Category: Arbitration

Jephson And Another v Howkins And Another: 27 Jan 1841

In an action upon a bond, the condition of which was, for the honest and faithful service of a banker’s clerk, three breaches were assigned, viz, general misconduct, irregular and unbusinesslike conduct, and not faithfully accounting. An arbitrator to whom the cause was referred found specially that, on a certain day, the clerk made an erroneous balance sheet, failing to exhibit, as it should have done, a surplus of 100l, but that there was no proof that such sum came to the hands of the clerk: and also that, on another occasion, the clerk having received from a customer 213l, entered it in the books of the bank as 113l, exhibiting on that day’s balance sheet a false and unaccounted for surplus of 100l. : Held, that these facts did not shew conclusively that the condition of the bond had been broken, so as to call upon the court to interfere with the inference drawn by the arbitrator. An arbitrator to whom a cause was referred, with liberty, if he should think fit, to report specially to the court, set out in his award a long statement of the evidence, leaving the court to draw inferences of fact : Held, that this was not a due exercise by the arbitrator of the authority intrusted to him.

Citations:

[1841] EngR 304, (1841) 2 Man and G 366, (1841) 133 ER 787

Links:

Commonlii

Arbitration

Updated: 15 May 2022; Ref: scu.308482

Vitol Sa v Norelf Ltd: HL 10 Jul 1996

(The Santa Clara) The seller was to deliver propane by a ship set to leave on a certain date. The market was falling. The buyer, when it was clear that the ship would be unable to leave on the day fixed, sent a telex to say that the contract was repudiated. The seller did nothing, but later sued for the loss on a later sale. The buyer said that the seller’s mere failure to carry out his side of the contract was sufficient to be an acceptance of the repudiation, thus excusing the buyer from the purchase.
Held: The seller’s appeal succeeded. A party suffering a repudiation of a contract can notify his election to accept or affirm the contract in any way: ‘a failure to perform may sometimes signify to a repudiating party an election by the aggrieved party to treat the contract as at an end.’ Silence can be held to be an acceptance of a contract, and it can exceptionally, and as a question of fact, also amount to an acceptance of a repudiation. All that is required for acceptance of a repudiation at common law is for the injured party to communicate clearly and unequivocally his intention to treat the contract as discharged
Lord Steyn said: ‘The primary purpose of the Act of 1979 was to reduce the extent of the court’s supervisory jurisdiction over arbitration awards. It did so by substituting for the special case procedure a limited system of filtered appeals on questions of law.’ and ‘It is now possible to turn directly to the first issue posed, namely whether non-performance of an obligation is ever as a matter of law capable of constituting an act of acceptance. On this aspect I found the judgment of Phillips J. entirely convincing. One cannot generalise on the point. It all depends on the particular contractual relationship and the particular circumstances of the case. But, like Phillips J., I am satisfied that a failure to perform may sometimes signify to a repudiating party an election by the aggrieved party to treat the contract as at an end. Postulate the case where an employer at the end of a day tells a contractor that he, the employer, is repudiating the contract and that the contractor need not return the next day. The contractor does not return the next day or at all. It seems to me that the contractor’s failure to return may, in the absence of any other explanation, convey a decision to treat the contract as at an end. Another example may be an overseas sale providing for shipment on a named ship in a given month. The seller is obliged to obtain an export licence. The buyer repudiates the contract before loading starts. To the knowledge of the buyer the seller does not apply for an export licence with the result that the transaction cannot proceed. In such circumstances it may well be that an ordinary businessman, circumstanced as the parties were, would conclude that the seller was treating the contract as at an end. Taking the present case as illustrative, it is important to bear in mind that the tender of a bill of lading is the pre-condition to payment of the price. Why should an arbitrator not be able to infer that when, in the days and weeks following loading and the sailing of the vessel, the seller failed to tender a bill of lading to the buyer he clearly conveyed to a trader that he was treating the contract as at an end?’

Judges:

Steyn, Mackay, Griffiths, Nolan, Hoffmann LL

Citations:

Gazette 10-Jul-1996, Times 01-Jul-1996, [1996] AC 800, [1996] 2 Lloyds Rep 225

Statutes:

Arbitration Act 1979

Jurisdiction:

England and Wales

Citing:

At first instance – Vitol Sa v Norelf Ltd (the ‘Santa Clara’) QBD 30-Apr-1993
The parties chartered for delivery of molasses. The ship was not going to be ready for the intended start date and the charterer repudiated the contract in a telex alleging breach of condition. The market was falling rapidly. The sellers did . .
Appeal from – Vitol Sa v Norelf Ltd (‘the Santa Cara’) CA 26-May-1995
The parties agreed to buy and sell molasses to be delivered on the Santa Clara which was set to leave on a certain date. The market was falling, and when the buyer saw that the ship would not be ready in time, it sent a telex saying that this was a . .
Cited – Overseas Buyers v Granadex 1980
The court considered the meaning of a promise by one party to use its best endeavours.
Held: Mustill J said: ‘it was argued that the arbitrators can be seen to have misdirected themselves as to the law to be applied, for they have found that . .
Cited – Fercometal v Mediterranean Shipping Co SA, The Simona HL 1988
The House considered the options available to a party faced with an anticipatory repudiation of a contract.
Held: Affirmation or election requires an unequivocal choice between two inconsistent causes of action.
Lord Ackner said: ‘When A . .
Went too far – State Trading Corporation of India Ltd v M Golodetz Ltd CA 1989
Kerr LJ said: ‘What is commonly referred to as an acceptance of a repudiation must be communicated to the party in breach or at least overtly evinced. . An unequivocal act which is inconsistent with the subsistence of the contract may be sufficient, . .
Cited – Rust v Abbey Life Assurance Co ltd CA 1979
Delay in objection indicated assent to contract
The court was asked whether a binding contract had been concluded between an applicant for an investment in property bonds and the insurance company offering such bonds when, in response to an application form submitted by the applicant, accompanied . .

Cited by:

Cited – Force India Formula One Team Ltd v Etihad Airways PJSC and Another QBD 4-Nov-2009
The parties had entered into a sponsorship agreement, with the claimants undertaking to display the name of the defendants on their car. After the agreement, the claimant company had been taken over by parties with interests competing with those of . .
Cited – Phones 4U Ltd v EE Ltd ComC 16-Jan-2018
The parties contracted for the marketing of contracts for the marketing of the defendant’s mobile phone contracts. On the claimant entering administration, the defendant exercised a clause in their contract to terminate the contract. The claimant . .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 15 May 2022; Ref: scu.90181

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 this.
ComC Award – attacked for error in arithmetic in comparing open offer and value of award – whether such error is fact or law – whether award can be remitted or set aside – President of India v Jadranska followed.

Judges:

Longmore J

Citations:

Times 31-Mar-1999, Gazette 14-Apr-1999, [1999] 1 All ER (Comm), [1999] 2 Lloyd’s Rep. 105

Statutes:

Arbitration Act 1979 1(1), Arbitration Act 1950 22

Cited by:

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

Arbitration

Updated: 15 May 2022; Ref: scu.79788

Cleveland Structural Engineering (Hong Kong) Ltd v Advanced Specialist Treatment Engineering Ltd: ComC 7 Feb 2000

An arbitration claim is said to be commenced when the claim is filed, and not when served. Because of this the respondents to an appeal in such proceedings were to be allowed to see the papers filed in support of an application for leave to appeal, as persons who were an interested party in such an application.
ComC Circumstances in which there may be inspection of arbitration claim forms filed in the Commercial Court Registry which have not yet been served on the respondent. Application of CPR 5-4(1) and (2).

Judges:

Colman J

Citations:

Times 07-Feb-2000, [2000] 1 WLR 558, [2000] 2 All ER (Comm) 189

Arbitration, Litigation Practice

Updated: 15 May 2022; Ref: scu.79219

Tabernacle Permanent Building Society v Knight: 1892

The court considered (obiter) it’s lack of jurisdiction to make an order directing arbitrators to state their award in the form of a special case, at a time when the award had already been published earlier on the same day and the arbitrators therefore had discharged their obligations in relation to it.

Citations:

[1892] AC 298

Jurisdiction:

England and Wales

Cited by:

Cited – Re Palmer (A Deceased Debtor), Palmer v Palmer CA 6-Apr-1994
Property had been conveyed to the deceased and the appellant, his widow, to be held as joint tenants. The deceased dies whilst under investigation for defalcations as a solicitor, and an insolvency administration order was obtained in the estate. . .
Cited – Lancashire County Council, Regina (on The Application of) v SSEFRA and Another SC 11-Dec-2019
Two appeals as to the circumstances in which the concept of ‘statutory incompatibility’ will defeat an application to register land as a town or village green where the land is held by a public authority for statutory purposes. In the first case, . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration

Updated: 15 May 2022; Ref: scu.267522

Transmountana Armadora v Atlantic Shipping: 1978

Donaldson J discussed the nature of a sealed offer in arbitration proceedings: ‘Although the respondents’ offer of settlement has been referred to as an ‘open offer’, this is a misnomer. Offers of settlement in arbitral proceedings can be of three kinds, namely, ‘without prejudice’, ‘sealed’ and ‘open’.
A ‘without prejudice’ offer can never be referred to by either party at any stage of the proceedings, because it is in the public interest that there should be a procedure whereby the parties can discuss their differences freely and frankly and make offers of settlement without fear of being embarrassed by these exchanges if, unhappily, they do not lead to a settlement.
A ‘sealed offer’ is the arbitral equivalent of making a payment into Court in settlement of the litigation or of particular causes of action in that litigation. Neither the fact, nor the amount, of such a payment into Court can be revealed to the Judge trying the case until he has given judgment on all matters other than costs. As it is customary for an award to deal at one and the same time both with the parties’ claims and with the question of costs, the existence of a sealed offer has to be brought to the attention of the arbitrator before he has reached a decision. However, it should remain sealed at that stage and it would be wholly improper for the arbitrator to look at it before he has reached a final decision on the matters in dispute other than as to costs, or to revise that decision in the light of the terms of the sealed offer when he sees them.’

Judges:

Donaldson J

Citations:

[1978] 1 Ll R 391

Cited by:

Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Followed – Archital v Boot Construction 1981
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration

Updated: 14 May 2022; Ref: scu.254331

Czarnikow v Roth Schmidt and Co: 1922

It is aganst public policy to allow the parties to seek to oust the jurisdiction of the court. An agreement to submit disputes to arbitration does not, apart from statute, take from a party the power to invoke the jurisdiction of the courts to enforce that party’s rights by instituting an action to determine a dispute of a kind that the parties have agreed should be arbitrated.

Citations:

[1922] All ER 45, [1922] 2 KB 478

Cited by:

Cited – Sumukan Ltd v The Commonwealth Secretariat CA 21-Mar-2007
The appellants sought to challenge a finding that they had by their contract with the defendants excluded the right to appeal to a court on a point of law. The defendants replied that the appeal court had no jurisdiction to hear such an appeal.
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 14 May 2022; Ref: scu.251562

Aggeliki Charis Compania Maritima SA v Pagnan SpA The Angelic Grace: QBD 1994

The court considered whether a claim for a collision between two ships was governed by an arbitration clause which read ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying on business in London.’
Held: The proceedings in a foreign jurisdiction were to be restrained by reason of agreement to submit to arbitration in England.
Rix J said: ‘collision claims I n the present case raised disputes which are within the arbitration clause. To some extent the claims in contract and in tort are true alternatives (for example the charterers’ counterclaim). To some extent they may not be true alternatives, but they clearly overlap (as in the owners’ claims for breach of the warranty of safety and for fault in collision) In any event all claims and cross-claims arise out of the same incident, the identical set of facts which have to be investigated by the arbitrators . . The parties clearly contemplated that a collision or other accident of navigation could give rise to a charterparty dispute.’

