LAST UPDATED 4th NOVEMBER 2008 : · Re a Gafta appeal board. Recovery of ... Res judicata Ahmed v London Borough Of Southwark [1998] EWCA Civ 826 : Bailli ... A. v QBE International

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TOPIC INDEX CASE NAME (Hyperlinked – word version only – not available in pdf) - CITATION : (On-line web source) : Bullet point summary. JUDGE Year/M/D COURT

Termination of

arbitral

proceedings

A v B [2006] EWHC 2006 (Comm) Bailli

Family arbitration. Whether, given that the seat of the arbitration was indisputably Geneva, the court should decline to

exercise the jurisdiction it has over the tribunal in respect of the claims against the arbitrator as an appropriate arbitrator

under a void or rescinded arbitration agreement and as to the various personal claims for damages for breach of his various

alleged duties to A.

Colman Mr Justice 2006.07.28 Commercial

Court

CPR 44.4(2) : Costs :

Stay to arbitration :

A v B [2007] EWHC 54 (Comm) : Bailli

Costs of a successful application for a stay to arbitration normally awarded on an indemnity basis.

Colman J 2007.01.23 Commercial

Court

S068 AA 1996

Challenge s68

serious irregularity

ABB Ag v Hochtief Airport GmbH [2006] EWHC 388 (Comm) : Bailli

Failed section 68 challenge to an award.

Tomlinson Mr

Justice

2006.03.08 QBD

Commercial

Court

New York Award –

enforcement :

joinder refused

ABCI v Banque Franco-Tunisienne [2002] EWHC 2024 (Comm) (Comm) : Bailli

Application for joinder regarding action for enforcement of a New York Award. Held : The purpose of joinder was for

matters not relevant to enforcement / resistance under New York and accordingly refused.

Chambers QC HHJ 2002.08.28 Commercial

Court

S009 AA 1996 : Stay

to arbitration s9

Abu Dhabi Investment Co v H Clarkson & Company Ltd. [2006] EWHC 1252 (Comm) : Bailli

Application for stay to arbitration in the UAE. Court held that since arbitration as opposed to litigation in the UAE, of a

dispute not related to the execution of a contract, is permissive, not compulsory, this amounted to an application for a stay

to litigation in the UAE. Accordingly the application was refused.

Morison, Mr Justice 2006.05.26 QBD

Commercial

Court

Anti-suit

injunction

Ace Capital Ltd v CMS Energy Corporation [2008] EWHC 1843 (Comm) : Bailli

Successful application for a permanent anti-suit injunction in respect of Michegan litigation - in favour of LCIA arbitration

of insurance disputes.

Clarke Mr Justice

Christopher

2008.07.30 Commercial

Court

S069 AA 1996 :

Point of law

Action Navigation Inc v Bottiglieri Navigation Spa [2005] EWHC 177 (Comm) : Bailli

Challenge to award – off hire clauses in a charter-party. Failed challenge – reasons not as clear as might be desired and

delivered late – delay in excess of a year from hearing.

Aikens Mr Justice 2005.02.16 Commercial

Court

Compiled by Corbett Haselgrove Spurin : Copyright NADR UK Ltd 2008 2

s028(2),(3) AA 1996

: Costs :

Arbitrator’s fees

Adjustment of fees

Agrimex Ltd. v Tradigrain SA [2003] EWHC 1656 (Comm) : Bailli

Application s28(2) & (3) for adjustment of arbitrator’s fees : court concurred and ordered that the sum offered in settlement

become the due amount. “the size of the team employed and the time spent was wholly excessive and disproportionate to the issues

involved.” Re a Gafta appeal board. Recovery of winning party’s costs before a GAFTA appeal tribunal from the losing

party. “In my judgment, the size of the team employed and the time spent was wholly excessive and disproportionate to the issues

involved. The Claimants had been prepared to pay, prior to the hearing, the sum of £6,500; that was in my view a generous amount in

all the circumstances, but I will not go below it. I summarily assess the costs at £6,500.”

Thomas Mr Justice 2003.07.09 QBD

Commercial

Court

S022 AA 1950 : s23

AA 1950

Misconduct :

procedural mishap

Agropol Trading Praha SRO v Podex SRO [1997] EWCA Civ 2589

Unsuccessful application for a GAFTA appeal board award to be remitted to under Sections 22 or 23 of the 1950 Act on

grounds of either misconduct or procedural mishap.

Hobhouse LJ :

Pill LJ

1997.10.29 CA

S009 AA 1996 : Stay

to arbitration : s9

Ahmad Al-Naimi (t/a Buildmaster Construction Services) v Islamic Press Agency Inc [2000] EWCA Civ 17 Bailli

Stay issued at 1st instance - leaving it to tribunal to rule on jurisdiction : On appeal stay confirmed - but CA chose to

address the jurisdiction issue and found the tribunal had jurisdiction.

Waller LJ;

Chadwick LJ.

2000.01.28 CA

Appeal or review Ahmed v London Borough Of Southwark [1997] EWHC Admin 551 : bailli

Pro-se applicant to a Tenancy Arbitration Tribunal initially sought repair work but no damages. Subsequently appealed in

an attempt to recover damages by alleging that he was denied an opportunity to present his case. Court found he had the

necessary opportunity and presented his case but failed. Appeal against that failure also failed. Highlights the dangers of

acting pro-se where the applicant does not understand the law or relevant procedures.

Laws Mr Justice 1997.06.12 QBD Admin

Division

Res judicata Ahmed v London Borough Of Southwark [1998] EWCA Civ 826 : Bailli

Where at a subsequent hearing a rent tribunal is required to assess damages for non repair it is not open to the tribunal at

that hearing to determine that there has been no breach of the requirement to repair. Award set aside.

Evans LJ;

Millett LJ;

Auld LJ.

1998.05.13 CA

S023 AA 1950 :

Removal of

arbitrator

Ahmed v London Borough Of Southwark [1997] EWCA Civ 2323

Appeal against refusal to dismiss arbitrator. Appeal terms altered to assert that the tribunal extended its jurisdiction.

Appeal granted. Grounds were arguable – giving rise to the need for a hearing.

Morritt LJ;

Phillips LJ.

1997.09.02 CA

S069 AA Act 1996

challenge

AIC Ltd v Marine Pilot Ltd [2008] EWCA Civ 175 Bailli

Questions of law : entitlement to deadfreight and / or action for breach of safe port obligations in the alternative. Three

consecutive voyage charterparties in Asbatankvoy form

Clarke MR Sir

Anthony :

Longmore LJ :

Aldous Sir William

2008.03.07 CA

S069 AA 1996

Challenge s69 point

of law

AIC Ltd v Marine Pilot Ltd [2007] EWHC 1182 (Comm) : Bailli

Challenge to a preliminary determination regarding interpretation of safe port clause - and quantity to be loaded.

Gloster Mrs Justice 2007.05.17 Commercial

Court

CPR Part 72.2.

Conflicts : State

Immunity

AIG Capital Partners Inc v Kazakhstan [2005] EWHC 2239 (Comm) : Bailli

Enforcement of arbitral award : State immunity - funds to the a/c of the National Bank of the State of Kazakhstan. Interim

order attaching funds discharged.

Aitkens Mr Justice 2005.10.20 CA

Conciliation and

jurisdiction

AIG Europe S.A. v QBE International Insurance Ltd [2001] EWHC 491 (Comm) : Bailli

A non-binding arbitration / conciliation procedure does not oust the jurisdiction of the court – in this case a French Court.

Moore-Bick Mr

Justice


Court


Anti-suit

injunction -

renewal

Albon v Naza Motor Trading Sdn Bhd (No 4) [2007] EWHC 1879 (Ch) : Bailli

Granted since respondent would not unconditionally accept that the question as to whether a signature had been forged

was solely in the jurisdiction of the English Court - it would be oppressive and unconscionable to allow a duplication of

proceedings.

Lightman Mr Justice 2007.07.31 Chancery

Division

Alternative service

application

Albon (t/a N A Carriage Co) v Naza Motor Trading SDN BHD [2007] EWHC 327 (Ch) : Bailli

On going saga : discussed role of CPR in respect of management of this dispute which attempts to grow like Topsey. The

time scale for issue of a claim was running out and applicant having failed to issue sought permission for alternative

service : Application denied.


S009 AA 1996 : Stay

s9 : forum

Albon (t/a N A Carriage Co) v Naza Motor Trading SDN BHD [2007] EWHC 9 (Ch) : Bailli

Multi-faceted dispute : car sales to Malaysia : some aspects subject to Malaysian arbitration : other aspects entirely UK

based and not subject to arbitration. Permission to pursue certain claims annulled.


S009 AA 1996 : Stay

s9 : Jurisdiction

Albon (t/a N A Carriage Co) v Naza Motor Trading SDN BHD [2007] EWHC 665 (Ch) Bailli

Existence of contract and Malaysian arbitration clause. Held : English Court had first to determine existence of contract

before a stay to arbitration could be ordered.


Division

Oppressive and

vexatious

Albon (t/a NA Carriage Co) v Naza Motor Trading SDN BHD [2007] EWCA Civ 1124: Bailli

Court has jurisdiction to determine whether documents that would terminate arbitral proceedings were fraudulent.

Waller LJ;

Longmore LJ;

Sir Peter Gibson

2007.11.06 CA

Anti suit :

Reference to ECJ –

re legality of

injunction

Alfred C Toepfer International GmbH v Societe Cargill France [1997] EWCA Civ 2811: bailli

Reference to ECJ to determine whether an anti-suit injunction can be issued where a defendant institutes litigation in an EC

court contrary to an arbitration clause and in breach of contract.

Staughton LJ;

Phillips LJ;

Robert Walker LJ.

1997.11.25 CA

S040 s41 s33 s54 s57

s68 s70

Al Hadha Trading Co. v. Tradigrain S.A. [2002] 2 Lloyd's Rep. 512 : Westlaw

Alleged breached the duty under s.40(1) to do everything necessary for the proper and expeditious conduct of an

arbitration : tribunal invited to dismiss the claim under the powers given by s. 41(3). Claim 47 days late under the contract

rules. GAFTA appeal board overturned the award and allowed the claim but provided no reasons. Held : Serious

irregularity not to provide reasons – but no serious injustice since it was likely that reasons could be provided :

Furthermore the challenge was 28 days late under s69.

Havelock-Allan QC

HHJ

2002.04.26 QBD

Mercantile

Admissibility and

confidentiality

Ali Shipping Corporation v Shipyard Trogir [1997] EWCA Civ 3054: bailli

Confidentiality : bar against use of information gathered in one arbitration in a subsequent arbitration. The extent to which,

if at all, material in one arbitration is admissible in subsequent arbitrations : initially the subsequent arbitrations were

subject to a restraining order : this was lifted by another judge and here, on appeal re-imposed by the CA.

Beldam LJ;

Potter LJ;

Brooke LJ.

1997.12.19 CA


S009 AA 1996 : Stay

to Arbitration : s9

Ali Shipping Corporation v Sour Brodogradeevna Industrija [1996] EWCA Civ 1258 : bailli

Having participated in an on-going arbitration a party discovered a get out card viz a cancellation clause : They sought a

judicial determination in lieu of arbitration : CA held : Too late to back out of the arbitration. If this was a preliminary

matter tribunal could deal with it quickly. Just as an arbitration was about to proceed to hearing the defendant, having

discovered an escape clause in the contract, sought to litigate on the escape clause and filed an action. At first instance a

stay to arbitration refused. Here court granted stay. It was perfectly possible for the arbitrator to deal with the addition

ground and the impact of the escape clause.

Hirst LJ;

Waite LJ;

Peter Gibson LJ.

1996.12.19 CA

Anti-suit

injunction re

arbitration – under

EU law

Allianz SpA (formerly Riunione Adriatica Di Sicurta SpA) v West Tankers Inc.Case C-185/07 : Curiaeuropaeu

Anti Suit injunction in support of arbitration : Whether compatible with EU Law. Opinion (non-binding) to the ECJ by

Advocat General Kokott. Non-compatible - following rationale in Turner v Grovit. All courts in member states are

Kompetenze Kompetenze - and deserve to be accorded mutual respect.

Kokott Advocate

General (Opinion)

2008.09.04 ECJ -

Opinion

S068 s69 AA 1996 Alphapoint Shipping Ltd v. Rotem Amfert Negev Ltd, Dead Sea Works v Agios Dimitrios [2004] EWHC 2232 (Comm)

Point of law : Does a provisional inspection certificate regarding holds of a vessel waive right to clean holds : Arbitrator

held no. Court agreed. Even if there had been serious irregularity regarding trial of this issue – no injustice suffered since

charterer had right to compensation. Challenges failed.

Colman HHJ 2004.10.08 Commercial

Court

S067 AA 1996 :

Challenge

Jurisdiction

Amec v S.S. for Transport [2005] EWCA 291 CA : Bailii

Challenge to an arbitrator's interim award on jurisdiction failed : Appeal to CA dismissed.

Hooper LJ

May LJ;

Rix LJ;

2005.03.17 CA

S067 AA 1996 :

Challenge

Jurisdiction

Amec v S.S. for Transport [2004] EWHC 2339 : Bailii

Unsuccessful challenge to an arbitrator's interim award on jurisdiction

Jackson Mr Justice 2004.10.11 TCC

CPR r. 6.20(5)(c).

Anti-suit

injunction

American International Speciality Lines Insurance Co. v Abbott Laboratories [2003] 1 Lloyd's Rep 267 : Lexis Nexis

Challenge. Validity of arbitration agreement.

Cresswell J 2002.11.28 Commercial

Court

CPR, r. 3.4(2). Delay

: interest

Amgulf Polymers & Chemicals Ltd v. Owners etc MV Athinoula: [2001] 2 All E.R. (Comm) 821 Westlaw

Cargo loss 1992 : Arbitration award 1999. Negotiations on outstanding matters failed. Was it too late to pursue. Court

applied CPR r3 and decided sufficient within paperwork to justify proceeding to trial.

Colman HHJ 2000.11.10 Admiralty

S005 AA 1950 : Stay

to arbitration

Andrews, Trustee Of Property Of v Brock Buildings (Kessingland) Ltd [1996] EWCA Civ 1023 : bailli

Dispute about delay on a contract. Sub-contractor alleged contractor responsible. Contractor terminated the contract. Sub-

contractor put into liquidation by a creditor for £8K. Administrator in pursuit of £120K. Contractor commenced action for

£60K for delay. Sub-contractor applied for a stay to arbitration – acceded to at first instance – sub-contractor likely to

recover £70K for wrongful determination – contractor claim likely to fail. Appeal on grounds of sub-contractor’s poor

financial status. Appeal failed : Appears likely that the sub-contractor’s financial state due to the contractor’s wrong doing.

Stay to arbitration affirmed.

MR.

Aldous LJ;

Brooke LJ

1996.11.21 CA

Conflicts : negative

injunction

Andromeda Marine SA v OW Bunker & Trading A/S [2006] EWHC 777 (Comm) : Bailli

Negative Injunction : Claimant's - third parties ship owners to a charterer's contract for bunkers from the defendant sought

a declaration / injunction that no action lay against them as third parties. Main action was before the Danish Court. Held :

Court had no jurisdiction. If at all, this action should be pursued before the Danish Court.

Morison HHJ 2006.04.11 Commercial

Court


S009 AA 1996 Anglia Oils Ltd v. The Owners/Demise Charterers of Marine Champion [2002] EWHC 2407 (Admiralty) : Westlaw

Bill of lading dispute : Stay granted to New York arbitration : application for summary judgement refused.

Gross Mr Justice 2002.10.10 Admiralty

S103 AA 1996 Stay

: New York Award

Apis AS v Fantazia Kereskedelmi KFT (No.1) : [2001] 1 All E.R. (Comm) 348 Westlaw : (2000) Lawtel AC0300496

Stay granted regarding a New York Award arbitration subject to limited security because case to date had not been put

with alacrity.

Jack QC HHJ

Raymond


Court

Procedural

unfairness

Apis AS v Fantazia Kereskedelmi KFT (No.2) : [2001] WL 239706 (QBD (Comm Ct)) Westlaw

Matter remitted to the tribunal to allow applicant an opportunity to address the issue.

Smith Mr Justice

Andrew


Court

S067 s68 AA 1996 Arduina Holdings BV v. Celtic Resources Holdings Plc [2006] EWHC 3155 (Comm) : Westlaw

Failed challenge against arbitral finding that Celtic not liable to Arduina for a failure to use best efforts to get another

company in Russia to transfer shares to Arduina. Contrary to an attack on the arbitrator the award was a model of clarity..

Toulson Mr Justice 2006.10.10 Commercial

Court

S072 AA 1996 : Set

aside : fraud

Arab National Bank v El-Abdali [2004] EWHC 2381 (Comm) : Bailli

Arbitral award the result of fraud : set aside.

Morison Mr Justice 2004.10.22 Commercial

Court

S09 AA 1996 : Stay

Jurisdiction

Ardentia Ltd. v British Telecommunications Plc [2008] EWHC B12 (Ch) : bailli

Jurisdiction of Chancery to issue interim injunction : arbitral tribunal to issue permanent injnction : David Donaldson Q.C.

Donaldson QC

David

2008/06/19 Chancery

S024 AA 1996

Removal

Argonaut Insurance Co. v. Republic Insurance Co [2003] EWHC 547 (Comm) : Westlaw

Arbitrator had been involved in previous litigation as a witness of fact. Did not disentitle him from hearing the current

dispute – when none of the issues from the prior disputes were at point, Held : No. Removal refused.

Steel Mr Justice

David


Court

Reasons - adequacy Armstrong, R v Chartered Institute Of Arbitrators [1997] EWHC Admin 561 : bailli

An arbitrator issued an award in respect of alleged liability for subsidence. A complaint was made that insufficient reasons

were provided. The arbitrator was asked to expand. He essentially refused asserting the reasons in the award were

sufficient and self explanatory. The CIArb, Professional Conduct Committee concluded that the reasons were inadequate

but did not question the actual award. Following this the Panel Management Group determined that any subsequent

award would first be vetted by the PMC before being released to ensure adequate reasons were provided. Armstrong felt

slighted by all this resulting in this action. The court agreed with the CIArb that the reasons were inadequate and did not

address the issue at hand.

Owen Mr Justice 1997.06.17 QBD Admin

Division

S068 : Failure to

deal with central

issue.

Ascot Commodities NV v. Olam International Ltd [2002] C.L.C. 277 : Westlaw

Rice delivered to wrong port. Damages assessed qua owner of rice whereas the claimant merely held the bills of lading as a

security. Appeal to GAFTA board which failed to deal with the difference between loss of an owner and one holding a

mere security. Award set aside. A serious irregularity with likely serious consequences.


Court

S009 AA 1996 : Stay

to arbitration

Asghar v Legal Services Commission [2004] EWHC 1803 (Ch) : Bailli

Successful application for stay to arbitration : impact of Human Rights Act.


Set aside

application

Ashton Investments Ltd. v OJSC Russian Aluminium (Rusal) [2006] EWHC 2545 (Comm) : Bailli

Application for set aside on grounds that other party had hacked into a computer and gained access to privileged legal

information in relation to the case.

Hurst QC Jonathon

– Deputy Judge


Court


Separability and

jurisdiction over

validity of contract

Ashville Investments Ltd. v. Elmer Contractors Ltd. [1988] 3 W.L.R. 867:West Law

Court of Appeal on appeal from QBD (Sir Neil Lawson). Whether the contract granted jurisdiction over jurisdiction.

May LJ;

Balcombe LJ;

Bingham LJJ.

1987.05.20 C.A.

S018 AA 1996 :

Removal of

arbitrator s28

ASM Shipping Ltd. v Harris & Ors [2007] EWHC 1513 (Comm) : Bailli

Application for removal or arbitrators : s28 AA 1996.

Smith Mr Justice

Andrew


Court

S068 AA 1996

Challenge s68(4)


ASM Shipping Ltd of India v TTMI Ltd of England [2006] EWCA Civ 1341 : Bailli

The apparent bias was said to arise because on a previous occasion the umpire, in his capacity as leading counsel had been

instructed by a ship owner in an earlier case in respect of an allegation that the opposite party was or might be concealing

relevant documents. The umpire was not counsel in the case but was instructed on that application. The umpire had had no

contact with the owner. The owner appeared as witness for the respondent in the instant case. The matter was raised late.

The umpire declined to recuse himself. The parties continued the arbitration without recourse to a s24 application for

removal. They unsuccessfully appealed. This further CA appeal also failed.

Clarke MR

Rix LJ

Longmore LJ

2006.10.16 CA

S008 AA 1996 :

Removal of

arbitrator

ASM Shipping Ltd. of India v TTMI Ltd. of England [2007] EWHC 927 (Comm): Bailli

Application for removal of an arbitrator.

Clarke Mr Justice

Christopher


Court

S068 AA 1996 :

Challenge s68

Apparent Bias

ASM Shipping Ltd of India v TTMI Ltd of England [2005] EWHC 2238 (Comm) : Bailli

Arbitrator acted as counsel in another case for a principal witness to the current arbitration. Tribunal prepared to continue

without an Umpire and to resort to an alternative Umpire if the circumstances demanded. Held : Arbitrator should step

down.

Morison Mr Justice 2005.10.19 QBD

Commercial

Court

Costs assessment :

EAT Appeal : point

of principle :

settlement offer

Aspin v Metric Group Ltd [2007] EWCA Civ 922 : Bailli

Costs : Winning on a point of principle - but recovering less than on offer for a settlement. Held : 50% recoverable costs for

winning on principle plus one head to end of trial. No costs to defendants for repelling the second head of claim. All costs

thereafter recoverable by applicant regarding costs litigation. 24th July 2007.

Chadwick LJ;

Wall LJ;

Mr Justice

Blackburne.

2007.07.24 CA

S043 AA 1996 :

Evidence s44

Witnesses s43

Assimina Maritime Ltd. v Pakistan Shipping Corporation [2004] EWHC 3005 (Comm) : Bailli

Orders given in respect of a feasibility study carried out on behalf of the respondents to this application since the study

could contain information relevant to the ship owner’s claim

Colman HHJ 2004.12.21 QBD

Commercial

Court

S058 AA 1996 :

Confidentiality

Privacy - injunction

Associated Electric & Gas Insurance Services Ltd v. European Reinsurance Co Zurich [2003] UKPC 11 : bailli

Applicants on appeal wish to produce a prior award subject to a confidentiality agreement as evidence to establish an issue

estoppel. Scope of rules of privacy and whether an award could be used as evidence in a subsequent award. In the

circumstances a prior injunction that had been revoked by the CA continued to be lifted. Appeal refused.

Bingham Lord

Hoffmann Lord

Hobhouse Lord

Millett Lord

Staughton Sir

Christopher

2003.01.29 Privy

Council

Costs CPR 44 :

Permission to

discontinue CPR

38(2)

Astaldi S.P.A. v. Generali-Kent Sigorta A.S. [2002] WL 2029091 : Westlaw

Insurance claims regarding earthquake damage: pursued by arbitration with concurrent actions in Turkey. Actions also

commenced in UK regarding who was the appropriate fund to receive monies. Main dispute settled. Could the applicant

now discontinue the action? Held : Yes – CPR 38 permission not required in the absence of injunctions by relevant as

opposed to 3rd parties to the action.

Dean QC. HHJ

Michael


Court


Declaration Astra SA Insurance and Reinsurance Co v. Yasuda Fire and Marine Insurance Co of Europe [1999] C.L.C. 950

Reinsurance : Failed application for a declaration to the effect that applicant not bound by an arbitration clause.

Toulson J. 1999.02.19 Commercial

Court

S023 AA 1950

apparent bias ;

Removal of

arbitrator :

AT&T Corporation & Anor v Saudi Cable Company [2000] EWCA Civ 154 : bailli

Independence of arbitration : Unsuccessful appeal against refusal of application for removal pursuant to s23 Arbitration

Act 1950. CA on appeal from Commercial Court (Mr Justice Longmore) : Arbitrator failed to directly disclose that he was a

non-executive director of an organisation and held 400+ shares in a portfolio. This was an appeal against a refusal to

remove under the Arbitration Act 1950 – though the same principles would apply to the 1996 Act. Could found no evidence

of actual bias or misconduct – it was all an unfortunate error. If disclosed at the outset there may have been a challenge to

his appointment – but the court in the exercise of its discretion would not remove at this late stage.

Woolf LJ MR;

Potter LJ;

May LJ.

2000.05.15 CA

CPR 52.9 Strike out

and set aside

Athletic Union Of Constantinople v National Basketball Association [2002] EWCA Civ 830 : bailli

CA on appeal from Commercial Court (Deputy Judge Mr Richard Field QC) Failed s67 set aside application and failed s69

application to appeal. Also refusal to appeal against s67 application. Held : only the judge can determine application to

appeal – not the CA. There is no appeal to CA against a refusal to grant application to appeal.

Philliips MR Lord;

Robert Walker LJ;

Clarke LJ.

2002.05.28 CA

S018 AA 1996 :

Appointment

Atlanska Plovidba v Consignaciones Asturianas SA [2004] EWHC 1273 (Comm) : Bailli

The court is here concerned not with an excusive jurisdiction clause but with an international arbitration clause. If the

defendant sought to pursue a claim that fell within the arbitration agreement in Spain, the court would be bound to grant a

stay under the New York Convention. In these circumstances it would be contrary to the spirit of the Convention for this

court to refuse to exercise its power to appoint an arbitrator.

Moore-Bick Mr

Justice

2004.05.27 QBD

Commercial

Court

Jurisdiction

contradictory

clauses

Axa Re v Ace Global Markets Ltd. [2006] EWHC 216 (Comm) Bailli

Application by Axa for a declaration under section 72(1)(a) Arbitration Act 1996 that a reinsurance contract between Axa

and Ace Global Markets does not, on its true construction, include an arbitration agreement. The application also seeks

injunctive relief to restrain Ace from continuing arbitration proceedings, instituted by it against Axa. Reinsuance slip

contained a choice of law and jurisdiction clause – but also incorporated terms of a contract containing an arbitration clause

: Which prevailed? Held : applying Paul Smith v H&S International Holding Inc [1991] 2 Lloyd's Law Rep at 127 that the

arbitration clause prevailed.


Court

S030, s67, s70 AA

1996 : Security of

costs

Azov Shipping Co. v. Baltic Shipping Co. [1999] 2 Lloyd's Rep. 39

Challenge to jurisdiction : was Azov a party to arbitration? Should court award security of costs for the appeal? Held : mere

fact that appellant overseas not a sufficient reasons to award security. Since it was difficult to ascertain whether Azov

actually had any assets in its own name was difficult to establish this was an appropriate case for security.

Longmore Mr

Justice


Court


Freezing orders. Banco Nacional De Comercio Exterior v Empresa De Telecomunicationes De Cuba SA [2006] EWHC 19 (Comm) Bailli

ICC arbitration award – enforced by Italian court. Domestic freezing order and worldwide freezing order made in UK.

Paris court of appeal then annulled the arbitral award on the grounds that the arbitration should have been in Spain.

Application to annul the freezing orders refused – a real risk of dissipation of funds.

Steel Mr Justice

David


Court


S068 AA 1996

Challenge s68(2)

remit for

reconsideration.

Bandwith Shipping Corporation v INTAARI [2006] EWHC 2532 (Comm) : Bailli

Application pursuant to s68(2)(a) Arbitration Act 1996 ("the Act") for an order that the Court should remit for

reconsideration an award of an arbitral tribunal on the ground that there has been a serious irregularity in the conduct of

the arbitration in that the Tribunal failed to comply with its duty under section 33 of the Act. Issue : Whether a finding of

fact challengeable on the basis that party there was no opportunity to address the issue at the hearing. Held : No.

Clarke Mr Justice

Christopher


Court

S068 AA 1996 :

remitting award to

tribunal

Bandwidth Shipping Corporation v Intaari [2007] EWCA Civ 998 : Bailli

Charterparty payment of hire dispute. Failed appeal against refusal of 1st instance judge to remit an award under s68 AA

1996.

Waller LJ,

Gage LJ; Collins

LJ. Lawrence

2007.10.17 CA

Interest : Lands

Tribunal s20 AA

1950

Barclays Bank Plc v Kent County Council [1997] EWCA Civ 2804 : bailli

Whether the Lands Tribunal has the power to award interested.

Kennedy LJ :

Judge LJ;

Chadwick LJ

1997.11.24 CA

Stay to arbitration –

anti-suit

Bankers Trust Co v P.T. Jakarta International Hotels & Developments [1999] 1 Lloyd's Rep 910: Lexis Nexis

Anti-suit injunction against Indonesian litigation in support of an LCIA arbitration agreement.

Cresswell J 1999.03.12 Commercial

Court

s009 AA 1996 : stay

: assignment :

prohibition

Bawejem Ltd v M C Fabrications Ltd [1998] EWCA Civ 1910

CA on appeal from Truro County Court (HHJ Anthony Thompson QC) : A contract contained an arbitration clause :

contract assigned contrary to a prohibition clause on assignment. Held : Refusal to grant a stay to arbitration upheld.

Mantell LJ;

Robert Walker LJ.

1998.12.04 CA

S052 AA 1996 :

Challenge : set

aside : reasoned

award : joinder of

third party

Bay Hotel Resort Ltd & Zurich Indemnity Co Canada v. Cavalier Construction Co. Ltd. [2001] UKPC 34 : bailli

Where a reasoned award was required could an award be set aside for insufficient reasons? Award subject to the AAA

arbitral rules – so test of sufficient reasons to be based on AAA rules – not what would be sufficient under English Law. In

the circumstances there were sufficient reasons. However, an award regarding joinder of a third party set aside – outside

remit of the tribunal.

Nicholls Lord

Cooke Lord

Clyde; Lord

Hutton; Lord

Millett Lord

2001.07.16 Privy

Council

S069 AA 1996

Challenge s69 :

contract

interpretation

Bayoil SA v Seawind Tankers Corporation [2000] EWHC 213 (Comm) : bailli

Whether there was a breach of the warranty of speed of a vessel (held YES) and whether that was covered by exception

clause excluding damages (held YES). Certified not a s69 issue justifying appeal. Application to appeal refused.

Langley Mr Justice 2000.11.22 Commercial

Court

S067 AA 1996 :

Challenge :

jurisdiction

Bea Hotels NV v Bellway Llc [2007] EWHC 1363 (Comm): Bailli

Challenge s67 - to jurisdiction on grounds that the contract had been repudiated.

Cooke Mr Justice 2007.06.12 Commercial

Court

Jurisdiction : Pre

HGCRA

Beaufort Developments (NI) Ltd v Gilbert-Ash NI Ltd [1998] UKHL 19 : bailli

Jurisdiction to open up and amend certificates available to judges. Northern Regional Health Authority v. Derek Crouch

Construction Co. Ltd. [1984] Q.B. 644 wrongly decided and overruled. But where stated to be final arbitrators and

adjudicators (see power in HGCRA and Scheme) need express power to open and revise.

Goff Lord LJ;

Lloyd LJ;

Nolan LJ;

Hoffmann LJ;

Hope LJ

1998/05/20 House of

Lords

S045 AA 1996 Beegas Nominees Ltd v. Decco Ltd [2003] EWHC 1891 (Ch) : Westlaw

Rent review terms unusual : Tribunal applied the standard but in the circumstances the wrong formula.

Patten Mr Justice 2003.07.31 Chancery


S032 s33 AA 1996 Belgravia Property Co Ltd v. S & R (London) Ltd, Taylor Woodrow Management Ltd [2001] B.L.R. 424,: Westlaw

Contractor under JCT contract sought to borrow the management contractor’s name to pursue a claim. Contractor declined

to provide an indemnity so MC refused. Held : Contractor not a party to the arbitration agreement and would have to

pursue remedy before the courts in the absence of a name borrowing arrangement.

Lloyd HHJ

Humphrey

2001.07.19 TCC

S068 AA 1996

Challenge s68

Removal of

arbitrator s24

Benaim (UK) Ltd. v Davies Middleton & Davies Ltd [2005] EWHC 1370 (TCC) : Bailli

Application to remove an arbitrator refused.

Coulson HHJ Peter 2005.06.15 TCC

S009 AA 1996 : Stay

to arbitration s9

jurisdiction

Benford Ltd. v Lopecan SL [2004] EWHC 1897 (Comm) : Bailli

Main contract contained an arbitration clause – but individual supply contracts subject to litigation. Counterclaim to a

supply contract had potential to involve main contract issues if sum due rose above a certain level. Court refused stay –

decided the amount – in the event below the limit. Court pointed out that once the figure was fixed by the court, an

arbitration would be pointless since all the tribunal could do would be to confirm the judgment figure.


Commercial

Court

Notice : E-mail

notification of

dispute & process

Bernuth Lines Ltd v High Seas Shipping Ltd [2005] EWHC 3020 (Comm) : Bailii

Were email communications between the arbitrator and the parties effective? In the circumstances "any effective means" of

communication were anticipated. The arbitrator sent notices to the email address on the defendant's web site. The receiving

department did not forward them to the legal department. In consequence they did not submit a defence or attend the

arbitration resulting in a valid default judgement. Note : The same rules could apply to adjudication.

Clarke Mr Justice

Christopher

2005.12.21 QBD

Commercial

Court

S009 AA 1996 : Stay Best Beat Ltd v Rossall [2006] APP.L.R. 03/10 : Westlaw

Lease : Application for stay : Held : 1) the parties must request arbitration 2) it had to be a dispute arising out of the lease.

Neither applied – application refused.

Park J 2006.03.10 Chancery

S069 AA 1996

Challenge s69 :

statutory

interpretation

Bhai v Black Roof Community Housing Association Ltd [2000] EWCA Civ 276 : bailli

CA on appeal from Central London County Court : Question – whether or not a tenant had a right to buy – whether a

secured tenant and impact of housing association status.

Kennedy LJ

Jonathan Parker LJ.

2000.11.02 CA

S003 AA 1950 :

New York awards

enforcement

Billadean International SA v Snamprogetti Ltd [1997] EWCA Civ 1036 : Bailli

Unsuccessful appeal against a refusal to stay enforcement of two New York Awards on policy grounds – viz fraud and no

actionable case to enforce by arbitration. Both issues already addressed adequately at first instance. Here the application

was for a stay pending application to appeal.

Saville LJ;

Brooke LJ.

1997.02.18 CA

S067 AA 1996 :

Challenge

Jurisdiction

Birse Construction Ltd . St David Ltd [1999] EWHC TCC 253 : bailli

Jurisdiction : Proof of existence of a contract, containing an arbitration agreement that gave rise to jurisdiction and right to a

stay to arbitration. S5 Arbitration Act. S9 Stay. S30 consdiered.

Lloyd HJ Humphrey 1999.02.12 TCC

S067 AA 1996 :

Challenge

Jurisdiction : stay

to arbitration s9

Birse Construction Ltd v St David Ltd [2000] Lawtel AC0100051

No contract concluded. Arbitration agreement not alive. No stay to arbitration

Reese Recorder

Colin

2000.08.17 TCC


S069 AA 1996 Bisichi Mining Ltd v. Bass Holdings Ltd [2002] EWHC 375 (Ch) : Westlaw

Rent review – commencement of periodic payment : Arbitrator erred in basing time from duration of 125 year lease rather

than on the time when the sub-lease commenced.

