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Arbitration - From: 2002 To: 2002

This page lists 30 cases, and was prepared on 03 April 2018.

 
Denison Mines Limited v Ontario Hydro [2002] 56 O.R (3d) 181
2002

Morden J
Commonwealth, Arbitration
(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."

 
Shimizu Europe Ltd v Automajor Ltd [2002] EWHC 1571 (TCC)
17 Jan 2002
PatC
His Honour Judge Richard Seymour Q.C.
Arbitration, Construction
The claimant sought to enforce an award made under the Rules. The Respondent objected on the basis that the award included errors and inconsistencies. This had been denied by the Adjudicator. An adjudicator's decision has a different status to that of an arbitrator, insofar as his decision is binding until set aside. If an error had been made, it was not one of jurisdiction. An award had to be accepted entirely or not at all. By inviting the adjudicator to amend his award under the slip rule, the respondent had in effect recognised the validity of the award as such.
Technology and Construction Solicitors Association Adjudication Rules - 1999 Version 1.3
[ Bailii ] - [ Bailii ]
 
C and B Scene Concept Design Ltd v Isobars Ltd [2002] EWCA Civ 46; [2002] BLR 93
31 Jan 2002
CA
Lord Justice Potter, Lord Justice Rix, And, Sir Murray Stuart-Smith
Construction, Arbitration, Litigation Practice
The claimant appealed a refusal of summary judgement, in a claim to enforce an arbitration award. Where an award was challenged, enforcement should still be allowed to continue unless the challenge went as to the jurisdiction of the reference. Errors of procedure, fact or law are not sufficient to prevent enforcement of an adjudicator's decision by summary judgment. In this case there was agreement as to the scope of the dispute, and the Adjudicator's decision, even with errors of law as to the relevant contractual provisions, is still binding and enforceable until the matter is corrected in the final determination. Appeal allowed.
1 Cites

1 Citers

[ Bailii ]
 
Capital Trust Investment Limited v Radio Design AB and others [2002] EWCA Civ 135
15 Feb 2002
CA
Lord Justice Schiemann, Lord Justice Clarke, And, Lady Justice Arden
Arbitration
The claimant appealed an order staying its action on the basis that the agreement between the parties provided for arbitration in Sweden. Shares had been purchased, and the claimant said that because of misrepresentations by the respondent, they had paid six times the true value. There had been a Confidential Information Memorandum upon which both parties would wish to rely. The form applying for shares had been prepared by a placement agent and included an arbitration clause. The respondent argued that that contract was with the agents, not the respondent. Held: The form created a contract between the parties. The additional question arose as to whether a claim for damages for negligent or fraudulent misrepresentation fell within the ambit of the arbitration clause. An arbitration or jurisdiction clause is very different from a general release, and the BCCI case was distinguished. It would be unhelpful to allow two sets of proceedings, and nor had the respondent taken any step in the proceedings to waive the right to arbitration. Appeal dismissed.
Arbitration Act 1996 9(6)
1 Cites

[ Bailii ]
 
Total M and E Services Ltd v ABB Building Technologies Ltd [2002] EWHC 248 (Technology)
26 Feb 2002
TCC
Wilcox J
Construction, Arbitration
Application for summary judgment to enforce construction arbitration award.
Housing Grants Construction and Regeneration Act of 1996
[ Bailii ]
 
Total M and E Services Ltd v Abb Building Technologies Ltd [2002] EWHC 248 (Technology)
26 Feb 2002
TCC

Construction, Arbitration

[ Bailii ]
 
RJT Consulting Engineers Ltd v DM Engineering (NI) Ltd Gazette, 11 April 2002; [2002] CILL 1841; (2002) 18 Const LJ 425; [2002] TCLR 21; 83 Con LR 99; [2002] EWCA Civ 270; [2002] CLC 905; [2002] 1 WLR 2344; [2002] BLR 217
8 Mar 2002
CA
Lords Justice Auld, Ward and Robert Walker
Construction, Contract, Arbitration
The court considered what would amount to a contract in writing under the 1996 Act. Ward LJ said: "Section 107(2) gives three categories where the agreement is to be treated in writing. The first is where the agreement, whether or not it is signed by the parties, is made in writing. That must mean where the agreement is contained in a written document which stands as a record of the agreement and all that was contained in the agreement. The second category, an exchange of communications in writing, likewise is capable of containing all that needs to be known about the agreement. One is therefore led to believe by what used to be known as the eiusdem generis rule that the third category will be to the same effect namely that the evidence in writing is evidence of the whole agreement.
Sub-section (3) is consistent with that view. Where the parties agree by reference to terms which are in writing, the legislature is envisaging that all of the material terms are in writing and that the oral agreement refers to that written record.
Sub-section (4) allows an agreement to be evidenced in writing if it (the agreement) is recorded by one of the parties or by a third party with the authority of the parties to the agreement. What is there contemplated is, thus, a record (which by sub-section (6) can be in writing or a record by any means) of everything which has been said. Again it is a record of the whole agreement." and "On the point of construction of section 107, what has to be evidenced in writing is, literally, the agreement, which means all of it, not part of it. A record of the agreement also suggests a complete agreement, not a partial one. . . It must be remembered that by virtue of section 107(1) the need for an agreement in writing is the precondition for the application of the other provisions of Part II of the Act, not just the jurisdictional threshold for a reference to adjudication. I say 'unfortunately' because, like Auld L.J. whose judgment I have now read in draft, I would regard it as a pity if too much 'jurisdictional wrangling' were to limit the opportunities for expeditious adjudication having an interim effect only. No doubt adjudicators will be robust in excluding the trivial from the ambit of the agreement and the matter must be entrusted to their common sense. "
Housing Grants, Construction and Regeneration Act 1996 107
1 Citers