Judges:

Rix J

Citations:

[1994] 1 Lloyds Rep 168

Jurisdiction:

England and Wales

Citing:

Followed – Empresa Exportadora de Azucar v Industria Azucarera Nacional S.A, The Playa Larga CA 1983
There had been a theft by Cuban sellers of one cargo of sugar, property in which had already passed to the buyers, and non-delivery of a second combined with trickery whereby the intended buyers were nonetheless induced to pay its price. The first . .

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 . .
Appeal from – Aggeliki Charis Compania Maritima SA v Pagnan SpA – The Angelic Grace CA 1995
On the charterers’ orders the Angelic Grace was required to tie up alongside another vessel which they owned. Whilst unloading the weather turned and the vessels collided. Each blamed the other and the owners claimed a salvage. The court considered . .
Cited – 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 – West Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa and others (The Front Comor) HL 21-Feb-2007
A ship had foundered, and the owners disputed their insurance claim. The policy provided for arbitration in London, and one party sought an order to prevent the other commencing proceedings in another EU state in breach of the arbitration agreement. . .
Lists of cited by and citing cases may be incomplete.

Transport, Contract, Arbitration

Updated: 14 May 2022; Ref: scu.245558

The National Insurance and Guarantee Corporation Ltd v M Young Legal Services Ltd: 2004

In an urgent case, the court can make an order under section 44(3) notwithstanding that it involved making at least some determination of the rights of the parties under a contract in which the parties had agreed that the determination of their rights should be submitted to arbitration.

Citations:

[2004] EWHC 2972 (QB)

Statutes:

Arbitration Act 1996 44(3)

Jurisdiction:

England and Wales

Cited by:

Cited – Cetelem Sa v Roust Holdings Ltd CA 24-May-2005
The parties were engaged in arbitration proceedings. The claimant had sought and obtained an interim mandatory order intended to prevent the defendant dissipating its assets in anticipation of an adverse ruling. The defendant sought leave to appeal. . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 13 May 2022; Ref: scu.226191

Barnes and Elliot Ltd v Taylor Woodrow Holdings Ltd: 2004

Whether a minor failure of an arbitrator was sufficient to vitiate his decision.

Citations:

[2004] BLR 111

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

Updated: 13 May 2022; Ref: scu.225459

Owners of the cargo lately laden on board the ship or vessel “ELPIS” v Owners of the ship or vessel “ELPIS”: AdCt 17 Oct 1997

ComC Arbitration – letter of undertaking – Arbitration section (14) of the Arbitration Act 1996 – Appeal from Admiralty Registrar – Cargo claim – application to add Plaintiff – were Defendants entitled to a stay or was the Arbitration Agreement inoperative because of the terms of a letter of undertaking? – was the expression ‘owners of cargo’ wide enough to include the new Plaintiff? It was – it followed that the parties agreed to submit the new Plaintiff’s claim to the exclusive jurisdiction of the court, that its Arbitration Agreement was inoperative and that its application succeeded. Appeal dismissed.

Judges:

Clarke J

Citations:

Unreported, 17 October 1997

Jurisdiction:

England and Wales

Arbitration

Updated: 13 May 2022; Ref: scu.220803

Metalfer Corporation v Pan Ocean Shipping Co Ltd: ComC 7 Oct 1997

ComC Reference to arbitration to be within 30 days of completion of voyage – whether incorporated into charterparty – whether barring any further claim in court – whether express arbitration clause to prevail over Hague Rules, Article III, rule 6 incorporated by clause paramount.

Judges:

Longmore J

Citations:

[1998] 2 Lloyd’s Rep 632, [1997] CLC 1574

Jurisdiction:

England and Wales

Arbitration

Updated: 13 May 2022; Ref: scu.220802

Agro Allied Development Enterprises Ltd v United Shipping and Trading Company Inc: ComC 7 Nov 1997

Charterparty, Cesser Arbitrators held that it was impossible for owners to exercise a lien for demurrage and that the charterers could not therefore successfully rely upon the cesser clause. Appeal failed because it was a decision on the facts which could not be challenged.

Judges:

Clarke J

Citations:

Unreported, 7 November 1997

Jurisdiction:

England and Wales

Arbitration

Updated: 13 May 2022; Ref: scu.220807

Aoot Kalmnefv v Gencore International: 27 Jul 2001

‘Further, intervention under Section 68 should be invoked only in a clear case of serious irregularity. The court’s powers to interfere with an arbitrator’s discretionary decision as to how he should exercise his discretion under Section 30(1) should not be engaged unless it is clear that in exercising his discretion he has failed to have regard to the relevant facts and to his duty under Section 33. Unless he has arrived at a conclusion which no reasonable arbitrator could have arrived at in the case in question having regard to his duties under Section 33, it cannot be said that his decision is capable of being characterised as a serious irregularity.’

Judges:

Colman J

Citations:

Unreported, 27 July 2001

Statutes:

Arbitration Act 1986 68

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: 13 May 2022; Ref: scu.221024

Evans v Motor Insurance Bureau: ComC 29 Jul 1997

ComC Untraced Drivers Scheme of the Motor Insurers Bureau – obligation to award interest – power to award interest under section 19A of the 1950 Act.

Judges:

Thomas J

Citations:

Times 10-Nov-1997

Statutes:

Arbitration Act 1950 19A

Jurisdiction:

England and Wales

Citing:

Appealed to – Mighell v Reading and Another and Evans v Motor Insurers Bureau and White v White and Another CA 30-Sep-1998
Passengers were injured in motor vehicles. The drivers were uninsured, and the MIB had declined to make payment. The doctrine of direct effect did not apply where the allegation was that the Motor Insurers Bureau arrangement did not comply with a . .

Cited by:

Appeal from – Mighell v Reading and Another and Evans v Motor Insurers Bureau and White v White and Another CA 30-Sep-1998
Passengers were injured in motor vehicles. The drivers were uninsured, and the MIB had declined to make payment. The doctrine of direct effect did not apply where the allegation was that the Motor Insurers Bureau arrangement did not comply with a . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Insurance

Updated: 13 May 2022; Ref: scu.220787

Cukurova Celik Endustrisi as Istanbul v Jennyship S.A. Panama: ComC 27 Jun 1997

Motion for declaration that party not bound by contract and agreement to arbitrate – application to strike out motion – principles applicable where one party disputes arbitrator’s jurisdiction – that party’s voluntary contribution in the proceedings – whether amounting to a reference of the issue of jurisdiction

Judges:

Colman J

Citations:

Unreported, 27 June 1997

Jurisdiction:

England and Wales

Arbitration

Updated: 13 May 2022; Ref: scu.220784

Hayton S A v Jail SPA: ComC 16 Sep 1997

ComC Appeal from award. Leave granted. Duty to prosecute appeal and any necessary remission ‘with all deliberate speed’. Relevant principles discussed. Importance of finality. Appeal struck out not withstanding absence of prejudice.

Judges:

Clarke J

Citations:

Unreported, 16 September 1997

Jurisdiction:

England and Wales

Arbitration

Updated: 13 May 2022; Ref: scu.220794

Ali Shipping Corporation v Sour Brodgradevina Industrija ‘Jozo Lozovina – Mosor’ and Others: ComC 18 Sep 1997

Arbitration – confidentiality – implied term – no term implied because not necessary to make contract work. Ali refused injunction against yard to restrain it from disclosing evidence and reasons in award between Ali and yard to other buyers in the same group as Ali or to the arbitrators in arbitrations between the yard and those buyers.

Judges:

Clarke J

Citations:

Unreported, 18 September 1997

Jurisdiction:

England and Wales

Cited by:

Appeal from – Ali Shipping Corporation v Jugobanka D D Beograd Jugobanka Split CA 13-Nov-1997
. .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 13 May 2022; Ref: scu.220795

Living Waters Christian Centres Ltd v Fetherstonehaugh: ComC 26 Sep 1997

Rent review. Whether misconduct by reason of the admission of hearsay evidence and evidence not proved by affidavit in non-compliance with previous procedural directions. Circumstances in which evidence of comparable inadmissible as hearsay. Distinction between weight and admissibility.

Judges:

Colmore J

Citations:

Unreported, 26 Sep 1997

Jurisdiction:

England and Wales

Arbitration, Landlord and Tenant

Updated: 13 May 2022; Ref: scu.220797

Chandris v Isbrandtsen-Moller Co Inc: CA 1950

Although section 3(1) of the 1934 Act expressly empowered only courts of record to include interest in sums for which judgment was given for damages or debt, arbitrators were nevertheless empowered by the agreement of reference to apply English law, including so much of that law as is to be found in the section. The Hague Rules were designed to achieve a part harmonisation of the diverse laws of trading nations. It achieved this by regulating freedom to contract on certain topics only.
Devlin J said: ‘A rule of construction cannot be more than a guide to enable the court to arrive at the true meaning of the parties.’

Judges:

Devlin J

Citations:

[1951] 1 KB 240, (1950) 2 All ER 618, (1950) 84 Lloyds Rep 347

Statutes:

Hague-Visby Rules, Law Reform (Miscellaneous Provisions) Act 1934 3(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Cited – Cosco Bulk Carrier Co Ltd and Another v M/V ‘Saldanha’ C/P Dated 25/06/08 ComC 11-Jun-2010
The court considered the effect of a ship being taken by pirates at sea on the obligations in the charterparty contract. The insurers said that a claim for ‘average accident’ must include an element of physical damage – absent in this case.
Lists of cited by and citing cases may be incomplete.

Transport, Contract

Updated: 13 May 2022; Ref: scu.219886

London Export Corporation v Jubilee Coffee Roasting Co Ltd: 1958

The court considered any discretion not to enforce a valid arbitration award: ‘When the arbitration agreement has been construed and no breach of the agreed procedure found there may nevertheless arise a second and quite separate question: that is, whether, as a matter of public policy, a particular award, made pursuant to that agreed procedure, ought not to be enforced and ought, therefore, to be set aside; for an arbitrator’s award, unless set aside, entitles the beneficiary to call upon the executive power of the State to enforce it, and it is the function of the court to see that that executive power is not abused.’

Judges:

Diplock J

Citations:

[1958] 1 WLR 271

Jurisdiction:

England and Wales

Cited by:

Approved – James Laing Son and Co Ltd v Eastcheap Dried Fruit Company 1962
McNair J said: ‘An English court exercises control over the enforcement of the arbitral award as part of the lex fori, whatever the proper law of the arbitration agreement or the place where the arbitration is conducted. If a claimant wishes to . .
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: 13 May 2022; Ref: scu.219316

Joe Lee Ltd v Lord Dalmeny: 1927

Bets were disputed, and particularly the status of a clause in the bookmaker’s book of rules which provided: ‘Should unfortunately any dispute arise we stipulate that the matter be referred within 30 days to the editor of any paper in which we advertise or another responsible arbitrator by mutual agreement.’
Held: ‘That the rules in this book, if accepted, expressly or by conduct, would constitute a contract or agreement by way of gaming or wagering would not be disputed, but it has been argued that the paragraph I have read is not included under the heading ‘Rules’, and ought to be treated as a separate agreement, and as one not tainted with the illegality attaching to rules regulating betting transactions. I cannot take that view. The paragraph is, in my opinion, an integral part of the terms upon which alone the plaintiffs were willing to do business with the persons to whom this book was sent . . I cannot separate that part of the document from the rules and treat the agreement to refer as one distinct and apart from the other contents of this book. There is only one contract and that a contract or agreement by way of gaming or wagering, a contract therefore which is void and cannot be made the foundation of any successful application in these Courts.’

Judges:

Eve J

Citations:

[1927] 1 Ch 300

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: 13 May 2022; Ref: scu.219315

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.

