes between States and Nationals of Other States . .
At ComC (2) – Micula and Others v Romania SC 19-Feb-2020
. .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 08 June 2022; Ref: scu.588924

Ocean Marine Navigation Ltd v Koch Carbon Inc (‘The Dynamic’): ComC 31 Jul 2003

The arbitrator had held in favour of the charterers that the owners were limited to damages and could not claim hire. The owners appealed.
Held: The arbitrator had not applied the law correctly in rejecting the owners’ claim to hire, and he remitted the award.

Judges:

Simon J

Citations:

[2003] EWHC 1936 (Comm), [2003] 2 Lloyds Rep 693

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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

Cited by:

Cited – Reichman and Another v Beveridge CA 13-Dec-2006
The defendants were tenants of the claimant. They vacated the premises and stopped paying the rent. The claimant sought payment of the arrears of rent. The defendants said that the claimants should have taken steps to reduce their damages by seeking . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Transport

Updated: 07 June 2022; Ref: scu.185067

Lesotho Highlands Development Authority v Impregilo Spa and others: CA 31 Jul 2003

The parties went to arbitration to resolve disputes in a construction contract. The award appeared to have been made for payment in currencies different from those set out in the contract. The question was asked as to whether the award of interest was a matter of law or of procedure.
Held: The issue of currency was not one of procedure, and should have been settled according to the applicable law, that of Lesotho. Where the law of a different jurisdiction, such as the law of Lesotho, confers a substantive right to interest ex mora, there is no room for any discretionary procedural power. The unpaid party to a contract is entitled as of substantive right to interest from the time when payment is contractually due.

Judges:

Lord Justice Brooke, Lord Justice Latham And Mr Justice Holman

Citations:

[2003] EWCA Civ 1159, Times 15-Sep-2003, Gazette 16-Oct-2003, [2003] BLR 347, [2004] 1 All ER (Comm) 97, [2003] 2 Lloyd’s Rep 497

Links:

Bailii

Statutes:

Arbitration Act 1996, Rules of the International Chamber of Commerce

Jurisdiction:

England and Wales

Citing:

Appeal from – Lesotho Highlands Development Authority v Impreglio SpA and Others QBD 15-Nov-2002
The parties had submitted their dispute to arbitration. The arbitrator had made his award payable in certain currencies. The payer contended that this was in excess of his jurisdiction.
Held: The reference to the arbitrator continued the . .
Cited – In re United Railways of Havana and Regla Warehouses Ltd; Tomkinson v First Pennsylvania Banking and Trust Co HL 1960
A sum was held to be due from that company in US dollars under a lease and another agreement which were both governed by the law of Pennsylvania.
Held: The sum provable in the liquidation of the company was to be converted at the rates of . .
Cited – Jugoslavenska Oceanske Plovidba v Castle Investment Co Inc CA 1974
London arbitrators had made an award for unpaid hire in US dollars, being the currency of the hire contract. An issue arose whether an English court could give leave under the Act to enforce the award in the same manner as a judgment to the same . .
Cited – Miliangos v George Frank (Textiles) Ltd HL 1975
The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign . .
Cited – Page v Newman 1829
Under common law ‘the long-established rule that interest is not due on money secured by a written instrument, unless it appears on the face of the instrument that interest was intended to be paid, or unless it be implied from the usage of trade, as . .
Cited – London, Chatham and Dover Railway Co v South Eastern Railway Co HL 1893
The Lord Chancellor was considering the position of a creditor whose debtor refused to exchange accounts as agreed, thus preventing the creditor from quantifying the debt.
Held: The House declined to alter the rule in Page -v- Newman.
Cited – Chandris v Isbrandtsen-Moller Co Inc CA 1950
The court considered whether an arbitrator could award interest in circumstances where section 3 of the 1934 Act expressly conferred such a power on ‘the court’ in proceedings tried in a ‘court of record’.
Held: Although section 3(1) of the . .
Cited – Jefford v Gee CA 4-Mar-1970
The courts of Scotland followed the civil law in the award of interest on damages. The court gave examples of the way in which they apply the ex mora rule when calculating the interest payable in a judgment. If money was wrongfully withheld, then . .
Cited – The Trade Fortitude 1986
The purpose of section 19A was to make explicit powers to award interest which had previously rested on implication. . .
Cited – Kuwait Oil Tanker Company SAK and Another v Al Bader and Others CA 18-May-2000
The differences between tortious conspiracies where the underlying acts were either themselves unlawful or not, did not require that the conspiracy claim be merged in the underlying acts where those acts were tortious. A civil conspiracy to injure . .

Cited by:

Appealed to – Lesotho Highlands Development Authority v Impreglio SpA and Others QBD 15-Nov-2002
The parties had submitted their dispute to arbitration. The arbitrator had made his award payable in certain currencies. The payer contended that this was in excess of his jurisdiction.
Held: The reference to the arbitrator continued the . .
Appeal from – Lesotho Highlands Development Authority v Impregilo Spa and others HL 30-Jun-2005
The House had to consider whether the arbitrator had acted in excess of his powers under s38, saying the arbitrator had misconstrued the contract. The arbitrator had made his award in different currencies.
Held: The question remained whether . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Construction

Updated: 07 June 2022; Ref: scu.184926

SIVU du plan d’eau de la Vallee du Lot v Commission: ECJ 10 Jun 1999

Arbitration clause – Non-performance of a contract – Proceedings to have a judgment by default set aside

Citations:

C-172/97, [1999] EUECJ C-172/97

Links:

Bailii

Jurisdiction:

European

Cited by:

See Also – SIVU du plan d’eau de la Vallee du Lot v Commission ECJ 2-Oct-2001
Arbitration clause – Non-performance of a contract – Proceedings to have a judgment by default set aside . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 07 June 2022; Ref: scu.628560

Warborough Investments Ltd v S Robinson and Sons (Holdings) Ltd: CA 10 Jun 2003

The applicant sought remission of the decision of the arbitrator on a rent review. The arbitrator had taken a different approach from that suggested by either party’s expert.
Held: Arbitrators should be give a wide margin of appreciation. Even if there had been an irregularity, the arbitrator had not gone so far wrong in coming to a conclusion was ‘materially different’ from a conclusion without the irregularity, as to allow any interference in his award.