Jacob Mr Justice 2002.02.11 Chancery

CPR Part 52.3(4)

Appeal against a

refusal to appeal a

refusal to appeal

Human Rights

BLCT (13096) Ltd. v J Sainsbury Plc [2003] EWCA Civ 884 : bailli

CA on appeal from Chancery (Mr Justice Pumfrey) : Appeal against a refusal to grant an oral hearing of a s69 application to

appeal on a point of law. Compatibility with Human Rights Act : Held : Proportionate to the value : No breach.CA then

rejected the appeal itself. No real prospect of success. Grounds of application to appeal a refusal to grant an oral hearing of

an appeal against a refusal to appeal : s 69(6) of the Arbitration Act 1996 is incompatible with Article 6(1) of the European

Convention on Human Rights because of its effect in entirely preventing in the circumstances such as have arisen in this

case any consideration by the Court of Appeal of an application to appeal it. Held : “I do not accept the submission that it is a

requirement of Article 6 that there should be an oral hearing unless there are exceptional circumstances in the case.”

Arden LJ;

Longmore LJ

2003.06.30 CA

S069 AA 1996

Challenge s69 :

Contract

interpretation

BMBF (No 12) Ltd v Harland & Wolff Shipbuilding & Heavy Industries Ltd [2001] EWCA Civ 862 : bailli

CA preferred the interpretation of a ship building contract over that of a judge and reinstated the arbitral award. Concepts

of general interpretation based on commercial concepts should not override the understanding of chosen experts within the

field.

Potter LJ;

Clarke LJ;

Nourse Sir Martin

2001.06.08 CA

S043 AA 1996 :

Evidence : witness

summons s43 CPR

Rule 34.4 Witness

BNP Paribas v Deloitte & Touche LLP [2003] EWHC 2874 (Comm) : Bailli

Application to compel witnesses to give evidence at an arbitration and disclosure of documents. Application to issue to

issue and serve the witness summons : Question : Can the court compel a third party who is not a party to an arbitration to

disclose documents? Held : A fishing exercise – outside the scope of s43. Application refused.


Commercial

Court

S069 AA 1996 :

Interim award

challenge

Boots The Chemist Ltd v Westfield Shopping Towns Ltd [2003] NIQB 14 : bailli

Was the issue one of general importance? Concerned form of lease common in a shopping precinct – held : not sufficiently

of importance. Appeal application rejected. Further no serious doubt as to the correctness of the award.

Coghlin HHJ 2003.02.13 QBD

Northern

Ireland

Right of suit s3

COGSA 1992

Borealis AB v Stargas Ltd [1998] EWCA Civ 1337 : bailli

Continuing dispute as to right of suit, both in litigation and arbitration, against interim holder of a bill of lading under s3

COGSA 1992.

Millett LJ;

Schiemann LJ;

Sir Brian Neill.

1998.07.30 CA

S012 AA 1996 :

Extension of time

Borgship Tankers Inc. v Product Transport Corporation Ltd. [2005] EWHC 273 (Comm) : Bailli

Cargo claims under a charterparty subject to the HVR are subject to a 1 year time bar. Claimants sought damages for

wasted bunkers. The event arose out of dirty holds that required cleaning. Held : This was not a cargo claim. No bar.

Cresswell Mr Justice 2005.02.28 QBD

Commercial

Court

S068 s69 AA 1996 Bottiglieri di Navigazione SpA v. Cosco Qingdao Ocean Shipping Company [2005] EWHC 244 (Comm) : Westlaw

Cargo – worthiness – warranty – only applies on delivery : if right to clean not asserted on delivery right to off hire is

waived: charterer loaded initial cargo – but had to have hold cleaned before a grain cargo could be loaded. Held : not off

hire – no deduction allowed. Award upheld.


Court

S068 s69 AA 1996 Boulos Gad Tourism & Hotels Ltd v. Uniground Shipping Co Ltd [2001] WL 1676909: Westlaw

Whether a tribunal had correctly directed itself when assessing the impact of the Intefada in Palestine and its impact upon

the itinerary of a cruise vessel.

Tomlinson Mr

Justice


Court


S068 AA 1996

Challenge s68 :

costs award

Bowden and Others v. Logan [2000] NIQB 48 : bailli

The arbitrator called a hearing to determine entitlement to costs. However, he then went ahead and ruled on quantum

without the parties being invited to or given the opportunity to make any representations. Even though the arbitrator was

in possession of much information that might justify the award, and whilst cost effective, none the less it was a serious

irregularity not to give the parties the opportunity to be heard on the matter.

Shiel J 2000.10.26 QBD

Northern

Ireland

S002 AA 1996 Seat

of tribunal : s69

Challenge

Braes of Doune Wind Farm (Scotland) Ltd v Alfred McaLpine Business Services Ltd [2008] EWHC 426 (TCC): Bailli

Place of arbitration Glasgow : Arbitration Act 1996 and CIMAR Rules goverened the process : Where was the seat? Held :

England and Wales. Liquidated damages clause under a Silver Book ICE contract held to be an unenforceable penalty by

the arbitrator. Held : Not obviously wrong – and in the circumstances whilst a strange result – not wrong either –

application to appeal refused.

Akenhead Mr

Justice


Court

S068 s69 AA 1996 Brandeis (Brokers) Ltd v. Herbert Black, American Iron & Metal Co Incorporated [2001] 2 All E.R. (Comm) 980 Westlaw

Unsuccessful challenge to the application of SFA rules to a commodity exchange contract. Court held arbitrator entitled to

conclude that the party had contracted subject to the rules.


Court

S068 AA 1996 : Bias Brian Andrews v Bradshaw [1999] EWCA Civ 2008 : Bailii

Did an impatient exchange between arbitrator and respondent raise a real possibility of bias? Not in the circumstances.

Nourse LJ,

Mantell LJ,

Mance LJ.

1999.07.29 CA

Reasons :

Allocation of

greenbelt status

British Alcan Aluminium Plc v SS Environment [1998] EWHC Admin 445 : bailli

Applications under s. 287 of the Town and Country Planning Act 1990 to quash parts of the Chiltern District Local Plan.

Save in one or two relatively minor respects, they raise identical issues going to the adequacy of the means by which the

Chiltern District Council has proposed to adopt its local plan. Sets out the criteria and procedure for dealing with a

challenge, including what amounts to adequate reasons for decisions.

Lockhart-Mummery

QC Christopher

1998.04.27 Admin

Court

Ouster clause British Aviation Insurance Company Ltd, Re [2005] EWHC 1621 (Ch) : Bailli

To what extent, if at all, is an ADR provision that states that the jurisdiction of the courts is ousted to the extent that the law

permits, valid? Held : This is a valid scheme.

Lewison Mr Justice 2005.07.21 Chancery

Reasons :

applicable criteria

British Broadcasting Corporation, R v Central Arbitration Committee [2003] EWHC 1375 (Admin) : bailli

The criteria used by the CAC to determine whether or not BBC wild life camera men were professionals not entitled to

union recognition or were workers entitled to recognition incorrect. Decision remitted to a new panel to re-determine

applying the correct criteria.

Moses Mr Justice 2003.04.06 QBD Admin

Division

S044 AA 1996

Freezing Order

Britten Norman Ltd (In Liquidation) v State Ownership Fund of Romania [2000] Lloyd's Rep. Bank. 315: Westlaw

Payment of sums into an account as security in lieu of a freezing order.

Leaver QC Peter 2000.07.06 Chancery


S068(2)(g) AA 1996

– appeal out of time

Brown (L) & Sons Ltd v Crosby Homes (North West) Ltd [2008] EWHC 817 (TCC) : bailli

s68(2)(g) AA 1996 application to serve appeal 66 days late against an arbitration award (No1) that overturned an adjudication

decision. Assertion that documents disclosed in a subsequent arbitration (No2) would have resulted in a different result in

No1. Held : Disclosure of the documents had not be ordered - an unlikely to change anything. Perjury allegations not

sustainable. No good reason for the delay.

Re grounds for s68 challenge AOOT Kalmneft v Glencore International AG and Another [2002] 1 Lloyd's LR 128, Nagusina

Naviera v Allied Maritime Inc [2002] EWCA Civ 1147, Thyssen Canada Ltd v Mariana Maritime S.A & Another [2005]

EWHC 219 (Comm), Profilati Italia S.r.L. v Painewebber Inc and Another [2001] 1 Lloyd's LR 715 considered.

Akenhead Mr

Justice

2008/04/23 TCC

S068 AA 1996

Challenge s68


Bulfracht (Cyprus) Ltd. v Boneset Shipping Company Ltd. "MV Pamphilos" [2002] EWHC 2292 (Comm) : bailli

Failed s68 Challenge

Coleman Mr Justice 2002.11.07 QBD

Commercial

Court

Appeal – question

of law

Bulk Carriers Ltd v Andre Et Cie SA [2001] EWCA Civ 588 : bailli

Question of Law : whether a clause narrowing laycan in a voyage charterparty is, in the absence of words to the contrary,

always a condition precedent to an obligation to nominate a vessel? Held : NO – the owners could recover compensation

for any failure – the purpose of the clause was not to better enable the owners to arrange their affairs. Appeal dismissed –

award for failure to nominate a vessel upheld.

Potter LJ :

ClarkeLJ;

Bennett Mr Justice

2001.04.10 CA

S072 AA 1996 :

Costs of

application to set

aside : appeal

Bulk Trading SA v Moeller [2006] EWCA Civ 1294 : Bailli

Unsuccessful appeal against an order refusing costs in respect of a successful application to set aside an award for absence

of proper notice s72 : on grounds that whilst notice absent the applicants were largely responsible for the omission.

Waller LJ

Longmore LJ

2006.09.14 CA

Appeal – point of

law AA 1950

Bunge Corporation (New York) v Tradax Export SA (Panama) [1981] UKHL 11 : bailli

GAFTA arbitration – appealed via GAFTA Board to CA & HL. Interpretation of contract – terms and conditions.

Wilberforce Lord

Fraser Lord

Scarman Lord

Lowry Lord

Roskill Lord

1981.02.25 House of

Lords

Reasons not

relevant : Grounds

for court decision

Burford UK Properties Ltd v Forte Hotels (UK) Ltd [2003] EWCA Civ 1800 : Bailli

Party alleged that the mechanism for determining a dispute was set out in an arbitration clause. Court held that the

arbitration terms were for establishing rent, and not relevant to an action for non-payment.

Auld LJ;

Chadwick LJ;

Arden LJ.

2003.12.17 CA


S044 AA 1996 :

Anti-suit -

extension

C v D [2007] EWHC 1541 (Comm): Bailli

Anti suit injunction to prevent challenge to an award.


Court

Stay to ADR Cable & Wireless Plc v IBM United Kingdom Ltd. [2002] EWHC 2059 (Comm) : bailli

ADR agreement : Stay of action : Where the parties make an unequivocal agreement to mediate the court will issue either a

stay of action or adjournment pending outcome of mediation


Court


Agricultural

Holdings

Declaration -

appeal

Calcott v JS Bloor (Measham) Ltd [1998] EWCA Civ 259 : bailli

Successful appeal against declaration by court in respect of relevant date regarding proceedings in agricultural holdings

arbitration.

Gibson LJ Peter :

Mr Justice Bennett

1998.02.17 CA

Legal personality :

party to arbitration

agreement

Caltex Gas Co Ltd v National Petroleum Corporation [2001] EWCA Civ 788 : bailli

Caltex commenced an arbitration against the respondents. The arbitrator found on basis of ad hoc appointments that they

were not parties to arbitration agreements. The high court found that the arbitration settled the question of liability and that

no appeal lay against it. Caltex successfully appealed the refusal to allow an appeal on the jurisdiction award. Trial to

follow.

Phillips LJ;

Pill LJ;

Keene LJ.

2001.05.15 CA

Natural justice :

referral back to

tribunal

Cameroon Airlines v Transnet Ltd. [2004] EWHC 1829 (Comm) : Bailli

Natural Justice : Matter referred back to tribunal to give opportunity of parties to address the tribunal's approach - and to

make a fresh determination.

Langley Mr Justice 2004.07.29 QBD

Commercial

Court

Jurisdiction :

Adjudication Pre

HGCRA

Cameron v Mowlem (1989) 52 BLR 25 : 25 Con.L.R. 11

Court restricted the jurisdiction of the adjudicator to a very narrow sphere of activity – namely set-off and destination of

the sums awarded. Court refused to enforce adjudicator’s decision regarding the total sum due under the contract. This

power court not be inferred – it had to be expressly stated. Arbitration required. Dom/1 Form of contract. Compare

however the approach of the courts to the jurisdiction of an adjudication in relation to the scope of the dispute as described

by the notice and referral documents. Jurisdiction will extend to those matters inextricably linked to and necessary to

decide in order to decide the matter and see Drake & Scull v McLaughlin & Harvey [1993].

Neill LJ,

Balcombe LJ

Mann LJJ

1989/11/20 CA

S033 s68 AA 1996 Canadian Forest Navigation Co Ltd v. Minerals Transportation Ltd [2001] WL 1135100 (QBD (Comm Ct))Westlaw

Irregularity, if any had occurred, was not substantial or had serious consequences. Failed application.

Steel Mr Justice

David


Court

Jurisdiction : Stay :

Pre HGCRA

Cape Durasteel Ltd v Rosser & Russell Building Services Ltd [1995] : Lawtel AC0300143

An agreement to adjudicate is similar to and should be treated in the same way as an agreement to arbitrate. There was no

definitive definition of what adjudication constituted. Contractual adjudication agreement - predating HGCRA.

Lloyd HHJ

Humphrey Official

Referee

1995.08.04 QBD

Official

Referee

S009 AA 1996 : Stay

to arbitration s9 :

steps in litigation

Capital Trust Investment Ltd. v Radio Design AB [2002] EWCA Civ 135 : bailli

Was appellant a party to the arbitration agreement? Had the respondent's taken a step in litigation preventing a stay. No.

Stay to arbitration in Sweden upheld. CA on appeal from Chancery (The Hon Mr Justice Jacob) : Stay to Swedish

Arbitration : Questioned whether or not the applicant was a party the arbitration agreement – and regarding whether or

not steps had been taken in proceedings. Both grounds of challenge failed.

Schiemann LJ;

Clarke LJ;

Arden LJ.

2002.02.15 CA

Refusal to sign

award

Cargill International SA Antigua v Sociedad Iberica De Molturacion SA [1997] EWCA Civ 3001

Three man panel : dissenting arbitrator refused to sign award. Procedure to deal with this situation under GAFTA rules.

Phillips LJ;

Waller LJ;

Chadwick LJ.

1997.12.16 CA

S009 AA 1996 Carolyn Jane King v. Malcolm Eliott Tune [2004] EWHC 1505 (Comm) : Westlaw

Deceit : whether arising out of contract and thus within scope of arbitration clause.

Steel Mr Justice

David


Court


Payment directions

Fees - allocation

Carter (t/a Michael Carter Partnership) v. Harold Simpson Assoc. (Architects) Ltd (Jamaica) [2004] UKPC 29 : Bailli

Court enforcing an award had problems with the payment directions – viz how much due from a Joint Venture and how

much due from an individual. Had an impact upon mechanism of the arbitrator for recovery of his costs & fees. Distinction

between joint and several liability and the power to award costs unless the parties otherwise agreed in the submission

documents.

Hope Lord

Scott Lord

Rodger Lord

Elias Dame Sian

2004.06.14 Privy

Council

S009 AA 1996 : Stay

to arbitration s9

Carvill America Incorporated v Camperdown UK Ltd [2005] EWCA Civ 645: Bailli

Arbitration provisions between A & B do not prevent C who is not a party to the arbitration agreement from maintaining

court action and enjoining A & B. Stay refused.

Ward LJ;

Clarke LJ;

Longmore LJ.

2005.05.27 CA

Jurisdiction :

Application to

determine

Cegelec Projects Ltd v. Pirelli Construction Co Ltd [1998] EWHC TCC 319

Whether or not the main contract dispute resolution terms including prior submission to conciliation applied to

subcontract. Held : no – dispute to be referred to arbitration.

Lloyd HHJ

HUmphrey

1998.05.21 TCC

S067 AA 1996 : s68 :

s69 : Challenge to

orders : Freezing

injunction

Celtic Resources Holdings v Arduina Holding BV [2006] EWHC 2553 (Comm) Bailli

A lodged an appeal against an arbitral award after it had been the subject of an enforcement action. A freezing order to

prevent dissipation of funds was granted : application to extend refused – failure to demonstrate a real possibility of

dissipation. Appeals under s67-69 pending.

Clarke Mr Justice

Christopher


Court

Case stated Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] UKHL 2 : bailli

Insurance claim – employee smoked whilst delivering petrol – explosion : whether act in course of employment. Case

stated by arbitral panel.

Lord Chancellor

Wright Lord

Romer Lord

Porter Lord

1942.03.04 House of

Lords

S069 AA 1996

challenge

Cereal Investments Company (CIC) SA v Ed&f Man Sugar Ltd [2007] EWHC 2843 (Comm) : Bailli

FOB contract : what terms are required in a letter of credit to comply with the sales contract?

Walker Mr Justice 2007.12.07 Commercial

Court

S044 AA 1996 :

Challenge :

freezing order

Preservation order :

discretion

Cetelem SA v Roust Holdings Ltd [2005] EWCA Civ 618: Bailli

Jurisdiction of court : Freezing order : s44(3) : preservation order : court had jurisdiction - but the wide grounds beyond

jurisdiction - judge not requested to make order on the restricted grounds but could and would have if asked. Accordingly,

application for appeal granted, but appeal failed - no substantial injustice.

VC.

Clarke LJ,

Neuberger LJ

2005.05.24 CA

S069 AA 1996

Challenge s69(8)

CGU International Insurance Plc v Astrazeneca Insurance Co Ltd. [2006] EWCA Civ 1340 : Bailli

Residual grounds to consider an appeal : North Range Shipping Ltd v. Seatrans Shipping Corporation [2002] EWCA Civ

405 : considered but distinguished on facts.

Clarke MR, Sir

Anthony.

Rix LJ

Longmore LJ

2006.10.16 CA

S069 AA 1996

Challenge s69

CGU International Insurance Plc v Astrazeneca Insurance Co Ltd [2005] EWHC 2755 (Comm) : Bailli

Conflicts of Law : UK or US : Reinsurance dispute.


Commercial

Court

Jurisdiction : Stay :

Pre HGCRA

Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334 HL. : Lawtel

Stay of action to Construction Adjudication Board.

Keith LJ

Goff LJ,

Jauncey LJ,

Browne Wilkinson

LJ Mustill LJ

1993.01.21 House of

Lords


Jurisdiction Channel Tunnel Group Ltd, R v SS For Environment, Transport & Regions [2001] EWCA Civ 1185 : bailli

A jurisdiction clause does not exclude the jurisdiction of the courts unless the parties submit the dispute to arbitration

which had not occurred in this case.

Peter Gibson LJ;

Laws LJ;

Sir Martin Nourse

2001.07.23 CA

S068 AA 1996 Charan Singh, Parmjit Kaur v. Sardar Investments Ltd, Davinder Singh Virdee [2002] EWHC 380 (Ch) : Westlaw

Repudiation of a contract by failure to pay the balance due within the allocated time for payment.

Patten Mr Justice 2002.03.15 Chancery

S069 AA 1996 :

Extension of time

to appeal

Chattan Developments Ltd v Reigill Civil Engineering Contractors Ltd [2007] EWHC 305 (TCC) Bailli

The court granted an extension of time to appeal on condition that costs were paid by the applicant. Due to banking

problems the ready availability of the funds was in question and the respondent asked court to determine that accordingly

the appeal was dismissed. Court held, in the circumstances the condition had been fulfilled and even if it had not been due

to a technicality the overriding purpose of the CPR of serving justice would have justified a further extension.

Ramsey Mr Justice 2007.02.15 TCC

S069 AA 1996

Challenge s69

Chattan Developments Ltd v Reigill Civil Engineering Contractors Ltd [2007] EWHC 306 (TCC) Bailli

Question of law regarding a preliminary determination. Failed appeal.


S068 AA 1996

Challenge s68


Checkpoint Ltd. v Strathclyde Pension Fund [2003] EWCA Civ 84 : bailli

s68 Challenge :

Ward LJ;

Mummery LJ;

Jonathan Parker LJ.

2003.02.06 CA

Rent review :

remission

Cherry Tree Investments v Greater Manchester Rent Assessment Committee [1998] EWHC Admin 1045

Successful appeals against 3 rent reviews and remission to newly constituted tribunals.

Richards Mr Justice 1998.11.05 Admin

Court

New York award.

Enforcement

China Agribusiness development Corp v Balli Trading (1997) Lawtel AC7100112

Enforcement action. Arbitration rules changed - but agreement was to use the rules or successor rules. No reason to refuse

enforcement of CIETAC.

Longmore J 1997.01.20 Commercial

Court

CPR Rule 24.2,

Strike out

application

China National Petroleum Corp v Fenwick Elliott Techint Int. Construction Co [2002] EWHC 60 (Ch) : bailli

Confidentiality : attempts to gain delivery up of documents and orders of non-disclosure. Parties involved in arbitration

about responsibility for delays in contract dealing which had made an order for disclosure of documents. Held that

documents being sought were privileged and orders refused.

Vice-Chancellor 2002.01.31 Chancery

S068 s69 AA 1996 China Offshore Oil (Singapore) International PTE Ltd v. Giant Shipping Ltd [2001] 1 All E.R. (Comm) 429 : Westlaw

Failure to load a complete cargo due to charterer’s orders – tribunal correct to find a breach.

Tomlinson Mr

Justice


Court

S001 s30 s44 s67 s72

AA 1996

China Petroleum Technology & Dev Corp v L.G. Caltex Gas Co Ltd. [2000] WL 33148669: Westlaw

Interim relief : two conflicting ICC arbitral decisions : Could the court settle the matter? Held : Not now – two late –

application should have been before the second arbitration in order to prevent double jeopardy. Court retained power to

provide relief in support of arbitral proceedings.

Smith Mr Justice

Andrew


Court

Appeal :

preliminary

matters

China Shipbuilding Corp v Nippon Yusen Kabukishi Kaisha [2000] EWHC 211 (Comm)

Ship building contract : contract determined : liability for damages : Court determined preliminary matters on appeal –

giving a very restricted answer – but leaving it to the tribunal to deal with matters that were far wider than the scope of the

appeal before them.

Thomas Mr Justice 2000.01.11 Commercial

Court


S009 AA 1996 Cigna Life Ins. Co Europe S.A. v. Intercaser S.A. De Seguros Y Reaseguros [2002] 1 All E.R. (Comm) 235 Westlaw

Stay refused : reinsurance : examination of the arbitration incorporation process. General words insufficient. Failure to

identify clearly the relevant documents.


Court

S069 AA 1996 CJ Pearce Developments Ltd v. Oakbridge St Mellion Building Ltd : 2002 WL 45044 (QBD (TCC)) : Westlaw

JCT with contractor’s design. Contractor took over road works from a prior contractor and carried out rectification.

Question : Had the contractor undertaken the risks of the works from the previous contractor or was he entitled to

additional payment. Arbitrator found for the development. The court concluded additional payment due. Award

overturned.

Thornton HHJ 2002.01.14 TCC

S068 AA 1996

Challenge s68

serious irregularity:

Bias : impartiality

Claire & Co. Ltd. v Thames Water Utilities Ltd. [2005] EWHC 1022: Bailli

Challenge to arbitrator's award on grounds of breach of s33 AA 1996 duty of impartiality.


S069 AA 1996

Challenge s69 point

of law

CMA CGM S.A. v Beteiligungs-Kommanditgesellschaft MS 'Northern Pioneer' [2002] EWCA Civ 1878 : bailli

Question : Whether or not charterers had validly cancelled charters under War Cancellation Clauses. Tribunal found

cancellation invalid. Decision upheld by the CA. Governing principles governing the validity of an application to appeal on

a point of law under s69.

Lords Phillips MR;

Rix LJ;

Dyson LJ.

2002.12.18 CA

S069 AA 1996

Challenge point of

law : Limitation

CLC

CMA CGM S.A. v Classica Shipping Co Ltd. [2003] EWHC 641 (Comm) : bailli

Charterers appealed award on the basis of a right to limit liability under the 1976 Convention on the Limitation of Liability for

Maritime Claims., Appeal failed and The Aegean Sea [1998] 2 Lloyds Rep.39 applied. Is a charterer entitled to limitation of

liability in an action by an owner, pursuant to the Convention on Limitation of Liability for Maritime Claims 1976 No.

Charter only entitled to limitation when acting qua owner.

Steel Mr Justice

David

2003.03.27 QBD

Commercial

Court

S069 AA 1996

challenge

Coal Authority v F W & W E Davidson [2008] EWHC 2180 (TCC) : Lawtel

Arbitrator erred in ordering the coal authority to purchase two properties suffering blight due to subsidence in adjoining

properties. The court held that the statutory regime only allowed for compensation for subsidence damage and potential

subsidence in the future. The respondents had already received compensation and remedial works for subsidence : the

mining activities were at an end and no futher subsidence anticipated. The Act does not allow compensation for blight and

pure economic loss.

Coulson Mr Justice

Peter

2008.09.09 TCC

S069 AA 1996

Challenge s69

Coal Authority v Trustees of the Nostell Trust [2005] EWHC 154: Bailli

Failed appeal against arbitral award.


Security of costs Cohort Constructions Co (UK) Ltd v. Spring Hotels Ltd [1997] EWCA Civ 1415 : bailli

Application for security of costs - re arbitration : Appeal : Claim & Counterclaim : CA :

Evans LJ :

Hobhouse LJ :

Hutchinson LJ :

1997.04.16 CA

Set aside : award as

judgement

Colliers International Property Consultants v Colliers Jordan Lee Jafaar Sdn Bhd [2008] EWHC 1524 (Comm) : bailli

Set aside application of a s66 AA 1996 Order that an ICC award be made into a judgment of the court in the terms of the

award. Allegations regarding personality - service etc. Set aside refused.

Beatson Mr Justice 2008/07/03 Commercial

Court


S044 AA 1996 Commerce & Industry Ins. Co, Canada v Certain Underwriters of Lloyds [2002] 2 All E.R. (Comm) 204 : Westlaw

Application to set aside an order made without notice by Langley J on 20th July requiring attendance before an examiner in

order to give evidence on issues identified in the schedule to the order

Moore-Bick Mr

Justice


Court

S069 AA 1996

Challenge s69

point of law or

fact?

Compania Sud American Vapores v Hamburg [2006] EWHC 483 (Comm) : Bailli

Arbitrators found as a fact that loss was due to negligence in operation of the vessel : bunkers overheated, damaging cargo

and hence charterer not liable under Art IV HVR. Appellants sought to establish that overheating of bunkers next to a

cargo is negligence in care and handling of cargo and a breach of Art III had arisen. Court held this was a challenge to fact

not law. Arbitrators had applied the correct test scrupulously. Gosse Millard [1929] applied.

Morison Mr Justice. 2006.03.14 QBD

Commercial

Court

Freezing order Congentra AG v Sixteen Thirteen Marine SA [2008] EWHC 1615 (Comm) : Bailli

Cargo claim - wetted grain : charterparty : Unsuccessful application by owner to discharge freezing order – secured in

support of arbitration proceedings to prevent dissipation of assets.

Flaux Mr Justice 2008.07.15 Commercial

Court

Settlement –

liability :

Compromise

Contigroup Companies Inc v Glencore AG [2004] EWHC 2750 (Comm) : Bailli

A claimed off B the sums it settled with C arising our of B’s default. A compromised an arbitration with C. Question – was

the settlement valid and a legal loss arising out of B’s actions. Held : In the circumstances YES – if it had gone to arbitration

the loss would have probably been even greater.

Glick QC Mr Ian 2004.11.25 QBD

Commercial

Court

S067 AA 1996 :

Challenge

Jurisdiction

Continental Enterprises Ltd. v Shandong Zhucheng Foreign Trade Group Co [2005] EWHC 92 (Comm) : Bailli

Separability : Whilst an arbitration agreement can survive the invalidity of the main agreement for incapacity, in this case

the rules provided that an arbitration agreement tainted by incapacity would be invalid. GAFTA was correct in concluding

that the tribunal had no jurisdiction

Steel Mr Justice

David

2005.02.02 QBD

Commercial

Court

S069 AA 1996

Challenge s69 point

of law

Co-Operative Group (CWS) Ltd v Stansell Ltd [2006] EWCA Civ 538: Bailli

Challenge to the interpretation of s51(1) Industrial and Provident Societies Act 1965 upheld.

Mummery LJ;

Longmore LJ;

Jacob LJ.

2006.05.09 CA

Expert

determination :

stay refused.

Cott UK Ltd v F E Barber Ltd [1997] 3 All ER 540:

Disputes between the parties to be settled by the person appointed by the Director General of the British Soft Drinks

Association. The Association had no dispute resolution procedures – but the Director made an appointment of an expert.

The issue was one of law – and beyond the expertise of the individual appointed. Court declined to stay the action and

assumed jurisdiction.

Hegarty QC 1997.01.14 High Court

Liverpool

S069 AA 1996

Challenge s69

Covington Marine Corp v Xiamen Shipbuilding Industry Co Ltd [2005] EWHC 2912 (Comm) : Bailli

Existence of agreement is a mixed question of fact or law that can be corrected by the court if incorrectly determined by the

tribunal.

Langely Mr Justice 2005.12.16 QBD

Commercial

Court

S31 AA 1996

Jurisdiction

Crest Nicholson (Eastern) Ltd v Western [2008] EWHC 1325 (TCC) : bailli

Jurisdiction - home build contract : Owner successfully lodged a complaint with NHBC which resulted in a ruling that the

builder carry out £20,000 remedial work. Owner left with a £7,000 surveryors bill in relation to the complaint and sought to

recover this through arbitration. Question : Is the owner/purchasor a party to the NHBC arbitration provision? Held : no. -

this is only between NHBC & the builder – and subject to CIArb appointment. RICS appointed arbitrator invalidly

appointed – no arbitration provision between owner/builder. The costs of arbitral proceedings not recoverable.

Akenhead Mr

Justice

2008/06/16 TCC


S004 AA 1950 : Stay

to arbitration

Crouch Mining Ltd v British Coal Corporation (t/a British Coal) [1996] EWCA Civ 981 : BAILLI

Stay to arbitration – due at end of project likely to be in 2004. Did this deprive a party of opportunity of justice? Neld : NO.

This is what the parties contracted for and must therefore live with. Scottish arbitration – implications of New York award.

Saville LJ;

Brooke LJ.

1996.11.18 CA

Costs : Wasted

costs order

Crown Resources Ag v Sumitomo Corporation (Singapore) [2004] EWHC 1670 (Comm) : Bailli

Solicitors challenged a paper only wasted costs order – apparently on the instructions of the client for costs pursuant to a

failed arbitration. The director ostensibly giving those instructions no longer had authority since the client had filed for

bankruptcy in Switzerland. By the time of the hearing that replaced the written order it became clear the client had been

declared bankrupt. Solicitor held liable for a wasted costs order. Should have clarified instructions with the client at which

stage the bankruptcy application would have been discovered.


Commercial

Court.

S069 AA 1996

Challenge s69 Point

of Law :

amendment

CR Sugar Trading Ltd v China National Sugar & Alcohol Group Corp [2003] EWHC 79 (Comm) : bailli

In event of appeal failing, strike out application pursuant to s5 of the Financial Services Act 1986. Decision of the tribunal,

upheld by the court, was that the underlying contract was unenforceable by virtue of the FSA. Claim failed. Commercial

sale of raw sugar subject to letters of credit. Chellenged a determination by the tribunal that both parties were traders and

not users. Held : Tribunal correct : Further, question as to whether under

Steel Mr Justice

David

2003.01.31 QBD

Commercial

Court

S069 AA 1996

Appeal : point of

law : frustration :

f.o.b.

CTI Group Inc v Transclear SA [2007] EWHC 2070 (Comm) : Bailli

Whether 1) tribunal erred in law in deciding that two f.o.b. contracts for the sale of cement to Mexico from Indonesia and

Taiwan were frustrated by the intervention of Cemex, a company with a monopoly in the supply of cement in Mexico, with

the result that no supplier in Asia would supply cement 2) whether the tribunal erred in holding in the alternative that the

contracts were subject to an implied term that if suppliers refused to supply cement because of the buyers\' intended use of

or intended destination, both parties would be discharged from any liability or obligation under the contracts.

Field Mr Justice 2007.09.14 Commercial

Court

S069 AA 1996

Frustration

CTI Group Inc v Transclear SA [2008] EWCA Civ 856 : Bailli

Suppliers refused to supply goods to cif seller in furtherance of a cartel agreement. Held : In absence of terms in contract,

the risk of supply falls on the cif seller. No frustration.

Ward LJ;

Moore-Bick LJ;

Rimer LJ.

2008.07.22 CA

Reasons : Rent

tribunal

Curtis v London Rent Assessment Committee [1997] EWCA Civ 2453 : bailli

At first instance the court quashed a rent assessment and remitted to a newly constituted tribunal for reassessment. ON

appeal issued were : whether and in what circumstances a successful party can challenge in the Court of Appeal the

reasoning of the judge below. If such a challenge can be made, the second and third questions concern the lawfulness and

rationality of the Committee's mode of assessment and the adequacy of its written reasons.

Butler-Sloss LJ :

Hirst LJ;

Auld LJ

1997.10.09 CA

Award :

requirements

Customs & Excise v Civil Service Motor Association [1997] EWCA Civ 2809

Per Hobhouse LJ : An award should set out clearly determinations of fact before setting out and applying the relevant law.

This was only achieved here by a detailed recitation of facts by the judge with the assistance of council. However, in the

circumstances award of tribunal confirmed.

Hobjhhouse LJ;

Pill LJ;

Mummery

1997.11.25 CA


S002 (3) A.A. 1979.

Confidentiality :

parties to

arbitration Appeal

CWS Engineering Group v Birse Construction Ltd [1997] EWCA Civ 2062 : bailli

Construction arbitrations : Main & sub contracts in JCT form: First arbitration between employer & contractor : but

employer played no part - running made by sub-contractor : Found no fault on contractor or sub-contractor & monies due

to both : Employer went into liquidation ; Subcontractor successfully enforced payment from contractor. AA 1979.

Employer went into liquidation before honouring an arbitral award : in the normal course of events the benefits of the

arbitral award would, subject to deductions, have passed to the sub-contractor. Could the sub-contractor enforce that

award against the contractor? The court held that it could at first instance. CA upheld that decision.

