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:
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