Judges:

Lord Justice Clarke Lord Justice Jonathan Parker

Citations:

[2003] EWCA Civ 751, Gazette 19-Jun-2003, Times 09-Jul-2003

Links:

Bailii

Statutes:

Arbitration Act 1996 1(a) 33 68

Jurisdiction:

England and Wales

Citing:

Mentioned – Unit Four Cinemas v Tosara Investment Ltd 1993
The applicant challenged the fairness of the arbitrator’s actions. . .
Mentioned – Handley v Nationwide Anglia Building Society 1992
The issue on a challenge of an arbitration award was whether the arbitrator had acted fairly. . .
Cited – Checkpoint Ltd v Strathclyde Pension Fund CA 6-Feb-2003
The tenants sought to challenge the arbitrator’s award setting the rent payable under the lease. They claimed that he had improperly refered to his own experience of the market, to support his decision, and this committed a serious irregularity . .
Cited – 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 by:

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. . .
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.

Arbitration, Landlord and Tenant

Updated: 07 June 2022; Ref: scu.183349

J I MacWilliam Co Inc v Mediterranean Shipping Company S A, “The Rafaela S”: CA 16 Apr 2003

Machinery was damaged whilst in transit, on the second of two legs. The contract described itself as a through bill of lading, but the port of discharge was not the final destination.
Held: The contract was a straight bill of lading. A straight bill of lading requires delivery of the goods to the named consignee and no other. The first carrier acted only as an agent in arranging the on-carriage by the second carrier. A straight bill of lading is a ‘bill of lading or any similar document of title’ within the Act.

Judges:

Lord Justice Rix Lord Justice Peter Gibson Mr Justice Jacob

Citations:

[2003] EWCA Civ 556, Times 05-May-2003, Gazette 03-Jul-2003, [2004] QB 702, [2003] 2 Lloyd’s Rep 113

Links:

Bailii

Statutes:

Carriage of Goods by Sea Act 1971

Jurisdiction:

England and Wales

Citing:

Cited – Sanders v Maclean CA 1883
‘The law as to the indorsement of bills of lading is as clear as in my opinion the practice of all European merchants is thoroughly understood. A cargo at sea is incapable of physical delivery, and a bill of lading by the law merchant is universally . .
Appeal from – J I MacWilliam Co Inc v Mediterranean Shipping Co Sa ComC 17-Apr-2002
A straight bill of lading did not fall within section 1(4) of the 1971 Act and article I (b) of the Rules. . .
Cited – Stafford Allen and Sons Ltd v Pacific Steam Navigation Company 1956
A first carrier’s bill of lading provided for shipment at Nicaragua, discharge and transshipment at Cristobal by a named ‘on carrier’ and a final destination in London. Clause 11, dealt with the circumstances of transshipment, to the effect that the . .
Cited – The Anders Maersk 1986
(Hong Kong High Court) A bill of lading stated that the port of shipment was Baltimore and the port of discharge was Shanghai. The bill gave a right of transshipment, which was exercised at Hong Kong. It was described as a through bill of lading. It . .
Cited – Parsons Corporation and others v C V Scheepvaartonderneming ‘The Happy Ranger’ CA 17-May-2002
There was a contact for the carriage by sea of three reactors. The contract applied the Hage-Visby rules.
Held: The contract applied the rules as they would apply in the country of shipment if they were applied mandatorily. The contact should . .
Cited – C P Henderson and Co v The Comptoir D’Escompte de Paris PC 1873
The court considered a bill of lading in the usual form, save that the words ‘or order or assigns’ are omitted. The court was prepared to assume that such a bill was not a negotiable instrument. It was argued that, notwithstanding the omission of . .
Cited – The Ship ‘Marlborough Hill’ v Alex Cowan and Sons Limited PC 1921
The question was whether a document, describing itself as a bill of lading but written in the form of a receipt of goods for (rather than of) shipment, was a bill of lading for the purposes of the Act, which set out the jurisdiction of the admiralty . .
Cited – Thrige v United Shipping Company Ltd CA 1924
The plaintiff sold machinery to a purchaser in England. The terms of sale were cash against documents. Thrige took a straight bill of lading which named the Victoria Company as the consignee without any reference to ‘or order or assigns’. The goods . .
Cited – Hugh Mack and Co Ltd v Burns and Laird Lines Ltd 1944
The shipment was of men’s clothing carried pursuant to a consignment note and receipt stamped ‘Non-negotiable’. The consignment note named consignees in Scotland and stated: ‘Please receive for forwarding per Burns and Laird Lines’ steamers the . .
Cited – Gardano and Giampieri v Greek Petroleum George Mamidakis and Co 1961
The shipment was made under a candf sale contract, a straight bill of lading, pursuant to a charterparty between the defendant and the claimant shipowner, Gardano. The bill named the Greek Ministry as consignee. The shipowner argued, relying on the . .
Cited – Kum and Another v Wah Tat Bank Ltd HL 1971
‘Negotiable’, when used in relation to a bill of lading, means simply transferable. A negotiable bill of lading is not negotiable in the strict sense; it cannot, as can be done by the negotiation of a bill of exchange, give to the transferee a . .
Cited – The Captain Gregos CA 1990
A cargo of oil had been carried under bills of lading incorporating the Hague-Visby Rules. There was an alleged theft of part of the cargo, and the question was whether article III rule 6 of the rules barred the claim on the ground that it had not . .
Cited – The Sormovskiy 3068 QBD 1994
It makes commercial sense to have a simple rule that in the absence of an express term of the contract the master must only deliver the cargo to the holder of the bill of lading who presents it to him. In that way both the shipowners and the persons . .
Cited – The Stettin 1889
A bill of lading was issued by the owners of a German flag vessel and covered carriage from London to Stettin. It was made out to a named consignee ‘or to his or their assigns’ who was the agent for Julius Manasse in Breslau, and was instructed by . .
Distinguished – The Chitral 2000
The PNSC bill of lading named the consignee of goods carried on the defendant’s vessel. Goods were damaged during the voyage. The bill of lading was otherwise in conventional form, but the box in which the consignee was to be named said ‘If order . .

Cited by:

Appealed to – J I MacWilliam Co Inc v Mediterranean Shipping Co Sa ComC 17-Apr-2002
A straight bill of lading did not fall within section 1(4) of the 1971 Act and article I (b) of the Rules. . .
Appeal from – J I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
Cited – Al-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
Lists of cited by and citing cases may be incomplete.

Transport, Arbitration

Updated: 07 June 2022; Ref: scu.181376

Hussmann (Europe) Limited v Ahmed Pharaon (Formerly Trading As Al Ameen Development and Trade Establishment): CA 4 Mar 2003

The appellant sought to set aside a declaration as to the validity of an arbitration award. A first award had been declared of no effect, and the case remitted to the arbitrator, and the second award was now challenged on the basis that the reference to the arbitrator was exhausted by the first award.
Held: The delaration as to the first award did not mean that the reference to arbitration was spent, and the arbitrator’s jurisdiction continued, he was not functus officio. There was little useful to be gained by a distinction between a declaration of no effect, and a setting aside. A valid final award would exhaust the jurisdiction, but there was no reason to think that anything less would have the same effect.