Nourse LJ;

Roche LJ;

Phillips LJ;

1997.07.09 CA

S068 AA 1996

Challenge s68

Serious irregularity

Cuflet Chartering v Carousel Shipping Co Ltd [2000] EWHC 200 (Comm) : bailli

Assertion that owners had agreed not to press ahead to an arbitral award (ie temporary suspension of process) pending

negotiations. Arbitrator went ahead and delivered the award. Was it procured by devious means? On the fact, it was clear

that the charterers were aware that he would go ahead. There was in any case little scope or confidence in negotiations

since the owners had arrested the charterers vessel as security and were unwilling to release it. Award upheld.

Moore-Bick Mr

Justice


Court

S067 AA 1996

challenge

Czech Republic v European Media Ventures SA [2007] EWHC 2851 (Comm) : Bailli

Failed challenge to the jurisdictional award of the tribunal.

Simon Mr Justice 2007.12.05 Commercial

Court


Challenge :

Illegality under

foreign law

Daad Sharab v Usama Salfiti [1996] EWCA Civ 1189 : bailli

Enforcement : Public Policy : Foreign Illegality : Relevance of allegations of illegality under foreign law before an English

Court: Libyan Law describes unlawful intermediary activities as "Mediation". CA.

Nourse LJ;

Judge LJ;

Waller LJ.

1996.12.12 CA

S103 AA 1996 :

State immunity :

validity of contract

& arbitration clause

Dallah Real Estate & Tourism Holding Co v Min. of Religious Affairs, Gov. of Pakistan [2008] EWHC 1901 (Comm) : Lexis

Appeal on s103(2)(b) grounds – that the arbitration agreement was not lawful in the state where the contract was carried

out - against leave to enforce an ICC arbitration award pursuant to s101. Rather than contract in its own name the

government of Pakistan created a Trust to contract on its behalf – but subsequently revoked the trust be not passing the

necessary legislation. The tribunal had invoked concepts of “transnational arbitration law” to extend the liabilities under the

contract to Pakistan. Here the court applied the procedural law of the tribunal seat – France – to the question of legality

and contractual personality – concluded that the French Court would have had regard to the law of Pakistan and since

under that law there was no contractual nexus and the arbitration clause did not lawfully bind the state in the absence of

the signature of the President – the award was not binding or enforceable.


Court

S022 / 24 AA 1950 :

Slip rule

Danae Air Transport Societie Anonyme v Air Canada [1999] EWCA Civ 2011 : bailli

CA on appeal from Commercial Court (Mr Justice Longmore) : Held : where the arbitrator’s had made an arithmetical error

in the course of a costs award, the court could remit the award back to the tribunal for correction.

Kennedy LJ;

Ward LJ;

Tuckey LJ.

1999.07.29 CA

S006 AA 1996 : s9 :

s58. Expert

determination or

arbitration

David Wilson Homes Ltd v Survey Services Ltd [2001] EWCA Civ 34 : bailli

Arbitration clause : interpretation : "Any dispute to be referred to a QC" is an arbitration clause : Obvious QC to determine

the dispute not merely act as an expert.

Simon Brown LJ;

Longmore LJ.

2001.01.18 CA


S009 AA 1996 : Stay

s9 AA 1996 Good

faith clause

Davies Middleton & Davies Ltd v Toyo Engineering Corporation [1997] EWCA Civ 2318: bailli

Jurisdiction of court to determine whether ADR exhausted and dispute now subject to arbitration : CA stayed action to

arbitration. Successful appeal against a refusal of a stay to arbitration. Issue turned on the scope of the arbitration clause

and whether or not the dispute fell within it.

Simon Brown LJ;

Phillips LJ;

1997.08.29 CA

Case stated :

Arbitration : AA

1950

Davis Contractors v Fareham Urban DC [1956] UKHL 3 : bailli

Did the unavailability of labour and material resulting in an overrun of 23 weeks in a construction contract strike at the

heart of the contract, displacing it and making the employer liable on a quantum meruit basis for services? Held : No :

Result : contract breached by late performance.

Simonds Viscount

Morton Lord;

Reild Lord

Radcliffe Lord;

Somervell Lord

1956.04.19 HL

S066 AA 1996 :

Enforcement s66

costs award

DDT Trucks of North America Ltd v DDT Holdings Ltd [2007] EWHC 1542 (Comm): Bailli

Application for enforcement of a costs award - s66.


Court

S009 AA 1996 Stay Decca Music Group Limited v. Michael Jagger,Keith Richards, Charles Watts [2004] EWHC 2542 : Westlaw

Application for specific performance of a clause in an agreement with Decca which requires Decca to provide documents

reasonably required by the Rolling Stones to audit Decca. By the current application Decca seeks a stay of this action on the

basis of an arbitration clause in the relevant agreement. Whether case a fishing exercise or a right under the contract : held a

bona fide right that can be pursued independently of the arbitration.

Bowman Master 2004.06.11 Chancery

s026 AA 1950 :

Enforcement

jurisdiction

Delta Civil Engineering Co Ltd v London Docklands Dev. Corp. [1996] EWCA Civ 698

CA on appeal from QBD (in the matter of the Arbitration Acts 1950-1979 and in the matter of an arbitration) : Arbitrator

awarded costs of a settlement process and costs of settlement award. Issued : did he have jurisdiction? YES.

Staughton LJ;

Swinton Thomas LJ.

1996.10.11 CA

s009 AA 1996. Stay Delos, owners of cargo v Delos Shipping Ltd [2001] EWHC 486 (Comm) : bailli

Incorporation of arbitration clause into bills of lading and whether scope extended to tort and bailment. The terms “all

disputes whatsoever” was wide enough to encompass tort and bailment. Stay granted.


Court

S069 AA 1996

Challenge s69

Demco Investments SA v SE Banken Forsakring Holding Aktiebolag [2005] EWHC 1398 (Comm) : Bailli

There can be no appeal of facts under s69 - only an appeal of law.

Cooke Mr Justice 2005.06.30 QBD

Commercial

Court

Appeals :

interlocking

litigation &

arbitration

Denby v English & Scottish Maritime Insurance Co Ltd [1998] EWCA Civ 398 : bailli

Underwriter / assured litigation – determination : Reinsurance dispute : arbitral determination on interim issue. Conflict

between determinations. CA upheld the arbitral award in preference to the court determination.

Hobhouse LJ;

Brooke LJ;

Chadwick LJ

1998.03.05 CA

S067 AA 1996 :

Challenge :

Jurisdiction

Department of Civil Aviation of the Kyrgyz Republic v Finrep GmbH [2006] EWHC 1722 (Comm) : Bailli

Challenge to preliminary award on jurisdiction : Challenges to the identity of the respondents viz the Civil Aviation

Auhority and to whether the state was a party to arbitration. Fact of case not disclosed to respect privacy of the parties.

Tomlinson Mr

Justice.


Court

CPR Rule 62.10,

Confidentiality

Privacy

Dept. Economic Policy & Dev. City of Moscow v Bankers Trust [2004] EWCA Civ 314 : Court Service

Privacy - party autonomy and public poicy : An appeal against an arbitration failed : The successful party wished the

judgement to be published to demonstrate their business credentials to the world : The losing party wished to maintain

privacy. C.A. upheld the privacy principal central to private dispute resolution.

VC.

Carnwarth LJ.

Mance LJ.

2004.03.25 CA


Privacy of award &

judgements

Department of Economics Policy & Development City of Moscow v Bankers Trust Co [2003] EWHC 1377 (Comm) : bailli

Whether or not the court would enforce the privacy elements of an arbitration agreement – and extent to which any

litigation on the award private : regarding a failed s69 application : held – prior judgement withheld from publication.


Court

Arbitration and

Jurisdiction clauses

: validity

Deutsche Bank AG v Asia Pacific Broadband Wireless Communications Inc [2008] EWHC 918 (Comm) : bailli

Application to amend in light of defence of invalidity of contract – absence of authority. Assuming there was no authority

to contract or to agree arbitration and jurisdiction provisions, could arbitration be invoked in respected of amended

alternative claims to breach of contract. Held : There is no severability of jurisdiction clause : validity of arbitration clause to

be considered separately - but whilst an arguable case, case not established.

Flaux Mr Justice 2008/04/30 Commercial

Court

Judicial Review Doll-Steinberg v Society of Lloyd's [2002] EWHC 419 (Admin)

Lloyd’s Settlement Offer Panel processes are amenable to judicial review.

Burnton Mr Justice

Stanley

2002.03.19 Admin

Court

Anti Suit

Injunction

Donohue v Armco Inc. [2000] EWCA Civ 94 : Bailli

Appeal from a judgment of Aikens J. whereby he dismissed the Claimant's application for an anti-suit injunction to restrain

the Defendants' from suing him in any forum other than England

Stuart-Smith Lj

Brooke LJ

Sedley LJ

2000.03.29 CA

Anti Suit

injunction

Donohue v. Armco Inc [2001] UKHL 64 : Bailli

Whether an injunction should have been granted to restrain the prosecution of proceedings in New York and, if so, in

whose favour it should have been granted.

Bingham Lord

Mackay Lord

Nicholls Lord

Hobhouse Lord

Scott Lord

2001.12.13 House of

Lord

CPR 39 Salvage Donohue v. Armco Inc [2001] UKHL 64 : Bailli

Dispute as to remuneration for salvage.

Teare QC Mr Nigel 2002.07.16 Admiralty

s009 AA 1996 : Stay

to arbitration

Downing v Al Tameer Establishment [2002] EWCA Civ 721 : bailli

Successful challenge to a stay to arbitration. The defendant had repeatedly rebuffed attempts to arbitrate an action.

However, once litigation was commenced he successfully procured a stay to arbitration. Court held that rebuff of

arbitration amounted to a repudiation of the arbitration agreement – opening way to litigation. Choice of substantive law

not indicative of procedural law.

Potter LJ;

Keene LJ;

Sumner. Mr Justice

2002.05.22 CA

Jurisdiction :

Adjudication Pre

HGCRA

Drake and Scull Engineering Ltd v McLaughlin and Harvey plc (1993) 60 BLR 102

Set off dispute. Adjudication pursuant to Cl 23 Dom/1 – adjudicator ordered payment into a trustee stakeholder a/c

pending outcome of arbitration. Court granted a mandatory injunction enforcing adjudicator’s decision.

Bowsher HHJ 1993/01/01 QBD

S069 AA 1996

Contributions :

arbitral award

Drake Insurance Plc v Provident Insurance Plc [2003] EWCA Civ 1834 : Bailli

Whether following an arbitral award between assured and underwriter there was a right of contribution : could the

underwriter distance himself from the award? Other insurer not a party to the award. Was Provident's right to avoid

limited by the doctrine of good faith? Waiver and estoppel. Court held that arbitrator was wrong to conclude that the

underwriter had a right to avoid for non-disclosure.

Pill LJ

Clarke LJ

Rix LJ

2003.12.17 CA

S069 AA 1996

Contributions :

arbitral award

Drake Insurance Plc v Provident Insurance Plc [2003] EWHC 109 (Comm) : Bailii

Good faith : Arbitrator found policy could be avoided for non-disclosure . Whether following an arbitral award between

assured and underwriter there was a right of contribution : could the underwriter distance himself from the award? Other

insurer not a party to the award.

Moore-Bick Mr

Justice


Court


Functus Officio

Jurisdiction

Dredging & Construction Co Ltd v D.T. Simmonds & Delta Civil Eng. Co Ltd. [1999] ABC.L.R. 10/07

Scope of jurisdiction of a sub-contract – where common issues between employer / contractor and contractor / sub-

contractor were required to be submitted to a joint arbitration. Scope of s57 AA examined. Jurisdiction of arbitrator to

continue to rule on jurisdiction once he had made an interim ruling on jurisdiction - functus officio.

Wilcox HHJ David 1999.10.07 TCC

S067 s68 AA 1996 Dr Mark Christopher Persaud v. Dr Jonathan Andrew Beynon [2005] EWHC 3073 (Comm) : Westlaw

Valuation of a business between partners : Valuation criteria – two methods set out. Duty to act in good faith. Partner

claimed falsely to have sold the business. The tribunal took into account the consequences of the bad faith in the valuation.

Appeal on grounds that this was not part of the valuation methodology in the contract. Award upheld – good faith a

contractual requirement. Claimant entitled to receive the value that would have applied if good faith maintained.

Simon Mr Justice 2005.09.15 Commercial

Court

S003, Seat of the

arbitration. s67, s69,

s80(5) AA 1996

Dubai Islamic Bank PJSC Applicant v Paymentech Merchant Services Inc. [2001] 1 All E.R. (Comm) 514: Westlaw

How should the court apply s3 AA 1996 when determining what is the juridical seat of the arbitration, if neither the parties

to the arbitration agreement nor any arbitral or other institutions have designated the seat of the arbitration? Is there a

particular point in time during the arbitral process at which the court should consider all the relevant circumstances in

order to determine the juridical seat of the arbitration? If the seat of the arbitration is England, how should the court

approach an application for an extension of time in which to make an application for permission to appeal an arbitration

award, under s80(5)?


Court

S088(5) extension

of time : s70(3) :

s69(1) AA 1996

Dulwich Estate v. Baptiste [2007] EWHC 410 (Ch) : Westlaw

S9, s10, s69, s70 : Court granted an extension of time – Tenancy dispute – and then allowed an appeal against a ruling that

the landlord had unlawfully refused tenant to build a dormer roof. Tribunal applied wrong test – depriving landlord of

control of the tenement.

Crow QC. Mr Justice 2007.02.15 Chancery

S069 : AA 1996

Statutory

arbitration.

Jurisdiction :

Interest

Durham County Council v Darlington Borough Council [2003] EWHC 2598 (Admin) : Bailli

Statutory arbitration : Local Government Changes for England (Property Transfer and Transitional Payments) Regulations

1995. Arbitrator ordered premature interest payments : Interest could only run from date of award.No power to award

interest.

Burnton Mr Justice

Stanley

2003.11.06 QBD Admin

Division

Jurisdiction –

public law

DWR Cymru Cyfyngedig (Welsh Water) v Corus UK Ltd [2006] EWHC 1183 (Ch) : Bailli

Under a water supply contract, rates for option to renew to be negotiated or settled by arbitration. Otherwise rates to be

determined by Director General of Water. At renewal time the DGW set the new rate and DWR sought summary judgment

for sums due. Public law challenge to jurisdiction of DGW upheld. This was a private law dispute, not an abuse of process

to challenge jurisdiction in favour of arbitration.

Hart, Mr Justice 2006.05.26 QBD

Chancery

Division



Removal of

arbitrator :

misconduct :

appeal

Earthmoving v Miller Construction Ltd [2001] EWCA Civ 654 : bailli

Successful appeal against the removal of an arbitrator and the setting aside of an arbitral award. Upon hearing some

allegations of a failure by the other side to address and issue the trial judge vacated the award and dismissed the

arbitrator. CA held : There was no evidence of impropriety to justify such an action and an arbitrator cannot be removed

without being given an opportunity to address the court. Court noted that neither side was complaining about the

arbitrator’s conduct. The arbitrator’s standing was not impugned in any way by the CA.

Potter LJ :

Clarke LJ;

Bennett Mr Justice

2001.04.06 CA

S067 AA 1996 ::

Challenge :

Jurisdiction

Econet Satellite Services Ltd. v Vee Networks Ltd [2006] EWHC 1664 (Comm) : Bailli

No jurisdiction to deal with set off under the contract : Applicants confused the scope clause under UNCITRAL re

procedure with the substantive law of the contract.

Field Mr Justice 2006.07.13 QBD

Commercial

Court

S044 AA 1996 :

Injunction s44

lifted

Econet Wireless Ltd v Vee Networks Ltd [2006] EWHC 1568 (Comm) : Bailli

Ex parte injunction in support of overseas arbitration lifted. Other party had no notice. Court provided with insufficient

information at first instance. It is only in extra-ordinary situations that a court will injunct in respect of overseas arbitral

proceedings. Nigeria was the appropriate forum of the arbitration.

Morison : Mr Justice 2006.06.28 QBD

Commercial

Court

S103 : New York &

EU Law

Eco Swiss China Time (Competition) [1999] EUECJ C-126/97 : bailli

Where a court would set aside an award for policy reasons – it should likewise for policy reasons regarding breach of EU

law.

Iglesias, President,

etc

1999.06.01 ECJ

S067 AA 1996 :

Challenge :

Jurisdiction

Ecuador v Occidental Exploration & Production Co [2007] EWCA Civ 656 : Bailli

Failed appeal against decision of first instance court upholding the award & jurisdiction. CA on appeal from QBD (Mr

Justice Aikens) : affirming court at first instance, the arbitrators had jurisdiction to deal with matters that impacted upon

VAT.

Clarke MR Sir

Anthony;

Buxton LJ;

Toulson LJ

2007.07.04 CA

S067 AA 1996 :

Challenge : s68

Challenge

Ecuador v Occidental Exploration & Production Co [2006] EWHC 345 (Comm) : Bailli

Jurisdiction to deal with taxation excluded. Did this extend to application for return of VAT. Held No.

Aikens Mr Justice 2006.03.02 QBD

Commercial

Court

S067 AA 1996 :

Challenge

jurisdiction –

sovereign

immunity

Ecuador v Occidental Exploration and Production Company [2005] EWHC 774 (Comm) : Bailli

Justiciability : Tax ; Whether questions as to tax involving a state party justiciable – by arbitration or the court. Arbitration

challenge s67 met by a sovereign state immunity plea by the defendant asserting the award was a treaty. Court held it had

jurisdiction – sovereign had submitted to the jurisdiction of the arbitrator..


Commercial

Court

S026 AA 1950 :

limitation

ED & F Man Sugar Ltd v Lendoudis [2007] EWHC 2268 (Comm) : Bailli

Successful appeal against order enforcing foreign award. Action more than 6 years after the award issued.

Clarke Mr Justice

Christopher


Court

S067 AA 1996 :

Challenge

Electrosteel Castings Ltd. v Scan-Trans Shipping & Chartering SDN BHD [2002] EWHC 1993 : bailli

A Court challenge, under s.67 Arbitration Act 1996, to an arbitrator's ruling as to his own jurisdiction should involve a re-

hearing rather than simply a review.

Gross Mr Justice 2002.10.09 QBD

Commercial

Court


S037 SCA 1981 :

Injunction

restraining

arbitration

Elektrim SA v Vivendi Universal SA [2007] EWHC 571 (Comm) : Bailli

Party participated for 10 months in an on going arbitration in London – reserving its position on jurisdiction pending the

outcome of an arbitration in Geneva. Application refused.


Court

S068 AA 1996

Challenge s68

Fraud

Elektrim SA v Vivendi Universal SA [2007] EWHC 11 (Comm) : Bailli

Fraud for the purposes of s68 should be committed by the other party of with privity of that party – not by a third party –

even if the other party aware of it.

Aikens J 2007.01.24 Commercial

Court

S009 AA 1996 El Nasharty v J. Sainsbury Plc [2007] EWHC 2618 (Comm) : Bailli

Application for a declaration that an agreement for sale of shares in Egyptian Distribution Group SAE was entered into as a

result of duress and has been avoided. In his Points of Claim he additionally claims damages of at least US$104,000,000.

The agreement contained an arbitration clause, pursuant to which Sainsbury make this application. Stay granted.

Tomlinson Mr

Justice


Court

Confidentiality :

privacy : piercing

the veil : interests

of justice

Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184 : Bailli

Whilst it is clearly established under English law that the arbitration process is both private and confidential, there are

exceptions to the rule : a beneficiary might waive the protection – particularly when challenging or enforcing a award – and

the courts can override the privilege in the interests of justice – to allow arbitral proceedings to be disclosed to a domestic

or forieng court.

Carnwath LJ;

Thomas LJ;

Lawrence Collins LJ.

2008.03.12 CA

Confidentiality Engineered Medical Systems v. Bregas AB [2003] EWHC 3287 (Comm) : Westlaw

Mandatory injunction issued requiring supplier to maintain supplies pending commencement of arbitration – but

injunction through to conclusion of arbitration declined – too many variables – alternative sources might be procured.


Court

S009 AA 1996 : Stay

to arbitration s9

anti-suit

Enron (Thrace) Exploration and Production BV v Clapp [2004] EWHC 1612 (Comm) : Bailli

Arguable defence to part of an enforcement judgment : other part no defence. Enforcement in part ordered. Any dispute on

quantum re outstanding sum to be settled if at all at either parties behest by arbitration. Anti-suit injunction against

commencing action in Texas court since arbitration / exclusive jurisdiction & law clause effective.


Commercial

Court

Immunity - UN:

arbitration

agreement

Entico Corp Ltd v United Nations Educational Scientific & Cultural Assoc. (UNESCO) [2008] EWHC 531 (Comm) Bailli

Whether the immunity from suit of the UN precluded arbitral jurisdiction in a contract for the production of a calendar. UN

pulled out of contract – claimant seeks damages for loss.

Tomlinson Mr

Justice


Court

Conflicts :

electronic

communications

Entores Ltd v Miles Far East Corporation [1955] EWCA Civ 3 : Bailli

Contract concluded by telex : where and when is a contract concluded when electronic communications are used ? Held :

Where received - in this case London, so English Law applied - consent to issue writ out of jurisdiction.

Denning LJ;

Birkett LJ;

Parker LJ

1955.05.17 CA

Stay pending

outcome of

arbitration

Equitas Ltd v Allstate Insurance Company [2008] EWHC 1671 (Comm) : Bailli

Stay pending outcome of third party Texas arbitration between Allstate v Highland regarding reinsurance : Held : Stay

refused : danger that the tribunal might rule against Equitas's interests - in an action that Equitas was not a party - and

potential difficulties as to the enforceability of such an award.

Beatson Mr Justice 2008.07.17 Commercial

Court

S067 AA 1996 : set

aside application :

s68 & 79

applications.

Equatorial Traders Ltd. v Louis Dreyfus Trading Ltd.[2002] EWHC 2023 (Comm) : bailli

Regarding an award Dreyfus challenge quantum – and seek s79 extension of time to validate service of statement of claim –

since the person responsible had been ill – and under the contract the statement was served a month too late. There

followed an application for a fresh appeal – which gave rise to the s67 application, Held : Extension of time not allowed.

Chambers QC HHJ 2002.08.28 Commercial

Court


Jurisdiction - scope Espineira v Isc (Management Services) Ltd [1998] EWCA Civ 684 : bailli

Clause excluded matters reserved to the discretion of the employer from arbitration – did this extend to a dispute

regarding fraudulent handling of goods by the contractor? Held : No – arbitration not applicable.

Gibson LJ Peter :

May LJ :

Henry LJ

1998.04.22 CA

S069 AA 1996

Challenge s69 Final

& binding – right

of appeal

Essex County Council v Premier Recycling Ltd [2006] EWHC 3594 (TCC) Bailli

Firstly, did the terms of appointment exclude a right to appeal? Held : No. Secondly, had the arbitrator erred in law. Held :

No. Appeal dismissed. Contract contained a dispute escalation clause : best endeavours : expert determination- conciliation

: arbitration. The written terms of appointment referred to a final and binding outcome – and a fast track paper only

mechanism. The arbitrator allocated one morning for a hearing which the applicant was unhappy with. Question here was

1) was there a right to appeal ? Held : yes, no clear words excluding appeal : 2) breach of procedure : Held : No.


S032 AA 1996 :

Jurisdiction s32

Esso Exploration & Production UK Ltd. v Electricity Supply Board [2004] EWHC 723 (Comm) : Bailli

Arbitration to adjust the price of gas in a long term contract. Trigger for a notice is to demonstrate that the price is 85% or

less below the market price., and that 90 days had passed since failure to negotiate a revised price. ESB complained that the

comparator used by Esso was based on annual market price rather than on the market price of comparable long term

contracts. Court agreed with ESB. No jurisdiction.

Moore-Bick Mr

Justice

2004.03.31 QBD

Commercial

Court

Freezing order ETI Euro Telecom International NV v Republic of Bolivia & Anor [2008] EWCA Civ 880 : Bailli

Freezing order - risk of dissipation of funds : State Immunity : New York arbitration pending under ICSID : unsuccessful

appeal.

Tuckey LJ;

Lawrence Collins LJ;

Stanley Burnton LJ.

2008.07.28 CA

Freezing order ETI Euro Telecom International NV v Republic of Bolivia [2008] EWHC 1689 (Comm) : Bailli

Freezing order - risk of dissipation of funds : State Immunity : New York arbitration pending under ICSID : Costs on

indemnity basis.

Smith Mr Justice

Andrew


Court

S009 AA 1996 : Stay

to arbitration s9

ET Plus SA v Welter [2005] EWHC 2115 : Bailli

Whilst Et Plus & Channel tunnel were subject to a Paris Arbitration agreement others including the respondent to this

application were not, accordingly the stay to Paris rejected. Certain of the actions filed were dismissed out of hand. There

remaining actions were stayed pending the outcome of the Paris arbitration.


Commercial

Court

S009 : AA 1996

Stay refused.

Exeter City A.F.C. Ltd v. Football Conference Ltd, Stevenage Borough FC Ltd [2004] EWHC 831 (Ch) : Westlaw

Club in liquidation. CVA in existence. Arbitration agreement with F. Shareholder instituted action under s459 Companies

Act. Should this be stayed? Held : Most appropriate for court to deal with all matters rather than to fragment – since

shareholders right cannot be overridden by the arbitration agreement.

Weeks HHJ 2004.01.29 Chancery

S067 AA 1996 :

Challenge

Jurisdiction

Exfin Shipping (India) Ltd v Tolani Shipping Co Ltd [2006] EWHC 1090 (Comm) : Bailli

Meaning of and existence of a dispute. The Halki applied. Challenge failed.


Court


Agricultural Act

Arbitration

Fearn v Swindon Borough Council [2001] EWCA Civ 393 : bailli

County Court judge set award aside for error of law on face of record : Incorrect interpretation of contract and failure to

consider submissions. Appeal dismissed : Little likelihood of establishing the judge was incorrect.

Chadwick LJ;

Arden LJ

2001.03.08 CA


Costs appeal :

applicable

principles : AA

1950 / 1979

Fence Gate Ltd v NEL Construction Ltd [2001] APP.L.R. 12/05

Where an arbitrator determines that a claim was excessively high and discouraged settlement negotiations, those

determinations must be supported by evidence. If not so supported the costs decision is untenable. In the event the court

reassessed costs so that rather than the parties bearing their own costs, the successful claimant received 65% of his costs.

Thornton J 2001.12.05 TCC

S068 AA 1996

Challenge s68


Fidelity Management SA v Myriad International Holdings BV [2005] EWHC 1193 (Comm ) : Bailli

Test serious irregularity causing substantial injustice : Not established in the instant case.

Morison : Mr Justice 2005.06.09 QBD

Commercial

Court

s027 AA 1950 :

Extension of time

Fifield v. W & R Jack Limited (New Zealand) [2000] UKPC 27 : bailli

Appeal against a refusal of an extension of time to submit a dispute to arbitration.

Browne-Wilkinson

Lord

Cooke Lord

Clyde Lord

Hobhouse Lord

Henry Mr. Justice

2000.06.29 Privy

Council

S032 AA 1996 :

Jurisdiction – s32

application

Film Finance Inc v The Royal Bank of Scotland [2007] EWHC 195 (Comm) Bailli

Scope of arbitration clause : Held : Arbitrator has jurisdiction over the dispute. Liberal approach to interpretation in favour

of one stop arbitration appropriate. Fiona v Privalov noted.

Smith Mr. Justice

Andrew


Court

S009 AA 1996 : Stay

to arbitration

Fiona Trust & Holding Corp v Privalov [2006] EWHC 2583 (Comm) : Bailli

Application to stay to arbitration refused.

Morrison Mr Justice 2006.10.20 Commercial

Court

Freezing Order –

Worldwide

Fiona Trust Holding Corp v Privalov [2007] EWHC 1217 (Comm) : Bailli

Application for extension granted.

Steel Mr Justice

David


Court

S066 AA 1996 :

Jurisdiction

Fiona Trust & Holding Corp v Yuri Privalov [2007] EWCA Civ 20 : Bailli

Who has jurisdiction to determine whether or not allegations of bribery and corruption in the formation of a contract

containing an arbitration clause are founded : tribunal or court? Held : tribunal - the court only has jurisdiction if the

allegations relate to the legality of the arbitration agreement : questions regarding the validity of the main agreement are

for the tribunal.

Tuckey LJ;

Arden LJ;

Longmore LJ.

2007.01.24 CA

Appeal : question

of law.

Flacker Shipping Ltd v Glencore Grain Ltd [2002] EWCA Civ 1068: bailli

Laytime can commence under a voyage charterparty requiring service of a notice of readiness when no valid notice of

readiness has been served in circumstances where (a) a notice of readiness valid in form is served upon the charterers or

receivers as required under the charterparty prior to the arrival of the vessel; (b) the vessel thereafter arrives and is, or is

accepted to be, ready to discharge to the knowledge of the charterers; (c) discharge thereafter commences to the order of

the charterers or receivers without either having given any intimation of rejection or reservation in respect of the notice of

readiness previously served or any indication that further notice of readiness is required before laytime commences

Appeal allowed reinstating arbitral award.

Potter LJ :

Arden LJ;

Sir Denis Henry

2002.07.15 CA


S067 AA 1996

Challenge

jurisdiction

S069 AA 1996 :

Appeal against

revised Gafta

award. Point of

Law

Fleming & Wendeln GmbH & Co v Sanofi Sa/ag [2003] EWHC 561 (Comm) : bailli

GAFTA appeals tribunal : Appeal - clause 28 of GAFTA form 78, the buyer having held the seller in default and terminated

the contract, the buyer is entitled to damages assessed as the difference between the contract price and the market price of

the cargo at the end of the delivery period. Board correct to determine that breach occurred at an earlier date and clause 28

not applicable. A s67 Jurisdiction challenge where point referred back to GAFTA by the court failed.Market price and due

date for assessment of market price in an international trade claim. Was the date of failure to nominate a silo the date to

assess market value – dealt with under s67 – jurisdiction of Gafta appeals board. Held : remission a term of the contract : no

excess of jurisdiction : it was a determination the board was entitled to reach.

Cresswell Mr Justice 2003.03.20 Commercial

Court

Appeal against

award.

Fletamentos Maritimos SA v Effjohn International BV [1997] EWCA Civ 1065 : bailli

Complaints against tribunal and allegations of discrimination in respect of solicitors acting for one side and role of

arbitrator giving evidence in the Zaiwalla v Elstub litigation.

Simon Brown LJ :

Morritt LJ;

Waller LJ

1997.02.21 CA

S027 AA 1950 :

Assignment – right

to arbitrate

Stay : temporary :

deferral

Flood v Shand Construction Ltd & Ors [1996] EWCA Civ 1241 : bailli

Assignment : Scope of a clause prohibiting the sub-contractor from assigning the benefit of the sub-contract which appears

in a widely-used standard form. Held : clause 2(3) of the sub-contract renders invalid the assignment by the company

plaintiff of any claim which cannot be expressed simply as a present or future claim for a fixed amount due under the sub-

contract. This precludes the assignment of claims for damages or for sums which fall to be assessed under or in accordance

with the sub-contract terms, except where the assignment transfers only the future right to recover the amount when it is

duly established by agreement or otherwise. A provision in a contract limiting assignment to sums due did not extend to

assignment of right to question an engineer’s decision by arbitration

Butler-Sloss LJ;

Evans LJ;

Sir Iain Glidewell.

1996.12.18 CA

S032 AA 1996 :

Jurisdiction

Front Carriers Ltd.v Atlantic and Orient Shipping Corp. [2007] EWHC 421 (Comm) Bailli

Application for declaration that a contract – charterparty - containing an arbitration clause had been concluded for between

the parties. Application granted. Clerical error in Charter Party naming company Lti instead of Ltd not significant. Court

confirmed that there was a valid contract which in turn contained an arbitration clause.


Court

Case stated Fuller v Happy Shopper Markets Ltd [2001] EWHC Ch 702 : Bailli

Arbitration Act 1950 : Dispute about a lease and set off for non-repairs.



Jurisdiction -

conflicts

Galaxy Special Maritime Enterprise v Prima Ceylon Ltd MV "Olympic Galaxy" [2006] EWCA Civ 528: Bailli

General average claim : By a letter of undertaking parties agreed to settle disputes either by arbitration or before the High

Court Sri Lanka. It is clear the applicable substantive law is English Law. Parties submitted to but then abandoned an

arbitration. CA held that in the circumstances there is no overriding reason for an English Court to deal with events that

took place in Sri Lankan waters, particularly since the Sri Lankan court was already dealing with the matter.

Mummery LJ;

Buxton LJ.

Longmore LJ.

2006.05.03 CA

Without prejudice :

Privilege

Galliford Try Construction Ltd v Mott MacDonald Ltd [2008] EWHC 603 (TCC) Bailli

Successful application to strike out portions of a witness statmentent on the grounds of negotiation privilege.

Coulson Mr Justice 2008.03.14 Commercial

Court

S057 AA 1996 : Slip

rule : s67 / 68

challenges.

Gannet Shipping Ltd v Eastrade Commodities Inc [2001] EWHC 483 (Comm) : bailli

Correction of error : did the tribunal have jurisdiction to correct an error – and if so was there a serious irregularity.

Challenges failed.


Court


S101(2) AA 1996 :

Security of costs

against a defendant

Gater Assets Ltd v Nak Naftogaz Ukrainiy [2007] EWHC 697 (Comm) Bailli

Application for security of costs against a defendant to an application to set aside a New York Convention enforcement

award.

Field Mr Justice 2007.03.22 Commercial

Court

S103 AA 1996

Challenge to

enforcement of

award

Gater Assets Ltd v Nak Naftogaz Ukrainiy [2008] EWHC 237 (Comm) : Bailli

Appeal against an enforcement order on grounds of public policy – based on absence of full and frank disclosure. Court

concluded that if material now available had been put to the tribunal the outcome would have been different. The court

concluded that it would not have altered the outcome and hence the award stands.

Tomlinson Mr

Justice


Court

S103 AA 1996

Challenge to

enforcement of

award : security

Gater Assets Ltd v Nak Naftogaz Ukrainiy [2007] EWCA Civ 988: Bailli

Court has jurisdiction to deal with security of costs in respect of enforcement or defence of a New York award.

Buxton LJ;

Rix LJ;

Moses LJ.

2007.10.17 CA

S101(3) AA 1996 –

Interest post

enfocement

Gater Assets Ltd v NAK Naftogaz Ukrainiy [2008] EWHC 1108 (Comm) : bailli

Can interest purusant to s17 Judgments Act 1838 be ordered against an enforcement order where no interest ordered by the

tribunal? Held : Yes.


