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Time limits and extension of time
Contractual provisions for the service of notice of arbitration proceedings typically lay down time limits. Section 12 of the Arbitration Act 1996 permits the court to extend time if specific conditions are satisfied. In Anglian Water Services Ltd v Laing O’Rourke Utilities Ltd [2010] EWHC 1529 (TCC) the issue arose in the context of adjudication, where the dispute resolution provisions agreed to by the parties required arbitration to be commenced within 28 days of the adjudication. The case also raised the question of whether the clause was valid under the Adjudication provisions in the statutory Scheme for Construction Contracts.
Online Published Date:
02 December 2010
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Pre-action disclosure
In Travelers Insurance Co Ltd v Countrywide Surveyors Ltd [2010] EWHC 2455 (TCC) Coulson J ruled that the High Court’s jurisdiction to order pre-trial disclosure of documents does not extend to arbitrations. The decision was one reached by Coulson J with some regret, as the court was of the view that in the circumstances an order would have narrowed the issues between the parties and possibly removed all need for a hearing.
Online Published Date:
02 December 2010
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Existence of the arbitration clause
Claxton Engineering Services Ltd v TXM Olaj-Es Gazkutato KFT [2010] EWHC 2567 (Comm), a decision of Gloster J, is yet another English authority for the proposition that the English courts should decide any dispute as to the existence or scope of an arbitration clause where the respondent seeks a stay of English proceedings in favour of arbitration.
Online Published Date:
02 December 2010
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Allegations of bias
An arbitrator must act without bias, and the arbitrator’s conduct must not give rise to any suggestion of bias. However, any accusation of this type in an attempt to remove an arbitrator under s24 of the Arbitration Act 1996 has to be supported by the most cogent evidence. I
n Goel v Amega Ltd [2010] EWHC 2454 (TCC) the accusation of bias came from parties who had conducted a protracted course of conduct to prevent the arbitration going ahead. Unsurprisingly, Coulson J rejected their application for the removal of the arbitrator.
Online Published Date:
02 December 2010
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The existence of a dispute
Arbitration clauses often impose time limits upon a potential claimant who wishes to commence arbitration. The trigger for the running of time is often clearly defined, eg, in a cargo claim, 12 months from the discharge of the cargo. Insurance policies may specify time limit triggers of various types, most commonly a period starting from the date on which the claim is refused by the insurers. In William McIlroy Swindon Ltd v Quinn Insurance Ltd [2010] EWHC 2448 (TCC) the arbitration clause referred to the existence of a dispute, giving rise to a complex question of exactly when a dispute arises under a contract of liability insurance. The conclusion reached by Edwards-Stuart J on this point open to doubt.
Online Published Date:
02 December 2010
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Combined notices
Where a series of cargo owners have claims against a carrier under the various bills of lading issued to them, their representative may give a single notice of arbitration to the carrier. Doubtless the intention of such a notice is to trigger as many arbitrations as there are claimants. In Easybiz Investments v Sinograin Chinatex [2010] EWHC 2565 (Comm) the carrier took the point that such a notice, if capable of being construed as requiring a consolidated arbitration, is void. Hamblen J, upholding the view of the arbitrators in a challenge under s67 of the Arbitration Act 1996 against their award on jurisdiction, held that it is necessary to give the notice a businesslike rather than technical meaning and to construe it as legitimately commencing separate but parallel arbitrations.
Online Published Date:
02 December 2010
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The New York Convention
The first case to reach the Supreme Court on the interpretation of the New York Convention, Dallah Real Estate and Tourism Holding Co v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46, has resolved important questions on the extent to which a ruling by an arbitration tribunal on its own jurisdiction is to be given effect in England where that ruling has been contested in England at the enforcement stage. The leading judgments in the Supreme Court, delivered by Lords Mance and Collins, clearly establish the principles applicable in those circumstances, more or less in the terms laid down by Aikens J and the Court of Appeal. The outcome is that in both domestic and enforcement cases, the English court will assert the final say in a full hearing on the jurisdiction of the arbitrators.
Online Published Date:
02 December 2010
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Appeal on a question of fact
The Arbitration Act 1996 sets out a code governing appeals to the courts against arbitration awards. The grounds of appeal are jurisdiction (s67), procedural error (s68) and error of law (s69). The question for Blair J in Guangzhou Dockyards Co Ltd v ENE Aegiali I [2010] EWHC 2826 (Comm) was whether the 1996 Act provided any mechanism for the parties to agree that there could be an appeal to the English courts against an error of fact. Blair J rejected the suggestion that such an appeal potentially fell within s69, and was very doubtful whether the court had any inherent jurisdiction to hear such an appeal.