Judges:

Lord Justice Rix Mr Justice Scott Baker The Master Of The Rolls

Citations:

Times 12-Mar-2003, [2003] EWCA Civ 266, Gazette 15-May-2003

Links:

Bailii

Statutes:

Arbitration Act 1996 67(3)(c)

Jurisdiction:

England and Wales

Arbitration

Updated: 07 June 2022; Ref: scu.179552

Checkpoint Ltd v Strathclyde Pension Fund: CA 6 Feb 2003

The tenants sought to challenge the arbitrator’s award setting the rent payable under the lease. They claimed that he had improperly refered to his own experience of the market, to support his decision, and this committed a serious irregularity under section 68(2).
Held: The system of arbitration expected an arbitrator to rely to some extent upon his experience. It was difficult to formulate a test which could identify the point at which an arbitrator relying upon his experience should disclose this and invite comment from the parties. The suggested distinction between ‘general expert knowledge’ and ‘knowledge of specific facts relevant to the particular case’ was not always easy to apply. In this case it might be unfair for him to draw upon more than the level of knowledge which one might expect of someone asked to arbitrate in such a case. Here surprise or sympathy for the tenant could not support a finding of any serious procedural irregularity.
Ward LJ said that the court should ‘try to assess how the [applicant] would have conducted his case but for the procedural irregularity’, and continued: ‘It is the denial of the fair hearing, to summarise procedural irregularity, which must be shown to have caused a substantial injustice. A technical irregularity may not. The failure to deal with a substantial issue probably will.’

Judges:

Lord Justice Mummery, Lord Justice Ward, Lord Justice Jonathon Parker

Citations:

Times 12-Feb-2003, [2003] EWCA Civ 84, [2003] 14 EG 124

Links:

Bailii

Statutes:

Arbitration Act 1996 68(2)

Jurisdiction:

England and Wales

Citing:

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 – Top Shop Estates Ltd v Danino 1985
If using his personal knowledge of a specialised character rather than such as may be generally known to an expert in that area, then the arbitrator must afford the parties the chance to comment on that knowledge. . .
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 – Regina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
Cited – Winchester City Council v Secretary of State for the Environment 1978
Forbes J said: ‘What does ‘new evidence’ in this context mean? It cannot mean that, because the inspector has not seen it before, everything that he sees is new evidence. If it meant that, every time that an inspector went on a view he would have to . .
Cited – Eagil Trust Co Ltd v Pigott-Brown CA 1985
There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. When dealing with an application in chambers to strike out for want of prosecution a judge should give his reasons in . .
Cited – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .

Cited by:

Cited – Warborough Investments Ltd v S Robinson and Sons (Holdings) Ltd CA 10-Jun-2003
The applicant sought remission of the decision of the arbitrator on a rent review. The arbitrator had taken a different approach from that suggested by either party’s expert.
Held: Arbitrators should be give a wide margin of appreciation. Even . .
Cited – Sher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
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.

Arbitration, Landlord and Tenant

Updated: 07 June 2022; Ref: scu.179014

Artegodan v Commission: ECFI 26 Nov 2002

ECJ Medicinal products for human use – Community arbitration procedures – Withdrawal of marketing authorisations – Competence – Criteria for withdrawal – Anorectics: amfepramone, clobenzorex, fenproporex, norpseudoephedrine, phentermine – Directives 65/65/EEC and 75/319/EEC.

Citations:

T-74/00, [2002] EUECJ T-74/00, [2002] ECR 11-495

Links:

Bailii

Jurisdiction:

European

Citing:

See Also – Artegodan v Commission ECFI 28-Jun-2000
. .
See Also – Commission v Artegodan and others ECJ 24-Jul-2003
. .
See Also – Artegodan v Commission ECFI 5-Sep-2001
. .
See Also – Commission v Artegodan and others (Order) ECJ 8-May-2003
. .

Cited by:

Cited – British American Tobacco UK Ltd and Others, Regina (on the Application of) v Secretary of State for Health Admn 5-Nov-2004
The claimants challenged the validity of regulations restricting cigarette advertisements, saying that greater exceptions should have been allowed, and that the regulations infringed their commercial right of free speech.
Held: The Regulations . .
Lists of cited by and citing cases may be incomplete.

Health, Commercial, Arbitration

Updated: 06 June 2022; Ref: scu.178574

Chuck v Cremer: 9 Feb 1848

Where an action is referred by an order at nisi prius this Court has no jurisdiction to interfere with the certificate of the referee or the judgment entered to pursuant thereto, on any ground on which it would not have such jurisdiction if the judgment had been obtained in the ordinary course upon the verdict of a jury

Citations:

[1848] EngR 256, (1846-1848) 2 Ph 477, (1848) 41 ER 1028

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – Chuck v Cremer 24-Jul-1846
The plaintiff’s solicitor obtained an attachment against the defendant in default of a pleaded defence, disregarding a court order extending the period for filing the defence, which he considered to be a nullity. The order in question had been . .
See Also – Chuck v Cremer 19-Nov-1846
A party in contempt may give a notice of motion, although he cannot move until the contempt of court is cleared. With referance to clearing contempt the answer must be taken be sufficient until exceptions are actually allowed.
Moving upon the . .
See Also – Chuck v Cremer ([1846] EngR 1155) 1-Dec-1846
A party, who knows of a null or irregular order, should apply to discharge it. Whilst such an order is in existence it must not be disobeyed. . .
See Also – Chuck v Cremer ([1846] EngR 1154) 1-Dec-1846
An order of the court of which the party affected by it has notice, though not formally served upon him is not to be disregarded or treated by him as a nullity, however certain it may be that the order is erroneous, and would, upon a proper . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 06 June 2022; Ref: scu.299806

Welex Ag v Rosa Maritime Ltd: ComC 25 Apr 2002

Judges:

David Steel J

Citations:

[2002] EWHC 762 (Commercial), [2002] 2 Lloyds Law Rep 81

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appealed to – Welex Ag v Rosa Maritime Ltd ComC 2002
The court granted the respondent an anti-suit injunction to restrain them issuing proceedings in Poland on closely related issues. . .
Lists of cited by and citing cases may be incomplete.

Transport, Arbitration

Updated: 06 June 2022; Ref: scu.175489

Flacker Shipping Ltd v Glencore Grain Ltd (Happy Day): CA 15 Jul 2002

Judges:

Potter, Arden LJJ, Sir Denis Henry

Citations:

[2002] EWCA Civ 1068, [2002] 2 Lloyd’s Rep 487, [2002] 2 All ER (Comm) 896

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Glencore Grain Ltd v Flacker Shipping Ltd QBD 25-Jan-2001
A ship’s captain was, under standard Syncomex contract terms, to arrive in port and then to give notice that the cargo was available for collection. He gave the notice before arriving. The owners’ claim for demurrage failed because it depended upon . .

