Case Notes for the Arbitration and Dispute Resolution Law Journal
England and Wales
Award on Costs - no post Award
interest sought or awarded on costs not paid by the ordered date for
payment - cost awarded not paid by date ordered - whether court could,
on application to enforce award as a judgment, order interest to be
paid on the unpaid balance - s. 35A of the Supreme Court Act 1981 -
the Judgement Act 1838 as amended - whether court's power to order
interest under s. 35A ousted by ss. 1(c), 49(4) and 66 of the
Arbitration Act 1996.
Application to stay proceedings
pending arbitration - s. 9 Arbitration Act 1996 - inherent
jurisdiction to stay proceedings - principles that court should apply
when deciding whether existence of arbitration clause and its ambit
should be determined by the court or by an arbitrator - Birse
Construction Ltd v. St David Ltd [1999] BLR 194 considered.
Application to stay proceedings
pending arbitration - whether court or arbitrator should determine
question of whether a contract concluded which contained an
arbitration agreement - s. 9 Arbitration Act 1996 - RSC Order 73 Rule
6 - whether question could be determined on affidavits.
ICC arbitration - three person
tribunal - person agreed by the parties as chairman failed to disclose
non-executive directorship and shareholding in competitor of one of
the parties - whether misconduct - whether breach of ICC Rules -
whether ICC determination of challenge to arbitrator final - whether
grounds for removal and setting aside of awards made by tribunal under
ss. 1 and 23 of the Arbitration Act 1950 - tests for actual and
unconscious bias considered.
Third party proceedings -
application for a stay under s. 9 Arbitration Act 1996 - whether
claims for indemnity and contribution gave rise to a dispute referable
to arbitration - whether arbitration clause applied to claim for
breach of tortuous duty - whether arbitration clause covered claims
for contributory negligence.
International Arbitration -
application to remove party appointed arbitrator on grounds of
unconscious bias - s. 24 of the Arbitration Act 1996 - consideration
of the test to apply on applications for removal - arbitrator
practised from same Chambers as Counsel for the appointing party -
whether grounds for removal of arbitrator for want of impartiality.
International arbitration award -
award concerned disputes arising under charterparty - vessel arrested
as security for the claim in action on award - whether Admiralty Court
had jurisdiction in rem to hear and enforce a claim to enforce
an arbitration award by arrest of ship - s. 20(2)(h), Supreme Court
Act 1981 - The Beldis [1936] P 51 (CA), applied - The Saint
Anna [1983] 1 WLR 895 distinguished - whether vessel should be
released because the Claimant already had sufficient security for its
claim to enforce the award.
New York Convention Award -
application for leave to enforce as a judgment - CIETAC Rules -
Arbitration Act 1996, s. 103 - whether objections to procedural errors
by tribunal could be waived - principles to apply when considering
whether enforcement should be refused on grounds of public policy - Adams
v. Cape Industries [1990] 1 Ch 433 applied.
Danae Air Transport Societie Anonyme v. Air
Canada
(England and Wales) Supreme Court of Judicature
(Court of Appeal), Kennedy, Ward and Tuckey LJJ., 29 May 1999
Arbitration agreement excluding rights of appeal - award allocating costs - tribunal determining by award that Claimant had failed to beat Calderbank offer - whether based on a arithmetical error - whether such an error, if not admitted, was a procedural mishap - whether court could remit award under s. 22, Arbitration Act 1950.
Jitendra Bhailbhai Patel v. Dilesh Patel
(England and Wales) Supreme Court of Judicature
(Court of Appeal), Lord Woolf MR, Otton, Ward LJJ., 24 March 1999.
Application to stay proceedings pending arbitration - s. 9(3) Arbitration Act 1996 - whether application to set aside default
judgment, for leave to defend and counterclaim and for consequential directions was a step in the proceedings to answer the substantive claim - whether stay should be granted.
Michaelides v. Wilkinson
(England and Wales) Supreme Court of Judicature
(Court of Appeal), Gibson LJ, Blofeld J., 14 April 1999
County Court small claims arbitration - whether the arbitrator erred in law or misconducted himself by refusing to admit relevant and potentially probative evidence.
Ominum De Traitement et de Valorisation SA v. Hilmarton
Ltd
(England and Wales) High Court of Justice
(Commercial Court), Walker J., 24 May 1999
International arbitration - whether enforcement of award could be resisted on grounds of public policy - award by foreign arbitral tribunal enforcing contract whose performance was contrary to domestic public policy in its place of performance, but not contrary to the domestic public policy of either the country of the proper law and/or the curial law - whether award was contrary to English public policy.
