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Arbitration - From: 1997 To: 1997

This page lists 38 cases, and was prepared on 03 April 2018.

 
Schiffahrtsgesellschaft Detlev von Appen GmbH v Voest Alpine Intertrading GmbH ('The Jay Bola') [1997] 2 Lloyds Rep 279
1997
CA
Hobhouse LJ, Sir Richard Scott VC Morritt LJ
Arbitration
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-charterparty, to the benefit of which WAV has become entitled by subrogation, are subject to the arbitration agreement which, too, is part of the sub-charterparty. 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
Arbitration Act 1996 8(1)
1 Citers


 
Comdel Commodities Limited v Siporex Trade S a [1997] EWCA Civ 925; [1997] 1 Lloyd's Rep 424; [1997] 1 LLR 424
5 Feb 1997
CA
Butler-Sloss LJ, Peter Gibson LJ, Potter LJ
Arbitration, Jurisdiction, Contract
Comdel sought recovery of sums due under a performance bond. Held: Potter LJ discussed the authorities and said: "Those authorities are to the effect that it is implicit in the nature of a performance bond that, in the absence of some clear words to a different effect, when the bond is called, there will at some stage in the future be an 'accounting' between the parties to the contract of sale in the sense that their rights and obligations will finally be determined at some future date. The bond is a guarantee of due performance; it is not to be treated as representing a pre-estimate of the amount of damages to which the beneficiary may be entitled in respect of the breach of contract giving rise to the right to call for payment under the bond. If the amount of the bond is not enough to satisfy the seller's claim for damages, the buyer is liable to the seller for damages in excess of the amount of the bond. On the other hand, if the amount of the bond is more than enough to satisfy the seller's claim for damages, the buyer can recover from the seller the amount of the bond which exceeds the seller's damages.
It does not appear that there is anything in the words of the contracts of sale in this case to exclude the implication that there would at some stage be an 'accounting' between the parties in the sense that their rights and obligations would be finally determined at some future date."
1 Citers

[ Bailii ]
 
Fletamentos Maritimos SA v Effjohn International Bv [1997] EWCA Civ 1065
21 Feb 1997
CA

Arbitration
Application for leave to appeal against arbitration - leave refused.
1 Cites

1 Citers

[ Bailii ]
 
Turner v Stevenage Borough Council Gazette, 23 April 1997; Times, 27 March 1997; [1997] EWCA Civ 1184
6 Mar 1997
CA

Arbitration
An arbitrator continuing to act despite the failure of one party to pay his costs did not necessarily mean that he would be biased.
[ Bailii ]
 
Abdullah M Fahem and Co v Mareb Yemen Insurance Co and Another [1997] 2 Lloyds Rep 738
7 Mar 1997
ComC
Cresswell J
Arbitration
ComC Arbitration - stay - written arbitration agreement - non-nationals or non-residents - body corporate outside UK - agreement in writing - oral assent - assent by conduct - wide meaning - Arbitration clause - tortious claims - sufficiently close connection to contractual claim - Arbitration agreement - defences - defence of settlement - no bar to reference to arbitration
Arbitration Act 1979 1 7(1)


 
 Wallace v C Brian Barratt and Son Limited and Lock; CA 19-Mar-1997 - [1997] EWCA Civ 1281; [1997] EGLR 1
 
Phoenix Shipping (Pty) Limited v General Feeds Inc [1997] EWCA Civ 1476
22 Apr 1997
CA

Arbitration

Arbitration Act 1950 50
[ Bailii ]

 
 Glencore Grain Rotterdam BV v Lebanese Organisation for International Commerce; CA 25-Jun-1997 - [1997] EWCA Civ 1958; [1997] 4 ALL ER 514; [1997] CLC 1274; [1997] 2 Lloyds Rep 386

 
 Cukurova Celik Endustrisi as Istanbul v Jennyship S.A. Panama; ComC 27-Jun-1997 - Unreported, 27 June 1997

 
 Halki Shipping Corporation v Sopex Oils Ltd, The Halki; QBD 16-Jul-1997 - Gazette, 16 July 1997; Times, 13 October 1997; [1998] 1 Lloyd's Rep 465
 
Co-Operative Wholesale Society Ltd (Trading As Cws Engineering Group) v Birse Construction Ltd et Cetera Gazette, 23 July 1997; [1997] EWCA Civ 2062
23 Jul 1997
CA

Construction, Arbitration
JCT terms not intended to protect sub-contractor against insolvency of the main contractor allowing claim against main employer.
[ Bailii ]
 
Evans v Motor Insurance Bureau Times, 10 November 1997
29 Jul 1997
ComC
Thomas J
Arbitration, Insurance
ComC Untraced Drivers Scheme of the Motor Insurers Bureau – obligation to award interest – power to award interest under section 19A of the 1950 Act.
Arbitration Act 1950 19A
1 Cites

1 Citers


 
Poseidon Schiffahrt Gmbh v Nomadic Navigation Co Ltd Times, 09 October 1997; [1998] 1 Lloyd's Rep 57; [1997] CLC 1542
1 Aug 1997
Admn