Court

Reasons – failure to

deal with issue

Gatt, R (on the application of) v Chester Crown Court [1998] EWHC Admin 648 : bailli

Poyser and Mills' Arbitration [1964] 2 QB 467, at page 477 to 478: "The whole purpose of section 12 of the Tribunals and

Inquiries Act, 1958, was to enable persons whose property, or whose interests, were being affected by some administrative decision or

some statutory arbitration to know, if the decision was against them, what the reasons for it were. Up to then, people's property and

other interests might be gravely affected by a decision of some official. The decision might be perfectly right, but the person against

whom it was made was left with the real grievance that he was not told why the decision had been made. The purpose of section 12 was

to remedy that, and to remedy it in relation to arbitrations under this Act. Parliament provided that reasons shall be given, and in my

view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will

not only be intelligible, but which deal with the substantial points that have been raised."

Lord Donaldson, Master of the Rolls in UCATT v Grime (1991) ICR 542. Reasons, he held, must "tell the parties in broad terms

why they lose or, as the case may be, win." "In every case, the adequacy of the reasons must depend on the nature of proceedings, the

character of the decision making body and the issues raised before it, particularly if they include issues of fact."

Sedley Mr Justice 1998.06.18 QBD Admin

Division

Jurisdiction : CAC Gatwick Express, R v Central Arbitration Committee [2003] EWHC 2035 (Admin) : Bailli

Whether the CAC had jurisdiction to order recognition where 8 out of 20 members were opposed or whether a ballot

should be conducted. Held : A ballot required. Neither the Union or the Employer were concerned but the CAC wanted the

matter remitted to them to reconsider in the light of the court’s determination. Court went ahead and made the decision

itself, stating that the CAC request was too formal and unnecessary in the circumstances.

Wilkie HHJ 2003.08.11 QBD Admin

Division

Challenge : Paper

only arbitration

General Construction Ltd v Aegon Insurance Co (UK) Ltd [1997] EWHC TCC 368 : bailli

Due Process : Conflicts & Procedure : Was a paper only arbitration procedure satisfactory under the Law of Mauritius ?

YES

Bowsher HHJ 1997.05.21 TCC

S067 AA 1996. :

application to vary

an award

George Wimpey UK Ltd. v Granby Village (Manchester) Management Co Ltd. [2002] EWHC 2913 (TCC) : bailli

Defects arbitration clause between constructor and owners & subsequent owners of flats. The flats were managed by the

Company which acquired the freehold of the land. Was the Company a successor in title entitled to arbitrate claims

regarding defective underground parking? Held : No : interim jurisdiction award set aside.

Kirkham HHJ

Frances

2002.08.14 TCC


S001(7) AA 1979 :

Appeal – interim

award

Georgian Maritime Corporation Plc v Sealand Industries (Bermuda) Ltd [1998] EWCA Civ 861 : bailli

Appeal against successful 1st instance appeal must be dismissed : para 1 of the Arbitrator's Award holding that the

cancellation of the charter was lawful must be varied so as to hold that the cancellation was not lawful. Since the Award

was an interim award no question of remission arises. The Arbitrator remains seized of the arbitration.

Hobhouse LJ:

Waller LJ;

Walker LJ Robert

1998.05.20 CA

S001(7) AA 1979 :

Leave to appeal

Georgian Maritime Corp v Sealand Industries [1997] EWCA Civ 2226 : bailli

Two certified questions : Appeal from award – set aside – leave to appeal granted but then set aside. Here – appeal from

second set aside : whether the Charterers were entitled to cancel if, at the date and time provided in the cancelling clause,

there was not a sufficient quantity of bunkers on board the vessel. whether the Charterers were entitled to cancel although

they had not yet declared their option as to whether the vessel should be tendered at their berth in Hong Kong or

dropping the last outward pilot, when the fact was that she was not yet ready to be delivered in either place if the

contractual quantity of bunkers was an essential preliminary. CA concluded these are questions of general importance

and therefore granted leave to appeal

Staughton LJ;

Judge LJ.

1997.07.29 CA

S012 AA 1996 :

Extension of time

Gibson Joint Venture v Department of the Environment for Northern Ireland [2001] NIQB 48 : bailli

Dispute regarding an ICC 5th edition contract. Failure to demonstrate that the conditions under s12(3)(a) or (b) had been

satisfied – viz outside reasonable contemplation of the parties & unjust or conduct of a party made it unfair, application

failed.

Shiel J 2001.12.21 QBD

Northern

Ireland

S069 AA 1996

Challenge point of

law

Glaxosmithkline UK Ltd v Department of Health [2007] EWHC 1470 (Comm) : Bailli

Challenge s69 on a point of law : Successful.


Court

s026 AA 1950 :

Enforcement set off

Glencore Grain Ltd v Agros Trading Company [1999] EWCA Civ 1731: bailli

Both parties were in possession of GAFTA awards against each other. However Glencore also sought o establish a set off

against the award against them. Held on appeal that this sum had to be taken into account in the set off accounting process.

Kennedy LJ;

Otton LJ;

Clarke LJ.

1999.07.01 CA

Appeal : question

of Law

Glencore Grain Ltd v Flacker Shipping Ltd [2001] EWHC 503 (Comm) : bailli

Demurrage and dispatch : invalid notice : additional time incurred loading. Successful appeal against arbitral finding that

time ran from commencement of loading / at the nearest time under the charterparty.


Court

S069 AA 1996 :

Point of law

challenge

Glencore Grain Ltd. v Goldbeam Shipping Inc. [2002] EWHC 27 (Comm) : Bailli

Head & sub charter party contracts : Laytime dispute : Two appeals : first rejected : regarding second, issue was about

remoteness – not causation as dealt with by the tribunal : award remitted to arbitrators since in light of their findings no

assessment had been made, so that corrections could be made in the light of the court’s determinations.

Moore-Bick Mr

Justice


Court

Appeal : Gafta

award

Glencore Grain Rotterdam BV v Lebanese Organisation For International Commerce [1997] EWCA Civ 1958 : bailli

GAFTA award : whether the buyers under a sale contract on fob terms incorporating GAFTA form 64 were entitled to

open a letter of credit in favour of the sellers which was restricted to payment against freight pre-paid bills of lading;

whether, if the buyers were not so entitled and were thereby in breach of contract, the sellers can rely on that breach to

justify their own refusal and failure to ship the contract goods. appeal allowed :cross-appeal dismissed with costs

Nourse LJ :

Evans LJ;

Sir Ralph Gibons

1997.06.25 CA


S009 AA 1996 : Stay

to arbitration :

withdrawal of

freezing order :

Costs. s44 AA 1996

Glidepath Holdings BV v Early Red Corporation [2005] EWCA Civ 525: Bailli

Unsuccessful defendant to an action for stay to arbitration and withdrawal of freezing order appealed costs on basis that

the day before the hearing they had conceded the stay. However this was not drawn to attention of court and argument

adduced resisting the stay. On scrutiny costs orders in two parts – covering both issues separately – though no reasons

give. In the circumstances the reasons were self explanatory – following the events on an issue basis. Appeal failed – costs

order upheld. Appeal failed.

VC.

Clarke LJ;

Neuberger LJ.

2005.04.19 CA

S009 AA 1996 :

Confidentiality

Privacy

Glidepath BV v Thompson [2005] EWHC 818 (Comm) : Bailli

Privacy : s9 Application for stay : Only information required regarding application to be made public.

Colman HHJ 2005.05.04 QBD

Commercial

Court

Legal personality

post merger

Global Container Lines Ltd v Bonyan Shipping Co [1998] EWCA Civ 1728 : bailli

The right to maintain an action – litigation or arbitration – survives the merger of a company into another – even though

the company ceases to exist. Morris v Harris [1927] AC 252, Mercer Alloys Corporation v Rolls Royce Ltd [1971] 1 WLR

1520, The Choko Star [1996] 1 WLR 114; Toprak Energy v Sanayi SA v Sale Tilney Technology [1994] 1 Lloyd's Rep 303.

Yorkshire Regional Health Authority v Fairclough Building Ltd [1196] 1 WLR 210 considered.

Evans LJ;

Ward LJ

1998.11.09 CA

Bank guarantee –

ship building

contract

Gold Coast Ltd. v Caja De Ahorros Del Mediterraneo [2001] EWHC 504 (Comm)

Shipbuilding contract supported by a bank guarantee set up by the builder – building contract subject to arbitration :

guarantee activated if buyer terminates contract and bank certifies pre-existing payments for reimbursement. Bank

asserted guarantee not activated until arbitration concluded. Court held : pay on demand. If arbitration determines

wrongful determination buyer would reimburse builder – putting him in funds to repay the guarantee.


Court

S057 : AA 1996 :

Extension of time

to correct error s79

& s57

Gold Coast Ltd. v Naval Gijon SA [2006] EWHC 1044 (Comm) : Bailli

Tribunal admitted an award contained an error but held that since the 21 day period under s57 had passed it was an issue

for the court to deal with. Successful application under s79 to apply retrospectively for extension of time, thereby enabling

the tribunal to correct the error.

Gloster, Mrs Justice 2006.05.15 QBD

Commercial

Court

Liability for losses

arising out of

changes in the law.

Golden Fleece Maritime Inc v ST Shipping & Transport Inc [2007] EWHC 1890 (Comm) : Bailli

Liability for hire arising out of changes to national legislation requiring work on chartered vessels and restricting the range

of vessels in the intervening period– viz ship-owner or charterer to bear the risk. Held : Liability fell on the owner. A

variety of other claims as to speed and capacity referred to arbitration and outside the scope of the courts jurisdiction.


Court

S069 AA 1996

challenge

Golden President Shipping Corporation v Bocimar NV [2008] EWHC 130 (Comm) : Bailli

Whether or not the terms of a contract made years 6 & 7 subject to pain and gain provisions and hence a share of profits.

Award partially amended.


Court

S069 AA 1996

Challenge s69 point

of law

Golden Strait Corporation v Kaisha [2005] EWCA Civ 1190 : Bailli

Question posed – whether The Sea Flower [2000] 2 Ll.R. 37 accurately reflects the correct mechanism to apply for the

calculation of loss in respect of hire of a vessel under a charterparty. Answer : YES. Arbitrator’s award upheld.

Auld LJ;

Tuckey LJ;

Mance LJ.

2005.10.18 CA


S069 AA 1996

Challenge s69 point

of law

Golden Strait Corp v Nippon Yusen Kubishika Kaisha "The Golden Victory" [2005] EWHC 161 (Comm) : Bailli

Agreed appeal : Is assessment of damages a one off assessment made at time of breach or should it take into account any

subsequent event that would have resulted in cancellation eg in the event of war where the charterparty was subject to a

war clause. Held : The assessment should take into account the war since otherwise recovery would be greater than the

actual loss of profit since the war would have ended the charter prematurely in any case.


Commercial

Court

Costs : AA 1996 Goldstein v Conley [2001] EWCA Civ 637 : bailli

CA on appeal from QBD (The Hon Mr Justice Gray) and on appeal from the Lands Tribunal (HHJ Rich QC) . Costs for

Lands Tribunal proceedings governed by the Arbitration Act 1996. Inter-relationship with CPR regarding costs of

enforcement & challenge actions before the courts.

Mantell LJ;

Clarke LJ;

Sir Anthony Evans

2001.05.04 CA

Lands Tribunal

Application for

appeal

Goldstein v Conley [1999] EWCA Civ 1815 : bailli

The assessment of marriage value involved a hypothetical assessment of the value if the parties were landlord and tenant

and a commercial rate applies. The judge was not in error in not assessing value on the basis of a party sitting on the realty

and the impact that had on value. No real prospect of appeal. Application rejected.

Stuart-Smith LJ;

Buxton LJ

1999.07.12 CA

Limitation Good Challenger Navegante S.A. v Metalexportimport S.A. [2003] EWCA Civ 1668 : Bailli

Pre-CPR application for enforcement of an enforcement order in respect of an arbitration award. Whilst the enforcement

would in ordinary circumstances be time barred there had been acknowledgements which extended time. This dispute

could not arise again under the CPR rules for enforcement and the one month time bar.

Mantell LJ;

Clarke LJ;

Mr Justice Rimer

2003.11.24 CA

S023 AA 1950 :

Enforcement

Good Challenger Navegante S.A. v Metalexportimport S.A. [2003] EWHC 10 (Comm) : bailli

Ex parte enforcement judgment entered on the 25th January 1993. Application here for final enforcement. Defendant sought

set aside – limitation. Court ordered enforcement. During the interim period the claimants had continuously been engaged

in enforcement proceedings outside the UK. No want of prosecution.

Crane QC Mr

Michael, Deputy

Judge

2003.01.10 QBD

Commercial

Court

Costs agreement

post s69 Challenge Gort-Barten v M A Cherrington Ltd [2006] EWHC 2877 (TCC) : Bailli

Costs of Appeal : Where parties reach an agreement as to costs of an arbitration, that agreement will extend to costs of

appeal. Thus where agreement that each party bear its arbitration costs is concluded, the winning party to an appeal cannot

recover costs of the appeal.

Ramsay Mr Justice 2006.11.08 TCC

Jurisdiction : Anti-

suit injunction

Goshawk Dedicated Ltd v ROP Inc [2006] EWHC 1730 (Comm) : Bailli

Injunction successfully applied for to prevent party pursuing an action to strike out arbitration proceedings before the

Georgia Court.

Morison, Mr Justice 2006.07.12 QBD

Commercial

Court

S044 AA 1996 Green Flower Navigation Malta Ltd, v. SC Santierul Naval SA Constanta [2002] WL 1876042 : Westlaw

Injunctive relief against action in Romania in favour of arbitration.

Gloster QC Miss

Elizabeth


Court

S009 AA 1996 :

s 12 AA 1996.

Grimaldi Compagnia di Navigazione SpA v Sekihyo Line Ltd 1998] 3 All ER 943

Application for declaration that the Hague Visby Rules and time bar did not apply to the dispute : application for extension

of time to apply to arbitration and application of stay to arbitration. Held : All these were issues to be determined at first

instance by the arbitral tribunal. In the event, all this became obiter since the parties settled the dispute.

Mance J 1998.06.24 Commercial

Court


S023 AA 1996 :

Application for

removal for

misconduct

Guaranteed Ashphalt (London) Ltd v. Taylor Woodrow Construction Ltd [1998] EWHC TCC 317 : bailli

Acrimonious arbitration – with much bad feeling on both sides – arbitrator remained professional at all times. Application

groundless and refused. “This application was made 1 year after publication of Award no 1. The order was issued over 15 months

before. No complaint had been made previously that the Order was one the arbitrator had no power to make. It is doomed to fail.

Although the Order could be described as procedural mishap, it is not misconduct. It was made at the express request of one party

without the other objecting. The arbitrator can hardly be faulted for making the Order. It is open to G to apply to the arbitrator to lift

the stay, even if the sums provided for in the Order are not paid. If the arbitrator declines to do so, G could, if it wished make another

misconduct application. I refuse the application for leave to amend.”

Thornton QC HHJ 1998.06.05 TCC

Jurisdiction :

contract ?

Gurney v Pearson Pension Property Fund [2004] EWHC 1961: Bailli

Existence of a construction contract a pre-requisite of arbitral jurisdiction.

Seymour HHJ

Richard

2004.09.02 TCC

S044 AA 1996

Confidentiality :

conflict of interests

& legal

representatives

Gus Consulting GmbH v Leboeuf Lamb Greene & Macrae [2006] EWCA Civ 683: Bailli

Confidentiality : Injunction sought under s44 AA to stop US law firm representing a party at an arbitration on grounds that

the firm had represented the applicants at an earlier date. Court heard that the lawyers assigned to the case were new-

migrants to the firm who undertook not to breach confidentiality rules. Court accepted the undertaking and refused

injunction at 1st instance & on appeal. Failed appeal against a refusal to grant an injunction pursuant to s44(2)(e)

Arbitration Act to prevent a law firm with members that had prior knowledge from acting for one of the parties. Adequate

Chinese walls in place.

Brooke LJ, VC;

Mummery LJ.

Scott Baker LJ.

2005.05.26 CA


S009 AA 1996 :

Dispute : Meaning

of : stay to

arbitration s9

Halki Shipping Corporation v Sopex Oils Ltd [1997] 3 All ER 833 : Lexis Nexis

Demurrage claim : application for summary judgement – assertion that no dispute since claim undeniable. Held : There

was a dispute as to whether any demurrage was due. Such disputes subject to arbitration. Stay of action under s9

Arbitration Act 1996

Clarke J 1997.07.07 Admiralty

S009 AA 1996 :

Dispute : Meaning

of : stay to

arbitration s9

Halki Shipping Corporation v Sopex Oils Ltd [1997] EWCA Civ 3062: Bailii

Principal authority of the meaning of what is a dispute – and relied upon as an authority in most of the adjudication cases

where the meaning of a dispute is discussed. Stay of Action : Application to defer to Arbitration under s9 Arbitration Act

1996

Hirst LJ,

Henry LJ,

Swinton Thomas LJ

1997.12.19 CA

S069 AA 1996

Challenge s69

Hallamshire Construction Plc v South Holland D.C. [2004] EWHC 8 (TCC) : Lawtel AC0106433

Whether or not a contract had been extended by variations a question of fact not law : viz not about what constitutes a valid

contract. Decision not challengeable.


Compromise –

duress : Beth Din

Arbitration

Halpern v Halpern [2006] EWHC 603 (Comm) : Bailli

Succession dispute submitted to a Beth Din Arbitration. Parties agreed a compromise that was confirmed by the tribunal.

Allegations that the compromise was procured by fraud: mistake; duress. Court ordered disclosure of documents,

transcribed into English to enable a trial of the duress issue to proceed.

Clarke Mr Justice

Christopher

2006.03.24 QBD

Commercial

Court

Stay : Illegality Harbour Assurance Co. (UK) Ltd. v. Kansa General International Insurance Co. Ltd. [1993] 1 Lloyd's Rep. 455

Whether court should issue a stay to arbitration : whether tribunal has jurisdiction where illegality asserted successful

appeal against decision of Mr. Justice Steyn who had refused a stay.

Gibson LJ Ralph

Leggatt LJ

Hoffmann LJ

1993.01.28 CA


Illegality : stay. Harbour Assurance Co (UK) Ltd v Kansa General International Insurance Co Ltd [1992] 1 Lloyd's Rep. 81

Initial illegality in a contract is outside the jurisdiction of a tribunal.

Steyn Mr Justice 1991.07.31 Commercial

Court

S012 AA 1996 :

Extension of time :

Harbour & General Works Ltd v Environment Agency [1999] ABC.L.R. 02/19 : Westlaw

CA on unsuccessful appeal from QBD, (Mr Justice Colman, QC) where an application to extend time to challenge an

engineer’s decision refused.

Waller LJ;

Tuckey LJ

1999.10.12 CA

S012 AA 1996 ::

Extension of time

Harbour & General Works Ltd v Environment Agency [1999] ABC.L.R. 02/19

ICE Contract. Time limit to submit claim under clause 66. Applicant out of time. Stay to arbitration refused. Time to

challenge an engineer’s decision expired. Application for extension of time refused.

Colman Mr Justice 1999.02.19 TCC

Legal identity :

parties to

arbitration

Harper Versicherungs AG v Indemnity Marine Assurance Company Ltd [2006] EWHC 1500 (Comm) : Bailli

Due to Part VII FSA 2000 mergers the names of parties to an arbitration were not accurately stated. Parties had issued a

deed acknowledging submission to an arbitration to settle what was due under reinsurance contracts. Held : There was no

need to institute fresh arbitrations for every name change. Arbitrator had jurisdiction to determine accounts between the

parties.

Tomlinson Mr

Justice

2006.06.23 QBD

Commercial

Court

Security of Costs :

counter claim : Stay Hart Investments Ltd v Larchpark Ltd. [2007] EWHC 291 (TCC) : Bailli

Security of Costs - counter-claim - stay pending payment : Post refusal of enforcement of adjudication litigation in respect

of damages for collapse of building and counterclaim for payment. Security of costs in respect of counter claim ordered -

with stay of counterclaim pending payment. Main issue to proceed to trial.

Coulson J. 2007.02.09 TCC

S023 AA 1950 Set

aside s17 correction

-slip

Havant Borough Council v South Coast Shipping Co Ltd [1998] EWCA Civ 261 : bailli

Failed application to set aside arbitral award. Leave to appeal granted in respect of alleged procedural mishap. Hobhouse LJ :

Chadwick LJ

1998.02.17 CA

S023 AA 1950

Challenge : Set

aside

Havant Borough Council v South Coast Shipping Co Ltd [1998] EWCA Civ 1205 : bailli

Unsuccessful challenge to a judgment refusing to set aside an award under s23 Arbitration Act 1950.

Simon Brown LJ :

Buxton LJ.

1998.07.14 CA

S068 AA 1996 Hawk Shipping Ltd v. Cron Navigation Ltd [2003] EWHC 1828 (Comm) : Westlaw

Mitigation of loss : burden of proof. Unlawful withdrawal of a vessel. Did the tribunal consider failure to mitigate ? Held :

No. Unlike goods, damages are not assessed on an available market. For owner to prove there was an alternative vessel

available. This is an issue of fact not law and not amenable to s69 challenge.


Court

S068 s69 AA 1996 HBC Hamburg Bulk Carriers GmbH v. Tangshan Haixing Shipping Co Ltd [2006] EWHC 3250 (Comm) : Westlaw

Off hire clause – cancellation clause if off hire for more than 30 days : Waiver. Award upheld in owners favour.


Court

S069 AA 1996 Heaselands SA v. Crest Homes (Westerham) Ltd [2000] WL 33201405 (QBD (Comm Ct)) Westlaw

Construction of contract : no obvious error in tribunal’s interpretation.

Williamson QC Miss

LH


Court

S009 AA 1996 Heifer International Inc v Helge Christiansen [2007] EWHC 3015 (TCC) : Bailli

Application for stay to the Danish Building & Construction Arbitration Board of a dispute about a UK building project.

Impact of the UCTA & Brussels Convention. Stay granted.

Toulmin HHJ 2007.12.18 TCC


S069 AA 1996

Challenge s69 :

refusal of

certificate to appeal

Henry Boot Construction (UK) Ltd v Malmaison Hotel Ltd [2000] EWCA Civ 175 : bailli

High court refused leave to appeal a refusal to challenge under s69. Appeal against refusal denied – both because not

justified in the circumstances and on the grounds that the CA has no jurisdiction to grant an appeal of refusal to grant a

certificate allowing appeal. The basic rule is that a party has one chance to appeal, not multiple opportunities.

Swinton Thomas LJ

Waller LJ

Arden Mrs Justice

2000.05.25 CA

Separability Heyman v. Darwins, Limited [1942] A.C. 356 : West Law

Leading case establishing the foundations in English Law of the concept of separability in respect of arbitration contracts

from the underlying contract and questions as to the legality or enforceability of that underlying contract.

Wright Lord :

Porter Lord :

Simon LC Vicount :

Russeell Lord

1942.02.20 House of

Lords

S066 AA 1996 : Stay

pending litigation

on counterclaim s66

Hillcourt v Teliasonera [2006] EWHC 508 (Ch) LAWTEL AC9100860

Stay of Enforcement of arbitral award pending litigation of significant counterclaim.

Evans-Lombe J. 2006.02.14 QBD

Chancery

Division

New York

Convention Award

Hiscox v Outhwaite (No 1) [1991] 3 All ER 124

An award was 'made' for the purposes of s 7(1) Arbitration Act 1975 Act when and where it was perfected, which was

where it was signed in the absence of anything in the arbitration agreement or the rules under which the arbitration was

conducted requiring some further formality. The award was signed and dated in Paris - it was made in Paris and was a

Convention award. Where an English court was both the curial court and the enforcing court the High Court remained

capable of exercising its curial jurisdiction over the arbitration and of adjourning, if it thought fit, any decision on the

enforceability of the award until the pending proceedings for review had been determined.

Donaldson MR;

McCowan LJ :

Leggatt LJ

1991.03.11 CA

New York

Convention Award

Hiscox v Outhwaite (No 1) [1991] 3 All ER 641

Hearing in London. Award drafted in London – but signed in Paris. Where is an arbitration award 'made' for the purposes

of s7(1) Arbitration Act 1975?, To what extent, if at all, do the Arbitration Acts 1950 and 1979 apply to a Convention award

where the procedural law of the arbitration is English? Whether the appellant is estopped by his conduct from raising

either point.

Mackay Lord LC :

Keith Lord;

Brandon Lord;

Ackner Lord;

Oliver Lord

1991.07.24 House of

Lords

S044 : s48 AA 1996

Discoveries

Hiscox Underwriting Ltd v. Dickson Manchester & Co Ltd [2004] EWHC 479 (Comm) : Westlaw

Limited order made to enable applicant to prepare for the arbitration : arbitrator newly appointed and not yet in a position

to make a discovery order.


Court

Inordinate delay :

Arbitration Act

1950

HM S.S. Foreign and Commonwealth Affairs v Percy Thomas Partnership [1998] EWHC TCC 348

Contract performed 1986/87. Applications to appoint an arbitrator in April 1996 in respect of a defective roof. Notices of

appointment issued in 1992 & 1993. Trial delayed pending supporting evidence. Court struck applications out for

inordinate delay.

Bowsher QC HHJ 1998.01.19 TCC

S069 AA 1996

challenge

Hodsoll v Hon Louisa-Jane Hanbury [2008] EWHC 1970 (Ch) : Bailli

Unsuccessful application to appeal arbitrator's award on liability of surety / lessee for outstanding repairs on termination

of a lease : Held : Not obviously wrong - right test applied by tribunal : even if wrong - no issue of general importance.

Morgan Mr Justice 2008.08.06 Chancery

S024 s68 AA 1996 Home of Homes Ltd v. L.B. Hammersmith & Fulham, Mr Alan Turner [2003] EWHC 807 (TCC) : Westlaw

S24 removal for conduct during arbitral hearings refused. A challenge to competence where arbitrator initially capped costs

but withdrew cap following further argumentation was rejected – did not indicate incompetence – simply part of the

process.

Forbes Mr Justice 2003.04.10 TCC


S009 AA 1996 :

Validity of

certification

Homepace Ltd v Sita South East Ltd [2007] EWHC 629 (Ch): Bailli

Certification process and arbitration provision in a mining lease. Certification as to mine-able resources flawed - certifier

did not answer the question posed - departing from the remit. Certificate invalid - accordingly arbitration clause did not

kick in. No stay to arbitration.

Strauss QC Mr N. 2007.03.30 Chancery

Division

Injunctive relief :

Conflicts

Hughes v Hannover Ruckversicherungs-Aktengesellschaft [1997] EWCA Civ 857 : bailli

Conflict of laws : US based reinsurance - arbitration clause - ex aequo bono - US. CA declined jurisdiction - no real

connection with the UK.

Roche LJ; Morritt LJ;

Thorpe LJ.

1997.01.28 CA

Appeal : Point of

law

HumberOil Terminal Trustee Ltd v Sivand, Owners Of Ship [1998] EWCA Civ 100

Damage by a vessel to harbour installations : Whether on the facts as found by the learned Arbitrator the respondents to

this application and the claimants in the arbitration (whom I shall call ´the contractors'), have encountered physical

conditions which they could not reasonably have foreseen so as to entitle them to claims under clause l2 of the ICE

conditions in contract or in tort.

Evans LJ :

Hobhouse LJ;

Pill LJ

1998.01.29 CA

S067 AA 1996 :

Jurisdiction

Challenge : s68

irregularity : s69 &

s28 fees

Hussman (Europe) Ltd v. Ahmad Pharaon [2002] EWHC 1134 (Comm) : bailli

S67 : Whilst party to an arbitration agreement, was Pharaon party to the reference to arbitration? First award in favour of

another entity – second award in favour of Pharaon – was tribunal functus officio? Court had rendered first award a nullity

– but left it to tribunal to determine whether or not to go back and make award in the correct name. S68 – adequate

opportunity. Both challenges failed – s28 issue deferred.

Brindle QC Michael 2002.04.16 Commercial

Court

S067 AA 1996 :

Challenge

Jurisdiction : s68

serious irregularity:

arbitration fees

Hussmann (Europe) Ltd. v Al Ameen Development & Trade Co [2000] EWHC 210 (Comm) : bailli

Transfer of undertaking : whether transferee a party to the contract and thus the arbitration – tribunal dealt with this as an

application to amend – held : wrong. Not a party. Arbitration commenced against original party – no loss of right to object

– s30 until actual knowledge of transfer. Serious irregularity claim re expert reports dismissed. Fees adjusted.


Court

S067 AA 1996 :

Challenge :

Jurisdiction &

Personality

Hussmann (Europe) Ltd. v Pharaon [2003] EWCA Civ 266 : bailli

CA on appeal from Commercial Court (Mr Michael Brindle QC sitting as a Deputy High Court judge) in an arbitration

application. Failed appeal – issue involves who the appropriate parties to an agreement and arbitration are : First award

failed – wrong personalities named : second award in amended form issued : could there be a further challenge? NO.:

Applicant asserted functus officio : Held : Valid award.

Phillips MR, Lord;

Rix LJ;

Scott Baker LJ.

2003.03.04 CA

Strike out – want of

prosecution –

arbitral award

Huyton SA v Jakil SPA [1998] EWCA Civ 525

CA on appeal from the order of Mr Justice Clarke QBD. Action challenging an arbitral award struck out at first instance for

want of prosecution. S13A & s22 Arbitration Act 1950 – arbitrator’s power to strike out / power of court to remit to

arbitrator for further consideration. Strike out upheld.

Roch LJ;

Aldous LJ;

Brooke LJ.

1998.03.24 CA

Delay – laches :

concurrent

arbitration

proceedings

Hydro Agri Espana SA v Charles M Willie & Co (Shipping) Ltd [1998] EWCA Civ 273 : bailli

Successful application by appeal to set aside a writ on grounds of delay. The claimant commenced arbitration action in

Norway, which eventually fell away for lack of jurisdiction then sought to pursue litigation in UK. The appropriate way of

dealing with this would have been to issue a writ in the UK then seek extension of time pending outcome of Norwegian

action. By the time the UK writ was taken out it was out of time. Writ set aside.

Evans LJ :

Pill LJ :

Thorpe LJ

1998.02.18 CA



Limitation

convention & :

award

ICL Shipping Ltd. v Chin Tai Steel Enterprise Co Ltd. [2003] EWHC 2320 (Comm) : bailli

Impact of lodging limitation under the Limitations Act in respect of monies outstanding on cargo award. LOU agreed

before a Singapore Court to facilitate release of a sister ship arrested as security for cargo claim following collision of vessel

and loss of all cargo. By the award the tribunal had found the carrying vessel 100% due to unseaworthiness.


Court

S069 AA 1996

Challenge s69 point

of law

Icon Navigation Corp v Sinochem International Petroleum (Bahamas) Co. Ltd. [2002] EWHC 2812 (Comm) : bailli

Court sets out the correct procedures and circumstances for using s68 & s69. On the facts an appeal against a finding of the

tribunal that there was no duty to load an oil cargo at the temperature at which the owners had to maintain it was upheld.

In consequence the charterers were liable for additional freight for cargo not discharged : counterclaim for short delivery

failed. Challenge to arbitrators interpretation of contract – was there a duty to load a cargo at 950 placed on the charterer

before the shipowner’s duty to maintain that temperature arose. Secondary s68 challenge to the case management of the

arbitration – should the tribunal have ensured that the question of whether or not loading temperature was a duty have

been addressed head on in the hearing to ensure both parties a fair representation?

Moore-Bick Mr

Justice

2002.12.19 QBD

Commercial

Court

S009 AA 1996 : Stay

to arbitration s9

Import Export Metro Ltd. v Compania Sud Americana De Vapores S.A. [2003] EWHC 11 (Comm) : bailli

Application for stay to arbitration in Chile refused. Whilst the fact that the two proceedings were at the same time and that

might cause inconvenience, the claims were distinct and separate. Application refused.


Commercial

Court

s009 AA 1998 :

Stay– right to

appeal

Inco Europe Ltd v. First Choice Distribution (A Firm) [2000] UKHL 15; Bailli

House of Lords clarifies the scope for appeal under the Arbitration Act 1996 in the light of the wording of s107

consequential amendments and cross referencing s18 SCA 1981. There is a right to appeal – though it is subject to the

certification process of the court..

Nicholls Lord

Jauncey Lord

Steyn Lord

Clyde Lord

Millett Lord

2000.03.09 HL

S009 AA 1996 : Stay

s9 to arbitration :

Inco Europe Ltd v First Choice Distribution [1998] EWCA Civ 1461 : bailli

Stay to arbitration granted. Successful appeal against a refusal at first instance to grant a stay to arbitration.

Hobhouse LJ;

Thorpe LJ;

Mummery LJ.

1998.09.30 CA

S069 AA 1996

Challenge s69

Independent Petroleum Group Ltd v Seacarriers Count Pte Ltd [2006] EWHC 3222 (Comm) Bailli

In determining whether a port is unsafe for the purposes of a safe port warranty in a voyage charterparty, is the relevant question

whether the port is unsafe for the chartered vessel itself or is it sufficient for the owners to show that the port is unsafe for other vessels?

Held : Port prospectively unsafe - appeal dismissed.


Court

Appointment :

Arbitration Act

1996 to apply

Indescon Ltd v Sir Robert Ogden CBE LLD [2004] EWHC 2326 (TCC) : Bailli

Arbitration reference first made in 1992 and an arbitrator appointed. Due to issues with the arbitrator he resigned and a

replacement arbitrator appointed under 1992 reference terms. Defendant asserted the right to appoint had died through

effuxion and abandonment. Court held : Action still alive : appointment valid.


Service out of

jurisdiction : set

aside

Inmarsat Ventures Plc v. APR Ltd fka Live Inflight Video Entertainment Ltd 2002 WL 1039556 : Westlaw

Application to set aside an order made without notice by Langley J whereby the claimant was granted permission to issue a

claim form for service out of the jurisdiction and to serve the same upon the defendant in Barbados

Tomlinson Mr

Justice


Court


Injunction of

arbitral

proceedings

Intermet FZCO v Ansol Ltd [2007] EWHC 226 (Comm) : Bailli

Application to injunct arbitral proceedings refused. Whether the same issue replicated in arbitration and litigation

proceedings. However only one of the parties to the contract arbitration was also a party to the fraud litigation. Held :

Both actions could proceed simultaneously.

Gloster J 2007.02.09 Commercial

Court

Identity of parties

to arbitration

Internaut Shipping GmbH & Anor v Fercometal Sarl [2003] EWCA Civ 812 : bailli

Sub-charterparty dispute commenced in the name of the owners, not the main charterers. Court ordered that the title of the

arbitration be amended to reflect the correct names of the contractual personalities in dispute.

Mummery LJ;

Sedley LJ;

Rix LJ.

2003.06.17 CA

Expert

determination :

challenge

Invensys Plc v Automotive Sealing Systems Ltd. [2001] EWHC 501 (Comm) : bailli

Application for summary judgement enforcing determination of an expert, said to be enforceable subject to manifest error.

No manifest error having been established, enforcement ordered.


Court

s103 AA 1996 :

Challenge : set

aside award : New

York Convention

IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation [2005] EWHC 726 (Comm) : Bailli

Application to set aside or to stay enforcement pending challenge and cross application for security of costs. Held :

Arguable defence in respect of duplication in award. 13M un-disputably due – and immediate payment ordered plus 50M

security to be paid into court pending outcome of challenge before Nigerian court.