[ Bailii ]
 
North Range Shipping Ltd v Seatrans Shipping Corporation Times, 18 April 2002; [2002] EWCA Civ 405; [2002] 1 WLR 2397; [2002] 4 All ER 390
14 Mar 2002
CA
Lord Justice Aldous, Tuckey LJ
Arbitration, Human Rights, Civil Procedure Rules
The parties had been involved in an arbitration. The claimant sought leave to appeal. The judge refused to give leave, but did not say exactly why. Held: Human Rights law required a right of appeal. That right could only be exercised properly if the party knew the basis of the decision. The court should state which of the threshold conditions required under s 69 had not been met. The Court of Appeal did have the power to set aside a first instance judge's decision for unfairness, and a decision without sufficient reasons was such.
Tuckey LJ said: "If, as is accepted, there is a residual jurisdiction in this court to set aside a judge's decision for misconduct then there can be no reason in principle why the same relief should not be available in a case of unfairness. Each is directed at the integrity of the decision-making process or the decision-maker, which the courts must be vigilant to protect, and does not directly involve an attack on the decision itself."
Arbitration Act 1996 69(3) - Human Rights Act 1988 6 - Civil Procedure Rules 52.10(2)(a)
1 Cites

1 Citers

[ Bailii ]
 
Parsons Plastics (Research and Development) Ltd v Purac Ltd [2002] EWCA Civ 459
12 Apr 2002
CA
The Hon Mr Justice Latham
Construction, Contract, Arbitration
The claimants were main contractors on a construction project. The respondents were sub-contractors. After difficulties, the sub-contractor was ejected from the site. The issue was as to the jurisdiction of the adjudicator. Was the project, to create a sewage station, a 'construction operation' within the Act? Held: The sum was due under the contract irrespective of whether an adjudicator also found it to be due. The contract could not be re-read to exclude the arbitration requirement. In this case the contractors were unlikely to succeed in any attempt to deny the sub-contractors their right to payment for works done, and payment should not be delayed for a set off claim. The judge was entitled, in her discretion, to make an interim award.
Housing Grants, Construction and Regeneration Act 1996
1 Cites

[ Bailii ]
 
Yukos Oil Company v Dardana Ltd [2002] EWCA Civ 543; [2002] 2 Lloyd's Rep 326
18 Apr 2002
CA
Mance LJ, Thorpe LJ and Neuberger J
Arbitration
The claimant sought to enforce an arbitration award made in Sweden, even though it had yet to give its final adjudication on the defence under the New York Convention argued by the defendant. Held. The Act cannot have been intended to give the court an open discretion on the enforcement of international arbitration awards, but one based on some recognisable legal principle. Section 103(2) is concerned with the fundamental structural integrity of the arbitration proceedings and the court is unlikely to allow enforcement of an award if it is satisfied that its integrity is fundamentally unsound.
Arbitration Act 1996 103(2)(b)
1 Cites

1 Citers

[ Bailii ]
 
Welex Ag v Rosa Maritime Ltd [2002] EWHC 762 (Commercial); [2002] 2 Lloyds Law Rep 81
25 Apr 2002
ComC
David Steel J
Transport, Arbitration

1 Citers

[ Bailii ]
 
Phoenix Finance Limited vFederation Internationale De L'automobile, Formula One Management Limited, Formula One Administration Limited Times, 27 June 2002; Gazette, 27 June 2002; EWHC 1028 (Ch); [2002] EWHC 1028 (Ch)
22 May 2002
ChD
The Vice Chancellor
Contract, Arbitration, Costs, Civil Procedure Rules
The claimant had purchased the interests of a failed Formula One car racing team, including, it said, the right to enter a team in Formula One races. It claimed to have been unlawfully excluded from racing. Held: The claimant had failed to comply with the requirements imposed upon participants, and was not entitled to race. Since the claimant sought rights under the contract, it was bound by the agreement to refer disputes to arbitration. As to costs, there was still a need to serve a letter before action, and in the absence of such a letter, even in a case where there was no pre-action protocol, a party could not complain if he was ordered to pay the other party's costs on an indemnity basis.
Arbitration Act 1996 9 44 - Civil Procedure Rules
1 Cites