Judges:

Diplock J

Citations:

[1958] 1 WLR 398

Jurisdiction:

England and Wales

Cited by:

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

Arbitration

Updated: 13 May 2022; Ref: scu.198417

Agromet Motoimport Ltd v Maulden Engineering Co (Beds) Ltd: 1985

Time begins to run on the collection of an arbitration award, not from the date upon which the award is made or published, but from the date when the paying party is in breach of its implied obligation to pay the award.

Citations:

[1985] 2 All ER 436

Jurisdiction:

England and Wales

Cited by:

Cited – Good Challenger Navegante S A v Metalexportimport SA CA 24-Nov-2003
The claimant sought to enforce an arbitration award made in 1983. Time might otherwise have expired, but the claimants relied on a fax which they said was an acknowledgement of the debt, and also upon a finding in a Romanian court which created an . .
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, Limitation

Updated: 12 May 2022; Ref: scu.188225

Schiffahrtsgesellschaft Detlev von Appen GmbH v Voest Alpine Intertrading GmbH (‘The Jay Bola’): CA 1997

The insurance company claimant had insured a cargo under a voyage charter made by the defendant as charterer with the claimant as time charterer and disponent owner of the vessel. The charter had an arbitration clause. The cargo was damaged in a fire and steps taken to extinguish it. The insurers began proceedings in Brazil in their own name against the disponent owners to avoid the statutory provisions in England giving effect to the international convention limiting the liability of owners of seagoing ships. The disponent owners applied to the court for an anti-suit injunction, contending that the insurers had no cause of action which would found a claim for relief.
Held: An assignee of rights under a contract which contains an arbitration clause must pursue his claim in arbitration in accordance with the terms of the contract. The court will normally protect a right not to have proceedings brought against him in another forum by granting an anti-suit injunction.
Hobhouse LJ rejected the argument of the disponent owners: ‘Miss Bucknall submits that, even so, there is no right which can be asserted by the timecharterers against the insurance company which gives a cause of action by the former against the latter. She submitted that to recognize any such cause of action would amount to treating the burden of the contract as having been transferred, something which would only occur if there had been a novation. In the present case all that had been transferred was a right of the voyage charterers against the timecharterers. The burden of the contract was not transferred. The insurance company came under no actionable liability to the timecharterers. In my judgment this argument fails to understand the nature of the equitable remedy which is being sought in this action. The simplest way in which to illustrate this is to take a simple analogy. If the assignee of a legal right in action seeks to enforce that right against the debtor without taking into account an equitable set-off which the debtor was entitled to raise against the assignor, the debtor’s remedy, prior to the Common Law Procedure Acts and the Judicature Acts of the last century, would have been to apply in the Court of Chancery for an injunction to restrain the assignee from asserting the common law right in the common law courts unless and until he recognized the equitable right of the debtor. The injunction was granted to provide the debtor with the appropriate protection from the unconscionable conduct of the assignee; it does not depend upon any liability of the assignee for the sums to be set-off. The right to apply for an injunction is not a ’cause of action’ of the same character as the right to sue for damages for breach of contract or tort or to collect a legal debt. It is an application for an equitable remedy to protect the plaintiff against the consequences of unconscionable conduct. Since the fusion of the jurisdiction of the Chancery and Common Law courts, the need of the aggrieved party to apply for an injunction no longer arises and the common injunction has been abolished by statute. He can raise the equity in response to and in the same proceedings as the common law action. However, where the action is brought by the assignee in another jurisdiction which does not recognize the equitable right of the debtor, the debtor’s only remedy is (just as it was in the first half of the last century) to apply for an injunction to restrain the assignee from refusing to recognize the equity of the debtor. The present case is such a case. The insurance company is failing to recognize the equitable rights of the timecharterers. The equitable remedy for such an infringement is the grant of an injunction.’
Hobhouse LJ explained the position of an assignee: ‘But the plaintiff in the Brazilian proceedings and the relevant defendant in the present action is the insurance company. The insurance company has made no contract with the timecharterers. The insurance company is the assignee or the transferee of the rights of the voyage charterers against the timecharterers. It is submitted on behalf of the insurance company that as a result the insurance company is entitled to enforce the voyage charterers’ contractual rights without any obligation to refer the dispute to arbitration. This submission is unsound and contrary to decided authority.
The proper law which governs the voyage charterparty and the contractual rights which the insurance company is seeking to enforce in Brazil is English law. Under s.136 of the Law of Property Act 1925 rights of action are assignable subject to equities, for example, rights of equitable set-off. (Lawrence v Hayes [1927] 2 KB 111) Similarly under s.4 of the Arbitration Act 1950 and s.1 of the Arbitration Act 1975 the stay of an action may be ordered on the application not only of the contracting party but also ‘any person claiming through or under him’. (The position is the same under the 1996 Act: see s.82(2).) An example of such a stay being granted against an assignee is The Leage [1984] 2 Lloyds 259. The assignee takes the assigned right with both the benefit and the burden of the arbitration clause.’
Sir Richard Scott VC agreed: ‘Miss Bucknall argued that, because WAV were not parties to the sub-charterparty and because the subrogation which entitled WAV to sue on Voest’s contractual causes of action did not constitute a novation under which WAV became a party to the sub-charterparty, WAV were not bound by the arbitration agreement. The premises on which this argument is based are correct but the conclusion drawn therefrom is not. WAV is bound by the arbitration agreement not because there is any privity of contract between WAV and DVA but because Voest’s contractual rights under the sub-charter party, to the benefit of which WAV has become entitled by subrogation, are subject to the arbitration agreement which, too, is part of the sub-charter party. WAV cannot enforce those contractual rights without accepting the contractual burden, in the form of the arbitration agreement to which those rights are subject (c/f Halsall v Brizell [1957] Ch. 169 and Tito v Waddell (No. 2) [1977] Ch. 106 at p. 309). WAV is, through subrogation, an assignee from Voest of Voest’s contractual rights against DVA. DVA is contractually entitled, whether as against Voest or any assignee from Voest, to require the enforcement of those rights to be pursued by arbitration. WAV’s attempt to enforce those rights otherwise than by arbitration is a breach of DVA’s contractual entitlement. I agree with Lord Justice Hobhouse that DVA’s remedy is, prima facie, the grant of an injunction to restrain the attemp

Judges:

Hobhouse LJ, Sir Richard Scott VC Morritt LJ

Citations:

[1997] 2 Lloyds Rep 279

Statutes:

Arbitration Act 1996 8(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Nisshin Shipping Co Ltd v Cleaves and Company Ltd and others ComC 7-Nov-2003
One party sought a declaration that arbitrators should have no jurisdiction to determine claims for commission said to be due to the Respondent chartering brokers.
Held: Because he has in effect become a statutory assignee of the promisee’s . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 12 May 2022; Ref: scu.187710

T W Thomas and Co Ltd v Portsea Steamship Co Ltd: PC 1912

The board discussed the approach to the incorporation of arbitration clauses and jurisdiction clauses from one contract into another such as a bill of lading.

Citations:

[1912] AC 1

Cited by:

Cited – Nisshin Shipping Co Ltd v Cleaves and Company Ltd and others ComC 7-Nov-2003
One party sought a declaration that arbitrators should have no jurisdiction to determine claims for commission said to be due to the Respondent chartering brokers.
Held: Because he has in effect become a statutory assignee of the promisee’s . .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 12 May 2022; Ref: scu.187714

Profilati Italia S R L v Painewebber Incorporated, Painewebber International Futures Limited: ComC 12 Sep 2001

CS Arbitration – Award – Application to set aside award on the grounds of serious irregularity – Arbitration Act 1996 s. 68(2)(g) – whether inadvertent failure to disclose relevant documents resulted in award being procured in a way contrary to public policy – whether respondents suffered substantial injustice. Arbitration – Disclosure – Arbitration under Rules of the London Metal Exchange – duty of respondent to give disclosure – whether respondent failed to disclose relevant documents
The Applicant challenged an arbitration award made under the rules of the London Metal Exchange. They claimed that they had incurred losses through the wrongful closure of its credit line and by closing out the business between them. They claimed the award would not have been made had the defendants made full disclosure of documents which later came to light. They claimed this to be in breach of public policy rather than by fraud. This applied for the most serious of cases where justice called out for a remedy. In this case disclosure may not have included these documents, and they may not have had the substantial effect claimed. The application failed.

Judges:

Moore-Bick J

Citations:

[2001] 1 All ER 1065

Statutes:

Arbitration Act 1996 68(2)(g)

Jurisdiction:

England and Wales

Arbitration, Financial Services

Updated: 11 May 2022; Ref: scu.166138

Thyssen inc v Calypso Shipping Corporation SA: QBD 6 Jul 2000

A claim had been brought in the US, in respect of damage to materials being carried on board a ship. The claim was begun within the one year limit, but the respondents had the US action stayed after the one year, by virtue of a breach of the arbitration clause. The claimant sought to renew the application in London, but failed.
Held: The time limit had passed, and the action which had been stayed could not count as having begun proceedings because the way in which it came to an end meant it was no longer valid and effective.

Citations:

Gazette 06-Jul-2000, Times 17-Aug-2000

Jurisdiction:

England and Wales

Transport, Arbitration

Updated: 11 May 2022; Ref: scu.89896

RC Pillar and Sons v Edwards and another: TCC 11 Jan 2001

The parties had disputed the final value of works of construction. The dispute was referred to an arbitration, the costs of which came vastly to exceed the sums at issue. An application was now made for the award to be remitted.
Held: A request for an extension of time for an application under section 60 of the 1996 Act was governed by section 80. Once asked under section 57 to make one correction to his award, the arbitrator had a duty to consider the entire award for other possible corrections. The arbitrator had a duty to adopt procedures which were proportionate to the sums inviolved. He had failed in that duty.
He had failed to take control of the prolix pleadings and schedules lodged by the partes. The schedules were not in appropriate Scott schedule form, and items had not been consolidated. The award was produced only after delay and was itself diffuse and lacking focus with significant errors and omissions.

Judges:

Anthony Thornton QC HHJ

Citations:

[2001] All ER (D) 232

Statutes:

Arbitration Act 1996 57 68 70 76 79 80

Arbitration

Updated: 11 May 2022; Ref: scu.536639

Metall und Rohstoff AG v Donaldson Luftkin and Jenrette Inc: CA 1991

Citations:

[1991] QB 391

Cited by:

Cited – AB v CD QBD 3-Jan-2014
The parties were contracted to each other in respect of an internet based marketing system for metals and other resources. The claimant had contracted in effect to promote the system. The claimant sought an injunction to prevent termination of . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 11 May 2022; Ref: scu.519433

Project Consultancy Group v Trustees of the Gray Trust: 1999

It was said there had been an ad hoc agreement to refer jurisdictional issue to the adjudicator. The defendant said that he had objected to the arbitrator’s jurisdiction.
Held: Dyson said, on these particular facts: ‘In my view, the defendants’ solicitor’s letter of 9 March 1999 stated in the clearest terms that the defendants protested the adjudicator’s jurisdiction, and that they would not recognise and comply with any decision to award money to the claimant. The letter also made it clear that, if the adjudication proceeded, they reserved their rights to participate, but without prejudice to their contention that there was no jurisdiction. I do not consider that there can be any reasonable doubt as to the meaning of that letter. The only real question is whether, by participating in the adjudication process, the defendants waived the jurisdiction point, and agreed to submit to abide by the decision of the adjudicator on that issue. The only material relied on by Ms Rawley [Counsel] is the content of the defendants’ response . . But, in their response, the defendants continued to assert that the adjudicator had no jurisdiction . . It is a matter of fact whether a parties submit to the jurisdiction of the third person . .’

Judges:

Dyson J

Citations:

(1999) 65 Con LR 14

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.

Arbitration

Updated: 11 May 2022; Ref: scu.509975

Irvani v Irvani: CA 10 Feb 2000

An arbitration award should be refused where a party could show that he had not been allowed to present his case properly. The claimant had acted as a litigant in person. The judge hearing the appeal had refused to hear certain aspects of the case, but those aspects revealed cases coming under the heading of making the party ‘unable to present his case’. Some of the findings suggested that she had taken into account matters not disclosed to the applicant.

