Refusing to Recognise Award

Irvani v Irvani (CA TLR 10 February)

Section 5(2)(c) of the Arbitration Act 1975 (now s103(2)(c) of the 1996 Act) provides that enforcement of an award may be refused if the person against whom it was invoked proved that he was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case. It was to be suspected that there was a good deal of learning in the international arbitration arena as to the meaning in s5(2)(c) of the Act of the phrase ‘otherwise unable to present his case’. But the court had not been pressed with any argument other than that it required the application of the requirements of natural justice reflected in the audi alteram partem rule. The dispute was between two brothers, Ali and Bahman. The judge, when refusing Ali’s application for an order that recognition of the award should be refused, stopped Ali making submissions that were not confined to the issue of whether there was a binding arbitration agreement. That step by the judge entailed an assumption that there was no issue as to the conduct of the arbitration when in fact Ali had in his affirmation made such complaints. Aspects of the award itself were unsatisfactory. Some of the findings were either unreasoned or suggested that the arbitrator had had regard to information that had not been made available to Ali. Ali did not appear to have been invited to comment on certain investigations nor was it clear from the award on what basis other of his claims had been rejected. Ali’s complaints and the terms of the award raised issues as to the reasoning of the award and to the observation by the arbitrator of the rules of natural justice which made it impossible for the court, especially without the benefit of any investigation by the judge, to resolve. Accordingly Ali was entitled to an order that recognition of the award should be refused.