[ Bailii ] - [ Bailii ]
 
Downing v Al Tameer Establishment and Another [2002] EWCA Civ 721; [2002] 2 All ER (Comm) 545
22 May 2002
CA
Potter LJ, Keene LJ, Sumner LJ
Arbitration
A contractual dispute arguably involved an arbitration clause. Before the proceedings the Defendant denied the contract. Held. That assertion was a repudiation of the agreement to arbitrate, and the Claimant issued proceedings in Court. The issue of those proceedings was acceptance of the repudiatory breach with the result that the agreement to arbitrate was at an end. Accordingly the application by the Defendant for a stay failed as the agreement had become inoperable. The Court approved the application of ordinary contractual principles to the agreement to arbitrate.
Potter LJ said: "it is of course the position that the existence of an arbitration agreement does not prevent either party from instituting court proceedings in respect of the underlying dispute. That is a principle based upon the rule that the parties may not agree to oust the jurisdiction of the court: see Scott –v- Avery (1856) 5HL Cas 811. However, it is inaccurate to speak of a right to commence proceedings in any more general sense. Whether or not such commencement is a breach of the arbitration agreement by the party instituting the proceedings will depend upon the circumstances. If satisfied that a breach is involved, as it usually will be, then the court will grant a stay. If not so satisfied, but the position is arguable, the court will grant a stay on the basis that the issue raised is not clear and that the arbitrator has the power to rule upon his own jurisdiction (see s.30 of the 1996 Act). However, the fact that a party is in broad terms free to commence proceedings despite the existence of a valid arbitration clause, at the risk of stay being granted, does not mean that, in the circumstances of a particular case and in the light of pre-writ correspondence, such commencement cannot constitute an acceptance of the defendant's previous refusal to arbitrate, so that the court is satisfied that a stay should not be granted."
Arbitration Act 1996 9
1 Citers

[ Bailii ]
 
Athletic Union of Constantinople v National Basketball Association and Others Times, 13 June 2002; Gazette, 18 July 2002; [2002] EWCA Civ 830; [2002] 1 WLR 2863
28 May 2002
CA
Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Robert Walker and Lord Justice Clarke
Arbitration, Litigation Practice
A party had been refused leave to appeal against an arbitration under the Act by the judge, but later obtained leave to appeal. Held: Such leave could only be granted by the trial judge, and the Court of Appeal could set aside the leave granted in excess of jurisdiction. The parties had argued that the arbitration itself was in excess of jurisdiction, but that did not affect the current issue.
Arbitration Act 1996 76 - Civil Procedure Rules 52.9
1 Cites

1 Citers

[ Bailii ]
 
J T Mackley and Company Ltd v Gosport Marina Ltd [2002] EWHC 1315 (Technology); [2002] EWHC 1315 (Technology)
3 Jul 2002
TCC
His Honour Judge Richard Seymour Q.C.
Arbitration, Construction
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 to substantial works of land reclamation. Held: The matters at issue fell within the scope of Part I of the 1996 Act, and the court could normally only intervene in accordance with the Act. To accept the claimant's position widely would be to allow a party to avoid the Act by simply refusing to appoint an arbitrator. However, the importance of the issues raised meant that in this case the court could hear the claim disputing the Notice to Refer. A decision of the Engineer was a pre-requisite to a Notice to Refer, and the issue of the Notice was not to be held in suspense pending the decision of Engineer's decision. The Notice to Refer was invalid.
Arbitration Act 1996 1 2 32 - Housing Grants, Construction and Regeneration Act 1996 108(5) - The Scheme for Construction Contracts (England and Wales) Regulations 1998 SI 1998 No. 649
1 Cites

[ Bailii ]
 
ABCI v Banque Franco Tunisienne and others [2002] EWCA Civ 1117
5 Jul 2002
CA

Torts - Other, Litigation Practice, Arbitration
Renewed application for leave to appeal.
1 Citers

[ Bailii ]
 
Flacker Shipping Ltd v Glencore Grain Ltd (Happy Day) [2002] EWCA Civ 1068; [2002] 2 Lloyd's Rep 487; [2002] 2 All ER (Comm) 896
15 Jul 2002
CA
Potter, Arden LJJ, Sir Denis Henry
Transport, Arbitration

1 Cites

1 Citers

[ Bailii ]
 
