BRAES OF DOUNE WIND FARM (SCOTLAND) LTD V ALFRED MCALPINE BUSINESS SERVICES LTD

[2008] EWHC 426 (TCC), Queen’s Bench Division, Technology and Construction Court, Mr Justice Akenhead, 13 March 2007

Arbitration – Contract providing that seat of arbitration was in Scotland but that English courts should have exclusive jurisdiction and that Arbitration Act 1996 should apply – Arbitration held in Scotland – Application for permission to appeal against award for error of law – Whether English court possessed jurisdiction – Identification of seat of arbitration – Whether permission to appeal should be given – Arbitration Act 1996, sections 2 and 69

The construction contract between the parties contained an arbitration clause sating that the seat of the arbitration was Glasgow, but that the arbitration agreement was subject to English law and the English courts were to have exclusive jurisdiction. The claimant wished to appeal against the award for error of law under section 69 of the Arbitration Act 1996, but the defendant asserted that the English court did not possess jurisdiction to hear the application because the seat of the arbitration was Scotland so that the Arbitration Act 1996 did not apply (as provided by s 2). Akenhead J held that, given that the parties had intended to confer jurisdiction on the English courts under the 1996 Act and that they had not wished to exclude all possibility of judicial control by choosing Scotland as the seat but English law as the curial law, the contract should be construed as meaning that the juridical seat of the arbitration was England and that the choice of seat referred only to the choice of the physical location of the arbitration. Accordingly, the English court possessed jurisdiction to give permission for an appeal. On the facts, however, permission was refused because the award of the arbitrator was not obviously wrong.