Cited by:

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

Transport, Arbitration

Updated: 06 June 2022; Ref: scu.175187

Gold Coast Ltd v Caja De Ahorros Del Mediterraneo and others: CA 6 Dec 2001

The banks appealed findings as to their liability to pay out under on-demand guarantees they had given in respect of stage payments for the construction of a ship. It was claimed that the delivery times had not been met, and the builder was in default. The demand was certified by the buyer’s bankers who had funded the purchase. The banks said that payment was only demandable after the result of an arbitration was received.
Held: ‘On demand’ guarantees, where the demand was supported by a bona fide certificate, should be given effect on their terms. There was nothing in the agreement to support any requirement to delay satisfaction of the guarantee pending the result of the arbitration, and: ‘where in international transactions a bond or guarantee is expressed to be payable upon demand, in the absence of clear words indicating that liability under it is conditional upon the existence of liability or the part of the account party in connection with the underlying transaction, the guarantee is intended and should be construed as an independent guarantee entitling the beneficiary to payment simply against an appropriately worded demand accompanied by such other documents (if any) as the guarantee may require.’

Judges:

Lord Justice Simon Brown Lord Justice Tuckey And Lady Justice Hale

Citations:

[2001] EWCA Civ 1806, [2003] 1 All ER (Comm) 142, [2002] 1 Lloyd’s Rep 617, [2002] 1 LLR 617, [2002] CLC 397

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Trafalgar House Construction (Regions) Ltd v General Surety and Guarantee Co Ltd HL 4-Jul-1995
The main contractors for the construction of a new leisure complex for a borough council entered into a subcontract for the groundworks. The subcontractor and the appellants provided a Bond for 10 percent of the value of the subcontract on condition . .
Appeal from – Gold Coast Ltd v Caja De Ahorros Del Mediterraneo and others ComC 2-May-2001
. .
Cited – Esal Commodities v Oriental Credit Ltd CA 1985
The parties disputed whether a letter was a performance bond or a guarantee. The words of the instrument were: ‘We undertake to pay the said amount on your written demand in the event that the supplier fails to execute the contract in perfect . .
Approved – IE Contractors v Lloyd’s Bank CA 1990
Documents were issued by a bank and described as ‘performance bonds’ for damages up to specified amounts. The difficulty arose from the unusual form and language of the documents. The wording of the operative clause: ‘We undertake to pay you, . .

Cited by:

Cited – Marubeni Hong Kong and South China Ltd v Ministry of Finance of Mongolia CA 13-Apr-2005
A letter was written by the Mongolian Ministry of Finance guaranteeing payment for textile plant and machinery to be supplied to a Mongolian company. A letter from the justice minister confirmed the authority of the finance minister to sign the . .
Cited – Van Der Merwe and Another v IIG Capital Llc ChD 13-Nov-2007
The parties had entered into a debt factoring agreement, under which repayment was sought of some $30m, and the claimants were said to have guaranteed the loan by the factor to their company. The court was asked whether the guarantors had the same . .
Cited – Rainy Sky SA and Others v Kookmin Bank ComC 29-Oct-2009
The claimants sought summary judgment under an advance payment bond issued by the defendants in connection with certain shipbuilding contracts. . .
Lists of cited by and citing cases may be incomplete.

Banking, Arbitration

Updated: 05 June 2022; Ref: scu.167839

Capital Trust Investment Limited v Radio Design AB and others: CA 15 Feb 2002

The claimant appealed an order staying its action on the basis that the agreement between the parties provided for arbitration in Sweden. Shares had been purchased, and the claimant said that because of misrepresentations by the respondent, they had paid six times the true value. There had been a Confidential Information Memorandum upon which both parties would wish to rely. The form applying for shares had been prepared by a placement agent and included an arbitration clause. The respondent argued that that contract was with the agents, not the respondent.
Held: The form created a contract between the parties. The additional question arose as to whether a claim for damages for negligent or fraudulent misrepresentation fell within the ambit of the arbitration clause. An arbitration or jurisdiction clause is very different from a general release, and the BCCI case was distinguished. It would be unhelpful to allow two sets of proceedings, and nor had the respondent taken any step in the proceedings to waive the right to arbitration. Appeal dismissed.

Judges:

Lord Justice Schiemann, Lord Justice Clarke, And, Lady Justice Arden

Citations:

[2002] EWCA Civ 135

Links:

Bailii

Statutes:

Arbitration Act 1996 9(6)

Jurisdiction:

England and Wales

Citing:

Cited – Bank of Credit and Commerce International SA v Ali, Khan and others (No 1); BCCI v Ali HL 1-Mar-2001
Cere Needed Releasing Future Claims
A compromise agreement which appeared to claim to settle all outstanding claims between the employee and employer, did not prevent the employee later claiming for stigma losses where, at the time of the agreement, the circumstances which might lead . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 05 June 2022; Ref: scu.167624

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. Errors of procedure, fact or law are not sufficient to prevent enforcement of an adjudicator’s decision by summary judgment. In this case there was agreement as to the scope of the dispute, and the Adjudicator’s decision, even with errors of law as to the relevant contractual provisions, is still binding and enforceable until the matter is corrected in the final determination. Appeal allowed.

Judges:

Lord Justice Potter, Lord Justice Rix, And, Sir Murray Stuart-Smith

Citations:

[2002] EWCA Civ 46, [2002] BLR 93

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

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 by:

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

Construction, Arbitration, Litigation Practice

Updated: 05 June 2022; Ref: scu.167534

EMA v Commission: ECJ 11 Jun 2015

ECJ Judgment – Appeal – Arbitration clause – Contracts Cocoon and DICOEMS, concluded under the Sixth Framework Programme for research, technological development and demonstration activities contributing to the realization of the European Research Area and to innovation (2002-2006) – Irregularities – Ineligible expenditure – Termination of contracts

Citations:

C-100/14, [2015] EUECJ C-100/14, ECLI:EU:C:2015:382

Links:

Bailii

Jurisdiction:

European

Arbitration

Updated: 05 June 2022; Ref: scu.548117

Commission v Edificios Inteco (Arbitration Clause): ECFI 9 Mar 2011

ECFI Arbitration clause – Program on the promotion of energy technologies for Europe (THERMIE) – Contract for construction in Valladolid (Spain) to a shopping mall and business equipped with a solar cooling – Breach of contract – for money advanced – Interest on late payments – default procedure.