Gross, Mr Justice 2005.04.27 QBD

Commercial

Court

S103 AA 1998 –

New York : Partial

enfrcement.

IPCO (Nigeria) Ltd. v Nigerian National Petroleum Corporation [2008] EWHC 797 (Comm) : Bailli

Application for partial enforcement of an award subject to a previous adjournment of enforcement action pending outcome

of challenge before Nigerian Court, in circumstances where 3 years had passed and challenge still ongoing : Held : Court

could award partial enforcement of elements of award not seriously subject to challenge.

Tomlinson Mr

Justice


Court

Reasons :

inadequacy.

In Re Poyser and Mills' Arbitration. [1964] 2 Q.B. 467

Agricultural Holdings Act Arbitration. Inadequate reasons for award.

Megaw J. 1963.01.21 QBD.

S044 AA 1996.

Mareva

In Re Q's Estate [1999] 1 Lloyd's Rep. 931

Whether court had jurisdiction to grant a Mareva Injunction in favour of a successful party to an arbitration where

jurisdiction stated to be exclusively within the power of the arbitrator. Held : Court has the power to grant a mareva in

support of arbitral proceedings, but in the circumstances the injunction was discharged.

Rix Mr Justice 1999.03.12 Comercial

Court

New York award.

Set aside

Irvani v Irvani [2000] 1 Lloyd's Rep 412 : Lexis Nexis

Application to set aside award : Successful appeal against 1st Instance judgement that award was valid. Whether arbitrator

biased : whether judge complied with rules of natural justice.

Nourse J,

Buxton LJJ,

Ferris J.

1999.12.09 CA


Case stated : Lands

tribunal

J A Pye (Oxford) Ltd v Kingswood Borough Council [1998] EWCA Civ 643 : bailli

Case stated from Lands Tribunal. Partially successful in respect of valuation method : Failed regarding the Scheme

applied..

Hobhouse LJ;

Thomas LJ Swinton :

Buxton LJ

1998.04.06 CA

Reasons -

remission

JFS (UK) Ltd v South West Water Services Ltd, [1998] EWHC TCC 327 : bailli

Application to the court for remission of an award for further reasons.

Lloyd HHJ

Humphrey

1998.04.22 TCC


S069 AA 1996

Challenge s69

J Jarvis & Sons Ltd v Blue Circle Dartford Estates Ltd [2007] EWHC 1262 (TCC) : Bailli

Application for injunction to prevent continuance of arbitration s37 SCA 1981 / challenge to interim award s69. Whether

continuance of arbitration oppressive or vexatious. Application made at a very late stage when arbitration imminent.

Potential concurrent actions in court and tribunal is not in itself oppressive. Risk of double liability minimal. Arbitrator has

duty to manage the process - not vexatious. A real claim at stake.


S001 AA 1979 : S045

AA 1996 :

Reference s45 point

of law

JI MacWilliam Company Inc v. Mediterranean Shipping Co SA [2005] UKHL 11: Bailli

The Rafaela : Whether or not a bill of lading was subject to the Hague Visby Rules. Held : YES. Significance : HVR

limitation levels apply.

Bingham Lord

Nicholls Lord

Steyn Lord

Rodger Lord

Brown Lord

2005.02.16 HL

Challenge : Point of

Law AA 1979

JI Macwilliam Co Inc v Mediterranean Shipping Company S.A. [2003] EWCA Civ 556 : Bailli

Whether or not a bill of lading was subject to the Hague Visby Rules.

Gibson LJ Peter ;

Rix LJ

Mr Justice Jacob

2003.04.16 CA

S045 AA 1996 :

Reference s45 point

of law

J I Macwilliam Co Inc v Mediterranean Shipping Co Sa [2002] EWHC 593 : Bailli

Rafaela : Whether or not a bill of lading was subject to the Hague Visby Rules. Does the HVR apply to a straight / named

bill of lading ? Arbitrator and court at first instance held NO


Court

Costs : insurance

cover

John Mowlem Construction Plc v Neil Jones & Co. Solicitors [2003] EWHC 1477 (TCC) : bailli

Whether and if so how much costs of arbitration recoverable under insurance policy.

Wilcox Mr Justice

David

2003.06.23 TCC

S067 AA 1996 :

Challenge

jurisdiction –

appointment

process : s69 point

of law

JSC Zestafoni G Nikoladze Ferroalloy Plant v Ronly Holdings Ltd [2004] EWHC 245 (Comm) : bailli

First – did the parties have the right to conclude an agreement to arbitration without consent of other parties – YES : Did

they actually conclude an ad hoc agreement to refer : YES : Was the reference unlawful under Georgian law which required

approval of the ministry : NO – since subject to English Law not Georgian law so question not relevant. Re s9 The decision

was obviously correct. Validity of appointment where only two of four potential parties makes a reference.

Colman Mr Justice 2004.02.16 QBD

Commercial

Court

Strike out :

arbitration pending

Jubilee International Inc v. Farlin Timbers PTE Ltd [2005] EWHC 3331 (Ch) : Westlaw

Vessel sank : Cargo owner subject to an arbitration clause – but instead sought a winding up petition and world wide

freezing order. Petition stayed pending mediation – there were real issues to settle between the parties.

Jarvis QC Mr J 2005.07.15 Chancery


Injunction against

arbitration

Kazakhstan v Istil Group Inc No2 [2007] EWHC 2729 (Comm) : Bailli

Previous arbitration set aside for lack of jurisdiction. Further attempts to arbitration injuncted as oppressive actions.

Tomlinson Mr

Justice


Court

Anti-suit

injunction

Kallang Shipping SA v Axa Assurances Senegal & Ors [2006] EWHC 2825 (Comm) Bailli

Failed application to lift an anti-suit injunction in respect of court proceedings in Dakar in favour of an LCIA arbitration.


Court

S024 s33 s67 s68 s70

s73 AA 1996

Kalmneft v Glencore International AG [2001] EWHC QB 461 : bailii

S67 / 68 applications out of time : Challenge to jurisdiction too late. Regarding s24 only past not future actions relevant – so

allegations of misconduct must be run under s68. Main complaint was that more time should have been spent on certain

issues. All challenges failed.



Right question or

approach

Kamilla Hans-Peter Eckhoff KG v AC Oerssleff's EFTF A/B [2006] EWHC 509 (Comm) : Bailli

Whether unseaworthiness the proximate cause of loss.: 1% of cargo damaged by badly fitted hold covers : clear case of

unseaworthiness. To compound matters despite separating out damp cargo Algerian port authorities refused discharge.

Did the unseaworthiness lead to the refusal and loss. Arbitrators held yes. Court agreed the correct test applied.


Court

s103 AA 1996 :

Challenge New

York Convention

Kanoria v Guinness [2006] EWCA Civ 222: Bailli

Party not notified of arbitration. Could not defend himself. Award unenforceable. Challenge to New York Convention

award.

Phillips Lord Clarke

Sir Anthony

May LJ

2006.02.21 CA

s048 AA 1996 : –

Freezing order Beth

Din

Kastner v Jason [2004] EWCA Civ 1599: Bailli

CA on appeal from Commercial Court (Mr Justice Lightman) : freezing order made by arbitrators, restraining the

respondent in the arbitration from disposing of his home without the arbitrators' written consent. Appeal failed. A Beth Din

issued a freezing order on property, the principal asset of the respondent. The respondent agreed to abide by the order and

a caution was placed on the Land Registry. The respondent sold the property and left the country. The purchaser’s solicitor

failed to take note of the caution. The issue turned on whether Jewish Law created an interest in personam or in rem. The

court heard evidence of Jewish Law and concluded that the interest is in rem. Thus there was no legal interest in the

property to support a caution.

LCJ;

Clarke LJ;

Rix LJ

2004.12.02 CA

s048 AA 1996 :

Freezing order–

Beth Din

Kastner v Jason [2004] EWHC 592 (Ch) : bailli

Fraud & deceit arbitration. A Beth Din ordered a freezing order on property which was conveyed to a third party contrary

to the freezing order. Court held that the freezing order of a tribunal should not be enforced against the purchaser and a

notice in the land registry of the order be removed enabling the buyer to register title.

Lightman Mr Justice 2004.03.23 QBD

Chancery

Division

Set off – different

contracts : s9 stay of

counterclaim to

arbitration

Kemi v Blackburn Chemicals Ltd [2001] EWCA Civ 457 : bailli

CA on appeal from Commercial Court (HHJ David Mackie) : Issue : The degree of connection which must be shown

between (1) a claim for unliquidated damages for breach of a contract and (2) a cross-claim for unliquidated damages for

breach of a different contract between the same parties, in order to permit the latter claim to be the subject of an equitable

set-off against the former claim, where the second claim is subject to an arbitration clause. At first instance and on appeal

held that set off allowed – but trial limited to question of liability, pending outcome of arbitration – s9 Stay in place..

Potter LJ;

Sedley LJ;

Jonathan Partker LJ.

2001.04.03 CA

S069 AA 1996

Challenge s69 :

point of law

Kershaw Mechanical Services Ltd v Kendrick Construction Ltd [2006] EWHC 727 (TCC) : Bailli

Appeal against the construction of the contract regarding variations. Extensive consideration of the role of the court under

s69. Court found that arbitrator applied the correct construction. Appeal failed.


S069 AA 1996 Keydon Estates Ltd v. Western Power Distribution (South Wales) Ltd [2004] EWHC 996 (Ch) : Westlaw

Criteria for appeal on a point of law. Tenancy dispute.

Lloyd Mr Justice 2004.04.26 Chancery

Confidentiality :

legal

representatives

Koch Shipping Inc v Richard Butler (A Firm) [2002] EWCA Civ 1280 : bailli

A lawyer working for a firm representing a party to an arbitration went to work for the representatives of the other party.

She gave undertakings to respect the confidentiality of her previous client. Injunctive relief to prevent her new firm

continuing to represent their client was rejected. There was no risk of accidental breach of confidentiality.

Ward LJ;

Tuckey LJ;

Clarke LJ.

2002.07.22 CA

S066 AA 1996 :

enforcement &

challenge

Kohn v Wagschal [2007] EWCA Civ 1022 : Bailli

Unsuccessful appeal against enforcement of an award on grounds of illegality – i.e. attempts to avoid paying tax. Held :

Award enforced but papers to be passed to the Revenue.

Waller LJ;

Laws LJ;

Gage LJ.

2007.10.24 CA


Stay application :

part 20 defendants

Konkola Copper Mines Plc & Anor v Coromin Ltd [2006] EWCA Civ 5 : Bailii

Application for stay of part 20 proceedings pending determination of first party trial refused. Failed appeal.

Clarke MR Sir

Anthony :

RixLJ ;

Richards LJ

2006.01.17 CA

Stay application :

part 20 defendants

Konkola Copper Mines Plc v Coromin [2005] EWHC 898 (Comm) : Bailli

Application for stay of part 20 proceedings pending determination of first party trial refused.


Court

Jurisdiction : Right

to appeal

Korda v ITF Ltd (t/a The International Tennis Federation) [1999] EWCA Civ 1098 : bailli

Right of ITF to make an appeal to the Court of Sports Arbitration against an appeal committee's finding that a tennis player

with unlawful substances in his body not be penalised. Held : CAS has jurisdiction to hear the appeal. Held : under the

terms of the dispute resolution process there was a right to appeal an arbitral award.

Morritt LJ;

Auld LJ;

Clarke LJ;

1999.03.25 CA

Strike out Korn-OG Foderst off Orretningen Emmelev A/S v. Kaz Tejis Jaykant Establishments Pte Ltd. 1999 WL 33210347

Application to strike out an arbitral application as frivolous or vexatious. Whether 1950 or 1996 Arbitration Act procedure

applied. Attempt by other party to avoid the GAFTA appeals process time bar. Application approved.

Mance Mr Justice 1999.01.22 Commercial

Coourt.

Application for

judicial review

Koyama, R (on the application of) v University of Manchester [2007] EWHC 1868 (Admin) : Bailli

Application for judicial review of University exam and disciplinary procedures.

Gilbart QC 2007.07.27 Admin

Division

Challenge s69 Point

of Law

Kriti Akti Shipping Co. SA v Petroleo Brasiliero SA [2004] EWCA Civ 116 : Bailli

On appeal from Moore-Bick : Lord Denning's judgment in The Aspa Maria not central to the interpretation of clause 3. Appeal dismissed.

Brooke VP. LJ ;

Mance LJ;

Mr Justice Park

2004.02.20 CA


Injunctive relief in

support of

arbitration

Lady Navigation Inc v Lauritzencool AB [2005] EWCA Civ 579: Bailli

Court issued injunctive relief to the effect that vessels subject to charters which had given rise to a dispute should not be

chartered out to third parties pending the outcome of the arbitration. Appeal asserting this amounted to specific

performance and was not allowed dismissed.

Judge LJ;

Mance LJ;

Thomas LJ

2005.05.17 CA

Jurisdiction :

Clause 18(2) ICE 5th

ed.

Lafarge Redlands Aggregates Ltd v. Shephard Hill Civil Engineering Ltd [2000] UKHL 46 : bailli

Contract called for three party arbitration : contractor unwilling to invoke tri-party arbitration : Held : Subcontractor

entitled to submit dispute to a two party arbitral process for resolution.

Hope Lord ;

Cooke Lord ;

Clyde Lord ;

Hobhouse Lord;

Millett Lord.

2000.07.27 HL

Stay pending HL

decision on

whether 3 party

arbitration clause

binding over two

party arbitration

Lafarge Redland Aggregates Ltd v Shephard Hill Civil Engineering Ltd [1999] EWCA Civ 2028 : bailli

Subcontractor submitted dispute with contractor to arbitration. Contractor insisted that the dispute be combined with a

main contractor/employer arbitration but then took no steps to instigate an arbitration. Subcontractor obtained a

judgement that the two party arbitration proceed. Contractor successfully applied for appeal to House of Lords then

sought a stay pending determination of the appeal. Held : Arbitration should go ahead – subcontractor good for the

money should the House of Lords decision go against it.

Auld LJ;

Chadwick LJ;

Sir Christopher

Staunton

1999.07.29 CA


Notice of

arbitration

Lancecrest Ltd. v Asiwaju [2005] EWCA Civ 117 : Bailli

Complex rent review arbitration arrangements – notice had to be given within specific periods. Question : was a valid

notice given and hence the tribunal had jurisdiction? Held Yes : hence the award was valid.

Brooke LJ :

Clarke LJ;

Neuberger LJ

2005.02.11 CA

S009 AA 1996 :

Stay: Forum

Inconveniens

Latvian Shipping Co v Insurance Co "Ingosstrakh" Ltd [1998] EWHC 1201 (Comm)

Claim for Roll back relief under CRISTAL arrangements for pollution cover : claim met with application for stay to

arbitration. Conflicts issued : does contract (Moscow arbitration) or Rules (UK court) apply? Held : Neither directly

applicable. Stay to arbitration refused. UK Court jurisdiction.


Court

S044 AA 1996 :

Injunction s44(2)(e)

Lauritzencool Ab v Lady Navigation Inc [2004] EWHC 2607 (Comm) : Bailli

Injunction restraining owners from fixing vessels subject to a charterparty pending outcome of arbitration.


Commercial

Court

S009 AA 1996 : Stay

to arbitration s9

Law Debenture Trust Corporation Plc v Elektrim Finance BV [2005] EWHC 1412 (Ch) : Bailli

Contract provided for arbitration but gave one party the right to litigate. One party submitted dispute to arbitration.

Subsequently the other commenced litigation. Application for stay refused. The contract did not create an embargo on

litigation once arbitration commenced. Three Shipping Ltd v Harebell Shipping Ltd [2005] 1 Lloyds Rep 509. Order

restraining continuation of the arbitration issues.

Mann Mr Justice 2005.07.01 QBD

Chancery

Division

Challenge : Point of

Law

LBC Southwark v. Mills : Baxter v. Mayor of LB of Camden [1999] UKHL 40 : bailli

Tenancy Arbitration ordered council to provide sound insulation between tenements : Overturned by CA and then by HL.

Sound insulation not a requirement of the Tenancy Agreement. Whilst an unsatisfactory situation the cost of updating old

housing stock is a political judgement.

Slynn Lord

Hadley Lord

Steyn Lord

Hoffmann Lord

Clyde Lord

Millett Lord

1999.10.21 House of

Lords

Disclosure

application

Legal Services Commission v Aaronson [2006] EWHC 1162 (QB) : Bailli

LSC applied for disclosure of all public files of Law Firm to establish sums due to the Commission. Account disputes

subject to arbitration. The firm were only prepared to disclose files within the arbitral process, not outside or independent

of it. The LSC wanted disclosure to enable it to negotiate a settlement. Disclosure refused. The LSC would get all it was

entitled to within the arbitration.

Jack Mr Justice 2006.05.24 QBD

Cost of application

for stay s9

Legal Services Commission v Aaronson [2006] EWHC 1231 (QB) : Bailli

Following a successful application for a stay the LSC argued that costs should not follow the event because their attempts

to settle outside arbitration were frustrated because the applicants had refused to disclose documents outside the

arbitration. Held : Whilst obstructive, this was not a reason to deprive the applicants of costs of the application.

Jack Mr Justice 2006.06.26 QBD

S067 AA 1996 :

Challenge

Leibinger v Stryker Trauma GmbH [2006] EWHC 690 (Comm) : Bailli

s67 Arbitration Act Challenge : Curial Law - England or Germany?


Commercial

Court

S069 AA 1996 :

Currency of award

Lesotho Highlands Development Authority v. Impregilo SpA [2005] UKHL 43: Bailli

Currency of award. Successful appeal to House of Lords.

Lords Steyn;

Hoffmann ; Phillips ;

Scott ; Rodger

2005.06.30 House of

Lords


S069 AA 1996 :

Currency of award

Lesotho Highlands Development Authority v Impregilo Spa [2003] EWCA Civ 1159 : Bailli

Currency in which award should be paid.

Brooke LJ

Latham LJ Holman

Mr Justice

2003.07.31 CA

Costs Lesquende Ltd v. Planning & Environment Committee of the States of Jersey (Jersey) [1998] UKPC 4 : bailli

General principles as to whether where a party is obliged to determine by statute a valuation by arbitration, that party is

entitled to recover reasonable costs of the process – in this case in relation to compulsory purchase of land.

Browne-Wilkinson

Lord

Nicholls Lord

Hoffmann Lord

Clyde Lord

Hutton Lord

1998.02.11 Privy

Council

S082 AA 1996 Letton v. Harris [2001] WL 949784 : Westlaw

Leave to appeal. For the purposes of s. 82(2) the applicant was not a party to the contract, nor was he claiming under

it. In rectifying the contract to substitute the applicant for another party to the contract the arbitrator was in error.

The applicant had not submitted to jurisdiction. Award set aside.


S068 AA 1996

Challenge s68


s69 point of law

Lincoln National Life Insurance Company v Sun Life Assurance Company of Canada [2004] EWHC 343 : bailli

Whether a prior award in an arbitration between other parties was relevant to this arbitration. Held : Prior award not

relevant or admissible. Subsidiary claim that arbitrators could not rely on assurances of a party’s representatives dismissed.

Arbitrators have to rely on such assurances all the time.

Toulson Mr Justice 2004.02.26 QBD

Commercial

Court

S023 AA 1950 s01(3)

AA 1979

Misconduct

Living Waters Christian Centres Ltd v Fetherstonehaugh [1998] EWCA Civ 401 : bailli

Failed application to set aside an award for misconduct. Application to appeal granted. Nourse LJ :

Potter LJ

1998.03.05 CA

Rent review :

appeal

Living Waters Christian Centres Ltd v Fetherstonhaugh [1999] EWCA Civ 1269 : bailli

CA dismissed allegations of misconduct and held that the tribunal was entitled to use the comparables that it used and the

award was one it was entitled to make.

Gibson LJ Peter :

Potter LJ :

Blofeld Mr Justice

1999.04.27 CA

S012 AA 1996 : s18

Appointment of

arbitrator extension

of time : s32

preliminary point

of law

LJ Korbetis v Transgrain Shipping BV [2005] EWHC 1345 (QB) : Bailli

Had an arbitrator been validly appointed? A fax accepting the nomination of an arbitrator was sent to the wrong fax

address and was not received. This defect was discovered many months later and an attempt made to appoint the

arbitrator by sending statement of claim direct to him. Postal rule applied to misdirected fax. No acceptance

communicated. No appointment made. The arbitration became time barred and the subsequent appointment was too late.

A s12 application for extension of time refused.

Toulson HHJ 2005.06.17 QBD

Security –

indemnity

Lomax Leisure v Fabric London [2003] EWHC 307 (Ch) : bailli

Indemnity against costs incurred in arbitration : Contract term to indemnify a party against legal costs of defending a third

party claim by arbitration upheld.

Smith Mr Justice

Peter

2003.02.26 QBD

Chancery

Division

S030 s67 s68 s69 s82

AA 1996

London Borough of Lewisham v. Shephard Hill Civil Engineering Ltd [2001] WL 825511 (QBD (TCC)) Westlaw

ICE 6th Edition. Improvement works to a town centre suffered from delay : Arbitration regarding applications for

extensions of time and payment accordingly successful in part. Shephard potentially still liable to LBL for LADs. However,

whilst standard of advocacy poor Shephard introduced evidence that LBL had made representations during the project that

they would not seek LADs. Arbitrator held LBL had waived the right. Court upheld award – within jurisdiction.

Seymour HHJ

Richard

2001.07.30 TCC


Evidence – arbitral

award

London Borough of Southwark v Long [2002] EWCA Civ 403 : bailli

The terms of a rent arbitration award provide evidence of the duties under a rent contract. In the circumstances the court

found that the tenant could not comply with the order regarding disposal of rubbish since the rubbish collection service

provided were inadequate.

Ward LJ;

Chadwick LJ;

Arden LJ.

2002.03.27 CA

S068 AA 1996

Challenge s68 : s69 :

global claims

London Underground Ltd v Citylink Telecommunications Ltd [2007] EWHC 1749 (TCC) : Bailli

Challenge and cross challenge S68 Arbitration Act 1996 - Serious Irregularity : s69 Challenge - Point of law : All challenges

failed : Award upheld. Issue - applications for extensions of time in construction contract : Appeal against post adjudication

arbitration. Laing v Doyle partially approved as a method of dealing with global claims at least in arbitration – though not

necessarily in litigation : clear evidentiary link required – but even if global claim fails some proven claims may survive.


S009 AA 1996 :

Stay : declarations

Loon Energy Inc v Integra Mining [2007] EWHC 1876 (Comm): Bailli

Application for stay to arbitration : applications for declarations on interpretation of terms of contract.


Court

S069 AA 1996 Losinjska Plovidba Brodarstovo DD v. Valfracht Maritime Co. Ltd. The Lipa: [2001] 2 Lloyd's Rep. 17 Westlaw

Details of fuel consumption given in good faith but without guarantee. Arbitrator nonetheless treated this as a

warranty. Held : Erred – no warranty. Award overturned.

Smith Mr Justice

Andrew


Court

Case Stated Loudonhill Contracts Ltd v John Mowlem Construction Ltd (2001) 3 T.C.L.R. 23: Westlaw

Interpretation of ICE Contract clause 15(6)

Rodger Lord

Cameron Lord

Cowie Lord

2000.07.06 Inner House

Court of

Session


S009 AA 1996 : Stay

to arbitration :

fraud - forum

conveniens

Mabey and Johnson Ltd v Danos [2007] EWHC 1094 (Ch) : Bailli

Agency dispute already subject to arbitration - in Jamaica. Fraud action filed against the Principal - should this be stayed to

arbitration as well - did Jamaica have jurisdiction. Held : All the relevant players in the UK. Justice required a full trial. Stay

refused. Two applications for stay to arbitration in a civil fraud trial. One successful – relevant arbitration clause : one failed

– third party not subject to arbitration clause.

Henderson Mr

Justice

2007.05.11 Chancery

Jurisdiction :

Distinct causes of

action

Mabey & Johnson Ltd. v Ecclesiastical Insurance Office Plc [2003] EWHC 1523 : bailli

Jurisdiction – separate cases : Failures in a bridge prompted revisiting and rectifying design in another : Held Separate

contracts so separate causes of action and limitation times.


Commercial

Court

S067 AA 1996 Macepark (Whittlebury) Ltd. v. Sargeant [2002] WL 1876043 : Westlaw

Jurisdiction to rectify a lease was within the scope of arbitration clause.


Winding Up :

arbitration pending

Magi Capital Partners LLP (In the Matter of). Re: A Company No. 5758 of 2003 [2003] EWHC 2790 (Ch) : Westlaw

Since applicant had an arguable arbitration claim pending, winding up petition stayed pending outcome.

Weeks HHJ 2003.11.14 Chancery

S004 AA 1950 Stay

appeal

Malekout v Medical Sickness Annuity & Life Assurance Society Ltd [1998] EWCA Civ 872

Application for an extension of time and for leave to appeal : availability of legal aid – ability to engage in arbitration due

to impecuniosity : applicant would have received £10K / year in invalidity pension – absence of which caused the

impecuniosity.

Hirst LJ :

Brooke LJ

1998.05.21 CA


Arbitration – legal

aid - stay

Malekout v Medical Sickness Annuity & Life Assurance Society Ltd [1998] EWCA Civ 492 : bailli

At first instance case stayed to arbitration : Applicant claimed because legal aid not available for arbitration that the

arbitration clause should be overridden and the dispute for return of monies should go to court. Held : Applicant could

represent himself in arbitration – no reason to lift the stay.

Beldam LJ. 1998.03.19 CA

Appeal : Rent

assessment

Maligec v London Rent Assessment Panel [1998] EWHC Admin 343 : bailli

Failed appeal against the decision of the London Rent Assessment Panel. Decision on fact the panel was entitled to reach. Hidden Mr Justice 1998.03.20 Admin

Court

S069 AA 1996

application to

appeal

Majorboom Ltd v National House Building Council [2008] EWHC 2672 (TCC) : Bailli

s69 AA 1996 unsuccessful application to appeal on a point of law. Held : All points questions of fact dressed up as law -

viz whether or not a director had actual or imputed knowledge of defects to property which gave rise to a right to refer

dispute to arbitration under the NHBC rules.

Coulson Mr Justice 2008.10.24 TCC

Anti-suit

injunction

Major Shipping Co Ltd v Cosco Feoso (Singapore) Ltd [1998] EWCA Civ 1373 : bailli

Whether actions on two bills of lading or replacement bills of lading to be pursued by arbitration – UK Law and

arbitration – or litigation in Singapore : Held : Injunction – in support of arbitration.

Morritt LJ :

Sir Christopher

Staughton

1998.07.31 CA

Force majeure Mamidoil-Jetoil Greek Petroleum Company SA v Okta Crude Oil Refinery AD [2002] EWHC 2210 (Comm) : Bailli

Post s44 Arbitration Act 1996 applications for support of arbitration : force majeure.


Court

Arbitration as

method of

determining price

to create a valid

contract

Mamidoil-Jetoil Greek Petroleum Co SA v Okta Crude Oil Refinery AD [2001] EWCA Civ 406 : bailli

CA held on appeal that an arbitration clause to determine price in the absence of agreement indicated a valid contract for

10 years, overturning first instance decision that 10 year agreement unenforceable on grounds of uncertainty. Review of

the cases on agreement to agree.

Schiemann LJ;

Rix LJ :

Sir Ronald

Waterhouse

2001.03.22 Ca

Agreement to agree Mamidoil-Jetoil Greek Petroleum Company SA v Okta Crude Oil Refinery AD [2000] EWHC 208 (Comm) : bailli

Court held that a 10 year agreement was an agreement to agree and thus unenforceable, rejecting an assertion that it was a

binding contract whereby the arbitrator might fix a price in the absence of agreement. See successful appeal CA 2001.


Court

S049(3) AA 1996 :

compound interest

Man Nutzfahrzeuge Ag v Freightliner Ltd. [2005] EWHC 2347 (Comm) : Bailli

Whether compound interest is punitive or normal for a tribunal in such circumstances.

Moore-Bick LJ 2005.10.28 Commercial

Court

Time bar -

crystallisation

Marc Rich Agriculture Trading SA v Agrimex Ltd [2000] EWHC 193 (Comm) : bailli

Gafta Arbitration : When did dispute crystallise – commencement of time for computation of time bar : whether claim time

barred and tribunal out of jurisdiction.


Court

Conflicts and EU

Law

Marc Rich & Co. AG v Societa Italiana Impianti PA. [1991] EUECJ C-190/89 : Bailli

Convention on Jurisdiction and Enforcement of Judgments and Arbitration Awards.

Due.O, President etc 1991.07.25 ECJ


S068 AA 1996

Challenge s68


Margulead Ltd. v Exide Technologies [2004] EWHC 1019 (Comm) : Bailli

Alleged lost opportunity to respond to closing speech of respondent and further arbitrator did not refer to an assertion that

the other party had affirmed a contract, negating allegations of mistake. Asserted that where there was no opportunity to

reply the assumption is that it is unnecessary because the arbitrator agrees with you so no need to reply. Held : It is quite

usual in International Arbitration for there to be no reply to final oral submissions of a respondent and no inference can be

drawn that the arbitrator agrees with the claimant. Secondly, a deficiency of reasons in a reasoned award is not capable of

amounting to a serious irregularity within the meaning of Section 68 of 1996 Act unless it amounts to a "failure by the

tribunal to deal with all the issues that were put to it" within Section 68(2)(d).


Commercial

Court

S069 AA 1996

Challenge s69 point

of law or fact

Maridive VII v Key Singapore, Owners and Demise Charterers of the oil rig [2004] EWHC 2227 (Comm) : Bailli

Appeal arbitrator changed the base value upon which the award was compounded and further altered the contributions of

the parties in respect of a salvage and tow claim. The consequent reduction in the award was challenged. Court held : The

second arbitrator made no errors of law or principle. Decision of fact – challenge failed.

Steel Mr Justice

David

2004.10.06 QBD

Commercial

Court

S068 s69 AA 1996 Marklands Ltd v. Virgin Retail Ltd [2003] EWHC 3428 (Ch) : Westlaw

Rent review : Conducted on basis of open market – not hypotheticals : a valid method – since otther methodology not put

to him. challenge failed.


Appeal : Contract

construction :

question of law

Matthew Hall Ortech Ltd v. Tarmac Roadstone Ltd [1997] EWHC TCC 352 : bailli

Construction of the final certificate provisions of the Model Form of Conditions of Contract published by the Institution of

Chemical Engineers and the effect of clause 38.5 which provides that that certificate has conclusive evidential effect.


S054 S57 s68 s70 s82

AA 1996

McLean Homes South East Limited v. Blackdale Limited [2001] WL 1560746 (QBD (TCC)) Westlaw

Where s57 provisions are engaged, time runs for s70 from tine of confirmation of the award under s57, not from date or

initial award.

Lloyd HHJ

Humphrey

2001.11.02 TCC

Security : in

support of

arbitration

Mediterranean Feeders L P v Bernd Meyering Schiffahrts [1997] EWCA Civ 1796 : bailli

In order to secure funds to meet a strong potential arbitral claim evidence must be adduced that the defendants were

likely to dissipate such funds : the mere risk alone is insufficient.

Evans LJ;

Hobhouse LJ.

1997.06.05 CA

S067 AA 1996 :

Challenge

jurisdiction

Metal Distributors (UK) Ltd. v ZCCM Investment Holdings Plc [2005] EWHC 156 (Comm) : Bailli

Challenge to preliminary determination by tribunal that it did not have jurisdiction over a counter claim. Held : Whilst the

scope of the clause extended to counterclaims regarding quality of goods under the contract it did not extend to

counterclaims arising out of alleged breaches of other contracts. Tribunal’s determination upheld.


Commercial

Court

Stay pending

expert report

Messier-Dowty Ltd v Sabena SA [1999] EWHC 282 (Comm) : bailli

Application for an order staying the proceedings in this court pending the delivery of a report by experts appointed by the

Tribunal de Commerce de Paris. The stay is sought until the end of June 2000 on the basis that such a period will allow for

production and consideration of the report. Application denied on the basis that the court doubted that anything that

came out of the tribunal might have any relevance to the present proceedings.


Court

S009 stay Michael Jagger, Keith Richards, Charles Watts v. Decca Music Group Ltd [2004] EWHC 2542 (Ch) : Westlaw

J sought discoveries of accounts to audit royalties paid under an agreement. D sought a stay to arbitration. Were the

discoveries independent of the arbitration? No : The arbitrator had the same right to discoveries and staying the disclosure

to arbitration would not defeat J’s ability to access documents.

Pumphrey Mr

Justice

2004.11.12 Chancery


S066 AA 1996 :

Legal Personality

Middleton (G) Ltd v Berry Creek Overseas Development Ltd [2007] EWHC 318 (TCC) : Bailli

s66 enforcement action / application for stay pending contra claim action : Stay refused - enforcement ordered.


s066 AA 1996 :

Challenge to

award: removal :

s67 challenge.

Miller Construction Ltd v. James Moore Earthmoving [2000] EWHC TCC 52 : bailli

Application to set aside award and remove an arbitrator. (see also successful appeal)

Seymour HHJ 2000.11.01 TCC

S079 AA 1996

extension of time to

appoint

Minermet SpA Milan v. Luckyfield Shipping Corporation SA [2004] EWHC 729 (Comm) : Westlaw

Extension of time to appoint arbitrator. Shipping dispute : Three man tribunal conceived – 14 days allowed for

appointment on notice : Applicant failed to appoint in time but sought to do so thereafter. In the meantime respondent

asserted that first arbitrator became the sole arbitrator – as per appointment scheme and sole arbitrator ruled that he had

jurisdiction. Held : Challenge failed : Mechanism correctly applied.


Court

S101, s103

Enforcement

Minmetals Germany GmbH v. Ferco Steel Ltd [1999] C.L.C. 647

Enforcement of an award. Whether award contrary to public policy. Attempt to set aside order to enforce two Chinese

Arbitral Awards. Assertions that there had been no opportunity to put its case on an issue not accepted. They had simply

failed to take up the opportunity to do so.

Colman J. 1999.01.20 Commercial

Court

S068 s69 AA 1996 Miranos International Trading Inc. v. Voc Steel Services BV [2005] EWHC 1812 (Comm) : Westlaw

Time charterparty : Arbitrator erred in interpreting the meaning of a guarantee in respect of the period of hire.


Court

S044 AA 1998 –

Freezing order -

privacy

Mobil Cerro Negro Ltd v Petroleos De Venezuela SA [2008] EWHC 532 (Comm) Bailli

Successful application for set aside of a freezing order pursuant to an arbitration. Confidentiality / privacy respected so that

underlying commercial matters not disclosed in the report.


Court

Bias – natural

justice

Modahl v British Athletic Federation Ltd [1997] EWCA Civ 2209 : bailli

Bias alleged on basis of statements indicating two members of the board had prejudged the guilt of the applicant in

respect of allegations of doping.