Citations:

Times 10-Feb-2000

Statutes:

Arbitration Act 1996 103(2)(c)

Jurisdiction:

England and Wales

Arbitration, Natural Justice

Updated: 10 May 2022; Ref: scu.82428

Harbour and General Works Ltd v The Environment Agency: CA 22 Oct 1999

Where parties operated under a contract which provided for arbitration provided reference was claimed within a certain time scale, the failure of one party to apply for a reference in time because he had failed to read that part of the contract was not a sufficient reason to allow an extension of time. This applied even though the term was incorporated by reference, and that such applications need not be construed strictly.

Citations:

Times 22-Oct-1999, Gazette 10-Nov-1999, [1999] BLR 409

Jurisdiction:

England and Wales

Cited by:

Cited – J T Mackley and Company Ltd v Gosport Marina Ltd TCC 3-Jul-2002
The claimant challenged the validity of a notice to refer a case to arbitration. The respondent challenged saying that the court had no jurisdiction to hear the objection, and that such issues were to be decided by the arbitrator. The claim related . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Contract, Construction

Updated: 10 May 2022; Ref: scu.81226

Grammer v Lane and Others: CA 2 Dec 1999

A partnership involving the plaintiff took a tenancy of agricutural land. The plaintiff then said that the tenency had been extended to other land. The successor to the freehold denied that extension, but served a rent demand and for repairs both ‘without prejudice’ to the question of the existence of the tenancy. Matters were referred to the arbitrator.
Held: Where there was a dispute as to the existence of an agricultural tenancy, a party could nevertheless make use of notices and procedures for the protection of the tenancy on a ‘without prejudice’ basis. Where there were statutory arbitration proceedings also, the arbitrator had the choice of delaying those proceedings pending resolution of the issues as to the existence of the tenancy, of stating a case for the county court, or declining jurisdiction.

Judges:

Peter Gibson LJ, Mance LJ, Wilson J

Citations:

Times 02-Dec-1999, Gazette 17-Dec-1999

Statutes:

Agricultural Holdings Act 1986

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Fulham, Hammersmith and Kensington Rent Tribunal, ex parte Zerek 1951
A rent tribunal could not give itself jurisdiction over an unfurnished letting. Devlin J said: ‘While they will not allow every empty threat to their jurisdiction to deter them from their proper business of fixing reasonable rents, they will . .
Lists of cited by and citing cases may be incomplete.

Agriculture, Landlord and Tenant, Arbitration

Updated: 10 May 2022; Ref: scu.80966

Dubai Islamic Bank Pjsc v Paymentech Merchant Services Inc: QBD 24 Nov 2000

The place of arbitration, the juridical seat, was necessarily and inherently established at the time when an arbitration began, and could not subsequently be moved, save with the consent of the parties. Until the point where the arbitration commenced, the juridical seat could be established as required under the Act by looking at all the circumstances, but to allow it to be reviewed and changed after commencement would allow it to become peripatetic.

Citations:

Gazette 07-Dec-2000, Times 24-Nov-2000

Statutes:

Arbitration Act 1996 67 68 69

Arbitration, International

Updated: 10 May 2022; Ref: scu.80152

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 quick and summary disposal, but that procedure might not be appropriate in cases involving insolvency of one party and or cross claims. Any creditor who owes a debt to an insolvent company, no matter how long overdue, may set off that debt in full against his own claim in the liquidation.

Judges:

Chadwick LJ

Citations:

Times 17-Aug-2000, Gazette 14-Sep-2000, [2000] BLR 522

Statutes:

Housing Grants Construction and Regeneration Act 1996 108

Jurisdiction:

England and Wales

Citing:

Appeal from – 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, Commercial, Insolvency

Updated: 10 May 2022; Ref: scu.78510

Britten Norman Ltd (In Liquidation) v State Ownership Fund of Romania and Another: ChD 27 Jul 2000

A letter of guarantee specified no place of payment. The debtor’s obligation to seek out the creditor had no relevance in this situation, and the stipulation of an account in Romania for the payment was merely administrative. The obligation to pay crystallised only when the demand was made in accordance with the contract, and the place for payment was the place where the demand was made.

Citations:

Gazette 27-Jul-2000, Times 03-Aug-2000

Jurisdiction:

England and Wales

International, Arbitration

Updated: 10 May 2022; Ref: scu.78658

Andrews (Trading As BA Contractors) v Bradshaw and Another: CA 11 Oct 1999

Although an arbitrator had failed to hide his irritation and impatience with one side on a case referred to him, that was insufficient to justify taking the reference away. However an agreement reached with one side only as to his costs could suggest a need for impartiality. The arbitrator had expressed himself unwisely, but had conducted the arbitration itself fairly, and his appointment would not be set aside.

Citations:

Times 11-Oct-1999

Jurisdiction:

England and Wales

Arbitration

Updated: 10 May 2022; Ref: scu.77794

Compagnie Eurpeene de Cereals SA v Tradax Export SA: 1986

Citations:

[1986] 2 Lloyd’s Rep 301

Jurisdiction:

England and Wales

Cited by:

Cited – Sheffield United Football Club Ltd v West Ham United Football Club Plc ComC 26-Nov-2008
The claimant sought an order to prevent the defendant company from pursuing further an appeal against a decision made by an independent arbitator in their favour as regards the conduct of the defendant in the Premier League in 2006/2007.
Held: . .
Cited – Sheffield United Football Club Ltd v West Ham United Football Club Plc ComC 26-Nov-2008
The claimant sought an order to prevent the defendant company from pursuing further an appeal against a decision made by an independent arbitator in their favour as regards the conduct of the defendant in the Premier League in 2006/2007.
Held: . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 10 May 2022; Ref: scu.278407

Toepfer v Warinco AG: 1978

The buyer’s representatives had failed to see that the cargo was coarse-ground meal rather than fine-ground meal. The seller defended pleading waiver, based on this omission.
Held: The defence failed because the buyer’s supervisor had failed to spot the discrepancy. The omission amounted to a failure to mitigate such that the buyers were only entitled to nominal damages. It is not necessary that an arbitration award should contain express findings of fact, provided that the necessary findings may be ‘spelled out’.

Judges:

Brandon J

Citations:

[1978] Lloyds Rep 569

Jurisdiction:

England and Wales

Cited by:

Cited – Persimmon Homes (South Coast) Ltd v Hall Aggregates (South Coast) Ltd and Another TCC 10-Oct-2008
The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
Held: The provisions had been intended and had achieved a prompt and binding settlement . .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 10 May 2022; Ref: scu.277766

Union of India v Aaby’s Rederi A/S, The Evje: HL 1975

Lord Dilhorne said of the words ‘to be settled in London’: ‘At first sight those words appear to me to mean no more and no less than that the contributions to be made have to be determined in London and paid there, and that implies determined in accordance with English law.’ The phrase ‘to be settled in London’ did not to take the dispute out of the scope of an arbitration clause.
Neither Lord Salmond nor Lord Dilhorne could see a difference between clauses poviding for arbitration of disputes ‘arising under’ and ‘arising out of’ a contract.

Judges:

Viscount Dilhorne, Lord Salmon

Citations:

[1975] AC 797

Jurisdiction:

England and Wales

Cited by:

Cited – Fiona Trust and Holding Corporation and others v Privalov and others CA 24-Jan-2007
The court was asked whether when contracts have been induced by bribery and have been rescinded on discovery of the bribery, that constitutes a dispute which can be determined by arbitration in the context of a common form of arbitration clause.
Cited – Premium Nafta Products Ltd (20th Defendant) and others v Fili Shipping Company Ltd and others; Fiona Trust and Holding Corporation v Privalov HL 17-Oct-2007
The owners of a ship sought to rescind charters saying that they had been procured by bribery.
Held: A claim to rescind a contract by reason of bribery fell within the scope of an arbitration clause under which the parties had agreed to refer . .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 10 May 2022; Ref: scu.248209

Tote Bookmakers Ltd v Development and Property Holding Co. Ltd.: 1985

Peter Gibson J defined the phrase undue hardship as ‘hardship . . not warranted by the circumstances’.

Judges:

Peter Gibson J

Citations:

[1985] Ch 261

Statutes:

Arbitration Act 1950 27

Cited by:

Cited – Secretary of State for Work and Pensions v Roach CA 20-Dec-2006
The court considered the reduction of state benefits payable to a mother asking the Child Support Agencey not to pursue a claim against the father where there has been a history of domestic violence. The mother said she was frightened of retribution . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 10 May 2022; Ref: scu.247525

‘The Simonburn’: 1973

A party who may wish to apply for an extension of time for referring an issue to arbitration must do so as soon as possible upon realising the need for an application. The remedy is available as a discretion.

Citations:

[1973] 2 Lloyds 145

Cited by:

Cited – Ernest John Fifield and Another v W and R Jack Limited PC 29-Jun-2000
PC (New Zealand) The tenants sought an extension of time to take their rent review to arbitration. The Landlords appealed a grant of leave.
Held: The grant of leave was discretionary where the court found . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 10 May 2022; Ref: scu.244801

Esso Petroleum v Texaco Ltd and Others: ComC 19 Oct 1999

Arbitration – preliminary issue – pipeline – Participants Agreement – Articles of Association of company – true construction – meaning of words ‘an amount which . . will give an adequate profit as determined from time to time by the company’.

Judges:

Cresswell J

Citations:

Unreported, 19 October 1999

Arbitration

Updated: 09 May 2022; Ref: scu.225430

Clegg v Fraser: 1982

The court considered at what level a point of law would justify reference from an arbitration to the High Court.

Citations:

[1982] 2 EGLR 7

Jurisdiction:

England and Wales

Cited by:

Cited – William Smith (Wakefield) Ltd v Parisride Ltd Admn 23-Mar-2005
The tenant farmer served two notices both referring the landlord’s notice to quit to arbitration (s28(4)) and also a counter-notice (s28(2)). The landlord said he could not serve both and had not identified which he wished to proceed upon. No . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 09 May 2022; Ref: scu.224099

Fence Gate Ltd v NEL Construction Ltd: 2001

An Arbitrator’s Award on costs was altered by the Court for a variety of errors by the Arbitrator in his original Award, which were held matters of law.
Held: The court set out the principles for such applications: i) For the complaint about a costs award to arise in the form of an appeal, it must be one that can be expressed in the form of a clear question of law. ii) If the complaint is that the decision that the Arbitrator arrived at was wrong because of an error in his appreciation or understanding of the material used as the basis of the award, it may amount to a serious irregularity. But it does not give rise to a question of law. iii) The Arbitrator must not take into account matters which the law or the powers given him by the parties or the general law preclude him from acting on and, conversely, he must not fail to take account of, and give effect to matters that the law requires him to take account of. Moreover, since the tribunal must observe and give effect to the law, the overall discretionary exercise must not be perverse nor one that a reasonable arbitration tribunal properly directing itself could not have reached. iv) A question of law can arise, if it is contended that the Arbitrator misdirected himself by taking into account factors which he should not have done or by failing to take into account factors he should have done (Paragraph 40 of the Judgment).