Citations:

T-235/09, [2011] EUECJ T-235/09

Links:

Bailii

Jurisdiction:

European

Arbitration

Updated: 05 June 2022; Ref: scu.430706

Veba Oil Supply and Trading Gmbh v Petrotrade Inc: CA 6 Dec 2001

A dispute between parties to a contract was to be determined by an independent expert. It was claimed that his report was not binding on the parties, since he had departed from his instructions in a material way. In this context, what constituted a material way. Oil was being transported and was to be valued by testing. The expert used a different method of testing from that specified in the contract.
Held: The test actually used was more accurate than the one specified. Nevertheless the parties had specified the required test, and the party was entitled for it to be used. Was the departure material? A mistake is one thing; a departure from instructions quite another. A mistake is made when an expert goes wrong in the course of carrying out his instructions. The difference between that and an expert not carrying out his instructions is obvious. A mistake which affects the result could previously have vitiated the result. The parties have not agreed to be bound by a test which was not the one specified. Once a material departure from instructions is established, the court is not concerned with its effect on the result. The departure was material, and the test not binding, even though it might not have affected the results.

Judges:

Simon Brown, Tuckey, Dyson LJJ

Citations:

[2001] EWCA Civ 1832, [2002] 1 Lloyd’s Rep 295, [2002] CLC 405, [2002] 1 Lloyd’s Rep 295, [2002] 1 LLR 295, [2002] 1 All ER (Comm) 306, [2002] 1 All ER 703, [2002] BLR 54

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Toepfer v Continental Grain Co CA 1974
Cairns LJ said: ‘When parties enter into a contract on terms that the certificate of some independent person is to be binding as between them, it is important that the Court should not lightly relieve one of them from being bound by a certificate . .
Cited – Jones (M) v Jones (RR) 1971
A valuer’s certificate was binding where he as expert had valued machinery himself whereas his instructions were to employ an expert valuer of his choice to do that. He had also he valued the shares on a break-up basis whereas he was instructed to . .
Cited – Jones v Sherwood Computer Services Limited plc CA 1992
A contract provided for the sale and purchase of shares. In the absence of agreement a third party firm of accountants would act as valuer as an expert, and his decision was to be final and binding on the parties. One party now appealed a decision . .

Cited by:

Cited – AIC Ltd v ITS Testing Services (UK) Ltd (‘the Kriti Palm’) CA 28-Nov-2006
The defendant appealed a finding of deceit. Having issued its certificate as to the quality of a cargo of gasoline, it then failed to disclose to the party who had paid it to produce the certificate, information it had which cast doubt on the . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 05 June 2022; Ref: scu.166984

Korda v ITF Ltd, Trading As the International Tennis Federation: ChD 4 Feb 1999

Decisions of the International Tennis Federation anti-doping appeals committee are not appealable to the Court of Arbitration for Sport. The appeal system was intended to be final, and the rules agreed by the competitor bound him and the federation.

Citations:

Times 04-Feb-1999

Jurisdiction:

England and Wales

Arbitration

Updated: 04 June 2022; Ref: scu.82831

Ballast Plc v The Burrell Company (Construction Management) Limited: SCS 21 Jun 2001

In a building dispute, the arbitrator found that the parties had departed from the standard JCT terms, and declined to arbitrate. The parties said that when called upon to act he ‘shall’ do so. The adjudicator had misconstrued his powers. It was clear that there was a proper dispute requiring his decision, and he was bound to provide one.

Judges:

Lord Reed

Citations:

Times 09-Oct-2001, [2001] ScotCS 159

Links:

Bailii, ScotC

Statutes:

Housing Grants, Construction and Regeneration Act 1996 108, Scheme for Construction Contracts (Scotland) Regulations 1988 (1998 No 687)

Citing:

Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
Lists of cited by and citing cases may be incomplete.

Scotland, Construction, Arbitration

Updated: 04 June 2022; Ref: scu.164233

Sinochem International Oil (London) Co Ltd v Fortune Oil Co Ltd: ComC 3 Aug 1999

ComC Appointment of arbitrator: applications to set aside appointment on the ground of no binding agreement to . . (under section 17(3) of the Arbitration Act) and applications challenging on arbitrator’s jurisdiction (under section 67(1) of the Arbitration Act: need for a procedure appropriate to the issue whether there was a binding agreement being determined by the Court instead of the arbitrators.

Judges:

Colman J

Citations:

[1999] EWHC Commercial 204, [2000] 1 Lloyd’s Rep 682

Links:

Bailii

Arbitration, Contract

Updated: 04 June 2022; Ref: scu.163044

CMS Dolphin Ltd v Paul M Simonet and Another: ChD 23 May 2001

The claimant asserted that the defendant had, having at one point been a creative director of the claimant, left to set up an alternate competing business, and diverted business from the first company to the new one. There had been disagreements about the extent of capital to be introduced. The defendant asserted that this happened after he had been marginalised within the old company and had resigned as director at the invitation of the other partner.
Held: The power to resign is not itself a fiduciary power. A resigning director could not take to himself a business opportunity maturing within the first company. He became a constructive trustee of that maturing business opportunity. In this case the defendant had so acted. He was liable personally even though the opportunity was pursued through a second limited company.
Lawrence Collins J said: ‘In my judgment the underlying basis of the liability of a director who exploits after his resignation a maturing business opportunity of the company is that the opportunity is to be treated as if it were property of the company in relation to which the director had fiduciary duties. By seeking to exploit the opportunity after resignation he is appropriating for himself that property. He is just as accountable as a trustee who retires without properly accounting for trust property. In the case of the director he becomes a constructive trustee of the fruits of his abuse of the company’s property, which he has acquired in circumstances where he knowingly had a conflict of interest, and exploited it by resigning from the company.’

Judges:

Justice Lawrence Collins

Citations:

[2001] EWHC Ch 415, [2001] 2 BCLC 704

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Canadian Aero Service Ltd v O’Malley 1973
(Supreme Court Canada) Mr O’Malley and Dr Zarzycki were senior officers of the claimant (‘Canaero’). Having attempted, unsuccessfully, to procure a contract for Canaero to carry out a topographical survey and mapping of part of Guyana, they resigned . .
Cited – Regal (Hastings) Ltd v Gulliver HL 20-Feb-1942
Directors Liability for Actions Ouside the Company
Regal negotiated for the purchase of two cinemas in Hastings. There were five directors on the board, including Mr Gulliver, the chairman. Regal incorporated a subsidiary, Hastings Amalgamated Cinemas Ltd, with a share capital of 5,000 pounds. There . .
Cited – Imperial Mercantile Credit Association v Coleman HL 1873
Where a company director puts the benefit of a company contract into a partnership, he is fully accountable even if his partners are entitled to part of the profit and are ignorant of his breach of fiduciary duty. . .
See Also – Profilati Italia SRL and Painewebber Inc v Painewebber International Futures Ltd ComC 23-Jan-2001
An award was challenged on the grounds that the successful party had failed to make proper disclosure.
Held: Moore-Bick J applied the test whether there was ‘any substantial likelihood that disclosure . . would have resulted in the tribunal . .