Woolf MR Lord :

Morritt LJ;

Pill LJ

1997.07.28 CA

S009 AA 1996Stay :

amendment of

claim

Mohammed Ahad, Misba Uddin Ahmed v. Shams Uddin [2005] EWCA Civ 883: Westlaw

CA Appeal from the High Court Chancery Division Birmingham District Registry (His Honour Judge Norris : Partners fell

out and each purported to terminate the partnership and expel the other. In spite of an arbitration they both took part n

litigation on the issue of the first purported expulsion. The statement of claim was amended to address the second alleged

expulsion. Was this the same matter or a separate one that could at the behest of the applicant be stayed to arbitration?

Held : No – essentially the same issue and parties had both participated in the court process. Right to arbitrate waived.

Phillip MR Lord

Waller LJ

Lloyd LJ

2005.06.15 CA

Challenge to

General Average

adjustment

Mora Shipping Inc of Monrovia, Liberia v Axa Corporate Solutions Ass Sa [2005] EWCA Civ 1069 : Bailli

Underwriters refused to comply with GA adjustment on grounds of unseaworthiness which would negate the right to GA.

Owners sought enforcement in UK. Underwriters domiciled in various EU states. Held : In absence of Choice of English

Law and Jurisdiction clause, under Brussels enforcement had to be sought individually before the courts of the respective

states of domicile.

Ward LJ;

Clarke LJ;

Neugerber LJ

2005.07.28 CA


S069 : Challenge

against refusal of

appeal : Human

Rights

Mousaka Inc v Golden Seagull Maritime Inc [2001] APP.L.R. 07/30 : . [2002] 1 All ER 726

Failed challenge on grounds of breach of Article 6 Human Rights Act of a brief judgement refusing an application to appeal

from award of arbitrators on grounds that s69 criteria had not been met. There is no appeal against a refusal of an

application to appeal.

Steel HHJ David 2001.07.30 Commercial

Court

S069 AA 1996

Challenge s69

Mowlem Plc v PHI Group Ltd (2004) Lawtel AC0106829

Challenge failed - no case for a quantum meruit. Determinations of fact not challengeable.

Gilliland HHJ 2004.07.28 TCC

Costs : jurisdiction

to tax

M/S Alghanim Industries Inc v Skandia International Ins. Corp [2001] 2 All ER (Comm) 30,: Lexis Nexis

Under the applicable arbitration rules the tribunal and not the court had the jurisdiction and the duty to tax costs.

Dohmann QC

Barbara


Court

Forum Conveniens Munchener Ruckversicherungs Gesellschaft v Commonwealth Insurance Co [2004] EWHC 914 (Comm) : Bailli

Court found England the appropriate forum on the basis of the facts and circumstances of the case, as applied to legal

principles on forum. Court made it clear the decision is based on facts not law to prevent any further legal challenge on a

point of law.


Commercial

Court

Disclosure – 3rd

party settlement

terms

Multiplex Construction (UK) Ltd v Honeywell Control Systems Ltd [2007] EWHC 236 (TCC) : Bailli

Disclosure : admissibility : 3rd party settlement provisions : Late application to appeal. Whether time was at large qua

contractor / subcontractor as determined at adjudication. Whether terms of a settlement agreement involving the same

issue admissible and subject to disclosure. Held No : Late application to appeal. Application heard but failed on the merits.

Note : The "time at large" issue ongoing.


S046 AA 1996

Shariah Law

Musawi v RE International (UK) Ltd [2007] EWHC 2981 (Ch) : Bailli

Inter-relationship between Sharia Law and English Law - conflicts and substantive law. Enforcement of arbitral award.

Richards Mr Justice

David

2007.12.14 Chancery

S017(1) AA 1996

Appointment :

Consumer

arbitration

Mylcrist Builders Ltd v Buck [2008] EWHC 2172 (TCC) : Bailli

Invalid inilateral appointment under s17(1) Arbitration Act 1996 : Consumer arbitration - terms in contract insufficiently

clear to comply with Unfair Terms in Consumer Contracts Regulations 1994 & 1999. Consumer objected and took no part

in the process. Award unenforceable.



S001(2) AA 1979 Nagusina Naviera v. Allied Maritime Inc [2002] C.L.C. 385 : Westlaw

Application for service out of jurisdiction challenging an arbitral award under the 1979 Act served late. Application

refused. Time limits and impact of CPR rexamined.

Smith Mr Justice

Andrew


Court

S009 AA 1996 : Stay

application

Nasharty v J Sainsbury Plc [2003] EWHC 2195 (Comm) : Bailli

Whether arbitration agreement applied to the parties : Held : Yes – stay to Paris arbitration

Flaux QC Mr Julian 2003.09.30 Commercial

Court

S005 S67 s68 AA

1996

National Boat Shows Ltd, British Marine Industries Federation v.Tameside Marine [2001] WL 1560826: Westlaw

Terms and conditions for space at a boat show and dispute resolution process set out in prospectus – so arbitrator could not

reference back to prior contracts for guidance. Matter remitted back to arbitrator.

Kershaw QC

Michael


Court

S069 AA 1996

Challenge s69 :

question of law

National Grid Gas Plc v Lafarge Aggregates Ltd [2006] EWHC 2559 (Ch) : Bailli

Appeal : question of law – whether lost profit recoverable under the deed.

Cooke Mr Justice 2006.10.18 Chancery

Division


S044 : s9 : AA 1996

interim injunction

National Insurance & Guarantee Corp Ltd v. M Young Legal Services Ltd [2004] EWHC 2972 (QB) : Westlaw

Injunction for preservation of documents granted – even though action had not yet been stayed to but would ultimately be

stayed to and referred to arbitration. Preservation aided the arbitration process rather than defeat it.

Clarke Mr Justice

David

2004.10.15 QBD

Jurisdiction

Challenge :

Tribunal

National Power Plc v National Grid Company Plc [1998] EWCA Civ 1227 : bailli

Jurisdictional Challenge : Scope of jurisdiction under contract. CA on appeal from Commercial Court (Mr Justice Tuckey)

upholding the jurisdiction of an arbitrator under the Electricity Act 1989 and the relevant contracts to determine disputes –

and respective jurisdiction of “The Director”..

Millett LJ;

Morritt LJ;

Potter LJ.

1998.07.16 CA

CPR Part 6.20 (5)(c)

Anit-suit

injunction

Navigation Maritime Bulgare v Rustal Trading Ltd (The Ivan Zagubanski) [2000] EWHC 222 (Comm) : bailli

Anti-suit injunctions : validity of arbitration clause : impact of Brussels Convention.


Court

Notice served out

of time

Naviera v Allied Maritime Inc [2002] EWCA Civ 1147 : bailli

Notice of appeal against arbitral award served out of time or one the wrong person ie a lawyer not instructed to receive

service. Application for extension of time refused.

Simon Brown LJ.VC.

Mance LJ;

Latham LJ.

2002.07.16 CA

S009 AA 1996 : Stay

to arbitration s9 :

Option

NB Three Shipping Ltd. v Harebell Shipping Ltd. [2004] EWHC 2001 (Comm) : Bailli

Owners had an option to arbitrate or litigate : Charterers had no option. Owners submitted dispute to arbitration.

Charterers commenced litigation. Opposing the action for a stay the charterers maintained that since they had no option to

arbitrate they had no duty to do so and thus had done nothing wrong and the litigation was therefore valid. Court

disagreed : Once the owners opted for arbitration the charterers could not decline and litigation ended.


Commercial

Court

Commencement of

proceedings : Bills

of lading : S27 AA

1950

Nea Agrex v Baltic Shipping Co Ltd & Intershipping Charter Co (The Agios Lazaros) [1976] 2 Lloyd’s Rep 47: Westlaw

Whether “.and also Paramount clause” sufficient to incorporate Hague Rules – Held : Paramount clause clearly understood in

industry to mean the Hague Rules. Whether the words “. . . Please advise your proposals in order to settle this matter or name

your arbitrators. Expecting your reply . . .” sufficient to commence a claim as per Hague Rules Article III Rule 6 – which

imposed a 1 year time limit to commence action. Court held : Sufficient notice – and if not extension of time granted : s27

AA 1950 – undue hardship.

Denning LJ; Goff LJ;

Shaw LJ.

1976.04.01 CA

S068 AA 1996

Challenge s68


s69 point of law

Newfield Construction Ltd. v Tomlinson [2004] EWHC 3051: Bailli

Application to set aside on grounds of serious irregularity upheld.


S103 AA 1996 :

NYCEA -

enforcement

Nigerian National Petroleum Corporation v IPCO (Nigeria) Ltd [2008] EWCA Civ 1157 : Bailli

Can part of a New York Convention arbitration award be enforced? How should sequential applications for enforcement

of such an award be approached?

Tuckey LJ;

Wall LJ;

Rimer LJ.

2008.10.21 CA

Case stated NIIB Group Ltd v Ellis [2003] NIQB 65 : Bailli

Appeal from a small claims arbitration by way of a case stated by Deputy District Judge Kearney under Article 30(4)(b) of

the County Courts (Northern Ireland) Order 1980.

Weatherup HHJ 2003.10.17 QBD

Northern

Ireland


Writ – service out

of jurisdiction –

extension – in lieu

of arbitration

Niko International Group Ltd v Nea Philadelphia [1996] EWCA Civ 650 : Bailli

Respondent refused to accept service of arbitration notice or to accept validity of arbitration : Applicant applied for writ to

serve out of jurisdiction in Malta. Due to problems with the Maltese Court writ served late. Failed application and appeal

from failure to extend writ. Applicant had not provided reasons for the extension (though if they had it is likely it would

have been granted).

Waite LJ :

Saville LJ :

Otton LJ.

1996.10.03 CA

S009 : s30 : s67 Nine Gladys Road Ltd v. Kersh 2004] EWHC 1080 (Ch) : Westlaw

Arbitration clause in lease badly drafted – landlord asserted arbitration applied to disputes between the leaseholder and

the landlord and other leaseholders but did not cover disputes by the landlord with the tenant. Arbitrator corrected error in

lease and assumed jurisdiction. Court sustained the arbitrator’s correction and jurisdiction..


S069 AA 1996

Challenge s69 Point

of Law

Nippon Yusen Kubishiki Kaisha v Golden Strait Corp [2003] EWHC 16 (Comm) : bailli

Held : Confirming award that an option to charter-back is not the same as redelivery. Appeal failed.


Commercial

Court

Third party rights :

Jurisdiction

Nisshin Shipping Co. Ltd v Cleaves & Co Ltd [2003] EWHC 2602 : Courtservice

Jurisdiction : Third Party Rights : Held under s1(1)(b)Contract 3rd Parties Rights Act 1999 -charterparty purported to confer

a benefit on brokers : that being so, any dispute arising out of that agreement was subject to the general arbitration

provision in the contract.


Commercial

Court

Double Jeopardy Noble Assurance Co v Gerling-Konzern General Insurance Co (UK ) [2007] EWHC 253 (Comm) Bailli

Res judicata – issue estoppel – anti-suit injunction : UK arbitration and subsequent action in Vermont.

Toulson LJ 2007.02.22 Commercial

Court

S009 AA 1996 : Stay

of proceedings

Nokia Corporation v Interdigital Technology Corporation [2005] EWCA Civ 614 : Bailli

Application to stay patent proceedings pending arbitration on amounts due under licence. Held : Stay refused – validity of

patent a key factor in the validity of sums due under the licence and thus key to the outcome of the arbitration – and thus

needs to be settled as soon as possible to assist the tribunal.

Mummery LJ;

Rix LJ;

Jacob LJ

2005.04.26 CA

S024 AA 1996 :

Removal s24 : s69

irregularity. Private

communications

Norbrook Laboratories Ltd v Tank [2006] EWHC 1055 (Comm) : Bailli

Natural Justice : The role of the arbitrator in gathering evidence : Undisclosed contact by arbitrator with witnesses not

allowed. Arbitrator removed under s24.


Commercial

Court

Jurisdiction :

Opening up

certificates

Northern Regional Health Authority v Derek Crouch Construction Co Ltd [1984] 1 Q.B. 644

Arbitration clause gave the arbitrator the power to "open up review and revise any certificate" of the architect. Held : this special

power was confined to the arbitrator, on whom it had been conferred : It could not be exercised by the courts. Application to

stay arbitration refused since arbitration was the only way to challenge an architect's certificates. But see now Beaufort

Developments Ltd v Gilbert-Ash [1998] which overturned Crouch and see HGCRA which specifically gives an adjudicator

the power to open up and revise certificates..

Donaldson M.R.

Dunn LJ,

Browne-Wilkinson

LJ.

1984.02.17 CA

S069 AA 1996 :

Challenge to trial

judges refusal to

grant permission to

appeal

North Range Shipping Ltd v Seatrans Shipping Corporation [2001] EWCA Civ 1260 : bailli

CA on appeal from QBD (Mr Justice David Steel) : Question here deferred to be heard at a later hearing along with issues.

Question of interrelationship between Human Rights Act and s69 raised – court doubted right of CA to over-rule trial judge

on right to appeal.

Clarke LJ;

Kay LJ.

2001.07.16 CA


S069 AA 1996 :

Reasons : s69

challenge

North Range Shipping Ltd. v Seatrans Shipping Corp. [2002] EWCA Civ 405 : bailli

s69 challenge. Reasons : Refusal of application for appeal : Duty of court to provide reasons under HRA.

Peter Gibson LJ;

Aldous LJ;

Tuckey LJ.

2002.03.14 CA

S100 AA 1996 : Set

aside orders

Norsk Hydro ASA v State Property Fund of Ukraine [2002] EWHC 2120 (Comm) : bailli

Application to set aside two court orders. Swedish Arbitral award. Order for enforcement of foreign award. Interim third

party debt order. Order set aside – made against the wrong legal personality.

Gross Mr Justice 2002.10.18 Commercial

Court

S022 AA 1950 s23(2)

AA 1950

Norwest Holst Construction Ltd v. Co-Operative Wholesale Society Ltd [1997] EWHC TCC 356 : bailli

Applications for further reasons from an arbitrator for an award and a remission or setting aside of that award pursuant to

s22 & 23(2) Arbitration Act 1950. Judgment considers what is "a question of law" for the purpose of founding an appeal

from an arbitrator's award and what is the applicable test for determining an application for further reasons and what

material may be considered by the court in reaching that determination and applied the test to 5 specific and discrete

applications for further reasons. Judgment also considers what the applicable test is for a remission application and

applies that test to 7 specific and discrete complaints of procedural irregularity.


S001(3)(a) AA 1979

agreed questions

on points of law

Norwest Holst Construction Ltd v. Co-Operative Wholesale Society Ltd [1998] EWHC TCC 339 : bailli

Construction arbitration : Appeal and Cross Appeal against final award. Agreed questions all answered in the negative.

Appeals failed – award upheld.



S068 AA 1996

Challenge s68 :


OAO Northern Shipping Co v Remolcadores De Marin SL (Remmar) [2007] EWHC 1821 (Comm) : Bailli

Application under s68 Arbitration Act 1996 for an order setting aside, alternatively remitting for further consideration, an

arbitral award. Arbitration set aside for serious irregularity and resubmitted to the tribunal for further consideration.


Court

Illegality :

Unenforceable

contract

O'Callaghan v Coral Racing Ltd [1998] EWCA Civ 1801 : bailli

Unenforceable agreements : Purported agreement to arbitrate gambling transaction. Since gambling debts are not

enforceable, this was not an arbitration agreement related to the settlement of legal rights. Thus the arbitral award was not

enforceable.

Hirst LJ;

May LJ;

Slade. Sir

Christopher

1998.11.19 CA

S068 AA 1996

Challenge – serious

irregularity

O'Donoghue v Enterprise Inns Plc [2008] EWHC B15 (Ch) : Bailli

Challenge to interim rent arbitration award. Whether arbitrator should have held an oral hearing and cross examination.

Asserts loss of opportunity to address alterations to trading figures applied by the arbitrator. Application failed - party

had been given opportunity to make written submissions but failed to do so. Loss of right to object. Award within

permissible range reflecting the evidence.

Behrens HHJ 2008.09.29 Chancery

S069 AA 1996 :

Arrest as security

Ocean Marine Navigation Ltd. v Koch Carbon Inc [2003] EWHC 1936 (Comm) : bailli

Vessel arrested by charterer as security for an arbitration which the charterer lost. Was the vessel still on hire or off hire or

had the vessel been returned? This would impact upon whether any award would be due for that period or whether sums

due in respect of the arrest, to provide what proved to be unnecessary security should be pursued in court. Court of the

view that the arbitrator’s award was unclear/potentially in error and award remitted for reconsideration/clarification.

Simon Mr Justice 2003.07.31 QBD

Commercial

Court


S067 AA 1996 :

Challenge :

jurisdiction

Oceanografia SA DE CV v DSND Subsea AS [2006] EWHC 1360 (Comm) : Bailli

Unsuccessful challenge to jurisdiction of tribunal : waiver and submission to proceedings.


Commercial

Court

S067 AA 1996 :

Conflicts :

Jurisdiction : state

immunity

Occidental Exploration & Production Company v Republic of Ecuador [2005] EWCA Civ 1116: Bailli

Challenge to jurisdiction of English court to hear a challenge to an award, whose seat was stated to be London England.

Held the court had jurisdiction. Merits of the challenge not dealt with here. Plea of state immunity and non-justiciability

rejected.

Phillips MR, Lord.

Clarke LJ;

Mance LJ.

2005.09.09 CA

Costs : CFA :

Success fee : appeal

Omnibridge Consulting Ltd. v Clearsprings (Management) Ltd. [2005] EWHC 90016 (Costs) : Bailli

Court assessed the appropriate success fee in the circumstances, where there was a high chance of successfully challenging

an arbitral award as 50% each for the solicitors and the barristers.

O’Hare Master 2005.10.10 Costs Office

S033 : 57 : 67 : 68 s69

AA 1996

Omnibridge Consulting Ltd v. Clearsprings (Management) Ltd [2004] EWHC 2276 (Comm) : Westlaw

Dispute about bonuses under a management contract : Arbitrator held inter alia that there was a right to bonuses – but that

it was time limited : the latter point was not raised by either party to the arbitration : Held : Serious irregularity : however,

other errors due to slips – which could have been corrected – right to challenge lost through waiver.

Siberry QC Mr

Richard


Court

New York award.

Set aside – public

policy

Omnium de Traitement et de valorisation. v. Hilmarton Ltd [1999] 2 Lloyd's Rep 222: Lexis Nexis

Failed application to set aside an order enforcing an award on the basis of breach of public policy of state where obligation

carried out.

Walker J 1999.05.24 Commercial

Court

S069 AA 1996

Challenge s69 :

point of law or

fact?

Orchard v Hutchings [1997] EWCA Civ 2269 : bailli

During the course of an arbitration the claimant produced a plan and asserted defects in a conservatory. The applicant

appealed on the basis that there was an irregularity in that he asserted that he had never seen the plan and the arbitrator

ignored this. Held : By implication the arbitrator believed he had seen the plan. Issue of fact – appeal failed.

Otton LJ;

Hutchinson LJ.

1997.07.31 CA

State immunity :

enforcement ICC

award

Orascom Telecom Holding SAE v Republic of Chad [2008] EWHC 1841 (Comm) : Bailli

State immunity : application by the Claimant, for a final Third Party Debt Order (what used to be called a Garnishee

Order) in respect of monies held by the Third Party Citibank NA for the First Defendant, the Republic of Chad in order to

enforce its unpaid Arbitration Award by the International Chamber of Commerce against Chad.

Burton Mr Justice 2008.07.28 Commercial

Court

S009 AA 1996 : Stay

to arbitration s9

OT Africa Line Ltd v Magic Sportswear Corporation [2005] EWCA Civ 710 : Bailli

Issue : whether s6(1) of the Canadian Marine Liability Act 2001 which enabled the Canadian court to override an arbitration

clause, choice of law and exclusive jurisdiction (here London) was a reason to issue to stay to the Canadian Court. Held :

Stay refused – anti-suit injunction issued.

Laws LJ;

Rix LJ;

Longmore LJ.

2005.06.13 CA

CPR 6.20(3)

Conflicts : Anti-suit

OT Africa Line Ltd. v Magic Sportswear Corporation [2004] EWHC 2441 (Comm) : Bailli

Impact of Section 46(1) of the Canadian Maritime Liability Act 2001 which seeks to override choice of law and forum and

arbitration clause. Held : Anti-suit injunction to prevent litigation in Canada issued.


Commercial

Court

Notice : Form Ove Arup International Ltd. v Mirant Asia-Pacific Construction (Hong Kong) Ltd. [2003] EWCA Civ 1729 : Bailli

Could correspondence as opposed to an official form of submission amount to a submission of a dispute to arbitration?

Held : Yes.

Auld LJ; May LJ;

Jacob LJ

2003.12.02 CA


S069 AA 1996

Challenge s69

limitation period

Oxford Architects Partnership v Cheltenham Ladies College [2006] EWHC 3156 (TCC) Bailli

Successful challenge against award on the grounds that the claims were statute barred. Here the architects challenged an

award of an arbitrator in relation to breach of duty regarding design and on-going supervision of a construction project on

the grounds that the claims were time barred. Appeal sustained.



S044(3) AA 1996 :

freezing order

Pacific Maritime (Asia) Ltd. v Holystone Overseas Ltd. [2007] EWHC 2319 (Comm) : Bailli

Failed attempt to remit questions as to a freezing order to the tribunal.

Clarke Mr Justice

Christopher


Court

s004 AA 1950 : Stay

:Third party

Palmers Corrosion Control Ltd v Tyne Dock Engineering Ltd [1997] EWCA Civ 2776

CA on appeal from QBD (HHJ Faulks) : Stay of third party proceedings to arbitration removed.

Staughton LJ;

Hirst LJ;

Potter LJ

1997.11.20 CA

S009 AA 1996 : Stay

to arbitration s9

withdrawn

Park Lane Ventures Ltd v Locke [2006] EWHC 1578 (Ch) : Bailli

Party withdrew and application for stay. The application submitted existence of documents. This provided evidence for the

purposes of this litigation that both parties intended the documents to have legal force.

Randall QC. Mr

John. Deputy Judge

2006.06.29 QBD

Chancery

Division

Time of award Parry v Edwards Geldard (A Firm) [1998] EWCA Civ 179 : Bailli

CA on appeal from QBD, Cardiff District Registry (HHJ Prosser QC) : The time when a valuation was made became crucial

to the ability to appeal, since there was a time bar for appeal. Held – Award made when completed – not when a party is

notified of its completion. Objective was to set a clear date viz 28 days from valuation – not to give a party 28 days in which

to consider whether or not to appeal.

Bingham LCJ; Lord

Thomas LJ Swinton :

Mummery LJ

1998.02.09 CA

s009 AA 1996

Application Stay –

whether steps

taken in

proceedings

Patel v Patel [1999] EWCA Civ 1080

CA on appeal from Official Referee’s Business. Stay granted. Merely responding to a claim and giving notice of intention to

defend is not a step in the proceedings which under s9(3) might preclude application for a stay.

Woolf MR Lord;

Otton LJ;

Ward LJ.

1999.03.24 CA

S012 AA 1996

extension of time

Paul Paolino Montalto Monella v. Pizza Express Ltd [2003] EWHC 2966 (Ch) : Westlaw

Application for extension of time to appoint rent review arbitrator. Held : Whilst law was previously more flexible – a year

prior to this court had ruled that time of the essence. The cause of delay was inefficiency by solicitors – not a force majeure

issue : extension refused.

Morritt VC Sir

Andrew

2003.11.27 Chancery

S069 AA 1996 :

refusal of leave

Pendulum Shipping Inc v P U Aspiration PTE Ltd [2002] EWCA Civ 1158 : bailli

CA on appeal from Commercial Court (Mr Justice Moore-Bick) regarding refusal of leave to appeal under s69 a prior

refusal of leave to appeal. First refusal given without reasons. In round two Moore-Bick noted the general importance but

did not doubt the correctness of the tribunal’s award. The North Range v Sea Trans judgment intervened overturning the

Antios and requiring reasons for refusal. Sufficient reasons – appeal dismissed.

Tuckey LJ 2002.07.22 CA


S069 AA 1996

Challenge s69

Pentonville Shipping Ltd. v Transfield Shipping Inc (MV Johnny K) [2006] EWHC 134 (Comm)

The court determined that there is no clearly and consistently expressed finding by the arbitrators on the critical question

by whom the order to sail was in fact given. With that in mind the issue was remitted to the arbitrators for consideration.

The court noted that having complied with that instruction, it was open to the arbitrators to vary or reconfirm the award. A

chartered vessel sailed without loading a full cargo. It would appear that the order to sail came from the port authority

since the vessel would have had to remain in port for 3 weeks to get a high enough tide to turn in order to leave. The court

remitted the award to the tribunal to address the issue of who was responsible for the order rather that who gave the order.

Tomlinson Mr

Justice


Court

Finality of

certificated AA

1950

Penwith District Council v. VP Developments Ltd [1999] EWHC TCC 231

Court here called on to examine the effect of clause 30 JCT 1980 on finality of final certificate under AA 1950. Final

certificate not questioned until 3 years after the event. Judge arbitrator opened up the certificate. Held : Final.

Unknown 1999.05.21 TCC

Insolvency :

bankruptcy

petition

Penwith District Council v VP Developments Ltd. [2005] EWHC 259 (Ch) : Bailli

Petition for bankruptcy. The company against whom the petition is sought is involved in substantial arbitration

proceedings : the bankruptcy would terminate these when there is a real prospect of recovery and would thus be wrong.

There were no substantial or compelling reasons to accede to the petition.

Laddie Mr Justice 2005.03.01 Chancery

S067 AA 1996 :

Challenge :

extension of time :

PRC judgment

Enforcement

Peoples' Insurance Company of China v Vysanthi Shipping Co Ltd [2003] EWHC 1655 (Comm) : Bailli

Arbitral award : subsequent judicial determination in China : Double jeopardy : GA dispute following a grounding.

Owners successfully arbitrated the dispute and obtained an enforcement judgment. Subsequent to the award an action was

commenced in the PRC followed by a late application to challenge arbitrator’s jurisdiction and application for extension of

time. Extension refused. Challenge failed. Arbitrator seized of jurisdiction. Award enforced.


Commercial

Court

s070 AA 1996 :

application :

security for appeal

Peterson Farms v C & M Farming Ltd [2003] EWHC 2298 (Comm) : Bailli

Re s67 / S70(7) AA 1996 : Application for an order that any money payable under the award shall be brought into court or

otherwise secured pending the determination of the application or appeal, re an ICC award. Court held that it would only

order security as a precondition to a s67 jurisdiction challenge where it was established that the challenge was flimsy,

which in this case it was not. Application for posting of security in order to appeal refused.

Tomlinson Mr

Justice

2003.09.05 QBD

Commercial

Court

S067 AA 1996 :

Challenge

Jurisdiction

Peterson Farms Inc v C & M Farming Ltd [2004] EWHC 121 (Comm) : bailli

ICC arbitration : supply of diseased poultry : question relates to whether the tribunal had jurisdiction to address claims by

related companies in the C&M group or whether claims were limited to C&M. This in turn turned on whether Arkansas

Law applied. Held : C&M the only party to the reference. Related awards struck out.


Commercial

Court

S069 AA 1996

Challenge s69 Point

of Law

Petroleo Brasileiro S.A. v Kriti Akti Shipping Co. S.A. [2003] EWHC 1634 (Comm) : Bailli

Central issue here turned on whether the 'Aspa Maria' [1976] 2 Lloyd's Rep. 643 was correctly decided or alternatively that

it was relevant to this case as determined by the tribunal. Court reaffirmed The Dione. The charterer in the circumstances of

the case had the benefit both of a 15 day off hire extension and an option to extend. Consequently the vessel was still on

hire when on a final voyage and thus the charterer was entitled to order a final return voyage. Appeal allowed.

Moore-Bick LJ 2003.07.09 QBD

Commercial

Court

S009 AA 1996 : Stay

to arbitration s9

Petroleo Brasiliero SA v Mellitus Shipping Inc [2001] EWCA Civ 418 : bailli

Stay to arbitration s9. Part 20 defendants to a charter party action cannot seek a stay on grounds of arbitration clause in bills

of lading. Court had the jurisdiction over the action to which they could be validly enjoined.

Potter LJ; Sedley LJ;

Jonathan Parker LJ.

2001.03.29 CA


S044 AA 1996 Petroleum Investment Co Ltd v. Kantupan Holdings Co Ltd [2002] 1 All E.R. (Comm) 124 : Westlaw

Quia timet injunction Refused : Situation not urgent – main sums not due until after arbitration had commenced.


Court

Good faith

negotiation clause

Petromec Inc v Petroleo Brasileiro SA Petrobras [2004] EWHC 127 (Comm) : Bailli

Whether or not the contract contained a good faith negotiation – if so was it breached – and potential consequence.

Moore-Bick Mr

Justice


Court

S068 AA 1996

Challenge s68 &

s70(4) AA 1996 :

Challenge s69(2)

Petroships Pte Ltd Singapore v. Petec Trading & Investment Corp Vietnam [2001] EWHC Comm 418 : bailli

Issue : Did the tribunal provide a sufficiently reasoned award in respect of a claim of frustration to enable the court to

conduct a s69 examination of the point of law? On a separate issue one aspect of the award remitted to the tribunal for

clarification pending a s69 trial.

Cresswell Mr Justice 2001.05.22 Commercial

Court

S009 AA 1996 : Stay

to arbitration & s44

relief : injunction

Phoenix Finance Ltd. v Federation Internationale De L'Automobile [2002] EWHC 1028 (Ch)

Dispute about entitlement to take part in Grand Prix racing – following winding up proceedings and a tribunal ruling

striking out eligibility of the Proust Team to compete. Multi-interest dispute – parties to relevant agreements including

arbitration.

Vice-Chancellor 2002.05.22 Chancery

s027 AA 1950 :

Extension of time

Pheonix Shipping Ltd v General Feeds Inc [1997] EWCA Civ 1476 : bailli

Extension granted by a "whisker". Authorities reviewed.

Potter LJ; Mummery

LJ.

1997.04.22 CA

S034 s49 s57 s66 s79

AA 1996

Pirtek (UK) Ltd v. Deanswood Ltd, Gordon Harris [2005] EWHC 2301 (Comm) : Westlaw

Interest : slip rule : time limits. No agreement to exted 56 day rule for amendment of award. Interest backdated to a period

preceding claim. Award set aside.


Court

S069 AA 1996

Challenge s69 Point

of Law

Plymouth v DR Jones (Yeovil) Ltd [2005] EWHC 2356 (TCC) : Bailli

Challenge failed. Essentially the challenge was based on questions of fact not of law.


S001(7) AA 1979 :

Point of Law

Poseidon Schiffahrt GMBH v Nomadic Navigation Company Ltd [1999] EWCA Civ 818 : bailli

Whether Clause 3(i) of the Shelltime 4 form of time charter has any application to defects in the vessel existing as at the

time of her delivery as distinct from defects which came into existence after her delivery. Failed appeal.

Hirst LJ;

Mummery LJ ;

Buxton LJ.

1999.02.18 CA

S009 AA 1996 Stay

: cross claim

Prekons Insaat Sanayi AS v. Rowlands Castle Contracting Group Ltd [2006] EWHC 1367 (Comm) : Westlaw

Cross claim in defence governed by a separate contract with an arbitration clause and stayed to arbitration – leaving way

open for enforcement of debt under the primary contract : Distinctions between set off under English and Turkish law.

Tomlinson Mr

Justice


Court

S007 AA 1996 :

Separability :

bribery

Premium Nafta Products Ltd (20th Defendant) v Fili Shipping Co Ltd [2007] UKHL 40: Bailli

Whether, as a matter of construction, the arbitration clause is apt to cover the question of whether the contract was

procured by bribery and secondly, whether it is possible for a party to be bound by submission to arbitration when he

alleges that, but for the bribery, he would never have entered into the contract containing the arbitration clause.

Hoffmann Lord;

Hope Lord ;

Scott Lord ;

Walker Lord

2007.10.17 House of

Lords

S067 AA 1996 :

Challenge

Primetrade AG v Ythan Ltd [2005] EWHC 2399 (Comm) : Bailli

Existence of contract. Liability of holder of bill of lading for damage to vessel due to shipment of dangerous cargo.


Commercial

Court


S067 AA 1996 :

Challenge s68

Profilati Italia S.R.L. & Painewebber Inc. v. Painewebber International Futures Ltd. [2001] EWHC Comm 24 : bailli

Challenge made out of time : allegation that contrary to public policy the award was procured through non-disclosure of

documents. Discusses scope of duty to disclose – targets concept of wrongful intentional non-disclosure and requirement

of substantial injustice – neither of which were evident here.

Moore-Bick Mr

Justice


Court

S068 AA 1996

Challenge s68


Protech Projects Construction (Pty) Ltd. v Moh'd Abdulmohsin Al-Kharafi [2005] EWHC 2165 (Comm) : Bailli

Serious irregularity on grounds of non-disclosure not established. CFA incorrectly described as an irregularity. No

injustice.


Commercial

Court

S066 AA 1996 :

Enforcement s66

Challenge s68

Protech Projects Construction Ltd. v Mohammed Abdulmohsin Al-Kharafi & Sons [2005] EWHC 2165 : Bailli

Following a successful s66 enforcement action for 3 awards Kharafi unsuccessfully instigated this s68 challenge – serious

irregularity.


Commercial

Court

S069 AA 1996 P.T. Putrabali Adyamulia v. Socit Est Epices & Enrico Webb James SNC [2003] 2 Lloyd's Rep. 700 : Westlaw

Good shipped on a barge. Notice of shipment issued and not challenged within 3 days. Barge sank. Cargo owner claimed –

Board held that failure to challenge in time not relevant since cargo owner did not know the vessel was not an ocean going

powered vessel. On appeal court held tribunal erred in that the contract did not specify classification. It was up to cargo

owner to make inquiries and challenge in the 3 day period. Failed to do so. Claim failed.

Havelock-Allan QC

HHJ


Court


Reasons Qureshi, R (on the application of) v Newham [1997] EWHC Admin 813 : bailli

Absence of intelligible reasons for a determination of intentional homelessness.

Rich HHJ 1997.09.18 Admin

Court


S068(2)(g) AA 1996

challenge – public

policy

R v V [2008] EWHC 1531 (Comm) : bailli

Challenge to an award under section 68(2)(g) of the Arbitration Act 1996 on the grounds that the award is contrary to

English public policy; and a challenge to enforcement of the same award under section 81(1) (c) of the Act on the grounds

that the award is contrary to public policy at common law.