Online Published Date:
02 December 2010
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Anti-suit relief
The English courts will readily grant an anti-suit injunction to prevent foreign proceedings in breach of an arbitration clause specifying arbitration in England, as long as the applicant has acted with reasonable speed in seeking relief. REC Wafer Norway AS v Moser Baer Photo Voltaic Ltd [2010] EWHC 2581 (Comm), a decision of Blair J, had special facts, in that although the delay was lengthy, the ground relied upon by the applicant related not to the commencement of foreign proceedings but rather their continuation once an English court had dismissed a similar claim by the respondent.
Online Published Date:
02 December 2010
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Challenging an award
In Broda Agro Trade (Cyprus) Ltd v Alfred C Toepfer International GmbH the applicant, Broda, sought to overturn an arbitration award made in favour of Toepfer. Broda relied upon s72 of the Arbitration Act 1996 to seek declaratory relief, and upon s67 of the 1996 Act to appeal against the award. At first instance, [2009] EWHC 3318 (Comm) (discussed in the May 2010 issue of Arbitration Law Monthly) Teare J rejected the applications under each of these sections on procedural grounds, the former because Broda had participated in the arbitration and the latter because Broda was out of time. Broda’s appeal to the Court of Appeal, [2010] EWCA Civ 1100, discussed in the following paragraphs, has now been dismissed for more or less the same reasons given by the learned judge. The leading judgment was given by Stanley Burnton LJ.
Online Published Date:
03 December 2010
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Effect of a winding-up petition
The Singapore Court, in Pacific King Shipping Pte Ltd v Glory Wealth Shipping Pte Ltd [2010] SGHC 173, addressed an important issue relating to the enforcement of arbitration awards. The key issue for Philip Pillai J was whether an award creditor was entitled to seek a winding-up order against the award debtor without being faced with defences to the enforcement of the award available under the New York Convention in ordinary enforcement proceedings. The court’s view was that a winding-up petition is not an enforcement measure for the purposes of the Convention.
Online Published Date:
13 December 2010
Appeared in issue:
Vol 11 No 1 - 29 November 2010
Breach of the arbitration clause
The English courts will grant an anti-suit injunction under s37 of the Senior Courts Act 1981 to prevent a party to an arbitration clause from commencing judicial proceedings in breach of that clause. Louis Dreyfus Commodities Kenya Ltd v Bolster Shipping Co Ltd [2010] EWHC 1732 (Comm) is a rather curious case, involving Mexican procedures, where the defendant sought to join the applicant to judicial proceedings being brought against the applicant in Mexico. The question for Tomlinson J, which he answered in the negative, was whether the application constituted a breach of the arbitration clause.
Online Published Date:
13 December 2010
Appeared in issue:
Vol 11 No 1 - 29 November 2010
Use of experts by arbitrators
Price v Carter [2010] EWHC 1451 (TCC) is of interest at two levels. First, it sets out what is and what is not permissible when an arbitral tribunal appoints its own expert to resolve factual issues. Secondly, it raises once again the old question of exactly when the 28-day period within which an appeal is to be brought against an award (laid down by s70(3) of the Arbitration Act 1996, starts to run when there has been an application to the arbitrators under the slip rule in s57 of the 1996 Act.
Online Published Date:
13 December 2010
Appeared in issue:
Vol 11 No 1 - 29 November 2010
Imposition of conditions
In England, stay of judicial proceedings is mandatory where the court is satisfied that there is a valid and subsisting arbitration agreement. In Singapore the position is the same where the arbitration is an international one (under the International Arbitration Act), but if the arbitration is domestic in that both parties are from Singapore then the court merely has a discretion to stay (under the Arbitration Act). In practice, however, stays are generally granted. A common issue under both regimes is, however, whether the court has power to impose conditions on the grant of a stay or whether it must be unconditional. In Drydocks World-Singapore Pte Ltd v Jurong Port Pte Ltd [2010] SGHC 185 Nathaniel Khng AR has ruled that the power to impose conditions is to be exercised sparingly.
Online Published Date:
13 December 2010
Appeared in issue:
Vol 11 No 1 - 29 November 2010
Disregard of the applicable law
In B v A [2010] EWHC 1626 (Comm) the law applicable to the substantive dispute was Spanish law. The majority award was attacked by the dissenting arbitrator as one which had disregarded the relevant provisions of Spanish law. Given that an English court has
Online Published Date:
13 December 2010
Appeared in issue:
Vol 11 No 1 - 29 November 2010
Alleged invalidity of the arbitration clause
In Kaye v Nu Skin UK Ltd [2009] EWHC 3509 (Ch) the claimant alleged that an arbitration clause in an English law contract providing for arbitration in Utah was not binding. In line with its usual practice, the English court refused to stay its own proceedings and chose to deal with the question of validity rather than refer it to the arbitrators.
Online Published Date:
13 December 2010
Appeared in issue:
Vol 11 No 1 - 29 November 2010