Cited by:

Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.

Company, Arbitration

Updated: 04 June 2022; Ref: scu.163019

Bay Hotel and Resort Limited and Zurich Indemnity Company of Canada v Cavalier Construction Co Ltd and Cavalier Construction Co Ltd: PC 16 Jul 2001

(Turks and Caicos Islands) A dispute after a construction contract was under standard terms according to the laws of Turks and Caicos islands. Two issues were appealed. What was a ‘reasoned award’ within the scheme, and whether the arbitrator could himself add a party to the arbitration. The substantive rather than procedural law of the country where the arbitration was carried out need not be that of the contract. The dispute properly fell to be arbitrated under the standard AAA terms, which provided that both the procedural and jurisdictional law to be applied would be that of the Islands. Though the award was insufficiently detailed to constitute a reasoned decision in English law, the evidence was that it would satisfy the requirements of the law under which it was issued. The clause regarding joinder was one restricting a power which must be derived elsewhere. There was no such power in this case, and the arbitrator was unable to join the other company without the consent of the other parties to the dispute.

Judges:

Lord Nicholls of Birkenhead, Lord Cooke of Thorndon, Lord Clyde, Lord Hutton, Lord Millett

Citations:

[2001] UKPC 34, Appeal No 32 0f 2000

Links:

Bailii, PC, PC, PC

Arbitration, Construction, Contract, Jurisdiction, Commonwealth

Updated: 01 June 2022; Ref: scu.159474

Lafarge Redlands Aggregates Limited (Formerly Redland Aggregates Limited) v Shephard Hill Civil Engineering Limited: HL 27 Jul 2000

Once a main contractor chose, under the standard form contract, to have his dispute with one sub-contractor referred to arbitration as part of another dispute with a different contractor, he should complete the procedure within a reasonable time. It was wrong to seek to defer the settlement of one dispute while he sought to reach a settlement with the other, and he had no right to do so.

Judges:

Lord Hope of Craighead Lord Cooke of Thorndon Lord Clyde Lord Hobhouse of Wood-borough Lord Millett

Citations:

Gazette 17-Aug-2000, Times 11-Aug-2000, [2000] UKHL 46, [2000] 1 WLR 1621

Links:

House of Lords, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – M J Gleeson Group Plc v Wyatt of Snetterton Limited CA 1994
The Court rejected a sub-contractor’s argument that a dispute between the main contractor and the employer within the meaning of clause 18(2) can only arise when clause 66 is invoked. The word ‘dispute’ in clause 18(2) must be given its ordinary . .
Cited – Erith Contractors Limited v Costain Civil Engineering Limited 1994
The meaning and effect of clause 18(2) was considered.
Held: It was axiomatic that if the contractor requires the sub-contract dispute to be dealt with jointly with the main contract dispute with the employer in accordance with the provisions . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Construction

Updated: 31 May 2022; Ref: scu.159081

Danae Air Transport Societie Anonyme v Air Canada: CA 29 Jul 1999

The court had power to remit a case to the arbitrator for reconsideration where there appeared to be a simple mathematical error in the award, even though the error was not admitted either by the arbitrator or by the party who had benefited from the error. Costs awards did not fall under the standard rules. Appeal allowed.

Citations:

Times 05-Aug-1999, [1999] EWCA Civ 2011, [2000] 1 WLR 395, [2000] 2 All ER 649, [1999] 2 Lloyd’s Rep. 547, [2000] CP Rep 25, [1999] CLC 1859, [1999] NPC 108

Links:

Bailii

Statutes:

Arbitration Act 1950

Jurisdiction:

England and Wales

Citing:

Appeal from – Danae Air Transport Sa v Air Canada ComC 8-Feb-1999
Where an arbitrator made a mathematical error in his decision, that error was one of fact or law, and it was not possible for the high court to remit the case to the arbitrator for re-consideration. The old section’s ambit is too narrow to permit . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 31 May 2022; Ref: scu.146926

J H Rayner (Mincing Lane) Limited and others v Federative Republic of Brazil: CA 29 Jul 1999

Citations:

[1999] EWCA Civ 2015

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 31 May 2022; Ref: scu.146930

Reichhold Norway ASA and Reichhold Chemicals Inc v Goldman Sachs International: CA 28 Jun 1999

An application was made to stay proceedings to await the decision of a foreign court. At first instance, Moore-Bick J had held that a Court has an interest in deciding the order in which related proceedings should be tried ‘not only because the existence of concurrent proceedings may give rise to undesirable consequences in the form of inconsistent decisions, but also because the outcome of one set of proceedings may have an important effect on the conduct of the other’ and the court may manage the order in which the proceedings are heard. Case management is appropriate even where the proceedings are taking place between different parties in different jurisdictions, but before an action which has been properly commenced here is stayed pending the outcome of proceedings between different persons in another jurisdiction is granted, the defendant must show ‘very strong reasons for doing so and the benefits which are likely to result from doing so clearly outweigh any disadvantage to the plaintiff’
Held: The appeal failed. Counsel had accepted ‘that the grant of stays such as this would be a rarity, account always being taken of the legitimate interests of plaintiffs and the requirement that there should be no prejudice to plaintiffs beyond that which the interest of justice were thought to justify.’

Judges:

Lord Bingham CJ

Citations:

Times 20-Jul-1999, [1999] EWCA Civ 1703, [1999] 2 Lloyd’s Rep 567, [2000] 2 All ER 679, [1999] 2 LLR 567, [1999] 2 All ER (Comm) 174, [2000] 1 WLR 173

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – National Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
Cited – Curtis and Another v Lockheed Martin UK Holdings Ltd ComC 20-Feb-2008
Application for stay pending completion of proceedings in Italy. . .
Cited – Clyde and Co Llp and Another v Winkelhof QBD 22-Mar-2011
The claimant firm of solicitors sought an order requiring the defendant to amend her employment tribunal claim so as to accord with the partnership agreement to which she was party, and to submit to arbitration. The defendant said that statutory . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Jurisdiction, Litigation Practice, International

Updated: 30 May 2022; Ref: scu.146618

Westacre Investments Inc v Jugoimport-Sdrp Holding Company Limited; etc: CA 12 May 1999

Where an arbitrator had rejected an allegation of bribery in a claim after due consideration, the court would not accept a challenge to that finding where it was accepted that the underlying claim would have failed in any event.