Judges:

His Honour Judge Thornton QC

Citations:

(2001) 82 Con LR 41

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, Costs

Updated: 09 May 2022; Ref: scu.221023

Intermare Transport GmbH v International Copra Export Corporation (The ‘Ross Isle’ and ‘Ariel’): ChD 1982

Disputes arose from the carriage of two cargoes of copra from the Philippines to Europe in the vessels Ross Isle and Ariel. The disputes were referred to the same arbitrator and heard together, but with separate awards. After the hearing the owners asked the arbitrator to state his award in relation to the charterers’ counterclaim in each case in the form of a special case, but he declined to do so saying the questions raised were almost entirely of a factual nature, and he would issue the awards in a non-speaking form. He gave the parties 14 days to apply to court for a special case. The owners’ solicitors mistakenly took the view that their question of law did not in fact arise and made no application. The arbitrator published unreasoned awards, but provided the parties with separate confidential reasons for their information. Seeing their mistake, the owners applied under section 22 to remit the awards for special cases, because as a result of a misunderstanding, there had been a procedural mishap giving rise to injustice, and a cause for intervention. The owners sought to refer to the arbitrator’s confidential reasons, but each expressly said that the reasons did not form part of the award and were issued on the understanding that no use should be made of them in any proceedings arising on or in connection with the award. Could the court properly look at them on an application of that kind?
Held: ‘ Mr. Evans submits that in Court he is entitled to look at those documents and should do so for the purpose of these applications if the Court is not satisfied, merely from looking at the award, that the arbitrator has decided the case on matters of law, that is to say, the interpretation of cl. 35. It is, I think, quite clear, and Mr. Evans does not dispute, that if the application were to set aside or remit the awards for error of law on their face then it would not be permissible to look at these reasons. They are not incorporated in the awards expressly or by reference to anything that is to be found in the awards. But that is not the application which is made here – it is an application to remit or set aside on other grounds. For that purpose Mr. Evans submits that all relevant evidence is admissible. I am disposed to agree with that (although again I have not heard Mr. Thomas on this point) subject to any special restriction that may attach to any particular category of evidence. Is there some special restriction applying to the reasons given by the arbitrator, and if so what is the legal basis of it? Mr. Evans submits, or accepts, that the plaintiffs, by their acceptance of the reasons with that note upon them, agreed to some implied contract that they would not use the reasons, at any rate for some purposes. In my judgment Mr. Evans is right to accept that. It is extremely common practice in maritime arbitrations in London for such documents to be issued together with the award but separate from it. Sometimes the arbitrator will ask the parties before the conclusion of the hearing whether they wish him to issue separate reasons and whether they will accept them with such a note upon them. I, indeed, have known of one case where one party said that he would not accept reasons on those terms and the consequence was that no reasons were issued. But in the ordinary way if that is expressly said then there is clearly to my mind a contract that the reasons will be treated in confidence as the note requires. Even where nothing is said by the arbitrator before the conclusion of the hearing (and as far as the evidence goes, nothing was said by the arbitrator in this case) the practice is so commonplace in maritime arbitrations in London that I would regard it as implied by custom that an arbitrator may, if he wishes, issue reasons with such a note upon them and the parties agree to be bound by it. That, as I say, was accepted by Mr. Evans; but he has a powerful point that there is a public interest which overrides any private contract as to the admissibility of evidence in certain cases . . . I accept that there are circumstances in which the public interest requires that notwithstanding the private contract of the parties that they will treat such reasons confidentially, still they may be disclosed to the Court. On the other hand there is, as it seems to me, a strong public interest that arbitrators, if they choose, should be free to publish reasons of a confidential nature and the parties should be free, if they choose, to accept reasons on that basis. Whether, in any particular case, the public interest in favour of disclosure to the Court overrides the general public interest that confidential reasons may be published for the interest of the parties without endangering the rule that there must be an end to litigation, is a matter for decision in that case. If it had arisen in the present case I would have held that the public interest here did not require me to look at the reasons for the purposes of investigating a possible misunderstanding between the arbitrator and the legal advisers of the plaintiffs.’

Judges:

Staughton J

Citations:

[1982] 2 Lloyd’s Rep 589

Statutes:

Arbitration Act 1950 22

Jurisdiction:

England and Wales

Cited by:

Cited – Tame Shipping Ltd v Easy Navigation Ltd QBD 28-Jul-2004
The parties had agreed to an arbitration subject to the condition that the reasons given were not to form any basis for appeal. The reasons were published separately from the award.
Held: The appeal was based upon an assertion which could only . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 09 May 2022; Ref: scu.219431

Lobb Partnership Limited v Aintree Racecourse Company Limited: 2000

A clause in an agreement provided that disputes might be be dealt with by arbitration but shall otherwise be referred to the English Courts.
Held: Each party had a right of election for arbitration. ‘The English courts have consistently taken the view that, provided that the contract gives a reasonably clear indication that arbitration is envisaged by both parties as a means of dispute resolution, they will treat both parties as bound to refer disputes to arbitration even though the clause is not expressed in mandatory terms.’

Judges:

Colman J

Citations:

[2000] 1 Building Law Reports 65

Cited by:

Cited – NB Three Shipping Ltd. v Harebell Shipping Ltd ComC 13-Oct-2004
Under charterparty agreements, certain disputes were to be referred to arbitration. The claimant sought to pursue a dispute before the court.
Held: The lack of mutuality on the arbitration clause did not prevent its validity. The party had the . .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration

Updated: 09 May 2022; Ref: scu.216402

Panamena Europea Navigacion v Frederick Leyland and Co: HL 1947

The parties had entered into an agreement providing for arbitration of any disputes. Lord Thankerton said: ‘By entering into the contract the respondents agreed that the appellant’s surveyor should discharge both these duties and therefore they cannot claim that the appellant’s surveyor must be in the position of an independent arbitrator, who has no other duty which involves acting in the interests of one of the parties.’
and ‘Dr Telfer declined to proceed with the matter unless he was provided with the information to which, on his erroneous view of the contract, he held himself entitled; in this view the Appellants concurred, and this position was maintained up to and after the issue of the writ. This means an illegitimate condition precedent to any consideration of the granting of a certificate was insisted on by Dr. Telfer and by the Appellants. It is almost unnecessary to cite authority to establish that such conduct on the Appellants’ part absolved the Respondents from the necessity of obtaining such a certificate, and that the Respondents are entitled to recover the amount claimed in the action.’
and ‘The view of the function of the appellant surveyor under clause 7 of the contract which I have already expressed, makes it clear beyond dispute that the Respondents have done everything which was necessary for them to do in order to require Dr. Telfer to proceed to consider the granting of a certificate under clause 7, but that Dr. Telfer declined to proceed with the matter unless he was provided with the information to which, on his erroneous view of the contract, he held himself entitled; in this view the Appellants concurred, and this position was maintained up to and after the issue of the writ. This means an illegitimate condition precedent to any consideration of the granting of a certificate was insisted on by Dr. Telfer and by the Appellants. It is almost unnecessary to cite authority to establish that such conduct on the Appellants’ part absolved the Respondents from the necessity of obtaining such a certificate, and that the Respondents are entitled to recover the amount claimed in the action.’

Judges:

Lord Thankerton

Citations:

[1947] AC 428

Jurisdiction:

England and Wales

Citing:

Appeal from – Leyland and Co v Cia Panamena Europea Navigacion CA 1943
Goddard LJ said: ‘He, therefore, was unwilling to carry out the duty assigned by the contract to him. The defendants either were of the same opinion or adopted his view; for this purpose, it matters not which. Consequently, they neither required him . .

Cited by:

Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
Applied – Hounslow London Borough Council v Twickenham Gardens Development Limited 1971
The defendant, a building contractor, had been allowed into occupation of a site owned by the plaintiff council under a building contract. The council had sought to determine the contract by notice under its terms. The contractor refused to vacate . .
Cited – Amec Civil Engineering Ltd v Secretary of State for Transport CA 17-Mar-2005
The contractors appealed a decision that an arbitrator had jurisdiction to hear a claim against them in respect of works carried out on the Thelwall viaduct. The contractors denied that there had been a dispute which could found a reference, and no . .
Lists of cited by and citing cases may be incomplete.

Construction, Arbitration

Updated: 09 May 2022; Ref: scu.185452

LG Caltex Gas Co Ltd and Another v China National Petroleum Corporation and Another: CA 6 Jun 2001

The arbitrator’s award was to the effect that two parties were not party to the contracts containing the arbitration agreements, and that they were therefore not liable to the applicants. The applicants contended that the award was a finding as to jurisdiction which was susceptible to challenge, and the respondents asserted that it was a finding as to their liability under the contract and was unchallengeable. In this case there had been no ad hoc agreements over and above the contracts at issue, to submit to the jurisdiction of the arbitrator. Where an issue as to jurisdiction also went to liability, it was open to the parties to re-open the award by litigation.

Citations:

Times 06-Jun-2001, Gazette 28-Jun-2001

Statutes:

Arbitration Act 1996 67(1)(a) 73

Jurisdiction:

England and Wales

Citing:

Appeal from – Lg Caltex Gas Co Ltd and Another v China National Petroleum Corporation and Another QBD 23-Feb-2001
Parties submitting a dispute to arbitration have the power also to agree that neither should have the power to challenge the decision of the arbitrator in court. That had been the position at common law, and this had survived the Act. The agreement . .

Cited by:

Appealed to – Lg Caltex Gas Co Ltd and Another v China National Petroleum Corporation and Another QBD 23-Feb-2001
Parties submitting a dispute to arbitration have the power also to agree that neither should have the power to challenge the decision of the arbitrator in court. That had been the position at common law, and this had survived the Act. The agreement . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 08 May 2022; Ref: scu.83060

Da Cooper Lavalin Nv v Ken-Ren Chemicals and Fertilisers Ltd (Liq): HL 9 May 1994

The High Court has power to order security for costs to be given with respect to an international arbitration to take place in London, where there may be doubt as to the plaintiff’s creditworthiness.

Citations:

Times 09-May-1994, Gazette 15-Jun-1994, Ind Summary 16-May-1994

Statutes:

ICC Rules of Conciliation & Arbitration 1988, Arbitration Act 1950 812(6)

Arbitration, International

Updated: 08 May 2022; Ref: scu.79771

Paklito Investment Ltd v Klockner East Asia Ltd: 1993

(Hong Kong) The plaintiff sought to enforce a Chinese arbitration award. The other party said it had not been allowed to present its case and resisted enforcement.
Held: The defence succeeded. The court was still asked to to enforce it under its discretion. Kaplan J discussed an instance when it might be exercised in order to enforce an award: ‘He relied strongly upon the fact that the defendants had taken no steps to set aside the award in China and that this failure to so act was a factor upon which I could rely. I disagree. There is nothing in s.44 nor in the New York Convention which specifies that a defendant is obliged to apply to set aside an award in the country where it was made as a condition of opposing enforcement elsewhere . . It is clear to me that a party faced with a Convention award against him has two options. Firstly, he can apply to the courts of the country where the award was made to seek the setting aside of the award. If the award is set aside then this becomes a ground in itself for opposing enforcement under the Convention . . Secondly, the unsuccessful party can decide to take no steps to set aside the award but wait until enforcement is sought and attempt to establish a Convention ground of opposition.
That such a choice exists is made clear by Redfern and Hunter in International Commercial Arbitration p.474 where they state: ‘He may decide to take the initiative and challenge the award; or he may do nothing and resist any attempts by his adversary to obtain recognition and enforcement of the award. The choice is a clear one – to act or not to act.’ . . I therefore conclude that the defendant’s failure to apply to set aside the award is not a factor upon which I should or could rely in relation to the exercise of my discretion . . In relation to the ground relied on in this case I could envisage circumstances where the court might exercise its discretion, having found the ground established, if the court were to conclude, having seen the new material which the defendant wished to put forward, that it would not affect the outcome of the dispute. This view is supported by Professor Albert Van den Berg in his book, the New York Convention of 1958, at p.302, where he states: ‘Thus only if it is beyond any doubt that the decision could have been the same would a court be allowed to override the serious violation.’
It is not necessary for me in this judgment to decide whether this is the only circumstance where the discretion could be exercised or to lay down circumstances where it would be appropriate for the court to exercise its discretion after finding a serious due process violation.’