Arbitration
Agreement for arbitration before the 1979 Arbitration Act can dispense with need for leave to appeal against arbitration to the High Court - Whether there is a due diligence obligation on owners in respect of defects arising on delivery, construction at clause 3(i), off-hire clause: meaning of "from a position not less favourable to charterers" Whether consent to appeal without leave of the Court can be incorporated in an arbitration agreement pre-dating the commencement of the arbitration: section 1(3) Arbitration Act 1979.
Arbitration Act 1979 1(3)

 
Vosnoc Ltd v Transglobal Projects Ltd Gazette, 10 September 1997; Times, 27 August 1997
27 Aug 1997
QBD

Arbitration, Limitation
A mere statement that a dispute was to be referred to arbitration, or a notice requiring a reference to arbitration, was not enough to constitute a reference to or commencement of an arbitration.
Arbitration Act 1996 12(3) - Limitation Act 1980 34(3)(a)

 
Davies Middleton and Davies Ltd v Toyo Engineering Corporation [1997] EWCA Civ 2318
29 Aug 1997
CA

Arbitration, Contract
Parties to a dispute agreed a way of resolving issues before arbitration. One party then sought to say that the agreement was void for uncertainty, being an agreement to agree. Held: The agreement merely set a mechansim for resolving the dispute and was valid.
Arbitration Act 1996 9
1 Cites

[ Bailii ]
 
Hayton S A v Jail SPA Unreported, 16 September 1997
16 Sep 1997
ComC
Clarke J
Arbitration
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.

 
Ali Shipping Corporation v Sour Brodgradevina Industrija 'Jozo Lozovina - Mosor' and Others Unreported, 18 September 1997
18 Sep 1997
ComC
Clarke J
Arbitration
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.
1 Cites

1 Citers


 
GEC Metro v Firema Consortium
25 Sep 1997
ComC
Longmore J
Arbitration
ComC Misconduct Procedural Mishap. Failure to order discovery. Relevance. Need for specific application. Need for application to be pursued.

 
Living Waters Christian Centres Ltd v Henry George Fetherstonehaugh
26 Sep 1997
ComC
Colmore J
Arbitration, Landlord and Tenant
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.
1 Citers


 
Metalfer Corporation v Pan Ocean Shipping Co Ltd [1998] 2 Lloyd's Rep 632; [1997] CLC 1574
7 Oct 1997
ComC
Longmore J
Arbitration
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.

 
Owners of the cargo lately laden on board the ship or vessel "ELPIS" v Owners of the ship or vessel "ELPIS" Unreported, 17 October 1997
17 Oct 1997
AdCt
Clarke J
Arbitration
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.

 
Agropol Trading Praha Sro v Podex Sro [1997] EWCA Civ 2589
29 Oct 1997
CA

Arbitration

[ Bailii ]
 
Bem Dis A Turk Ticaret S/A Tr v International Agri Co Ltd; "SELDA" [1998] 1 Lloyd's Rep 416; Times, 13 December 1997
31 Oct 1997
ComC
Clarke J
Contract, Arbitration
The seller had repudiated a C&F contract containing a GAFTA default clause, which did not include any provision allowing the recovery of expenses occasioned by the breach. The buyers made no claim for damages based on the difference between the contract price and the market price or value, presumably because the market had moved in their favour since the original contract was made. They claimed only the expenses occasioned by the repudiation. They recovered them from the arbitrators Held: The arbitrator's award was affirmed. At common law the buyer's remedy for failure to perform a contract of sale of goods is to claim damages for non-delivery. Where there was an available market, the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered. Held:
Arbitration appeal from Gafta. Construction of default clause 28 in Gafta - Form 100.
1 Cites

1 Citers


 
Agro Allied Development Enterprises Ltd v United Shipping and Trading Company Inc Unreported, 7 November 1997
7 Nov 1997
ComC
Clarke J
Arbitration
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.

 
Evans v Motor Insurers Bureau Times, 10 November 1997
10 Nov 1997
QBD

Arbitration
MIB has no power to grant interest on award, but arbitrator finding in favour of applicant does have the power.

 
Cargill International Sa and Another v Sociedad Iberica De Molturacion Sa and Others Times, 12 November 1997
12 Nov 1997
ChD

Arbitration
A dissenting arbitrator has no right outside the statute or the terms of reference to insist on inclusion of his reasons for dissent in the award.

