swarb.co.uk - law index
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Arbitration - From: 1993 To: 1993
This page lists 7 cases, and was prepared on 03 April 2018.
Paklito Investment Ltd v Klockner East Asia Ltd [1993] HKLR 39
1993
Kaplan J
International, Arbitration
(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."
1 Citers
Harbour Assurance Co (Uk) Ltd v Kansa General International Insurance Co Ltd [1993] 1 Lloyds Rep 81
1993
Steyn J
Arbitration
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."
1 Cites
1 Citers
Aiglon Limited and another v Gau Shan Co Limited [1993] BCLC 1321
1993
ChD
Hirst J
Litigation Practice, Arbitration, Insolvency
The defendants had obtained world-wide Mareva injunctions in support of substantive proceedings by way of their counterclaim to enforce an arbitration award against the plaintiffs under section 26 against two companies, Aiglon Limited and L'Aiglon SA (a Swiss company). Held: There was no basis under section 26 for enforcement of the arbitration award against SA, but the question arose whether any other basis for a freezing order against SA existed, having regard to the fact that the defendants' only contractual entitlement was against Limited. There were two bases. It was well arguable that a transfer of assets from Limited to SA fell foul of section 423 of the Insolvency Act 1986, thereby giving the defendants a direct cause of action against SA as victims of the transaction. Second, since an administrator or liquidator of Limited (if appointed) could apply to set aside the relevant transaction under section 238 of the Insolvency Act 1986 with the consequence that SA would hold the assets transferred as trustee for Limited, the case fell within the Chabra jurisdiction since it was arguable that SA held assets beneficially belonging to Limited, against which the defendants had a good cause of action. It mattered not that Limited's arguable beneficial interest in assets transferred to SA was contingent both upon the appointment of an administrator or liquidator of Limited, and the successful pursuit by the officeholder of a claim under section 238.
Arbitration Act 1950 26 - Insolvency Act 1986 423
1 Citers
Balfour Beatty Building Ltd v Chestermount Properties Ltd (1993) 62 BLR 12
1993
Colman J
Construction, Arbitration
It was argued that the party seeking a referral to arbitration need only rely on the existence of relevant events for its entitlement to an extension of time and has no regard for any delay for which it may be culpable and which may impact at the same time as the relevant event. Held: A limitation to be placed on the approach suggsted was that the net delay of the event should be added to the time for completion, rather than the gross delay including prior culpable delay.
1 Citers
Unit Four Cinemas v Tosara Investment Ltd [1993] 2 EGLR 11
1993
Arbitration
The applicant challenged the fairness of the arbitrator's actions.
1 Citers
Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd and Others; HL 17-Feb-1993 - Gazette, 17 February 1993; [1993] 2 WLR 262; [1993] 1 All ER 664; [1993] AC 334
Harbour Assurance Co (Uk) Ltd v Kansa General International Insurance Co Ltd Gazette, 07 April 1993; [1993] 1 QB 701; [1993] 1 Lloyd's Law Reports 455
7 Apr 1993
CA
Ralph Gibson LJ, Hoffmann LJ
Arbitration, Insurance
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 insurance or reinsurance business under the Insurance Companies Acts. The illegality was denied, and the defendant sought a stay and reference to arbitration. Held: A stay was granted. An arbitration clause in an insurance contract was separate from the main contract with the effect that (a) invalidity of the main contract did not deprive the arbitrator of jurisdiction, and (b) the arbitrator had jurisdiction to decide the question of illegality of the main contract.
Ralph Gibson LJ: "Mr Longmore pointed out that a party to a contract the making of which he says was induced by fraud, would be surprised to be told that he is bound to have the issue tried by an arbitrator appointed under a clause in that contract. He also pointed out that when such a party alleges that the contract is void for illegality, he might well be astonished to be told that the issue of that illegality is to be determined by an arbitrator appointed under it.
There is, I think, force in these comments, but I add that in my view they are no more than forceful comments. Mr Justice Steyn said that the question of fraud or initial illegality was capable of being referred to arbitration. He did not qualify the clearly stated principle that if the validity of the arbitration clause itself is attacked the issue cannot be decided by the arbitrator. His reference to direct impeachment was, as I understand his judgment, to distinguish an attack upon the clause otherwise than by the logical proposition that the clause falls within the containing contract. When it is said that the contract was induced by fraud it may well be clear that, if it was, the making of the independent arbitration clause was also induced by fraud."
Hoffmann LJ: "Mr Longmore therefore accepts, as he must, that for some purposes the arbitration clause is treated as severable and may survive the termination or even the avoidance with retrospective effect of all the other obligations under the contract .. He submits however that the severability doctrine cannot apply to any rule which prevents the contract from coming into existence or makes it void ab initio. In particular, it does not apply to a statute or other rule of law which makes the contract void for illegality.
It seems to me impossible to accept so sweeping a proposition. There will obviously be cases in which a claim that no contract came into existence necessarily entails a denial that there was any agreement to arbitrate. Cases of non est factum or denial that there was a concluded agreement, or mistake as to the identity of the other contracting party suggest themselves as examples. But there is no reason why every case of initial invalidity should have this consequence."
Arbitration Act 1979 1
1 Cites
1 Citers