Judges:

Kaplan J

Citations:

[1993] HKLR 39

Jurisdiction:

England and Wales

Cited by:

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

International, Arbitration

Updated: 07 May 2022; Ref: scu.373982

Stotesbury v Turner: 1943

Without prejudice negotiations are, as a matter of public policy, to be protected from disclosure to the court seized of the dispute. An arbitrator has the same discretion as to costs as has a High Court judge.

Citations:

[1943] KB 370

Jurisdiction:

England and Wales

Citing:

Applied – Walker v Wilsher CA 1889
Letters or conversations which were written or declared to be ‘without prejudice’ may not be taken into consideration in determining whether there is good cause for depriving a successful litigant of his costs.
Lord Esher MR said: ‘The letters . .

Cited by:

Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration

Updated: 07 May 2022; Ref: scu.254330

Naviera Maritima Peruana SA v Compania Internacional de Seguros de Peru: CA 1988

Unless agreed otherwise, the law of the ‘seat’ of the arbitration will govern its conduct. The court overruled a first instance decision that an arbitration was to be conducted in Lima as the agreed forum (and therefore seat), but with English law as the lex fori. LJ Kerr referred to the complexities and inconveniences which such an arrangement would cause, including the impossibility or at best difficulty of the English Court exercising jurisdiction over an arbitration proceeding in Peru.

Judges:

Kerr LJ

Citations:

[1988] 1 Lloyds Rep 1116

Jurisdiction:

England and Wales

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

Arbitration, International

Updated: 07 May 2022; Ref: scu.239600

Bank Mellat v Helliniki Techniki: 1984

In English law every arbitration must have a legal home, i.e. a system of municipal law to which it is subject: ‘Despite suggestions to the contrary by some learned writers under other systems, our jurisprudence does not recognise the concept of arbitral procedures floating in the transnational firmament unconnected with any municipal system of law.’

Citations:

[1984] 1 QB 291

Jurisdiction:

England and Wales

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

Arbitration

Updated: 07 May 2022; Ref: scu.239599

Bremer Vulkan Schiffbau und Maschineenfabrik v South India Shipping Coroporation: HL 1981

The parties had referred their dispute to arbitration, but there had been inordinate delay, and the plaintiffs complained that the delay had prejudiced them, and sought an injunction to prevent further contuance of the arbitration, saying that the delay had discharged the arbitration agreement and reference.
Held: A party aggrieved in this way must first make application to the arbitrator. The plaintiff could not rely upon the defendant’s breach to give them the right to treat the agreement as terminated. Lord Scarman said: ‘the object of arbitration is to obtain the fair solution of disputes by an impartial tribunal without unnecessary delay or expense’.
Lord Diplock discussed the source of the jurisdiction to dismiss an action for want of jurisdiction: ‘My Lords, to test the soundness of this analogy in my view calls for a closer legal analysis . . (1) of the respective sources of the jurisdiction of the High Court (a) to dismiss for want of prosecution an action that is pending before it and (b) to prohibit further proceedings in an arbitration pending before a duly qualified arbitrator; and (2) of the differences between action at law and arbitration as ways of resolving disputes between private parties as to their contractual rights.
The High Court’s power to dismiss a pending action for want of prosecution is but an instance of a general power to control its own procedure so as to prevent its being used to achieve injustice. Such a power is inherent in its constitutional function as a court of justice. Every civilised system of government requires that the state should make available to all its citizens a means for the just and peaceful settlement of disputes between them as to their respective legal rights. The means provided are courts of justice to which every citizen has a constitutional right of access in the role of plaintiff to obtain the remedy to which he claims to be entitled in consequence of an alleged breach of his legal or equitable rights by some other citizen, the defendant. Whether or not to avail himself of this right of access to the court lies exclusively within the plaintiff’s choice; if he chooses to do so, the defendant has no option in the matter; his subjection to the jurisdiction of the court is compulsory. So, it would stultify the constitutional role of the High Court as a court of justice if it were not armed with power to prevent its process being misused in such a way as to diminish its capability of arriving at a just decision of the dispute.
The power to dismiss a pending action for want of prosecution in cases where to allow the action to continue would involve a substantial risk that justice could not be done is thus properly described as an ‘inherent power’ the exercise of which is within the ‘inherent jurisdiction’ of the High Court. It would I think be conducive to legal clarity if the use of these two expressions were confined to the doing by the court of acts which it needs must have power to do in order to maintain its character as a court of justice.’

Judges:

Lord Diplock, Russell of Killowen, Lord Edmund-Davies; Lord Scarman, Lord Fraser of Tullybelton dissenting

Citations:

[1981] 1 AC 909, [1981] 2 WLR 141, [1981] 2 All ER 289

Jurisdiction:

England and Wales

Cited by:

Cited – McNicholas Plc v AEI Cables Limited TCC 25-May-1999
The claimant had subcontracted to supply cabling on the defendant’s project. The contract provided both for the exclusive jurisdiction of the English courts but also for arbitration. The defendant applied for the action to be stayed and referred to . .
Cited – Mckie and others v Macrae and Another OHCS 23-Dec-2005
. .
Cited – SG and R Valuation Service Co v Boudrais and others QBD 12-May-2008
The claimant sought to require the defendants not to work during their notice period to achieve the equivalent of garden leave despite there being no provision for garden leave in the contracts. It was said that the defendants had conspired together . .
Cited – Yasain, Regina v CACD 16-Jul-2015
The Court was asked as to the powers of the Court of Appeal Criminal Division to re-open an appeal to correct an error which is said to have caused real injustice in that the error led to the quashing of a sentence lawfully imposed in the Crown . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 07 May 2022; Ref: scu.238327

Dallal v Bank Mellat: 1986

Any choice of international law to govern an agreement to arbitrate should be express.

Judges:

Hobhouse J

Citations:

[1986] 1 QB 441

Jurisdiction:

England and Wales

Citing:

Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .

Cited by:

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

Arbitration

Updated: 07 May 2022; Ref: scu.230265

K/S A/S Bill Biakh v Hyundai Corporation: 1988

Citations:

[1988] 1 Lloyds Rep 187

Jurisdiction:

England and Wales

Cited by:

Cited – Lesotho Highlands Development Authority v Impregilo Spa and others HL 30-Jun-2005
The House had to consider whether the arbitrator had acted in excess of his powers under s38, saying the arbitrator had misconstrued the contract. The arbitrator had made his award in different currencies.
Held: The question remained whether . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 07 May 2022; Ref: scu.228174

Ellerine Bros v Klinger: CA 1982

The court was asked whether there was a dispute sufficient to allow a stay of court proceedings to allow an arbitration to proceed.
Held: If letters were written making some request or demand and the defendant did not reply, there was a dispute. It was not necessary, for a dispute to arise, that the defendants should write back and say ‘I don’t agree’.

Judges:

Templeman LJ

Citations:

[1982] 1WLR 1375

Jurisdiction:

England and Wales

Cited by:

Cited – Amec Civil Engineering Ltd v Secretary of State for Transport CA 17-Mar-2005
The contractors appealed a decision that an arbitrator had jurisdiction to hear a claim against them in respect of works carried out on the Thelwall viaduct. The contractors denied that there had been a dispute which could found a reference, and no . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 06 May 2022; Ref: scu.224300

Fletamentos Maritimos Sa v Effjohn Internation Bv (1): ComC 23 Jan 1996

ComC Arbitration – arbitration clause – further agreement subsequent to arbitration clause – incorporation of arbitration clause – separate agreement

Judges:

Langley J

Citations:

[1996] 2 Lloyd’s Rep 304

Jurisdiction:

England and Wales

Cited by:

See Also – Fletamentos Maritimos Sa v Effjohn Internation Bv (2) QBD 8-Oct-1996
A judge has the power to intervene in an arbitration even at interlocutory stage but should do so only rarely. . .
See Also – Fletamentos Maritimos SA v Effjohn International (No. 2) ComC 19-Dec-1997
Arbitration – Alleged misconduct by Umpire – discovery – refusal to adjourn. Principles applicable. . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 06 May 2022; Ref: scu.186001

Philip Alexander Securities and Futures Ltd v Bamberger and Others: CA 22 Jul 1996

Citations:

Times 22-Jul-1996, [1997] Eu LR 63, [1996] CLC 1757

Statutes:

Consumer Arbitration Agreements Act 1988

Jurisdiction:

England and Wales

Citing:

Appeal from (Affirmed) – Philip Alexander Securities and Futures Ltd v Bamberger and Others ComC 8-May-1996
ComC Consumer contracts – arbitration provision – Consumer Arbitration Agreements Act 1988 – exceptions – sections 2(b), 4 : European Union – Consumer contracts – arbitration provision – Consumer Arbitration . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Contract, Consumer

Updated: 06 May 2022; Ref: scu.186007

Philip Alexander Securities and Futures Ltd v Bamberger and Others: ComC 8 May 1996

ComC Consumer contracts – arbitration provision – Consumer Arbitration Agreements Act 1988 – exceptions – sections 2(b), 4 : European Union – Consumer contracts – arbitration provision – Consumer Arbitration Agreements Act 1988 – exceptions – section 2(a) – distinction between domestic and non-domestic consumers – discrimination – Article 6 EC – freedom to provide services – restriction – Article 59 EC – breach of European law – disapplication of section 2(a) : Consumer contracts – arbitration provision – ruling on application of arbitration provision by courts of Contracting State – Brussels Convention article 1(4) – exclusion of arbitration – meaning – Brussels Convention article 27(4), 28

Judges:

Waller J

Citations:

Independent 08-Jul-1996

Statutes:

Consumer Arbitration Agreements Act 1988

Jurisdiction:

England and Wales

Cited by:

Appeal from (Affirmed) – Philip Alexander Securities and Futures Ltd v Bamberger and Others CA 22-Jul-1996
. .
Lists of cited by and citing cases may be incomplete.

Arbitration, International, Consumer

Updated: 06 May 2022; Ref: scu.186006

Moscow City Council v Bankers Trust Company and Another: QBD 5 Jun 2003

Proceedings before an arbitrator were governed by rule 62.10, which provided its own entire code, and imposed a presumption in favour of privacy. The principles of Scott v Scott need not apply. Scott would now be decided under analogous reasonings under the Human Rights Act.

Judges:

Cooke J

Citations:

Times 01-Sep-2003

Statutes:

Civil Procedure Rules 62.10, Arbitration Act 1996 68, European Convention on Human Rights A-6

Jurisdiction:

England and Wales

Citing:

Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Civil Procedure Rules

Updated: 06 May 2022; Ref: scu.185986

Unit Four Cinemas v Tosara Investment Ltd: 1993

The applicant challenged the fairness of the arbitrator’s actions.

Citations:

[1993] 2 EGLR 11

Jurisdiction:

England and Wales

Cited by:

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

Arbitration

Updated: 06 May 2022; Ref: scu.184487

Pioneer Shipping Ltd v BTP Tioxide Ltd (‘The Nema’): HL 1982

There is no fetter on the judicial discretion to refuse leave under Section 1(3)(b) to appeal against an arbitration award.
Frustration of a contract is ‘not likely to be invoked to relieve contracting parties of the normal consequences of imprudent commercial bargains’.

Judges:

Lord Diplock

Citations:

[1981] 3 WLR 292, [1982] AC 724

Statutes:

Arbitration Act 1979 1(3)

Jurisdiction:

England and Wales

Cited by:

Cited – CMA CGM S A v Beteiligungs-Kommanditgesellschaft ‘Northern Pioneer’ Schiffahrtgesellschaft Mbh and Co and others CA 18-Dec-2002
The Charterers appealed a refusal to allow an appeal from a decision in an arbitration.
Held: The 1979 Act changed the situation fundamentally. The test was not just whether the decision was probably wrong, but the wider test allowed an appeal . .
Cited – Penwith District Council v VP Developments Ltd TCC 2-Nov-2007
The council sought to appeal against an interim arbitration award.
Held: Leave to appeal was refused. The application was wholly unjustified. This was an appeal on the facts dressed up as an appeal on law. . .
Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
Considered – Geogas SA v Trammo Gas Ltd (The Baleares) CA 26-Nov-1990
Judge Wrong to Accept Appeal of Fact
The charterers had sought to appeal the arbitrators’ findings on foreseeability and remoteness. The judge had set aside the arbitration award. Though he certified that a point of law existed which was of general public importance, he had refused . .
Lists of cited by and citing cases may be incomplete.