 
Ali Shipping Corporation v Jugobanka D D Beograd Jugobanka Split [1997] EWCA Civ 2705
13 Nov 1997
CA

Arbitration

1 Cites

1 Citers

[ Bailii ]
 
Alfred C Toepfer International Gmbh v Societe Cargill France Times, 26 December 1997; [1997] EWCA Civ 2811; [1998] 1 Lloyd's Rep 379
25 Nov 1997
CA

Arbitration
A clause in a contract requiring the parties to have recourse to arbitration before initiating legal action, (Scott v Avery) cannot be used to prevent injunction proceedings to enforce the clause itself.
1 Citers

[ Bailii ]
 
Oswal Agro Mills Ltd v Indo-Europe Foods Ltd Unreported, 28 November 1997
28 Nov 1997
ComC
Clarke J
Arbitration
Sellers alleged misconduct on the ground that they had not had a proper opportunity to put their case. Application dismissed on the ground that they had had ample opportunity to put their case and there was no evidence of misconduct

 
Norwest Holst Construction Ltd v Co-Operative Wholesale Society Ltd [1997] EWHC Technology 356
2 Dec 1997
TCC

Arbitration

[ Bailii ]
 
Strachan and Henshaw Limited v Stein Industrie (UK) Limited and GEC Alsthom Limited [1997] EWCA Civ 2940
9 Dec 1997
CA

Arbitration

[ Bailii ]
 
Fletamentos Maritimos SA v Effjohn International Bv [1997] EWCA Civ 2947
10 Dec 1997
CA

Arbitration

1 Cites

1 Citers

[ Bailii ]
 
India Steamship Co Ltd v Arab Potash Co Ltd Unreported, 12 December 1997
12 Dec 1997
ComC
Colman J
Arbitration
Arbitration Act 1996, Section 69(3)(d): when is it just and proper in all the circumstances for the court to determine a question raised on an application for leave to appeal; issue of construction in a one-off charterparty clause where pre-existing judicial authority as to proper construction of similar wording
Arbitration Act 1996 69(3)(d)

 
Soinco S A C I and Another v Novokuznetsk Aluminium Plant and others [1997] EWCA Civ 3014
16 Dec 1997
CA
Arbitration
The contract provided for arbitration under the International Arbitration Rules of the Zurich Chamber of Commerce. The arbitrators considered an assertion of illegality by NKAP, and rejected it with reasons. Thereafter a decision of a Russian court, in proceedings at which only NKAP and the public prosecutor were present, held that the contract was illegal. A Swiss court was then asked to have the arbitration award revised and refused to do so. The issue was whether NKAP should have an extension of time for applying to set aside an order that a Swiss arbitration award be enforced as a judgment. Held: Waller LJ: "I am unpersuaded that it is arguable that under English law enforcement of this award would be contrary to English public policy. The reasons are separate and distinct. First it is the award with which the English court is concerned and not the underlying contract . The question of illegality having been raised and dealt with by the Arbitrators, and there being no requirement as a result to perform some act which English law would regard as illegal under English law or contrary to the recognised morals of this country, the public policy is if anything in favour of abiding by the terms of the convention and enforcing the award. Second in any event if an offence will be committed by NAKP in Russia as a party to the award in paying the same, that is the result of their own failure to obtain the requisite consents, and English public policy would in my view be offended if that relieved that party from its obligation to meet the award."
1 Citers

[ Bailii ]
 
Cargill International SA Antigua (Geneva Branch) and Another v Sociedad Iberica De Molturacion SA and others Sociedad Iberica De Molturacion SA v Cargill International SA (T/a Cargill International SA (Geneva Branch) and others Times, 26 December 1997; Gazette, 21 January 1998; Gazette, 28 January 1998; [1997] EWCA Civ 3001
16 Dec 1997
CA

Arbitration
A dissenting arbitrator, acting under the GAFTA 125 Rules, was not entitled to insist that his reasons for dissenting be included in the award.
Grain and Feed Trade Association Rules
[ Bailii ]
 
Fletamentos Maritimos SA v Effjohn International (No. 2) Unreported, 19 December 1997
19 Dec 1997
ComC
Thomas J
Arbitration
Arbitration - Alleged misconduct by Umpire - discovery - refusal to adjourn. Principles applicable.
1 Cites


 
Ali Shipping Corporation v Shipyard Trogir [1997] EWCA Civ 3054; [1998] CLC 566; [1999] 1 WLR 314; [1998] 2 All ER 136; [1998] 1 Lloyds Rep 643
19 Dec 1997
CA
Beldam, Potter, Brooke LJJ
Evidence, Arbitration
In the case of an arbitration, there is a strong contractual presumption in favour of confidentiality and against non-disclosure. But this may be overridden by a court where necessary to protect a party's rights against a third party or in other exceptional circumstances where justice requires.
1 Citers

[ Bailii ]
 
Halki Shipping Corporation v Sopex Oils Limited Times, 19 January 1998; [1997] EWCA Civ 3062; [1998] 1 WLR 726
19 Dec 1997
CA
Swinton Thomas LJ
Arbitration
The court was aked whether there was a dispute sufficient to sustain a stay of court proceedings for arbitration under the Act. Held: There was a dispute once money is claimed unless and until the defendants admit that the sum is due and payable. In arbitration proceedings a party is entitled to stay other proceedings between parties unless they refer to a different matter or there was some fault in the arbitration agreement.
Arbitration Act 1996
1 Cites

1 Citers

[ Bailii ]
 
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