Steel Mr Justice

David

2008/07/03 Commercial

Court

s009. Stay to

arbitration ; Appeal

Ravennavi SPA v New Century Shipbuilding Company Ltd [2007] EWCA Civ 58: Bailli

Appeal failed . “The effect of an entire agreement clause of the kind to be found in Article XIX.4 of the two formal shipbuilding

contracts executed in this case must depend primarily on its terms, since it is the language chosen by the parties to express their

agreement (wherever it appears) which, construed in its proper context, provides the primary source of their intentions. It is for that

reason that I am unable to accept the suggestion in the Buyer's skeleton argument that clauses of this kind can be construed by reference

to their supposed purpose or that their significance is diminished if they are found among what are sometimes called the "boilerplate"

provisions of a formal contract of this kind.”

Tuckey LJ ;

Jacob L:J ;

Moore-Bick LJ

2007.02.07 CA

S009 AA 1996 : Stay

to arbitration s9.

Ravennavi Spa v New Century Shipbuilding Company Ltd [2006] EWHC 733 (Comm) : Bailli

“An Entire agreement” contract which contained an arbitration clause replaced a prior agreement that contained a litigation

clause. Application to serve out of jurisdiction withdrawn.

Gloster Mrs Justice 2006.04.04 QBD

Commercial

Court


S068 AA 1996 :


RC Pillar & Sons v Edwards [2001] APP.L.R. 01/11 : (2001) CILL 1799

Large rambling award citing much of pleadings contained errors that had to be amended : failure to hear both parties on

amendments : award remitted to arbitrator for further hearings and amendment if necessary.


Interim relief

Mareva

REFCO Inc v Eastern Trading Co [1998] EWCA Civ 1020 : bailli

Section 25 (1) and (4) of the Civil Jurisdiction and Judgments Act 1982 : Brussels or Lugano Conventions. Applications for

Mareva Injunction in support of New York arbitration award.

Millett LJ :

Potter LJ;

Morritt LJ

1998.06.17

Stay - appeal Reichhold Norway ASA v Goldman Sachs International [1999] EWCA Civ 1703: bailli

Appeal against order staying action under the inherent jurisdiction of the court preserved by section 49(3) of the Supreme

Court Act 1981 pending the final determination of the arbitration proceedings

Bingham LCJ :

Otton LJ

Walker LJ Robert

1999.06.28 CA

Stay :

Confidentiality

Reichhold Norway ASA v. Goldman Sachs International 1999] 1 All E.R. (Comm.) 40 : Westlaw

Action stayed to arbitration in Norway. No compelling reason not to.

Moore-Bick J 1998.11.25 Commercial

Court

S069 AA 1996 Reliance Industries Ltd v. Enron Oil & Gas India Ltd [2002] 1 All E.R. (Comm) 59 : Westlaw

The tribunal applied English rules of contract construction to a contract governed by Indian Law. The seat of the tribunal

was England – but the substantive law Indian. Held : Since Indian and English rules of construction the same, no

irregularity and no serious injustice.


Court

Bias : conflict of

interest

Re P (A Barrister) v Visitors to the Inns of Court [2005] 1 W.L.R. 3019: Westlaw

Lay member of an appeals tribunal was also a member of the Professional Conduct and Complaints Committee of the Bar

Council which had made the initial decision whether or not to prosecute the applicant. Did the lay member suffer from a

conflict of interest. Held : YES. Therefore should step down and an alternative panel member be appointed.

Colman J,

Julia Clark

Sara Nathan

2005.01.24 Inns of

Court

S067 AA 1996 :

Security of costs re

s67 challenge

Republic of Kazakhstan v Istil Group Inc [2005] EWCA Civ 1468 : Bailli

Application for security of costs in respect of challenges to jurisdiction s67 & s68 allegations of serious irregularity. Security

set at £120K.

Clarke MR, Sir

Anthony;

Rix LJ;

Richards LJ;

2005.11.09 CA

S067 AA 1996 :

Challenge

Republic of Kazakhstan v Istil Group Inc [2006] EWHC 448 (Comm) : Bailli

Application to set aside : Arbitration Act s67.

Steel Mr Justice

David

2006.04.03 QBD

Commercial

Court

S067 AA 1996 : Set

aside - appeal

Republic of Kazakhstan v Istil Group Ltd. [2007] EWCA Civ 471 : Bailli

Court at first instance had jurisdiction under s67 to determine whether or not an interim award be set aside – and or to

certify right to appeal. CA does not have jurisdiction in absence of certification.

Arden LJ;

Longmore LJ;

Toulson LJ.

2007.04.25 CA

Case stated Ronaasen & Son v Arcos Ltd [1933] UKHL 1 : bailli

Whether goods (staves) complied with the description or not and thus whether or not the buyer could reject. Held :

Sufficient deviation from description to justify a finding of non-compliance.

Buckmaster Lord;

Blanesburgh Lord;

Warring Lord;

Atkin Lord;

Macmillan. Lord

1933.02.02 House of

Lords

S001 AA 1979 :

Double jeopardy

Ron Jones (Burton-on-Trent) Ltd v Mrs JS & Mrs JD Hall [1998] EWCH 328 : bailli

Double Jeopardy : Attempt to keep items out of jurisdiction of arbitrator and submit them to a separate arbitration : Held :

Not permitted in the circumstance of the case : First arbitrator’s decision final in ruling out the items.

Lloyd HHJ

Humphrey

1998.04.07 TCC


S067 AA 1996

Challenge

jurisdiction : s68;

s69

Ronly Holdings Ltd. v JSC Zestafoni G Nikoladze Ferroalloy Plant [2004] EWHC 1354 (Comm) : Bailli

Objective to recover an asserted $5M shortfall in an award. Court found that there was a shortfall which was immediately

due : Issue not addressed in the arbitration. However, no serious irregularity established.

Gross Mr Justice 2004.06.22 QBD Admin

Division

Slip Rule Rostron v Elliott [1997] EWCA Civ 2120 : bailli

Amendment of an award to include and backdate interest on an award re two petitions under section 459 of the

Companies Act 1985. Distinguishes between finality of award regarding errors of law – finding of facts : contrast where

error down to counsel.

Bultler-Sloss LJ;

Gibson LJ Peter :

Thorpe LJ

1997.07.16 CA

s063 AA 1996 :

Costs

Rotary Watches Ltd. v Rotary Watches (USA) Inc [2004] EWHC 90038 (Costs) : Bailli

Summary assessment of costs subsequent to dispute over the arbitrator’s costs award. Bitter protracted dispute where the

claimant made a negligible recovery and where the defendant made a substantial recovery under a counterclaim (though a

small percentage of the actual counterclaim) in circumstances where the counterclaim would not have been mounted were

it not for the need to defend the action. £600K costs awarded to the respondent UK watchmaker.

Rodgers Cost Master 2004.12.17 Costs Court

Appointment Royal Bank Of Scotland v Jennings [1996] EWCA Civ 804 : bailli

Court ordered landlord to comply with rent review provisions and apply to the President of RICS to appoint an expert

valuer. Did so : revaluation resulted. Was the appointment and the valuation valid. YES.

VC :

Saville LJ;

Potter LJ.

1996.10.24 CA

Contribution Royal Brompton Hospital NHS Trust v. Hammond & Taylor Woodrow Construction Ltd [2002] UKHL 14 : bailli

Post arbitration architect sought contribution from contract. Held at first instance, CA & HL that the harm caused by the

architect was quite distinct and separate from the later delivery harm of the contract. No contribution due.

Bingham Lord

Mackay Lord

Steyn Lord

Hope Lord

Rodger Lord

2002.04.25 House of

Lords

S047 & s69 AA 1998

– Leave to appeal

Royal & Sunalliance Insurance Plc v BAE Systems (Operations) Ltd [2008] EWHC 743 (Comm) : Bailli

Reinsurance : LCIA arbitral award. Is leave required to appeal on a point of law regarding contract construction &

interpretation. Held : No.


Court

S024 s67, 68, 69 AA

1996

Runman Faruqi v. Commonwealth Secretariat [2002] WL 498805 : Westlaw

Removal – forfeiture of confidence : There were no compelling reasons in the circumstances for the court to interfere with

the running of the tribunal – though it has jurisdiction to do so where appropriate..

Brindle QC Mr M 2002.03.26 Commercial

Court


Enforcement Sabah Shipyard (Pakistan) Ltd. v Pakistan [2002] EWCA Civ 1643 : bailli

Sabah sought to enforce an award against the Government of Pakistan. The Government and its trading party sought to

appeal the award and procured an indefinite injunction in Pakistan. English Court issued an injunction against those

proceedings. Government had waived state immunity before the English Court. Upheld on appeal.

Pill LJ;

Waller LJ;

Sir Martin Nourse

2002.11.14 CA

Fraud :

enforcement of

award

Sabah Shipyard (Pakistan) Ltd v Pakistan [2007] EWHC 2602 (Comm) : Bailli

Application for summary judgment pursuant to a guarantee contract related to plant construction. Whether there was a

reasonable prospect of defending the action on grounds that guarantee procured by fraud. Held : reasonable prospect.

Clarke Mr Justice

Christopher


Court


S069 AA 1996 Safeway Stores v. Legal & General Assurance Society Ltd [2004] EWHC 415 (Ch) : Westlaw

Rent review : comparators : site had no petrol filling station : comparables did : held : arbitrator in error – but maximum

scope of error 7%. Held : No substantial injustice. Challenge failed.


S069 AA 1996

challenge

Sanhe Hope Full Grain Oil Foods Production Co Ltd v Toepfer Internat. Asia Pte Ltd [2007] EWHC 2784 (Comm) : Bailli

Construction of clause 27 of the standard FOSFA Form 22. Purchase of futures in SOYA repudiated. Whether a loss suffered.

Steel Mr Justice

David


Court

S009 AA 1996 : Stay

to arbitration s9 :

conflicts

Sawyer v Atari Interactive Inc [2005] EWHC 2351 (Ch) : Bailli

Four contracts re publishing rights of computer games subject to arbitration – stay granted : remaining 4 contracts – court

held proper law is English law not US and stay refused.

Collins Mr Justice

Lawrence

2005.11.01 QBD

Chancery

Division

Appeal : Question

of law.

Scindia Steamship Navigation Co Ltd Bombay v Nippon Yusen Kaisha Ltd [2000] EWCA Civ 93 : bailli

If a vessel is prevented by a port authority from discharging damaged cargo and ordered off berth until security is

provided for the cost of storing that cargo in or removing it from the port, has the vessel been detained and who is

responsible for providing the security? These questions arise under the terms of a time charter on an amended 1946 NYPE

form between the Appellant owners and the Respondent charterers on appeal from Rix J, who allowed an appeal from

arbitrators. Both parties say the questions are of importance because the NYPE form is used extensively. Rix J’s judgment

upheld.

Henry LJ :

Brooke LJ :

Tuckey LJ.

2000.03.28 CA

Stay to foreign

arbitration

S.D. Von Appen GmbH v Wiener Allianz Versichrungs AG & Alpine Intertrading GmbH [1997] EWCA Civ 1420 : Bailli

Application for stay to foreign arbitration.

V.C. :

Hobhouse LJ :

Morritt LJ :

1997.04.16 CA

S068 AA 1996

Challenge s68


: reasons

Sealand Housing Corporation v Siemens AG [2002] EWCA Civ 1145 : bailli

Party ignored arbitration initially then at last minute tried to introduce a counter claim and jurisdictional challenge.

Arbitrators refused to entertain the new material. Did the first instance judge provide sufficient reasons for dismissing s67 /

s68 challenges to an arbitral award? Yes : Three of the grounds were really attempts to retry fact – and the fourth was

unsubstantiated. Appeal dismissed.

Sir Andrew Morritt

VC; Rix LJ

2002.07.22 CA

S069 AA 1996

Challenge s69

Sea Success Maritime Inc v African Maritime Carriers Ltd. [2005] EWHC 1542 (Comm) : Bailli

Point of Law : meaning of “clausing” re bill of lading. Arbitrator correctly held that whilst “clausing “ is not a term of art, in

the circumstances a master could make reservations on a bill of lading, as opposed to clausing the bill or rejecting the cargo.

Aiken Mr Justice 2005.07.15 QBD

Commercial

Court

S067 AA 1996 :

Challenge : s68 &

s69

Sea Trade Maritime Corp v Hellenic Mutual War Risks Association (Bermuda) Ltd [2006] EWHC 2530 (Comm) : Bailli

Application to set aside interim award for jurisdiction / serious irregularity & whether as a point of law rules were

incorporated into the arbitration agreement.


Court

s047 AA 1996 : s57

AA 1996 : Costs

Sea Trade Maritime Corp v Hellenic Mutual War Risks Assoc (Bermuda) Ltd. [2006] EWHC 578 (Comm) : Bailli

Costs : Reservation to subsequent award. Where a tribunal reserves costs to a subsequent award it deals with the matter

(s47) so that the provisions of s57 do not come into play.

Clarke Mr Justice

Christopher

2006.02.24 QBD

Commercial

Court

Winding up

petition –

arbitration Claim

Seawind Tankers Corp v Bayoil SA [1998] EWCA Civ 1364 : bailli

Challenge to winding up petition where applicant had a potentially viable arbitration claim in the wings and court failed

to give that adequate consideration.

Nourse LJ :

Ward LJ;

Mantell LJ.

1998.07.31 CA


s045 AA 1996 :

Preliminary issues

SEB Trygg Holding Aktiebolag v Manches [2005] EWHC 35 (Comm) : Bailli

20 preliminary issues submitted to the court for determination


Commercial

Court

Evidence :

Admissibility of an

unrelated arbitral

award as evidence

of comparable rent

Secretary of State for Trade and Industry v Bairstow [2003] EWCA Civ 321 : bailli

In Land Securities plc v Westminster City Council [1993] 1 WLR 286 the issue was whether an earlier arbitration award

was admissible in later proceedings for the determination of a fair market rent. Hoffmann J applied the principle so as to

exclude an earlier arbitration award. At p.288 he said: "An arbitration award, on the other hand, is an arbitrator's opinion, after

hearing the evidence before him, of the rent at which the premises could reasonably have been let. The letting is hypothetical, not real. It

is therefore no direct evidence of what was happening in the market. It is the arbitrator's opinion of what would have happened. In

principle the judgment, verdict or award of another tribunal is not admissible evidence to prove a fact in issue or a fact relevant to the

issue in other proceedings between different parties. The leading authority for that proposition is Hollington v F. Hewthorn & Co.

Ltd [1943] KB 587, in which a criminal conviction for careless driving was held inadmissible as evidence of negligence in a subsequent

civil action. There has been criticism of this decision, and important exceptions have since been created by statute, notably in the Civil

Evidence Act 1968, but none of them would apply here."

VC.

Potter LJ;

Hale LJ.

2003.03.11 CA

CPR 31:17 :

s31 SCA 1981 :

Disclosure – 3rd

party

Secretary of State for Transport v Pell Frischmann Consultants Ltd [2006] EWHC 2756 (TCC) : Bailli

Application for disclosure against a non-party in support of litigation post arbitration. In the circumstances whilst early

disclosure might be beneficial to the applicant, disclosure would be made in due course but there was no compelling reason

why the applicant should benefit from early disclosure given the cost that would be involved in double disclosure.


S067, 68, 69, 70 AA

1996

Selina Mohsin v. The Commonwealth Secretariat [200] EWHC 377 (Comm) : Westlaw

Commonwealth Secretariat does not enjoy State Immunity from arbitral proceedings.

Steel Mr Justice

David


Court

Challenge fact or

law : Arbitration

Act 1950.

Sembawang Corp Ltd v Pacific Ocean Shipping Corp [2004] EWHC 2743 (Comm) : Bailli

Complaint was that the arbitrators finding that an owner who had lawfully terminated a ship conversion contract had not

mitigated his losses by choosing a British and not a Singapore yard to complete the work. Held : Question of fact viz was

there legally adequate mitigation , not law viz what is the lawful definition of mitigation. Challenge failed.


Commercial

Court

Challenge : point of

law -

Semco Salvage & Marine Pte Ltd v. Lancer Navigation [1997] UKHL 2 : bailli

Court ask to interpret article 14 LOF arbitration terms regarding what is "a fair rate for equipment and personnel actually

and reasonably used in the salvage operation."

Mackay LC Lord

Goff Lord

Mustill Lord

Lloyd Lord

Hope Lord

1997.02.06 House of

Lords

S067 AA 1996

challenge. Notice

of discontinuance.

Impact on New

York enforcement.

Sheltam Rail Company (Proprietary) Ltd v Mirambo Holdings Ltd [2008] EWHC 829 (Comm) : Bailli

Notice of discontinuance of challenge to arbitration. New York Convention Award outside UK. Challenge to

discontinuance to prevent outstanding issues before English Court being used as a ground for resisting enforcement

abroad. Held : Discontinuance permitted subject to assurance that the ground would not be relied upon to prevent foreign

enforcing court obtaining jurisdiction.

Aikins Mr Justice 2008.04.21 Commercial

Court

S067 AA 1996 :

Challenge s68

Shuttari v Solicitors' Indemnity Fund [2007] EWCA Civ 244 Bailli

Failed appeal against a failed application under s68 to set aside an arbitral award. Having invoked the arbitral procedure

there was no case to challenge jurisdiction.

Waller LJ;

Sedley LJ

2007.03.21 CA


Jurisdiction -

incorporation

Siboti K/S v BP France SA [2003] EWHC 1278 (Comm) : bailli

Reaffirmed that express wording in a bill of lading is required to incorporate arbitration clause into a bill of lading. The

Merak, The Varenna and The Federal Bulker applied. Refusal to enforce arbitration award.


Commercial

Court

S068 AA 1996

Challenge s68


Sinclair v Woods of Winchester Ltd. [2005] EWHC 1631 (QB) : Bailli

Serious irregularity : Application to remove arbitrator failed. s24 & 68 Arbitration Act 1996.


S069 AA 1996

Challenge s69

Sinclair v Woods of Winchester Ltd [2006] EWHC 3003 (TCC) Bailli

Substance of both grounds of appeal are based on findings of fact and causation – not law. Upheld clarity of award – appeal

failed.

Coulson QC HHJ

Peter

2006.11.22 TCC

S069 AA

1996Lands

Tribunal

Sinclair Investments Ltd (R) v Lands Tribunal Manuela da Graca Timothy O'Keefe [2005] EWCA Civ 1305 : Westlaw

It is possible to appeal a refusal of the Lands Tribunal to allow an appeal – but in the circumstances appeal failed :

Determination that certain renovations were improvements to landlords account and not recoverable upheld.

Auld LJ

Laws LJ

Neuberger LJ

2005.11.08 CA

Application to

appoint arbitrator :

defence no contract

Sinochem International Oil (London) Co Ltd v. Fortune Oil Co Ltd [1999] EWHC Commercial 204 : bailli

Court noted that the answer to the defence was in actual fact the answer to the question that would be posed to a tribunal,

rendering the arbitration unnecessary. Since the applicant had not addressed the issue of the existence of a contract, case

adjourned to a later date.


Court

CPR 52.3 : real

prospect of success

Smith International Inc v Specialised Petroleum Services Group Ltd. [2005] EWCA Civ 1357 : Bailli

CA on appeal from Chancery Division Patents Court (Mr Justice Lewison) : Test for second appeal regarding patent claim –

a real prospect of success – not limited by requirement of compelling reason – can be certified by CA..

Mummery LJ;

Jacob LJ;

Neuberger LJ.

2005.11.17 CA

Garnishee Order :

New York Award

Soinco SACI v Novokuznetsk Aluminium Plant 1996] EWCA Civ 620 : Bailli

Attempt to overturn a garnishee order in support of a Swiss Award on the grounds that there was a risk that the guarantor

might have to pay out twice on the guarantee. Held : No real danger established. Garnishee order sustained.

Phillips LJ :

Waller LJ;

Chadwick LJ.

1996.09.30 CA

s103 AA 1996 :

Enforcement New

York

Soinco SACI v Novokuznetsk Aluminium Plant [1997] EWCA Civ 3014 : bailli

Whilst unenforceable in Russia – nothing against English Policy to convince the court that a New York award should not be

enforced.

Phillips LJ ;

Waller LJ;

Chadwick LJ

1997.12.16 CA

Extension of time

to appeal :

garnishee order

Soinco SACI v Novokuznetsk Aluminium Plant [1997] EWCA Civ 3015 : bailli

Contemporaneously herewith judgments have been handed down in (a) an appeal from a decision of Colman J refusing to

extend time to permit the first defendant NKAP challenging the enforcement in England of a Swiss arbitration award; and

(b) an appeal from an order made by His Honour Judge Jack QC sitting as a judge of the Commercial Court making a

garnishee order absolute in relation to a debt owed to NKAP by BMTG.

Phillips LJ;

Waller LJ;

Chadwick LJ

1997.12.16 CA

Illegality : Foreign

Law

Soleimany v Soleimany [1998] EWCA Civ 285 : bailli

An English Court will not enforce an award that involves enforcing an illegal contract, whether that illegality arise out of

English Law or the law of a friendly foreign country. Policy exception.

Morritt LJ;

Waller LJ;

Staughton Sir

Christopher

1998.02.19 CA

s009 AA 1996 : Stay

of certain claims.

Sonatrach Petroleum Corp (BVI) v Ferrell International Ltd [2001] EWHC 481 (Comm) : bailli

Twin track resolution process : certain claims subject to English Law & Jurisdiction : others to Japanese arbitration. Stay

granted regarding those subject to Japanese arbitration.


Court


S043 AA 1996 :

Disclosure

South Tyneside v Wickes Building Supplies Ltd. [2004] EWHC 2428 (Comm) : Bailli

Rent Arbitration : In effort to obtain evidence of a comparable rents B&Q (competitors of Wickes) were ordered to disclose

the rent (subject to a confidentiality clause) they pay on a nearby property. B&Q successfully sought to have the order set

aside. The arbitrators could access alternative information in order to establish a comparator.


Commercial

Court

Appeal : Tenancy Southwark v Mills [1998] EWCA Civ 1319 : bailli

Successful appeal against determination of tenancy arbitration tribunal that there had been a breach of quiet enjoyment.

Gibson LJ Peter :

Schiemann LJ;

Mantell LJ.

1998.07.29 CA

S003A : s44 CJJA

1982

Speed Investments Ltd v. Formula One Holdings Ltd [2004] EWCA Civ 1512 : Westlaw

Council Regulation 44/01 and the Lugano Convention 1988. Art. 16 of the Convention which was, for practical purposes, in

the same terms as Art. 22 of the Regulation. Held : English court had exclusive jurisdiction.

Carnwath LJ

Neuberger LJ

Sir William Aldous

2004.11.12 CA

S024 AA 1996

Removal

Sphere Drake Insurance v. American Reliable Insurance Co [2004] EWHC 796 (Comm) : Westlaw

Application for removal of Mr Lucas a party appointed arbitrator. S.D.I contends that the relevant reinsurance contracts

giving rise to the dispute are void or voidable and, in the latter case, claims to have avoided them. In a prior action

underwriters (EUI) had been found guilty of fraud in relation to certain insurance business. The American Reliable

reinsurance policies were caught up in this business. Mr Lucas had been retained as an expert in relation to the EUI

litigation for a short period of time but did not give evidence Conclusion : Without any criticism of the character of Mr

Lucas nonetheless he should step down and a replacement be appointed.


Court

New York award.

Temporary stay of

action

Ssanyong Motor Distributors Ltd v Daewoo Cars Ltd & Daewoo Corp (1999) Lawtel :

Stay of action pending issue of Korean award. No reason to impugn the tribunal which was provided for by choice of law

& arbitration clause.

Wright J, 1999.04.23 Commercial

Court

S044 AA 1996 :

Anti-suit : s37 SCA:

CPR 6.20 : 6.21 : 62.5

Starlight Shipping Co v Tai Ping Insurance Co Ltd., Hubei Branch [2007] EWHC 1893 (Comm) : Bailli

Pre-emptive anti-suit injunction application in support of arbitration. Granted. Regarding third party proceedings CPR

6.20(5)(c) or CPR; 62.5(1)(b) or (c). CPR 6.21, CPR 62.5 considered. Anti-suit injunction not available even though action in

China appears vexatious and frivolous.


Court

Rent review time

bars

Starmark Enterprises Ltd v CPL Distribution Ltd [2001] EWCA Civ 1252

The law regarding the validity of a counter notice by a tenant for rent review – when the time to apply under the lease has

expired.

Gibson LJ Peter :

Kaye LJ;

Arden LJ

2001.07.31 CA

Anti-suit

injunction

Steamship Mutual Underwriting Association (Bermuda) Ltd v Sulpicio Lines Inc [2008] EWHC 914 (Comm): bailli

P&I cover provided subject to rules, London Arbitration & Jurisidction. Club cancelled membership for breaches of rules -

ending cover for two vessels that were lost : Sulpicio commenced action in Phillipines court alleging breach of contract &

fraud. Injunction granted.

Walker Mr Justice 2008/04/04 Commercial

Court

Human Rights Stretford v The Football Association Ltd. [2007] EWCA Civ 238 Bailli

Appeal rejected : No breach of Article VI HRA in referring a disciplinary dispute subject to the Association's well known

rules to arbitration. CA.

Clarke MR ,Sir

Anthony

Waller LJ;

Sedley LJ.

2007.03.21 CA


Challenge ; Legal

expertise of arbiter

Stanley Cole (Wainfleet) Ltd. v Sheridan [2003] EWCA Civ 1046 : Bailii

Can an arbiter rely on a precedent not put to the parties? Yes providing it does not lead to severe injustice. (Employment

tribunal case - but equally relevant to adjudicators and arbitrators).

Buxton LJ

Mance LJ

Ward LJ

2003.06.25 CA

S067 AA 1996 :

Challenge

Jurisdiction :

assignment of

rights

Stansell Ltd v Co-Operative Group (CWS) Ltd [2005] EWHC 1601 (Ch) : Bailli

CRS business transferred to CWS. Successful appeal against interim award on jurisdiction based on existence of a contract :

Prohibition against assignment upheld.

Blackburne HHJ 2005.07.22 QBD

Chancery

Division

Expert Witness Stanton v Callaghan [1998] EWCA Civ 1176 : bailli

Liability to client : An expert prepared a list of agreed opinion between himself and the otherside's appointed expert. The

claimant sought to hold his expert liable for prejudicing his case. The court held the expert's duty is to the court, not the

client - and the expert has immunity from suit if by acting in such a manner the client's case is less persuasive than it might

otherwise have been.

Nourse LJ;

Otton LJ;

Chadwick LJ

1998.07.08 CA

S068 AA 1996

Challenge s68 / s69

Stern Settlement v Levy [2007] EWHC 1187 (TCC) : Bailli

Challenge failed on both grounds : Where a term of a contract led to two potential, though equally imperfect

interpretations, the arbitrator is legally entitled to chose one over the other. In addition, the consequence did not affect the

outcome. The arbitrator afforded every opportunity to the party to address the disputed issue.


S068 AA 1996 St George's Investment Co v. Gemini Consulting Ltd [2004] EWHC 2353 (Ch) : Westlaw

Rent review : Tribunal confused assessment criteria ignoring assumptions of the parties. Remission to tribunal.

Jarvis QC John 2004.10.08 Chancery

S069 AA 1996 Stolt Tankers Inc v. Landmark Chemicals SA [2002] 1 Lloyd's Rep. : Westlaw

Where an owner uses time between loading / discharge for his own purposes – here discharging cargo under a separate

charterparty – laytime ceases to rune, even if unloading could not have occurred. Award upheld.

Smith Mr Justice

Andrew


Court

Appeal Strachan & Henshaw Ltd v Stein Industrie (UK) Ltd [1997] EWCA Civ 2940 : bailli

Appeal on two points of law arising in an arbitration. The appeal is from the judgment of HHJ Cyril Newman QC in an

appeal from an Interim Award on liability by the arbitrator.

Scott VC Richard:

Aldous LJ;

Sir Patick Russell

1997.12.09 CA

S069 AA 1996 :

Human Rights

Challenge s69

Stretford v Football Association Ltd [2006] EWHC 479 (Ch) : Bailli

s69 Arbitration Act 1996 : Contractual term excluding appeal not contrary to Human Rights Act.

Morritt Sir Andrew 2006.03.17 QBD

Chancery

Division

S069 AA 1996 –

Termination :

contractual &

repudiation

Stocznia Gdynia SA v Gearbulk Holdings Ltd [2008] EWHC 944 (Comm) : bailli

Distinction between terminating a contract on contract terms and terminating by acceptance of repudiatory breach. United

Dominions Trust (Commercial) Ltd v Ennis [1968] 1 QB 54 applied.

Burton Mr Justice 2008/05/02 Commercial

Court

S069 AA 1996

Challenge s69 point

of law

Stx Pan Ocean Co Ltd v Ugland Bulk Transport A.S. (Livanita) [2007] EWHC 1317 (Comm) : Bailli

Challenge s69 : Interpretation of safe port clause. Challenge failed.


Court

Human Rights Sumukan Ltd. v The Commonwealth Secretariat [2007] EWCA Civ 243 Bailli

Whether an agreement to exclude an appeal is contrary to Human Rights. Appeal failed.

Waller LJ;

Sedley LJ.

2007.03.21 CA


S067 AA 1996 :

Challenge: -s68

Sumukan Ltd v Commonwealth Secretariat [2007] EWHC 188 (Comm) : Bailli

Failed challenge to arbitral award – both with regard to jurisdiction and apparent bias.

Toulson J 2007.02.14 Commercial

Court

s067 AA 1996 :

Challenge

Jurisdiction & s69

Sukuman Ltd v The Commonwealth Secretariat [2006] EWHC 304 (Comm) : Bailli

s69 Arbitration Act 1996 : Contractual term excluding appeal not contrary to Human Rights Act.

Colman HHJ 2006.02.27 TCC

S067 AA 1996

challenge

Sumukan Ltd v Commonwealth Secretariat [2007] EWCA Civ 1148 : Bailli

President of tribunal not correctly appointed and safety procedures required to protect the interests of claimant’s

overridden (CS were solely responsible for appointments) – it was not possible at the time for this to be discovered by the

applicant. Award unenforceable.

Clarke Sir Anthony;

Waller LJ;

Sedley LJ.

2007.11.15 CA

S058 AA 1996 :

Confidentiality : 1st

& 2nd arbitration

Sun Life Assurance Company of Canada v The Lincoln National Life Insurance Co [2004] EWCA Civ 1660: Bailli

Applicability of the findings of an arbitration between A & B to a subsequent arbitration between B &C where disclosure of

the first award was not objected to. Held : Not applicable or binding.

Mance LJ;

Longmore LJ;

Jacob LJ.

2004.12.10 CA

S009 AA 1996 : Stay

to arbitration s9

appeal against

refusal to grant stay

Sun Life Assurance Co of Canada v CX Reinsurance Co Ltd. [2003] EWCA Civ 283 : bailli

CA on appeal from QBD (Moore Bick J) : held at first instance and here confirmed that the original agreement was a nullity

and hence there was nothing to stay to arbitration.Appeal against a refusal to grant a stay on the grounds that there was no

arbitration agreement. Whilst there was by mutual agreement an oral agreement, a written treaty was never concluded

between the parties. Appeal failed.

Potter LJ;

Carnwath LJ;

Mr Justice Lawrence

Collins

2003.03.06 CA

S069 AA 1996

Challenge s69

point of law or fact

Surefire Systems Ltd v Guardian ECL Ltd [2005] EWHC 1860 (TCC) : Bailli

Appeal - fact or law? s69 Arbitration Act 1996.


s103 AA 1996 :

Challenge : state

immunity : New

York Convention

Svenska Petroleum Exploration AB v Government of the Republic of Lithuania [2005] EWHC 9 (Comm) : Bailli

Lithuania took part in an arbitration in Denmark. They objected to jurisdiction. The tribunal made a preliminary ruling in

favour of jurisdiction which Lithuania did not object to. The successful claimants secured an enforcement judgement in

England. Lithuania here seeks to set aside enforcement on the grounds of State Immunity. Held : Whilst in usual

circumstances this would amount to an issue estoppel, evidence that the tribunal’s determination was not final and binding

under Danish Law meant that Lithuania could still rely on state immunity.

Teare QC Nigel 2005.01.11 QBD

Commercial

Court

S101 AA 1996 :

Conflicts : State

Immunity

Svenska Petroleum Exploration AB v Lithuania [2005] EWHC 2437 (Comm) : Bailli

Lithuania took part in an arbitration in respect of an exploration venture defending a claim for damages in relation to the

issuing of licences. The arbitral tribunal held that the State was a party to the arbitration agreement. Enforcement action in

England unsuccessfully resisted on grounds of state immunity.


Commercial

Court

Personality Svenska Petroleum Exploration AB v Lithuania [2006] EWCA Civ 1529: Bailli

Was the State of Lithuania a party to a commercial contract and an arbitration agreement : appeal against an enforcement of

award action. In the circumstances State was a party. Award enforceable.

Clarke MR – Sir

Anthony Scott

Baker LJ

Moore-Bick LJ

2006.11.13 CA

S067 AA 1996

Jurisdiction

Syska v Vivendi Universal SA [2008] EWHC 2155 (Comm) : Bailli

Application to set aside award on the grounds that under the governing law the jurisdiction of an arbitral tribunal was

revoked upon the defendant entering into bankruptcy. Application failed.

Clarke Mr Justice

Christopher


Court


s044 AA 1996

Application

Swift-Fortune Ltd v Magnifica Marine SA (Capaz Duckling) [2007] EWHC 1630 (Comm) : Bailli

s44 Arbitration Act application for world-wide freezing order in support of arbitration.

Steel Mr Justice

David


Court


Rent charge –

litigation or

arbitration

Taber v MacDonald [1998] EWHC Admin 200 : bailli

Claimant challenged validity of a rent charge. Held : Contractual mechanism post issue of notice was to challenge by way

of arbitration within 3 months. Applicant had failed to do so. Court would not override this mechanism.

Roch LJ :

Mr Justice Potts

1998.02.18 CA

S068 & 69 AA 1996

Challenges

TAG Wealth Management v West [2008] EWHC 1466 (Comm) : Lexis

Failed application to set aside : Claimant had frustrated discoveries over a 5 year period : Discoveries incomplete.

Arbitrator went ahead with what he had. Held : No serious irregularity and no error of law.

Aikens Mr Justice 2008/06/27 Commercial

Court

S043 AA 1996 :

witness summons

Tajik Aluminium Plant (TadAZ) v Hydro Aluminium AS [2005] EWCA Civ 1218: Bailli

CA on appeal from Chancery (Mr Justice Mann) : Lower court set aside witness summons orders – confirmed on appeal.

The documents that the appellant wanted disclosed were not described in a sufficiently narrow or specific manner to justify

the order.

Rix LJ;

Maurice Kay LJ;

Moore-Bick LJ.

2005.10.24 CA

S068 AA 1996 :

Confidentiality :

privilege

Tame Shipping Ltd v Easy Navigation Ltd [2004] EWHC 1862 (Comm) : Bailli

Confidential reasons : Privileged status and irregularity. Piercing the veil.