Transport, Arbitration, Contract

Updated: 06 May 2022; Ref: scu.183454

Jones v Sherwood Services plc: CA 1992

There had been an expert determination by an accountant of the amount of sales for the purpose of the valuation of shares. The accountant had made his determination in the form of a non speaking certificate. The court was asked when such a jointly appointed expert’s valuation could be set aside.
Held: The decision of an expert is binding on the parties unless the expert had departed from the instructions in a material respect.
Dillon LJ said: ‘On principle, the first step must be to see what the parties have agreed to remit to the expert, this being, as Lord Denning M.R. said in Campbell v Edwards, a matter of contract. The next step must be to see what the nature of the mistake was, if there is evidence to show that. If the mistake made was that the expert departed from his instructions in a material respect – e.g., if he valued the wrong number of shares, or valued shares in the wrong company, or if, as in Jones (M.) v. Jones (R.R.) [1971] 1 W.L.R. 840, the expert had valued machinery himself whereas his instructions were to employ an expert valuer of his choice to do that – either party would be able to say that the certificate was not binding because the expert had not done what he was appointed to do.
The present case is quite different, however, as [the experts] have done precisely what they were asked to do.’

Judges:

Dillon LJ, Simon LJ

Citations:

[1992] 1 WLR 277, [1992] 2 All ER 170

Arbitration

Updated: 06 May 2022; Ref: scu.470519

Brown v Nelson: 19 Nov 1844

The costs of witnesses examined before an arbitrator on a reference of a cause, to prove the issues in the cause, are not costs in the cause, but costs of the reference.

Citations:

[1844] EngR 985, (1844) 13 M and W 397, (1844) 153 ER 165

Links:

Commonlii

Arbitration

Updated: 05 May 2022; Ref: scu.305577

American International Speciality Lines Insurance Co v Abbott Laboratories: 2003

Judges:

Cresswell J

Citations:

[2003] 1 Lloyd’s Rep 267

Jurisdiction:

England and Wales

Cited by:

Cited – Sheffield United Football Club Ltd v West Ham United Football Club Plc ComC 26-Nov-2008
The claimant sought an order to prevent the defendant company from pursuing further an appeal against a decision made by an independent arbitator in their favour as regards the conduct of the defendant in the Premier League in 2006/2007.
Held: . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 05 May 2022; Ref: scu.278405

L’Office Cherifien Des Phosphates and Another v Yamashita-Shinnihon Steamship Co Ltd: HL 19 Jan 1994

The subject matter of statutes is so varied that generalised maxims are not a reliable guide. An arbitrator can dismiss a claim for inordinate and inexcusable delay, even where this had arisen before the Act which created the power.
Lord Mustill said: ‘Precisely how the single question of fairness will be answered in respect of a particular statute will depend on the interaction of several factors, each of them capable of varying from case to case. Thus, the degree to which the statute has retrospective effect is not a constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect of the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospectivity are so unfair that the words used by parliament cannot have been intended to mean what they might appear to say.’ and
‘My Lords, it would be impossible now to doubt that the Court is required to approach questions of statutory interpretation with a disposition, and in some cases a very strong disposition, to assume that a statute is not intended to have retrospective effect. Nor indeed would I wish to cast any doubt on the validity of this approach for it ensures that the Courts are constantly on the alert for the kind of unfairness which is found in, for example, the characterisation as criminal of past conduct which was lawful when it took place, or in alterations to the antecedent national, civil or familial status of individuals. Nevertheless, I must own up to reservations about the reliability of generalised presumptions and maxims when engaged in the task of finding out what Parliament intended by a particular form of words, for they too readily confine the Court to a perspective which treats all statutes, and all situations to which they apply, as if they were the same. This is misleading, for the basis of the rule is no more than simple fairness, which ought to be the basis of every legal rule.’

Judges:

Lord Mustill

Citations:

Gazette 26-Jan-1994, Independent 19-Jan-1994, Times 17-Dec-1993, [1994] 1 AC 486, [1994] 1 All ER 20, [1994] 1 Lloyds Rep 251, [1994] 2 WLR 39

Statutes:

Arbitration Act 1950 13A

Jurisdiction:

England and Wales

Cited by:

Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Odelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Constitutional

Updated: 05 May 2022; Ref: scu.90653

Harbour Assurance Co (Uk) Ltd v Kansa General International Insurance Co Ltd: 1993

The Court said that older (pre Heyman v Darwins Ltd) authorities about the width of arbitration clauses had to be approached with some care and that the words ‘arising from the contract’ have almost invariably been treated as ‘words of very wide import’. The inexorable logic of Mackender v Feldia required the court to hold that a question of voidability for fraud is just as much capable of being referred to arbitration as an issue of avoidance for innocent misrepresentation. Steyn J: ‘Once it became accepted that the arbitration clause is a separate agreement, ancillary to the contract, the logical impediment to referring an issue of the invalidity of the contract to arbitration disappears. Provided that the arbitration clause itself is not directly impeached (e.g. by a non est factum plea), the arbitration agreement is as a matter of principled legal theory capable of surviving the invalidity of the contract.’

Judges:

Steyn J

Citations:

[1993] 1 Lloyds Rep 81

Citing:

Cited – Heyman v Darwins Limited HL 1942
An arbitration clause will survive a repudiatory breach: ‘I agree with the Lord Chancellor in thinking that the true ground of the decision in Jureidini v National British and Irish Millers Insurance Co Ltd was the narrowness of the field of . .
Cited – Mackender v Feldia AG CA 1966
A clause provided that an insurance policy should be governed by Belgian law and that ‘any disputes arising thereunder shall be exclusively subject to Belgian jurisdiction.’ The underwriters avoided the contract for non-disclosure of material facts . .
Doubted – Overseas Union v AA Mutual International Insurance Co Ltd 1988
Evans J said that there was a broad distinction between clauses which referred ‘only those disputes which may arise regarding the rights and obligations which are created by the contract itself’ and those which ‘show an intention to refer some wider . .

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.
Appeal from – Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Ltd CA 7-Apr-1993
An action was brought by re-insurers for a declaration that reinsurance policies were void for illegality, and that the plaintiffs were not liable under them. The illegality alleged was that the defendants were not registered or approved to carry on . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 04 May 2022; Ref: scu.248226

Hunter Kane Ltd v Watkins: 2003

Judges:

B Livesey QC

Citations:

[2003] EWHC 186 (Ch)

Jurisdiction:

England and Wales

Cited by:

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

Updated: 04 May 2022; Ref: scu.573287

West of England Shipowners Mutual Insurance Association (Luxembourg) v Cristal Ltd: CA 1996

A contract had been set up to provide compensation for oil pollution losses. It was between oil companies who contributed to the fund and its administrators, Cristalwho was to ‘be the sole judge in accordance with these terms of the validity of any claim made hereunder’. The claimant association made a claim which Cristal rejected. It was accepted that the association was to be treated as a party to the contract. The main argument was as to ouster of jurisdiction.
Held: The Court rejected the argument. It was not argued that the fact of Crystal being the sole judge vitiated the agreement.
Neill LJ stated: ‘it does not seem to me that any question arises as to the ouster of the jurisdiction of the court. The court clearly has a role to play. The problem is to define the extent of that role.
I see the force of the submission that it is unusual for one party to a contract to be constituted the sole arbiter of the validity of any claim made against it. There is therefore attraction in the argument that the determination under cl.IX is merely . . a first stage determination . . I have come to the conclusion, however, that this argument must be rejected.’

Judges:

Neill LJ

Citations:

[1996] CLC 240

Jurisdiction:

England and Wales

Citing:

Appeal from – West of England Shipowners Mutual Insurance Association (Luxembourg) v Cristal Ltd ComC 25-Jan-1995
cw Contract – contractual rights – fulfilment of conditions – freedom to fulfil bargain – court action precluded – ouster clauses – arbitration – term – construction – one party sole arbitrator of construction – . .

Cited by:

Cited – Charles Stanley and Co Ltd v Adams QBD 19-Jul-2013
The claimant stock broking firm sought to recover its uninsured losses after having paid out for what was said to have been negligent advice by the respondent, a self-employed broker working for them.
Held: The power to recover such losses . .
Lists of cited by and citing cases may be incomplete.

Contract, Arbitration

Updated: 04 May 2022; Ref: scu.570106

K/S Norjarl A/S v Hyundai Heavy Industries Co Ltd: CA 1992

A third arbitrator appointed by the arbitrators already appointed, accepted office on the basis that the hearing would take place by a specified date and would last for a specified period. Three years later, the plaintiffs’ solicitors requested the arbitrators to fix a period for the hearing over twice as long and in two further years’ time. The third arbitrator replied that the tribunal might consider this but that the parties should consider the fees likely to be incurred and he set out a statement of the fees chargeable including a non-refundable commitment fee payable in advance of the hearing. The defendants’ arbitrator took no part in the ensuing discussion of fees. The parties did not accept the proposal but invited its withdrawal. The third arbitrator and the plaintiffs’ arbitrator offered their resignations. The plaintiffs’ solicitors made a proposal acceptable to the arbitrators but sought an assurance that the defendants’ solicitors had no objection to the plaintiffs making the payments proposed. The defendants’ solicitors maintained that the two arbitrators had no power to demand advance fees; the fees were excessive, and that it was inappropriate for one party to pay the fees demanded to the two arbitrators. They did not allege partiality. They later wrote that both arbitrators should continue on the terms as appointed but withdrawing the new fees demand. The plaintiffs sought declarations that the arbitrators were fit and proper persons to act and that their acceptance of the plaintiffs’ fee arrangements would not raise any imputations of bias. The defendants applied for an order that the two arbitrators be removed.
Held: For an arbitrator to insist upon a fee without the consent of all parties constitutes misconduct: ‘Any fee upon which (the arbitrators) wish to insist should be made known at the outset before acceptance of appointment.’
However, the express disavowal by the defendants of any imputation of actual bias and their request that the arbitrators continue to act, precluded the exercise by the court of its discretion to remove them but, that the conclusion of an agreement between the arbitrators and the plaintiffs on the basis of the plaintiffs’ revised proposal would be improper. The majority took the view that by reason of the change in circumstances the request for a commitment fee was justified, that a mere request by an arbitrator for a commitment fee did not amount to misconduct and that, in any event, even if the entry by the arbitrators into separate negotiations with the plaintiffs for their fees amounted to misconduct, the express disavowal of bias and request of the arbitrators to continue to act precluded their removal.