Judges:

Waller, Mantell LJJ, Sir David Hirst

Citations:

Times 25-May-1999, [1999] EWCA Civ 1401, [1999] 3 WLR 811, [1999] 3 All ER 864, [1999] 1 All ER (Comm) 865, [1999] 2 Lloyd’s Rep. 65, [1999] CLC 1176, [1999] BLR 279, Independent 25-May-1999

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Westacre Investments Inc v Jugoimport-SDPR Holding Co Ltd ComC 19-Dec-1997
There was a consultancy agreement, under which it was said to be contemplated or intended (or both) that the plaintiffs would bribe Kuwaiti officials in order to obtain contracts for the purchase of military equipment. The contract was governed by . .

Cited by:

Appealed to – Westacre Investments Inc v Jugoimport-SDPR Holding Co Ltd ComC 19-Dec-1997
There was a consultancy agreement, under which it was said to be contemplated or intended (or both) that the plaintiffs would bribe Kuwaiti officials in order to obtain contracts for the purchase of military equipment. The contract was governed by . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Contract

Updated: 30 May 2022; Ref: scu.146316

Sea Master Shipping Inc v Arab Bank (Switzerland) Ltd: ComC 25 Jul 2018

The court was asked two questions: ‘ An FOB buyer of goods, who has sold on CIF terms and chartered a vessel, loses its on sale during the course of the voyage, and finds a new buyer at a different discharge port. It therefore needs the existing bills of lading to be replaced with new ‘switch’ bills providing for the new discharge port. Its bank holds the original bills as security for the money advanced to its customer for the purchase of the cargo. The owner of the goods agrees with the shipowners to issue new bills of lading and the bank facilitates the transaction by allowing the bills to be switched at its counters, so that the bank retains possession of effective bills at all times to protect its security interest. The new switch bills of lading are consigned to the order of the bank. Does the bank thereby become an original party to the bill of lading so as to come under liability to the shipowners on the terms of the contract of carriage contained in or evidenced by the bill of lading, including, for example, liability for shipment of dangerous cargo or demurrage?
And ‘whether the lawful holder of a bill of lading who has rights of suit under section 2 of the Carriage of Goods by Sea Act 1992 (‘COGSA’) in respect of the contract of carriage contained in or evidenced by a bill of lading which contains an arbitration clause is bound by that arbitration clause and so bound to submit to arbitration the issue whether it has assumed liabilities under the contract.’

Judges:

Popplewelll J

Citations:

[2018] EWHC 1902 (Comm), [2018] Bus LR 1798, [2018] WLR(D) 493

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Contract, Transport, Arbitration

Updated: 30 May 2022; Ref: scu.625920

Fehn Schiffahrts Gmbh and Co Kg v Romani Spa (1606): ComC 27 Jun 2018

Appeal against arbitration award after loss of cargo of sunflower seeds.

Citations:

[2018] EWHC 1606 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Fehn Schiffahrts Gmbh and Co Kg v Romani Spa (1870 ) ComC 27-Jun-2018
Remission of parts of claim to tribunal. . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 30 May 2022; Ref: scu.619823

Taylor v Barnet: CA 1953

‘an arbitrator has no jurisdiction or authority to award damages on an illegal contract’

Judges:

Lord Denning MR

Citations:

[1953] 1 WLR 562

Jurisdiction:

England and Wales

Cited by:

Cited – Soleimany v Soleimany CA 4-Mar-1998
The parties were Iranian Jews, father and son. The son arranged to export carpets from Iran in contravention of Iranian law. The father and son fell into dispute about their contracts and arranged for the issues to be resolved by the Beth Din . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 29 May 2022; Ref: scu.219314

Mousaka Inc v Golden Seagull Maritime Inc: QBD 30 Jul 2001

There has been no change to the rule that a judge refusing leave to appeal from an arbitration award, need not give his reasons. The rationale is that the question is a threshold one, of whether a particular standard had been reached. It was not a situation where a detailed examination was to be undertaken, and accordingly reasons were not appropriate. The position has not changed under the Human Rights Act.

Judges:

Steel J

Citations:

Times 03-Oct-2001

Statutes:

Arbitration Act 1996 69, Human Rights Act 1998

Jurisdiction:

England and Wales

Citing:

Cited – Antaios Compania Naviera SA v Salen Rederierna AB (‘the Antaios’) HL 1984
A ship charterer discovered that the bills of lading were incorrect, but delayed withdrawal from the charter for 13 days. They now sought leave to appeal the arbitration award against them.
Held: Though he deprecated extending the use of the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice, Arbitration

Updated: 29 May 2022; Ref: scu.166228

Ali Shipping Corporation v Shipyard Trogir: CA 19 Dec 1997

In the case of an arbitration, there is a strong contractual presumption in favour of confidentiality and against non-disclosure. But this may be overridden by a court where necessary to protect a party’s rights against a third party or in other exceptional circumstances where justice requires.

Judges:

Beldam, Potter, Brooke LJJ

Citations:

[1997] EWCA Civ 3054, [1998] CLC 566, [1999] 1 WLR 314, [1998] 2 All ER 136, [1998] 1 Lloyds Rep 643

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Kennedy v The Charity Commission SC 26-Mar-2014
The claimant journalist sought disclosure of papers acquired by the respondent in its conduct of enquiries into the charitable Mariam appeal. The Commission referred to an absolute exemption under section 32(2) of the 2000 Act, saying that the . .
Lists of cited by and citing cases may be incomplete.

Evidence, Arbitration

Updated: 29 May 2022; Ref: scu.143453

Kanoria and Others v Guiness and Another: CA 21 Feb 2006

The defendant sought to prevent the enforcement of a foreign arbitration award saying that he had not been notified of the arbitration and had not been able to take part.
Held: It would be a proper ground to resist enforcement of an arbitratin against a party where that party had not had opportunity to participate.

Citations:

Times 28-Feb-2006

Jurisdiction:

England and Wales

Arbitration

Updated: 29 May 2022; Ref: scu.238828

Lanes Group Plc v Galliford Try Infrastructure Ltd: TCC 19 Apr 2011

The court was asked as to what happens legally when a party who institutes a reference to adjudication does not want, for good or bad reason, to go ahead with the nominated adjudicator. If it abandons that reference, can it go ahead with another reference for the same dispute or not?

Judges:

Akenhead J

Citations:

[2011] EWHC 1035 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Arbitration

Updated: 29 May 2022; Ref: scu.434818

Top Shop Estates Ltd v Danino: 1985

If using his personal knowledge of a specialised character rather than such as may be generally known to an expert in that area, then the arbitrator must afford the parties the chance to comment on that knowledge.