George Wimpey UK Ltd v Granby Village (Manchester) Management Company Ltd [2002] EWHC 2913 (TCC)
14 Aug 2002
TCC

Arbitration, Construction

[ Bailii ]
 
Equatorial Traders Ltd v Louis Dreyfus Trading Ltd [2002] EWHC 2023 (Comm)
28 Aug 2002
ComC

Arbitration

[ Bailii ]
 
Equatorial Traders Ltd v Louis Dreyfus Trading Ltd [2002] EWHC 2023 (Comm)
28 Aug 2002
ComC

Arbitration

Arbitration Act 1996 67 68
[ Bailii ]
 
ABCI v Banque Franco-Tunisienne [2002] EWHC 2024 (Comm)
28 Aug 2002
ComC

Arbitration, Litigation Practice

1 Cites

1 Citers

[ Bailii ]
 
Whiting v Halverson and others [2002] EWCA Civ 1858
8 Oct 2002
CA
Lws LJ
Arbitration
Renewed application for permission to appeal against a decision that the district judge had correctly ordered a stay of proceedings instituted by the applicant under section 9 of the 1996 Act.
Arbitration Act 1996
[ Bailii ]
 
Electrosteel Castings Ltd v Scan-Trans Shipping and Chartering Sdn Bhd [2002] EWHC 1993 (Comm); [2002] EWHC 1993 (Comm)
9 Oct 2002
ComC

Arbitration

Arbitration Act 1996 31
[ Bailii ] - [ Bailii ]
 
Bulfracht (Cyprus) Ltd v Boneset Shipping Company Ltd 'Mv Pamphilos' [2002] EWHC 2292 (Comm)
7 Nov 2002
ComC

Transport, Arbitration
Appeal against charterer's contract arbitration award: "Although applications for leave to appeal under Section 69 are normally on paper without an oral hearing, the course adopted in the present case of hearing oral argument on the application for leave at the same hearing as for the Section 68 application, is a sensible and more cost efficient approach, particularly having regard to the fact that the underlying facts and legal submissions relevant to both applications are so closely related."
Arbitration Act 1986 69
1 Citers

[ Bailii ]
 
HOK Sport Ltd v Aintree Racecourse Company Ltd [2002] EWHC 3094 (TCC)
12 Nov 2002
TCC
His Honour Judge Thornton QC
Arbitration
Application for leave to appeal a question of law and the appeal of that question by an architect. The question of law involved a consideration of the applicability of South Australia Asset Management Co Ltd v York Montague Ltd to a claim against an architect based on a breach of a duty to warn the employer that a requirement of the design brief would not be met, thereby losing the employer the opportunity to reconsider its proposed course of action.
[ Bailii ]
 
Lesotho Highlands Development Authority v Impreglio SpA and Others Times, 16 November 2002; [2003] 1 All ER (Comm) 22; [2002] EWHC 2435 (Comm); [2003] BLR 98
15 Nov 2002
QBD
Morison J
Arbitration
The parties had submitted their dispute to arbitration. The arbitrator had made his award payable in certain currencies. The payer contended that this was in excess of his jurisdiction. Held: The reference to the arbitrator continued the jurisdiction given to the engineer under the earlier stage of the dispute. The contract stipulated the currencies in which payments were to be made, and the arbitrator had no power to order differently. They had wrongly regarded this as a matter of procedural law.
Arbitration Act 1996
1 Cites

1 Citers

[ Bailii ]
 
Artegodan v Commission T-74/00; [2002] EUECJ T-74/00; [2002] ECR 11-495
26 Nov 2002
ECFI

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

1 Citers

[ Bailii ]
 
Baldwins Industrial Services Plc v Barr Ltd [2002] EWHC 2915 (TCC)
6 Dec 2002
TCC

Arbitration

[ Bailii ]
 
CMA Cgm S A v Beteiligungs-Kommanditgesellschaft 'Northern Pioneer' and others [2002] EWCA Civ 1878
18 Dec 2002
CA

Transport, Arbitration
Cancllation of charterparty - war cancellation clause
[ Bailii ]
 
CMA CGM S A v Beteiligungs-Kommanditgesellschaft 'Northern Pioneer' Schiffahrtgesellschaft Mbh and Co and others Times, 31 December 2002
18 Dec 2002
CA
Lord Justice Dyson, Lord Justice Rix, Lord Phillips MR
Arbitration, Transport
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 on a point of general public importance, provided only that the decision allowed of some doubt. Applications for leave should be written, and concise. The statutory criteria were not to be amplified by changing practice. The question here related to the need to exercise within a reasonable time, any right to withdraw from a charterparty in the event of war. A charterparty is a joint enterprise, and one party should not be left with a prolonged right to withdraw. There was no sufficient doubt in this case to allow leave to appeal to be given.
Arbitration Act 1979 81
1 Cites


 
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