Judges:

Legatt LJ

Citations:

[1992] QB 863, [1991] 3 All ER 211, [1991] 3 WLR 1025

Jurisdiction:

England and Wales

Cited by:

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

Arbitration, Legal Professions

Updated: 04 May 2022; Ref: scu.442595

Hall and Woodhouse Ltd v Panorama Hotel Properties Ltd: 1974

Citations:

[1974] 2 Lloyd’s Rep 413

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: 02 May 2022; Ref: scu.384111

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

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

Judges:

Mustill J

Citations:

[1983] 1 WLR 1469, [1983] 1 Lloyds Rep 503

Statutes:

Arbitration Act 1979 1(3)

Cited by:

Cited – Penwith District Council v VP Developments Ltd TCC 2-Nov-2007
The council sought to appeal against an interim arbitration award.
Held: Leave to appeal was refused. The application was wholly unjustified. This was an appeal on the facts dressed up as an appeal on law. . .
Cited – Guangzhou Dockyards Co Ltd v Ene Aegiali I ComC 5-Nov-2010
No appeal on facts from award
The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Contract

Updated: 01 May 2022; Ref: scu.260257

Arab African v Olieprodukten: 1983

By section 3(1) of the 1979 Act, the High Court was precluded from granting permission to appeal on a point of law from an award ‘if the parties to the reference in question have entered into an agreement in writing (in this section referred to as an ‘exclusion agreement’) which excludes the right of appeal.’ A contract for the sale of gas had been made by an exchange of telex messages containing a term ‘Inco Terms 1980 – English law-arbitration, if any London according ICC rules’. By Article 24 of the rules any right of appeal was waived. The arbitrator made an award and there was an attempt to appeal the same on a point of law. Seeking to argue that there was no valid exclusion agreement Arab African argued inter alia that there was no agreement in writing, and that section 3 required a provision which itself excluded the right of appeal and not one which merely incorporated by reference. The parties relied on two decisions of the European Court of Justice in relation to Article 17 of the Brussels Convention dealing with agreements as to ‘exclusive jurisdiction’, the first of which held that Article 17 imposed on a court the duty of satisfying itself that the clause conferring jurisdiction was in fact the subject of consensus between the parties, and the other holding that where a contract concluded orally was confirmed in writing accompanied by notification of general terms, the terms had to be accepted in writing. It was urged that adopting the approach under these decisions of the European Court, under section 3(1) ‘the agreement in writing relied upon must in terms exclude the right of appeal.’
Held: The exclusion agreement had been incorporated into the contract in written form: ‘Section 3(1) of the 1979 Act does not require the overt demonstration of an intention to exclude the right of appeal. True it is, that formerly the Court was careful to maintain its supervisory jurisdiction over arbitrators and their awards. But that aspect of public policy has now given way to the need for finality. In this respect the striving for legal accuracy may be said to have been overtaken by commercial expediency. Since public policy has now changed its stance, I see no reason to continue to adopt an approach to the construction of exclusion agreements which might well have been appropriate before it had done so.
‘In my judgment, the phrase ‘an agreement in writing which excludes the right of appeal’ is apt to apply to an exclusion agreement incorporated by reference. I reach this conclusion unpersuaded to the contrary by the decisions of the European Court which I consider might be misleading in this essentially domestic context. Whatever considerations of good sense may support those decisions and however much one, might be impressed by them if approaching the matter a priori, the pursuit of homogeneity should not deter me from the broader approach hitherto adopted by the common law. It is more important that commercial men should know that the English Courts are consistent than that the Courts should turn towards Luxembourg when Parliament has not directed them to do so.’

Judges:

Leggatt J

Citations:

[1983] Vol 2 419

Statutes:

Arbitration Act 1979 3(1)

Cited by:

Cited – Sumukan Ltd v The Commonwealth Secretariat CA 21-Mar-2007
The appellants sought to challenge a finding that they had by their contract with the defendants excluded the right to appeal to a court on a point of law. The defendants replied that the appeal court had no jurisdiction to hear such an appeal.
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 01 May 2022; Ref: scu.251561

Denison Mines Limited v Ontario Hydro: 2002

(Ontario Court of Appeal) That court was asked whether it had jurisdiction to consider a ruling that the parties had agreed to exclude the court’s jurisdiction, after the court of first instance had ruled that there was such an agreement. The lower court had refused permission to appeal.
Held: Morden J said: ‘As I have said, the non-appealability of orders refusing leave is the general rule . . the courts have engrafted onto this general rule an exception which is applicable where the judge mistakenly declines jurisdiction. Hillmond referred to and quoted the following passage from the reasons of Cartwright J for the Supreme Court of Canada in Canadian Utilities Ltd v Deputy Minister of National Revenue:
‘It appears to me to have been consistently held in our courts and in the courts of England that where a statute grants a right of appeal conditionally upon leave to appeal being granted by a specified tribunal there is no appeal from the decision of that tribunal to refuse leave, provided that the tribunal has not mistakenly declined jurisdiction but has reached a decision on the merits of the application.
Denison relies upon this exception in the present case. It submits that Macdonald J erred in concluding that the arbitration agreement dealt with the appeals on questions of law (s.45(1) of the Arbitration Act 1991), that is, that the parties had ‘contracted out’ of a right of appeal and, accordingly, erred in declining jurisdiction.
I appreciate that in many cases the meaning of ‘jurisdiction’ can be fraught with difficulty. In the present case, however, I think that the principle stated by Cartwright J can be applied with some degree of confidence. He distinguished between declining jurisdiction and reaching a decision on the merits of the application. In the present case, the parties did not argue the merits of the application before Macdonald J. By agreement they argued whether or not Macdonald J had jurisdiction to grant leave to appeal. If she had decided that she had jurisdiction, they would have continued the hearing of the application on the merits. I think that the exception applies.’

Judges:

Morden J

Citations:

[2002] 56 O.R (3d) 181

Commonwealth, Arbitration

Updated: 01 May 2022; Ref: scu.251560

Dean v Prince: 1953

An auditor had valued the shares in a private company under its articles. The court was asked to look behind the valuation: ‘In my judgment the valuation cannot stand. I propose, therefore, to declare that the valuation is not binding upon the plaintiff, and, if necessary – though I doubt if it can be necessary to restrain the defendant company from acting upon the valuation. The plaintiff asks the court to take upon itself the burden of ascertaining the valuation which should be made and then direct an inquiry on that footing. I decline to do either of those things. I do not see what jurisdiction the court has to put itself in the place of the expert that the parties have chosen. It may be that he would be unwilling to assume the burden of trying to do the same thing again, it may be that some agreement will be reached, and it may be that if and when he does come to a new decision one party or the other will refuse to carry it out. I do not propose to do any more than to relieve the plaintiff of any obligation that may be upon her to submit to the present valuation which could be implemented through the company, by the machinery which the articles provide, by the secretary signing the transfer of the shares.’

Judges:

Harman J

Citations:

[1953] 2 All ER 636, [1953] Ch 590

Cited by:

Appeal from – Dean v Prince CA 1954
The court had criticised an auditors’ valuation of a company’s shares.
Held: The criticism was not correct. However. if the court was satisfied that the valuation was made under a mistake, it would not be binding on the parties.
Denning . .
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.

Company, Arbitration

Updated: 01 May 2022; Ref: scu.245124

Kirkby v Robinson: 1965

It is fundamental for an arbitrator asked to settle a rent to adjudicate on the extent of a land holding in order to decide the amount of that rent. If the Parties could not agree it, then the arbitrator would have to do so. Such preliminary issues fall within his jursdiction even if the terms of the appointment restrict his duties to determination of the rent.

Citations:

[1965] EGD 236

Jurisdiction:

England and Wales

Cited by:

Cited – Rysaffe Trustee Company (CI) Ltd and Another v Ataghan Ltd and others ChD 8-Aug-2006
Complex family trusts had been created over many years. Various documents were now disputed, and particularly the extent of land demised by a lease, and whether a surender of a lease had occurred. Landslides had disturbed the boundaries of the land. . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Landlord and Tenant

Updated: 01 May 2022; Ref: scu.245075

Griffin v Midas Homes Ltd: 2000

In respect of part of their claim in an adjudication, the claimants failed to comply with the requirements of paragraph 1(3) of the statutory scheme for construction contracts which formed an implied term of the contract between the parties. That failure consisted of a lack of clarity in the notice of adjudication.
Held: As to that part of the claim, the adjudicator did not have jutisdiction. An adjudicator was held to have had authority to decide some of the questions put before him, but not others. Only the party that sought adjudication was liable for the adjudicator’s fees, expenses and costs in so far as they related to the matters which were outside the adjudicator’s jurisdiction.

Judges:

Judge Humphrey LLoyd QC

Citations:

(2000) 78 Con LR 152

Cited by:

Cited – John Roberts Architects Ltd v Parkcare Homes (No. 2) Ltd TCC 25-Jul-2005
The defendant had taken a dispute to adjudication, but then abandoned those proceedings, upon which the adjudicator awarded costs against the defendant which the claimant now sought to enforce. The defendant argued that the award was outside the . .
Lists of cited by and citing cases may be incomplete.

Arbitration, Construction

Updated: 30 April 2022; Ref: scu.230380

Enron Corporation v The Argentine Republic: ICSID 14 Jan 2004

The Barcelona Traction case ‘has been held not to be controlling in investment claims such as the present, as it deals with the separate question of diplomatic protection in a particular setting’ and that: ‘what the State of nationality of the investor might argue in a given case to which it is a party cannot be held against the rights of the investor in a separate case to which the investor is party. This is precisely the merit of the ICSID Convention in that it overcame the deficiencies of diplomatic protection where the investor was subject to whatever political or legal determination the State of nationality would make in respect of its claim’.

Citations:

ARB/01/3

Links:

ICSID

Citing:

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

Cited by:

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

International, Arbitration

Updated: 30 April 2022; Ref: scu.230254

Camuzzi International SA v Argentine Republic: ICSID 11 May 2005

Of the Barcelona Traction case:- ‘this decision of the International Court of Justice referred particularly to the protection that could be expected by the shareholders in this case, but specifying that they can enjoy other protection, if there is a specific agreement in this regard. In this case, this is precisely the situation. There is an applicable international juridical agreement. This agreement is the Treaty and according to it, Camuzzi has the right to request, directly and immediately, the protection of its rights by accessing the Tribunal.’

Citations:

ARB/03/2

Links:

ICSID

Cited by:

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

International, Arbitration

Updated: 30 April 2022; Ref: scu.230256

Ahad and Another v Uddin: CA 15 Jun 2005

The parties were partners, and the partnership agreement contained provisions for arbitration. The claimant had begun proceedings, and the defendant had filed a defence. The claimants then applied to amend their particulars of claim. The defendant sought a stay saying this revived his entitlement him to require the case to be referred to arbitration.
Held: The introduction of the new issue, but one which was part and parcel of the matter already before the court, did not allow a stay.

Judges:

Lord Phillips of Worth Matravers MR, Waller LJ, Lloyd LJ

Citations:

Times 30-Jun-2005

Statutes:

Arbitration Act 1996 9

Jurisdiction:

England and Wales

Arbitration

Updated: 30 April 2022; Ref: scu.228269

Bank Mellat v GAA Development and Construction Co: 1988

Citations:

[1988] 2 Lloyd’s Rep 44

Jurisdiction:

England and Wales

Cited by:

Cited – Lesotho Highlands Development Authority v Impregilo Spa and others HL 30-Jun-2005
The House had to consider whether the arbitrator had acted in excess of his powers under s38, saying the arbitrator had misconstrued the contract. The arbitrator had made his award in different currencies.
Held: The question remained whether . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 30 April 2022; Ref: scu.228175

Omnium de Traitement et de Valorisation S A v Hilmarton Ltd: ComC 24 May 1999

Whether an Award in an arbitration whose proper and curial law was Swiss should be refused enforcement in England under Section 103 of the Arbitration Act 1996 in a case where the arbitrator had expressly found that no corrupt activity was involved, but English law would not have enforced the underlying contract due to illegality in the place of performance.

Judges:

Timothy Walker J

Citations:

[1999] 2 All ER (Comm) 146, [1999] 2 Lloyd’s Rep. 222

Arbitration

Updated: 30 April 2022; Ref: scu.225411

ABB Hochspumurgstechnik v Clearway: ComC 15 Oct 1999

Construction Contract – Award Costs – Two open offers – second offer relating to separate issue but not offering costs of all issues to date because no cause of action accrued at time of first offer – leave to appeal refused.

Judges:

Longmore J

Citations:

Unreported, 15 October 1999

Jurisdiction:

England and Wales

Arbitration

Updated: 30 April 2022; Ref: scu.225428