Citations:

[1985] 1 EGLR 9

Statutes:

Arbitration Act 1950

Jurisdiction:

England and Wales

Cited by:

Cited – Checkpoint Ltd v Strathclyde Pension Fund CA 6-Feb-2003
The tenants sought to challenge the arbitrator’s award setting the rent payable under the lease. They claimed that he had improperly refered to his own experience of the market, to support his decision, and this committed a serious irregularity . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 28 May 2022; Ref: scu.179896

Novorossisk Shipping Co v Neopetro Co Ltd: ChD 1990

Judges:

Steyn J

Citations:

[1990] 1 Ll R 425

Statutes:

Arbitration Act 1979 1

Jurisdiction:

England and Wales

Cited by:

Cited – Total Transport Corporation v Arcadia Petroleum Ltd (‘the Eurus’) CA 18-Nov-1997
Arcadia chartered the Eurus, and had succeeded in their application for an award in arbitration proceedings against Total. The award had been reversed, and they now appealed against that order. The parties disputed whether the amount was an award of . .
Lists of cited by and citing cases may be incomplete.

Transport, Arbitration

Updated: 26 May 2022; Ref: scu.462281

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

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

Judges:

The Hon Mr Justice Dyson

Citations:

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

Links:

Bailii

Cited by:

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 – 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 – 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 . .
Appeal from – 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 – 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.

Arbitration, Construction

Updated: 23 May 2022; Ref: scu.135804

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

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

Judges:

Rix, Longmore, Davis LJJ

Citations:

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

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

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

Cited by:

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

Arbitration, International

Updated: 23 May 2022; Ref: scu.461730

Westland Helicopters Ltd v Arab Organisation for Industrialisation: 1995

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

Citations:

[1995] QB 282

Jurisdiction:

England and Wales

Cited by:

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

Arbitration, International

Updated: 22 May 2022; Ref: scu.230258

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

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

Judges:

Waller J

Citations:

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

Jurisdiction:

England and Wales

Cited by:

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

Arbitration, Litigation Practice

Updated: 22 May 2022; Ref: scu.182567

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

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

Citations:

Times 28-Jun-2000

Statutes:

Housing Grants Construction and Regeneration Act 1996

Jurisdiction:

Scotland

Arbitration, Construction, Scotland

Updated: 20 May 2022; Ref: scu.89556

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

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

Judges:

Lord Browne-Wilkinson

Citations:

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

Statutes:

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

Citing:

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

Cited by:

Cited – Halpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
Cited – Legal Services Commission v Aaronson and others QBD 24-May-2006
The Commission sought to enforce an order requiring the defendant solicitors firm to produce to it all files on which bills had not yet been submitted. The defendant said that the request was in breach of an arbitration agreement. The commission . .
Cited – Fourie v Le Roux and others HL 24-Jan-2007
The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 19 May 2022; Ref: scu.78976

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

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

Judges:

Cresswell J

Citations:

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

Arbitration, Litigation Practice

Updated: 18 May 2022; Ref: scu.78163

Astro Vencedor Compania Naviera SA v Mabanaft GmbH: CA 1971

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

Judges:

Lord Denning MR

Citations:

[1971] Lloyd’s R 502, [1971] 2 QB 588

Cited by:

Cited – S Ltd v C Ltd ComC 27-Feb-2009
Defamation allegation not subject to arbitration
The parties had an agreement referring disputes between them to arbitration. One party raised an allegation of defamation, but the arbitrator refused jurisdiction. The parties had chosen the London Metal Exchange for its expertise in metals trading, . .
Cited – Aspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Transport

Updated: 18 May 2022; Ref: scu.375637

Case 252: 30 Jul 1748

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

Citations:

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

Links:

Commonlii

Arbitration

Updated: 18 May 2022; Ref: scu.379947

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

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

Judges:

Lord Woolf MR, Potter, May LJJ

Citations:

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

Links:

Bailii

Statutes:

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

Jurisdiction:

England and Wales

Citing:

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

Arbitration, Natural Justice

Updated: 17 May 2022; Ref: scu.77933

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

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

Judges:

Waller LJ

Citations:

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

Links:

Bailii

Statutes:

Arbitration Act 1996 9

Jurisdiction:

England and Wales

Cited by:

Approved – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
Cited – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Cited – Clyde and Co Llp and Another v Winkelhof QBD 22-Mar-2011
The claimant firm of solicitors sought an order requiring the defendant to amend her employment tribunal claim so as to accord with the partnership agreement to which she was party, and to submit to arbitration. The defendant said that statutory . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 17 May 2022; Ref: scu.77764

Chimimport Plc v G d’Alesio SAS: 1994

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

Judges:

Rix J

Citations:

[1994] 2 Lloyd’s Law Reports 366

Cited by:

Cited – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
Cited – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Cited – Aspect Contracts (Asbetos) Ltd v Higgins Construction Plc SC 17-Jun-2015
Aspect had claimed the return of funds paid by it to the appellant Higgins under an adjudication award in a construction contract disute. The claimant had been asked to prpare asbestos surveys and reports on maisonettes which Higgins was to acquire . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 17 May 2022; Ref: scu.245556

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

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

Judges:

Roskill J

Citations:

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

Jurisdiction:

England and Wales

Cited by:

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

Arbitration

Updated: 17 May 2022; Ref: scu.245123

Balfour Beatty Building Ltd v Chestermount Properties Ltd: 1993

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

Judges:

Colman J

Citations:

(1993) 62 BLR 12

Jurisdiction:

England and Wales

Cited by:

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

Construction, Arbitration

Updated: 17 May 2022; Ref: scu.235379

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

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

Judges:

Colman J

Citations:

Times 20-Nov-2001

Statutes:

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

Arbitration, Civil Procedure Rules

Updated: 16 May 2022; Ref: scu.166832

Middlemiss and Gould v Hartley Corporation Pty Ltd: CA 1972

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

Judges:

Lord Denning MR, dmund Davies and Stephenson LJJ

Citations:

[1972] 1 WLR 1643

Jurisdiction:

England and Wales

Cited by:

Cited – National Ability Sa v Tinna Oils and Chemicals Ltd CA 11-Dec-2009
Implied promise to pay arbitral award
The parties disputed how limitation affects the enforcement of an arbitration award. More than six years had passed since the award had been made, and the defendant said it was out of time.
Held: A party can enforce an award either by ordinary . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Litigation Practice

Updated: 15 May 2022; Ref: scu.384110

Prosser, Clerk, v Goringe: 4 May 1811

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

Citations:

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

Links:

Commonlii

Jurisdiction:

England and Wales

Ecclesiastical, Arbitration

Updated: 15 May 2022; Ref: scu.339345