Moore-Bick. Mr

Justice

2004.07.28 QBD

Commercial

Court

s072 AA 1996

Application for

declaration

Tamil Nadu Electricity Board v St-Cms Electric Company Private Ltd [2007] EWHC 1713 (Comm) : Bailli

Application s72 AA 1996 for declaration that a tribunal had jurisdiction over a dispute. Conflicts - whether English or

Indian law applies.


Court

Forum Conveniens

appeal

Tavoulareas v Tsavliris [2004] EWCA Civ 48 : bailli

Salvage Lloyds Open Form – London arbitration and English Law. Failure to demonstrate that Greek law and jurisdiction

applied. Article 21 Brussels Convention. Freedom to forum shop by seeking negative declaratory relief is inherent in the

European Court of Justice's decisions in Gubisch v. Palumbo (Case 144/86), The Tatry and Maciej Rataj (Case 406/92) [1995] 1

Ll.R. 302 and, most recently, Erich Gasser GmbH v. Misat Srl (C-116/02), where the court declined to reconsider its previous

jurisprudence in this regard.

Thorpe LJ;

Mance LJ ;

Mr Justice Evans-

Lombe

2004.02.05 CA

Forum Conveniens Tavoulareas v Tsavliris [2003] EWHC 550 (Comm) : bailli

Salvage Lloyds Open Form – London arbitration and English Law. The Claimant's action should be stayed. The default

judgment must be set aside as obtained in circumstances where the Greek Court was already seised of the dispute..

Tomlinson Mr

Justice

2003.03.21 QBD

Commercial

Court

S045 AA 1996 :

Determination of

question of law s45

Taylor Woodrow Holdings Ltd v George Wimpey Southern Counties Ltd Rev 1 [2006] EWHC 1693 (TCC) : Bailli

Court, in support of arbitral proceedings, determined that the employer did not undertake the risk of structural problems

in a bridge prior to architectural survey.


S069 AA 1996 –

challenge

Temple Legal Protection Ltd v QBE Insurance (Europe) Ltd [2008] EWHC 843 (Comm) : bailli

While the approach of the Arbitrator was not justified, on the proper construction of the Binder, Temple is not entitled to

conduct the run-off. Accordingly, notwithstanding the reasoning, the Arbitrator's decision was correct. The question of law is

thus determined in favour of QBE, and this appeal is dismissed.


Court


Declarations 3C Waste Ltd v Mersey Waste Holdings Ltd [2006] EWHC 2598 (Comm) : Bailli

Applications for declarations in respect of recovery of certain costs – in support of arbitration.

Steel Mr Justice

David


Court

S009 AA 1996 : Stay

to arbitration s9 :

anti-suit injunction

Through Transport Mutual Ins. Assoc. Ltd v New India Assurance Co. Ltd. [2003] EWHC 3158 (Comm) : bailli

Declaration that there was a valid arbitration agreement : anti-suit against Finnish litigation.

Moore-Bick Mr

Justice

2003.12.18 QBD

Commercial

Court

S018 AA 1996 :

Appointment

application s18

Through Transport Mutual Insurance Assoc Ltd. v New India Assurance Co Ltd. [2005] EWHC 455 (Comm) : Bailli

Defendant was committed to litigation in Finland. The applicant sought assistance to appoint an arbitrator, reinforced by a

CA finding that they had a right to arbitrate. Court acceded to the request to appoint. The objective of the applicant was to

establish by arbitration that it was not liable to the defendant. If it did so it would use s66 to affirm that absence of liability.

If that conflicted with any Finnish Court ruling then the courts would have to deal with that matter when the time arose.

This was a distinct possibility given differences between English and Finnish Law.

Moore-Bick Mr

Justice

2005.03.21 QBD

Commercial

Court.

S009 AA 1996 : Stay

to arbitration : s9

Through Transport Mutual Ins. Assoc (Eurasia) Ltd v New India Ass. Assoc. Co Ltd [2004] EWCA Civ 1598: Bailli

Stay to arbitration upheld : Foreign Anti-Suit injunction lifted.

LCJ;

Clarke LJ;

Rix LJ.

2004.12.02 CA

Appeal against

refusal to set aside

award

Thorogood v Egerton Homes Southern Ltd [1998] EWCA Civ 1578 : bailli

Application to appeal an award made four years after the interim award and two-and-a-half years after the final award.

Applications out of time and refused accordingly

Roch LJ :

Hale Mrs Justice

1998.10.21 CA

S068 AA 1996

Challenge s68

Serious Irregularity

Challenge s69 :

Thyssen Canada Ltd. v Mariana Maritime SA [2005] EWHC 219 (Comm) : Bailli

Claim for cargo damage by fire. S80(5) extension of time in respect of s70(3) 28 day time limit to appeal. Tribunal found

that no evidence of unseaworthiness. During the arbitration the claimants had alleged either unseaworthiness or deliberate

fire to claim a ctl. They now sought to establish that the loss was due to sparks from hot works and alleged the owners lied

about their speculated reasons for the fire, viz a discarded cigarette by a stevedore. Held : Whether or not hot works caused

the fire is no longer relevant. Should have been adduced before tribunal. Appellants had not established that the owners

had lied or deceived the tribunal. Challenge an abuse of process. No extension of time given.


Commercial

Court

Appeal : Gafta

award

Ticaret v International Agritrade Co Ltd [1999] EWCA Civ 855 : bailli

Failed appeals against Gafta award, confirmed at first instance. Having contracted for CIF import of tapioca to Turkey

buyers forced to cancel purchase because Turkish government introduced a ban on importation. Seller recovered costs of

shipment thrown away – having given up an additional claim for breach of contract. CA confirmed award. Interpretation

of Clause 28 Gafta.

Hirst LJ;

Mummery LJ ;

Buxton LJ.

1999.02.25 CA

Security of costs of

appeal

Ticaret v International Agri Trade Co Ltd [1999] EWCA Civ 566 : bailli

Application for security of costs in appeal where problems enforcing an award in Turkey. Granted

Waller LJ 1999.01.14 CA

S103 AA 1996

enforcment New

York

Tongyuan (USA) International trading Group v Uni-Clan Ltd (2001) Lawtel AC0100770 :

New York Convention enforcement application. Change of venue for arbitration where no prejudice caused & unusual

format of award not grounds to refuse enforcement.

Moore-Bick J 2001.01.19 Commercial

Court


S009 AA 1996 :

Conflicts :

jurisdiction

Tonicstar Ltd. (Lloyd's Syndicate 1861) v American Home Assurance Company [2004] EWHC 1234 (Comm) : Bailli

Court held that questions as to the jurisdiction, applicable law and seat of an arbitration should be determined by an

English Court not a US Court and that further proceedings in a US arbitration should continue to be injuncted – anti-suit

against US litigation of a cause already before English Court.


Commercial

Court

S068 AA 1996

Challenge s68


s69 point of law

Torch Offshore Llc v Cable Shipping Inc. [2004] EWHC 787 (Comm) : Bailli

Vessel chartered for pipe laying was not able to support the necessary tackle without reinforcement. Damages awarded to

cover cost of reinforcement and 11 days lost time. Did the arbitrator fail to deal with issue of cancellation on grounds of

innocent misrepresentation or get the law wrong? Held : No on both accounts. Challenge failed.


Commercial

Court

Appeal : point of

law

Total Transport Corp v Arcadia Petroleum Ltd [1997] EWCA Civ 2754 : bailli

Ship owners not required under the contract to provide the Charterers with a complete indemnity for all loss de facto

resulting from the owners' failure to comply fully with Charterers voyage instructions however improbable or

unpredictable. Award displaced.

Staughton LJ :

Auld LJ;

Sir John Balcombe

1997.11.18 CA

S069 AA 1996

Challenge s69 point

of law

Tradigrain v State Trading Corporation of India [2005] EWHC 2206 (Comm) : Bailli

Tribunal erred in finding that a seller is not entitled to immediate repayment of excessive monies drawn down on a bond,

in the absence of proof that it is the seller and not an intermediary bank, that is out of monies. There was no need to make a

Trust Order in respect of the repayment proceeds. Order that award be redrafted to order immediate payment. Challenge

to jurisdiction rejected since parties had taken part without objecting.

Clarke Mr Justice

Christopher

2005.10.19 QBD

Commercial

Court

S069 AA 1996

Challenge s69

Transfield Shipping Inc of Panama v Mercator Shipping Inc of Monrovia [2006] EWHC 3030 (Comm) Bailli

Appeal against the basis of damages award. Held “To award damages in this case on the basis of the difference between the market

and the charter rate for the overrun would compensate the Owners for only a fraction of the true loss caused by the breach. In

compensating them for the whole of it the majority did not, in my judgement, err in law. I shall, accordingly, dismiss the appeal.”

Clarke Mr Justice

Christopher


Court

S069 AA 1996

Challenge s69 :

Failed : Second

appeal

Transfield Shipping v Mercator Shipping : The Achilleas [2007] EWCA Civ 901 : Bailli

If a charterer is liable to pay damages to an owner for late redelivery of the chartered vessel, are those damages limited by the principles

of remoteness to the difference between the charter rate and the market rate at the time of redelivery (if the latter is higher than the

charter rate) over the length of the overrun period, that is to say from the due redelivery date until actual redelivery, or can the owner

claim damages based on the loss of his next fixture? Arbitral award & 1st appeal judgment upheld.

Ward LJ;

Tuckey LJ;

Rix LJ

2007.09.06 CA

S009 AA 1996 Traube v Perelman: [2001] WL 1251816 (Ch D) Westlaw

Ad hoc reference to arbitration. Party sought to widen the jurisdiction. Other party commenced litigation. Application for

stay refused. The arbitration agreement had been revoked by conduct.


Forum conveniens Travelers Casualty v Sun Life Assurance Company of Canada (UK) Ltd [2004] EWHC 1704 (Comm) : Bailli

Range of claimants in EU, US & Canada. Application to stay English action to Canada. Some of the policies contained

arbitration clauses in respect of US and Canada – others did not. Events all occurred in England. Most evidence to be

adduced from England but significant evidence due from Canada. On a balance, England the appropriate forum, in absence

of clear choice of law and forum. Stay refused.

Hirst QC. Jonathan. 2004.07.16 QBD

Commercial

Court


Evidence –

admissibility in

arbitrration

Tsako's Shipping & Trading SA v Centauras Mar (Orizon Tanker Co Ltd) [1998] EWCA Civ 567 : Bailli

Application for leave to appeal against an order of Rix J made on 16th March 1998. By that order he discharged an ex parte

order made by Tuckey J on 5th March 1998. The order of Tuckey J had required the respondents (whom I shall hereafter

call "the sellers") to allow inspections and tests to be carried out on a vessel, Centaurus Mar, which was the subject of a

sale agreement with the appellants (whom I shall call "the buyers"). Rix J having set that order aside also ordered that any

results of the tests or inspection, which had thus far been obtained, could not be made use of in evidence in any arbitration

between the sellers and buyers relating to the condition of the vessel. There is an application for leave to appeal against

that part of Rix J's order as well. Appeal failed.

Millett LJ :

Waller LJ ;

Chadwick LJ

1998.03.27 CA

s067 Challenge :

Jurisdiction : state

immunity

Tsavliris Salvage (International) Ltd v The Grain Board of Iraq [2008] EWHC 612 (Comm): Bailli

Jurisdiction : No arbitration agreement : State Immunity. Gross Mr Justice 2008.04.10 Commercial

Court

Freezing order TTMI Ltd of England v ASM Shipping Ltd of India [2005] EWHC 2666 (Comm) : Bailli

Freezing order. Application to freeze funds from 1st award pending outcome of a counterclaim in a subsequent arbitration

refused. Shipowners entitled to freight earned

Clarke Mr Justice 2005.11.23 QBD

Commercial

Court

Removal of

arbitrator

Turner v Stevenage Borough Council [1997] EWCA Civ 1184 : bailli

Arbitrator wrote inviting parties to agree to interim payments, in particular to provide for specialist advice. One party

refused and applied for removal. Held : Interim payments are sensible for protracted arbitrations but should be part of

engagement contract. Here a mere request was no ground for removal – made to both parties. No prejudice.

Staughton LJ;

Pill LJ;

Mummery LJ.

1997.03.06 CA


S028 AA 1996 :

Joint & Several

Liability – s28(3)

Arbitrators fees

United Tyre Company Ltd v Born [2004] EWCA Civ 1236: Bailli

Applicant request taxation pursuant to s28(3) or arbitrator’s fees 15 months after the award, having immediately after the

award made a compromise offer with an indication that if not accepted he would apply for taxation. Preliminary issue : Did

this delay disentitle the applicant. Judge held no. Appeal : Held : Whilst the objective of arbitration was a rapid settlement,

the defendant had suffered no disadvantage and knew that the application was waiting in the wings. No reason to refuse

the application.

Mance LJ;

Munby LJ

2004.07.16 CA

Jurisdiction :

Visitor

University Of East Anglia v Hanuman [1999] EWCA Civ 2086 : bailli

Claim for fees ; defence & counter claim for failure to award an MA. Held : The challenge to degree award was in the

exclusive jurisdiction of the University Visitor.

Laws LJ;

Sedley LJ

1999.08.17 CA

S009 AA 1996 : Stay

s9 AA 1996

Unum Life Insurance Co America v Israel Phoenix Assurance Co Ltd [2001] EWCA Civ 1291 : bailli

CA on appeal from Commercial Court (Mr Justice Andrew Smith) against refusal to grant a stay. Termination of a

reinsurance policy cancelled out the arbitration clause.

Mance LJ;

Keene LJ.

2001.07.18 CA

Jurisdiction Ultraframe (UK) Ltd, R (on the application of) v Central Arbitration Committee [2005] EWCA Civ 560: Bailli

Did the Central Arbitration Committee have the power to order a fresh ballot of union members? Yes..

Buxton LJ;

Maurice Kay LJ;

Sir Martin Nourse.

2005.04.22 CA


Mitigation of loss Uzinterimpex JSC v Standard Bank Plc [2008] EWCA Civ 819: Bailli

Mitigation : Breach of duty - Damages - impact of failure to mitigate loss by the innocent party.

Clarke MR Sir

Anthony;

Laws LJ;

Moore-Bick LJ

2008.07.15 CA

Fraud : restitution :

unjust enrichment

Uzinterimpex JSC v Standard Bank Plc [2007] EWHC 1151 (Comm) : Bailli

Whether or not a claim fraudulent and consequent award gave rise to restitution for unjust enrichment.

Steel Mr Justice

David


Court

S068 AA 1996

Challenge s68.

Uzdon v Romak SA [1998] EWHC 1200 (Comm)

Claim dismissed with indemnity costs as unfounded. Paper only arbitration quite suitable in the circumstances.


Court


Legal personality :

Arbitration ;

CPR PD49G service

out of jurisdiction.

Vale Do Rio Doce Navegacao SA v Shanghai Bao Steel Ocean Shipping Co Ltd. [2000] EWHC 205 (Comm) : bailli

Personality : Brokers purported to conclude a contract of affreightment with the ship owners on behalf of Bao Steel. Two

voyages followed. Bao disavowed themselves of the contract. Vale wished to arbitrate claims against Bao and the brokers as

co-defendants and unsuccessfully applied for a high court declaration that Bao were parties to the arbitration. Under

Lugano claim had to be litigated in Norway.


Commercial

Court

Appeal : University

exam board :

fairness

Van Mellaert v Oxford University [2006] EWHC 1565 (QB): Bailli

Ph.D Viva challenge - fairness.

Gray Mr Justice 2006.06.29 QBD

Expert

determination

Veba Oil Supply & Trading GmbH v Petrotrade Inc [2001] EWCA Civ 1832 : Bailli

FOB – expert determination - Whether pre-loading certificate final and binding. Whether wrong test applied. Held :

Wrong method of testing used. Certificate not binding.

Simon Brown LJ;

Tuckey LJ;

Dyson LJ.

2001.12.06 CA

S067 AA 1996 :

Challenge

jurisdiction & s68


Vee Networks Ltd. v Econet Wireless International Ltd. [2004] EWHC 2909 (Comm) : Bailli

V, a Nigerian mobile telecoms company concluded a Technical Support Agreement with EWI to provide V with

engineering advice etc to set up its business. V subsequently purported to cancel the agreement asserting at an arbitration

for damages etc that the TSA was ultra vires EWI’s Articles & Memorandum of Association and thus unlawful and

unenforceable. The tribunal found that engineering services were at the core of the TSA and thus lawful objects. V here

challenge the award on the grounds 1) that the TSA was unlawful and thus the tribunal had no jurisdiction under and by

virtue of the TSA and asserted a serious irregularity. Held : Whilst the decision may or may not have been correct, there

was no evidence of serious irregularity and thus the challenge failed.


Commercial

Court

Anti-suit

injunction

Verity Shipping SA ("Owners") & Anor v NVNorexa [2008] EWHC 213 (Comm) : Bailli

Charterparty and bills of lading. Anti-suit refused because it would impact adversely on 3rd party rights – where the third

parties were not parties with notice to arbitration proceedings.

Teare Mr Justice 2008.01.13 Commercial

Court

Injunctive relief Vertex Data Science Ltd v Powergen Retail Ltd [2006] EWHC 1340 (Comm) : Bailli

Arbitration clause withheld jurisdiction of arbitrators to grant injunctive relief. Could the court grant it in any case? In the

circumstances a mandatory injunction forcing parties to work together was not workable. Relief denied. Potential of

conflict between determinations of the court and the tribunal undermining value of award.

Tomlinson Mr

Justice

2006.06.09 QBD

Commercial

Court


S069 AA 1996

Challenge s69 :

point of law

Vrinera Marine Company Ltd. v Eastern Rich Operations Inc [2004] EWHC 1752 (Comm) : Bailli

V sued the charterer ERO under a safe port clause : ERO sued BAO, sub charter under a safe port clause – both by

arbitration. In the event the actions were held to be spurious – the vessel was in fact unseaworthy – which was ERO’s

defence against V. Question : was ERO’s costs against BAO caused by V? Held : No – caused by it pursuing a hopeless case.


Commercial

Court


s009 AA 1996 :

partial stay to

arbitration

W G Birch Construction Ltd v Chaddington Property & Development Company Ltd [1997] EWCA Civ 2779: bailli

Complex situation where some issues and claims subject to litigation : whilst a separate category of claims were covered by

arbitration provisions for which a stay was granted and maintained by the CA.

Beldam LJ;

Hutchison LJ;

Mummery LJ.

1997.11.20 CA

Enforcement :

tracing

Walker International Holdings Ltd v Republique Populaire Du Congo [2005] EWHC 2813 (Comm) : Bailli

Following a judgement upholding an arbitral award in favour of Walker the question here was whether the Congo was

beneficial owner of shares in the UK which could be attached for the purpose of enforcement. Held : Yes. Further comment

upon the honesty of those giving false and misleading evidence and warning of potential consequences if repeated in

subsequent litigation.

Morison HHJ 2005.06.12 QBD

Commercial

Court

S009 AA 1996 Stay Walkinshaw v Diniz [2000] 2 All ER (Comm) 237

Refusal to stay to arbitration. Matter under consideration by the court had not been referred to the arbitral body. Dispute

about the termination of a Formula 1 racing contract.

Thomas HHJ 1999.05.19 Commercial

Court

Agricultural Act

Arbitration

Wallace v C Brian Barratt & Son Ltd [1997] EWCA Civ 1281 : bailli

Landlord unsuccessfully sought to revoke tenancy for breach of covenant to occupy the land on basis that tenant had

subcontracted work to a partnership. Appeal on point of law : Held : Arbitrator got the law right – subcontracting aspects

of farming work is not the equivalent of giving up occupation.

VC.

Morritt LJ

1997.03.19 CA

S068 AA 1996

Challenge s68


: s69 point of law

Walsall Metropolitan Borough Council v Beechdale Community Housing Assoc Ltd. [2005] EWHC 2715 (TCC) : Bailli

Asserted irregularity arose out of applying wrong test for evaluation : Held : would have made little difference if an

alternative method applied : Point of law – material from pleadings etc inadmissible – must be directed to the award.


S069 AA 1996

Challenge s69

Professional &

personal

knowledge

Warborough Investments Ltd. v S.Robinson & Sons (Holdings) Ltd. [2003] EWCA Civ 751 : bailli

Impropriety : Arbitrator used professional knowledge : test substantial injustice. Distinguishes between personal

knowledge of facts and personal experience. Challenge Failed.

Clarke LJ; Jonathan

Parker LJ.

2003.06.10 CA

Quasi-arbitration Warfield Park Homes Ltd v Warfield Park Residents Association [2006] EWCA Civ 283 : Bailli

Court recorder fulfilled the role of arbitrator, by statute, in respect of ground rent for trailers on a caravan park. There were

no guidelines, simply a requirement to determine an appropriate rate. The recorder fell to determine rent rises arising from

changes to water, gas and electricity rates. The tenants challenged the rate. CA held that the court would only re-examine

determination if clear evidence of injustice. Here parties had agreed a list of matters so CA accepted jurisdiction. Minor

adjustments made to the determination

Carnwath LJ;

Gage LJ

2006.03.27 CA


S069 AA 1996 Watergate Properties (Ellesmere) Ltd v. Securicor Cash Services Ltd [2005] EWHC 3438 (Ch) : Westlaw

Rent review appeal : Satisfied the substantial interest test viz £50K over 5 years : Arbitrator applied wrong test regarding

interpretation of provisions : since he was not legally trained court felt it appropriate to conduct the rent assessment rather

than to remit to the arbitrator.


S009 AA 1996 : Stay

to arbitration

Wealands v CLC Contractors Ltd [1999] EWCA Civ 1922 : bailli

Review of relevant law before confirming stay. Ensured that all liked disputes before same tribunal. CA on appeal from

Commercial Court (Mr Justice Tuckey) Whether contribution action between the defendant and 2nd & third defendants

should be stayed to arbitration. Claimant’s husband died in a construction site accident. Under employment law the

defendant as employer was liable if fault established by either the employer or third parties – but where employer not at

fault full recovery by the employer in contribution can be made from the third party : third party a sub-contractor – subject

to an arbitration clause extending to claims in tort.

Nourse LJ;

Mantell LJ;

Mance LJ.

1999.07.22 CA

S009 AA 1996 : Stay

to arbitration s9

jurisdiction

Weissfisch v Julius [2006] EWCA Civ 218: Bailli

Jurisdiction : Unsuccessful appeal against refusal of application for an interim order to stay arbitral jurisdiction hearing.

Arbitration agreement - seat - Switzerland : Swiss choice of Law : Kompetenze/Kompetenze.

LCJ

MR

Moses Mr

2006.03.08 CA

Insolvency :

Solicitors liability

for failing to

enforce award.

Welburn v Dibb Lupton Broomhead [2002] EWCA Civ 1601 : bailli

W, having prevailed in a construction arbitration for non-payment – the Employer prevaricated before entering insolvency.

In the meantime due to cash flow problems caused by the dispute W entered into a VA with creditors. Question here was

whether W’s solicitors or the VA supervisor was at fault in not chasing up enforcement and whether a failed action by W

was due to his failure to quantify his losses. Failed appeal. Example of problem of insufficient funds to enforce award.

Aldous LJ :

Dyson LJ

2002.10.24 CA

S068 AA 1996

Challenge s68:


Weldon Plant Ltd v Commission for New Towns [2000] EWHC TCC 76 : Bailli

Overheads and profits an element within the arbitrators jurisdiction : arbitrator erred by not making an allowance in that

regard.

Lloyd HHJ

Humphrey

2000.07.14 TCC

S067 AA 1996 :

Jurisdiction

Welex AG v Rosa Maritime Ltd. [2002] EWHC 762 (Comm): Bailli

Arbitration clause - whether incorporated from charterparty into bill of lading : Held : Yes.

Steel Mr Justice

David


Court

S067 AA 1996 :

Appeal against

jurisdiction & anti-

suit

Welex A.G. v Rosa Maritime Ltd. [2003] EWCA Civ 938 : bailli

CA on appeal from Commercial Court (Mr Justice David Steel) : Here the applicant appears against a determination that a

London Arbitration & English Law provision applied and against an anti-suit injunction. Bill of lading dispute. 1st instance

decision that a bill of lading contained an arbitration clause : NYCEAA applied : anti-suit injunction against Polish

proceedings. Appeal rejected.

Brooke LJ;

May LJ;

Tuckey LJ.

2003.07.03 CA

Security of Costs :

out of time

Westacre Investments Inc v Jugoimport-SDPR Holding Company Ltd [1999] EWCA Civ 895 : bailli

Application for security of costs out of time.

Brooke LJ 1999.03.04 CA

S101 AA 1996 :

S69 AA 1996 :

Enforcement : New

York. Bribery

Westacre Investments Inc v Jugoimport-SDRP Holding Co Ltd [1999] EWCA Civ 1401 : bailli

Order for enforcement of New York award appealed : Alleged underlying contract induced by bribery. Swiss Arbitration

considered and rejected the allegation. CA. Refused to take the bribery point and rejected the appeal.

Waller LJ;

Mantell LJ;

Sir David Hirst.

1999.05.12 CA

S068 AA 1996 :


Westland Helicopters Ltd v Al-Hejailan [2004] EWHC 1688 (Comm) : bailli

Costs following s68 challenge assessed at 70%.


Court


S067 AA 1996 :

Challenge

jurisdiction : s68


Westland Helicopters Ltd v Al-Hejailan [2004] EWHC 1625 (Comm) : Bailli

Jurisdiction to award interest : Dispute concerned the United Arab emirates (UAE). Challenges rejected. Application under

s67 to set aside in part or to vary paragraph 1 of the Second Interim Arbitration Award of Mr John Tackaberry QC on

account of want of jurisdiction. Second, and in the alternative, an application under s68 to set aside or declare of no effect

such parts of that same Award on the grounds of serious irregularity. Major aspects of the challenge were timed out. A

minor part of the jurisdiction challenge regarding interest succeeded.


Court

Time bar :

garnishee order –

Arbitral Award

Westacre Investments Inc v The State-Owned Company Yugoimport SDPR [2008] EWHC 801 (Comm) : Bailli

Chasing enforcement of arbitral award around the world seeking funds to attach : Whether court would enforce action after

6 years from judgement date : Discretion of court : No extension if claimant sits on his rights - but if he continually attempts

enforcement, albeit unsuccessfully - court will extend time. Decision necessary to enable Singapore Court to enforce a UK

judgment under reciprocal arrangements.

Tomlinson Mr

Justice


Court

S009 AA 1996 : Stay

to arbitration –

injunctive anti-suit

relief

West Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa [2005] EWHC 454 (Comm) : Bailli

Contract substantively subject to Italian Law. Arbitration – London subject to English Law and jurisdiction. Arbitration

virtually complete. Syracuse litigation commenced, hearings scheduled several months away. Under Italian law

subrogation did not extend to arbitration – thus the arbitration would be ignored in Italy. Court concluded that this was an

appropriate case for an anti-suit order.


Commercial

Court

Stay : Restraining

order and EC Law

in support of

arbitration

West Tankers Inc v. RAS Riunione Adriatica di Sicurta SpA [2007] UKHL 4 : Bailli

Whether or not it was inline with EC Regulation 44/2001 to restrain a party from pursuing litigation before the court of a

member state was in question. House of Lords felt it was but that a reference to the ECJ was justifiable since matter not

entirely clear.

Nicholls, Lord

Steyn, Lord

Hoffmann, Lord

Rodger, Lord

Mance, Lord

2007.02.21 HL

S068 AA 1996

Challenge s68 :


Wetherspoon JD Plc v Jay Mar Estates [2007] EWHC 856 (TCC) : Bailli

Expertise : Rent review : Had arbitrator erred in not giving an opportunity to the parties to address what arbitrator had

discovered by viewing the property? By adopting a valuation process not put by either party was there an irregularity?

Held : No - had to use his expertise - parties had opportunity to put forward their cases.


Challenge point of

law AA 1979

Whistler International Limited v. Kawasaki Kisen Kaisha Limited [2000] UKHL 62 : bailli

HL reversed the ruling of the CA and restated the arbitrator’s determination. It was a finding that as commercial men they

were entitled to reach – particularly since the defendant shipowners had failed to provide sufficient justification for

deviating from the normal route and adopting a more circuitous route.

Bingham Lord

Nicholls Lord

Hope Lord

Hobhouse Lord

2000.12.07 House of

Lords

S069 AA 1996

challenge to

interim award

White Young Green Consulting v Brooke House Sixth Form College [2007] EWHC 2018 (TCC) : Bailli

Terms of management contract - interpretation : whether a lump sum - whether additional fees recoverable for variation :

11 grounds of appeal rejected. Canvassed whether point of law of general importance and criteria for appeal - plus what

documents could be referred to.



S009 AA 1996 :

Challenge to stay

Whiting v Halverson [2002] EWCA Civ 1858 : bailli

CA on appeal from High Court Newcastle upon Tyne Country Court (HHJ Behrens) and against a stay of action to

arbitration. Contrary to European Law the court at 1st instance, according to Behrens on appeal, incorrectly stayed a

consumer dispute (membership & expulsion from the Rotary Club) to arbitration. This argument was however later

abandoned since a party can waive the right. Dispute resolution procedure in rules was to either appeal to the club – or

arbitrate : in absence of either club’s decision became final. Since neither had occurred decision final. Stay overturned.

Laws LJ 2002.10.08 CA

S009 AA 1996 :

Appeal against

appeal re stay order

Whiting v Halverson [2003] EWCA Civ 403 : bailli

Ex member of club bound by club rules : dispute stayed to arbitration. CA on appeal from High Court Newcastle upon

Tyne County Court (HHJ Behrens & HHDJ Alderson) : Whether member of a Rotary Club who had been expelled subject

to the ADR / arbitration provisions regarding membership disputes. Appeal failed – rules applied.

Schiemann LJ;

Brooke LJ.

2003.03.06 CA

S057 AA 1996 : Slip

Rule : Challenge

s69 & 68 serious

irregularity

William John Dolan t/a WJ Dolan Construction v Northern Ireland Housing Executive (2000) 2044 : court.nsi.gov.uk

Slip Rule : s57 Arbitration Act 1996 or serious irregularity - s68.

Gillen J 2000.01.20 Northern

Ireland

Agricultural Act

Arbitration

William Smith (Wakefield) Ltd v Parisride Ltd [2005] EWHC 462 (Admin) : Bailli

A prior arbitration had required a tenant to remove gorse and repair a wall. The landlord served notice to quit. The tenant

gave notice to arbitrate and to go to a tribunal (he should have chosen one or the other, not both). The landlord submitted

has notice to the tribunal which found that the tenant had complied with the previous order so the notice to quit was

ineffective. Landlord tried to assert that by failing to make an election the tenant had lost his right to challenge the notice

and the tribunal had no jurisdiction. Held : The landlord’s application gave jurisdiction.

Leveson Mr Justice 2005.03.23 QBD Admin

Division

Confidentiality

Legal professional

privilege

Winterthur Swiss Insurance Co v AG (Manchester) Ltd [2006] EWHC 839 (Comm) : Bailli

Whilst the applicants were in possession of documents, the legal privilege vested in the other side who sought to introduce

them as evidence. Application of non-admissibility denied.


Commercial

Court

S068 AA 1996

Challenge s68 to

remit award : s70

exhaustion

World Trade Corporation Ltd. v C Czarnikow Sugar Ltd. [2004] EWHC 2332 (Comm) : Bailli

Challenge s68 : should the applicants have first applied to the tribunal under s57 for a correction of the award? Court held

that an allegation that the tribunal omitted to apply sufficient weight to evidence is outside the scope of s57. However, the

court further held that an allegation regarding weight given to evidence is not a submission that the tribunal had failed to

deal with an issue. Challenge failed.


Commercial

Court


S045 s68 s69 AA

1996

XL Insurance Ltd v Owens Corning [2001] 1 All E.R. (Comm) 530 : Westlaw

Anti-suit injunction granted in favour or Arbitration under the 1996 Act – whilst substantive rights under New York Law –

tribunal had jurisdiction over jurisdiction.

Toulson HHJ 1999.07.28 Commercial

Court

S067 AA 1996 :

Challenge

Jurisdiction : Scope

X Ltd v Y Ltd [2005] EWHC 769: Bailli

Was the subject matter of a dispute within the scope of the arbitration jurisdiction clause?




Jurisdiction Youell v La Reunion Aerienne [2008] EWHC 2493 (Comm) : Bailli

Jurisdiction challenges : Council Regulation (EC) No. 44/2001 : Whether insurance placed partly in France & partly in

England subject to Englsh or French terms and whether French arbitration clause implied into English Policy.

Tomlinson Mr

Justice


Court

S101 AA 1996 :

Enforcement s101

AA 1996 New York

: Security of Costs

Yukos Oil Company v Dardana Ltd [2002] EWCA Civ 543: bailli

Challenge to enforcement ruling. At first instance the court stayed enforcement pending trial but subject to security by the

applicants. CA rejected an appeal against those conditions, The court at first instance and the CA considered that the

challenge was very tentative at best. Enforcement of foreign arbitral award / security of costs : Swedish award currently

being challenged in Sweden : CA held enforcement stayed pending outcome of Swedish proceedings. Security order

discharged.

Thorpe LJ;

Mance LJ;

Mr Justice

Neuberger.

2002.04.18 CA

S103 & s67 AA 1996

Challenge to

enforcement of

New York award

Yukos Oil Company v Dardana Ltd [2001] EWCA Civ 1077 : bailli

Held that the reasons for resisting a New York Award are contained exclusively in s103 :.

Tuckey LJ 2001.07.06 CA


Discrimination :

Abuse of process

Zaiwalla v Elstub [1997] EWCA Civ 1075 : bailli

Allegations of discrimination in favour of English / white solicitor in the Fletamentos v Effjohn litigation

Simon Brown LJ :

Morritt LJ;

Waller LJ

1997.02.21 CA

S072 AA 1996 Zaporozhye Production Aluminium Plan Society v. Ashly Ltd [2002] EWHC 1410 (Comm) : Westlaw

Arbitral tribunal due to commence the next day. Injunctive relief against the proceedings refused.

Tomlinson Mr

Justice


Court

S009 AA 1996

UCTA : consumer

Zealander v Laing Homes Ltd (2000) 2 T.C.L.R. 724

Held : Arbitration provisions fell foul of the consumer regulations – so party not bound by arbitration provisions.

Havery J 1999.03.19 TCC

S001(7)(b) AA 1979:

Question of Law :

Gafta appeal

Zenziper Grains And Feed Stuffs v Bulk Trading Corp Ltd [2000] EWCA Civ 307: bailli

Whether, under an FOT (i.e. `Free On Truck') contract for sale of goods to be imported by the sellers which allowed for

delivery at a range of places in the country of destination, the right and duty to nominate the place for delivery lay in the

sellers or buyers. The Board of Appeal held that it lay in the sellers, who were obliged to nominate the place of delivery

before the buyers were obliged to nominate trucks to collect the goods. The appeal judge reversed that decision. CA

reinstated the board’s award.

Thorpe LJ :

Potter LJ :

Hale LJ

2000.12.06 CA