Westacre Investments Inc v. Jugoimport-SDRP Holding Company, Beogradska Banka DD and
others
(England and Wales) Supreme Court of Judicature
(Court of Appeal), Waller, Mantell LJJ. and Sir David Hirst,
12 May 1999
International arbitration award - suggestion that contract was illegal rejected by tribunal - whether enforcement could be resisted on grounds of public policy - whether alleged perjury by witnesses a ground to resist enforcement - whether court could open up the tribunal's findings of fact relating to illegality.
Charles M Willie & Co (Shipping) Ltd
v. Ocean Laser Shipping Ltd, G Roussos Sons SA and another v.
Charles M Willie & Co (Shipping) Ltd
(England and Wales) Queen's Bench Division
(Commercial Court), Rix J, 29 October 1998
Whether notice effective to commence arbitral proceedings - s. 34(2) Limitation Act 1980 considered - whether party to whom rights novated could intervene in existing arbitral proceedings - procedure considered - whether arbitrators had jurisdiction reconsider procedural ruling - difference between award and procedural rulings considered - whether arbitrators could make procedural rulings by award.
Caparo Group Ltd v. Fagor Arrasate Sociedad
Cooperative
(England and Wales) High Court of Justice
(Commercial Court), Clarke J, 7 August 1998
ICC arbitration - s. 72 Arbitration Act 1996 -
letter sent to ICC stating that request for arbitration should be
rejected as there was no jurisdiction - whether this was taking part
in the proceedings so as to preclude recourse to s. 72 - consideration
of steps that might constitute taking part in arbitral proceedings so
as to bar recourse to s. 72.
Egmatra v. Marco Trading Corporation
(England and Wales) High Court of Justice
(Commercial Court), Tuckey J., 28 July 1998
Arbitration award - application for leave to appeal - principles to apply under s. 69 of the Arbitration Act 1996 - whether question of law includes a question of foreign law - application under s. 68 of the Arbitration Act 1996 - whether refusal by tribunal to allow expert evidence to be adduced a serious irregularity.
Azov Shipping Company v. Baltic Shipping Company (No
2)
(England and Wales) High Court of Justice
(Commercial Court), Longmore J, 12 January 1999
Award on jurisdiction - challenge under s. 67 of the Arbitration Act 1996 ordered to be determined by rehearing - application for security for costs of the proceedings in court - s. 70(6) considered - nature of court's jurisdiction - principles to apply in considering applications for security for costs.
Bankers Trust Company and another v. PT Mayora
Indah
(England and Wales) High Court of Justice
(Commercial Court), Coleman J, 20 January 1999
Arbitration agreement - proceedings commenced in
Indonesian courts including allegations that that the arbitration
agreement ultra vires or not incorporated - court's power to restrain
Indonesian proceedings - test to be satisfied when seeking injunctive
relief to restrain proceedings in a foreign court - whether allegation
that substantive agreement entered into ultra vires a company impugned
an arbitration clause in that agreement - whether arbitration
agreement in schedule to substantive agreement incorporated.
Brian Andrews v. John Bradshaw and
another
(England and Wales) Supreme Court of Judicature
(Court of Appeal), Nourse, Mantell, Mance LJJ, 29 July 1999
Arbitration - arbitrator sought to require parties to agree his terms - whether letters written by arbitrator to party refusing to agree terms provided grounds for removal - s. 24 Arbitration Act 1996 considered - justifiable doubts about impartiality
- test for bias in R. v. Gough applied.
Overseas
ICC Arbitration - application to set
aside Award - application for a re-hearing - UNCITRAL, articles 18 and
34(2) considered - principles to apply in considering such
applications - whether allegation that tribunal wrong in fact or law
provided grounds for setting aside Award or for a rehearing - tribunal
not ordering full disclosure - tribunal not ordering witnesses to give
evidence - whether grounds to set aside award or order re-hearing -
UNCITRAL, article 27 - whether ICC or tribunal should have
discontinued proceedings where party alleged dispute had been settled
- ICC Rules, article 17 - whether arbitration clause could be
incorporated by general words of reference - UNCITRAL, article 7 -
whether party's decision not to participate in arbitration provided
grounds to set aside Award or entitled it to a re-hearing - whether
that party should be given an opportunity to present evidence and
submissions at re-hearing - UNCITRAL, article 25, ICC Rules, article
15.
Odebrecht Oil & Gas Services Ltd v.
North Sea Production Co Ltd and another
(Republic of Singapore) High Court,
Lee Seui Kin JC, 20 February 1998
Contractual provisions for interim expert
determination - requirements for a valid notice initiating procedure -
whether matters determined by the expert could be referred back to him
for reconsideration.
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