Abstract
The Arbitration Act 1996 (also “the Act” or “the Arbitration Act”) represents a combination of consolidation and reform of the legal principles enshrined in the previous Arbitration Acts, i.e. 1950, 1975, 1979, the Consumer Arbitration Agreements Act 1988 and the common law. One of the objectives of the new Act was to provide a simplified framework governing arbitration.
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Notes
- 1.
The Arbitration Act 1975 gave effect to the New York Convention. The Act provided for the rules governing enforcement of “non-domestic” arbitration agreements and enforcement of Convention awards as defined in sections 1(4) and 7(1) of the Act respectively.
- 2.
Merkin and Flannery (2008), 1.
- 3.
Cf. the Departmental Advisory Committee on Arbitration Law Report on the Arbitration Bill, February 1996 (“the DAC Report”), 8, para. 9, where the DAC pointed out that the Bill of the Act “does not purport to provide an exhaustive code on the subject of arbitration. It would simply not be practicable to attempt to codify the huge body of case law that has build up over the centuries, and there would be a risk of fossilising the common law […] had we attempted to do so.”
- 4.
Departmental Advisory Committee on Arbitration Law, June 1989. See also Mustill (1990), 3.
- 5.
See, e.g. the Consultation Paper on Draft clauses and Schedules of the Arbitration Bill, February 1994, published by the Department of Trade and Industry, Part III, para. 1.
- 6.
Hanson (2010), 151.
- 7.
Pepper v Hart [1993] AC 593.
- 8.
The DAC Report has also been referred to by English judges. See, e.g. Law Debenture Trust Corp Plc v Elektrim Finance BV [2005] EWHC 1412 (Ch) (Justice Mann).
- 9.
Part I (sections 1–84) of the Act deals with arbitration pursuant to an arbitration agreement.
- 10.
See Arbitration Act 1996, s 12(6) (extension of time for commencement of arbitration proceedings), s 17(4) (power of court to appoint sole arbitrator), s 18(5) (power of court to appoint an arbitral tribunal), s 24(6) power of court to remove arbitrator, s 25(5) (grant of relief to an arbitrator who has resigned), s 32(6) (determination of preliminary point of jurisdiction), s 42(5) (enforcement of arbitrator’s peremptory orders), s 44(7) (application for exercise of interim powers), s 45(6) (determination of preliminary point of law), s 50(5) (extension of time for making an award), s 56(7) (determination of fees and expenses where an award is withheld), s 67(4) (appeal as to the tribunal’s substantive jurisdiction), s 68 (serious irregularity appeal), s 70(8) (appeal against supplementary order following appeal), s 77(4) (service of documents), s 79(6) (extension of time limits).
- 11.
See Henry Boot Construction (UK) Ltd. v Makmaison Hotel (Manchester) Ltd. [2001] 1 QB 388, where the Court of Appeal considered an appeal to the Court of Appeal against the High Court’s refusal of permission to appeal the upholding of an arbitration award made against the applicant pursuant to section 69 of the Arbitration Act (appeal on point of law). The applicant argued that the Court of Appeal had the power to grant permission to appeal or, in the alternative, to review the High Court refusal on the grounds that the High Court did not exercise its discretion properly. The Court of Appeal held that a refusal of the High Court or the county court to grant permission could not be challenged in the Court of Appeal since to allow such review process would be contradictory to the principle of keeping interference with arbitrators’ determinations to a minimum. An exception to the rule described above is embodied in section 16 of the Supreme Court Act 1981. Pursuant to section 16(1) of the Act the Court of Appeal may exceptionally hear and determine appeal from any judgment or order of the High Court. See also Merkin and Flannery (2008), 11, fn. 3 and Samakan v The Commonwealth Secretariat [2007] 2 Lloyd’s Rep 87.
- 12.
Article 5 of the UNCITRAL Model Law provides: “In matters governed by this Law, no court shall intervene except where so provided in this Law” (emphasis added).
- 13.
Report of the United Nations Commission on International Trade Law on the work of its 18th session (Vienna, 3–21 June 1985) (A/40/17), at para. 63.
- 14.
See Analytical Commentary on Draft Text of a Model Law on International Commercial Arbitration, Report of the Secretary-General (A/CN.9/264), 18 Article 5 para. 2.
- 15.
See, e.g. Binder (2010), 65, para. 1–107.
- 16.
DAC Report 11, para. 21. See also Vale do Rio doce Navegacao SA v Shanghai Bao Steel Ocean Shipping Co Ltd. (t/a Bao Steel Ocean Shipping Co) [2000] 2 Lloyd’s Rep 1 per Thomas J at [49].
- 17.
The DAC Report, 11 paras 21 and 22. See also Lord Diplock’s remarks in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd. Corporation [1981] 1 Lloyd’s Rep 253. His Lordship held, inter alia, that he could not accept the proposition that the High Court had an inherent general jurisdiction to supervise the conduct of arbitrations more extensive than those that are conferred upon it by the Arbitration Acts. See also Lesotho Highlands Development Authority v Impregilo SpA and Others [2005] UKHL 43 per Lord Steyn at [27].
- 18.
Merkin and Flannery (2008), 376.
- 19.
See Mustill (1990), 290–291.
- 20.
Ibid. for the possible interpretations of Article 5.
- 21.
Vale do Rio per Thomas J at [52].
- 22.
Ibid.
- 23.
Hiscox Underwriting Limited & Another v Dickson Manchester & Co Limited & Another [2004] EWHC 479 (Comm). The application concerned an interim order requiring access to various documents.
- 24.
Ibid. at [41].
- 25.
Section 37 of the Act provides for the powers of the High Court with respect to injunctions.
- 26.
Hiscox Underwriting Limited & Another v Dickson Manchester & Co Limited & Another, Cooke J at [42]. Section 44 of the Arbitration Act deals with court powers in support of arbitration proceedings. For a similar conclusion see also Cetelem SA v Roust Holdings Ltd. [2005] 2 Lloyd’s Rep 494 per Lord Justice Clarke at [35].
- 27.
See also John Forster Emmott v Michael Wilson & Partners Limited [2008] EWCA Civ 184, per Thomas LJ at [121].
- 28.
Similarly see also J.T. Mackley & Company Limited v Gosport Marina Limited [2002] B.L.R. 367, HHJ Richard Seymour QC at [24].
- 29.
See also Fiona Trust (Court of Appeal) per Longmore LJ at [34], where it was held that court should, in the light of section 1(1) be cautious about agreeing that the process under section 72 (declaration or injunction) should be so utilised.
- 30.
Albon (t/a NA Carriage Co) v Naza Motor Trading Sdn Bhd [2007] 2 Lloyd’s Rep 420, Lightman J at [11].
- 31.
The DAC Report, 10 para. 18.
- 32.
See also Merkin and Flannery (2008), 11.
- 33.
The case will be discussed further infra at Sect. 6.5.4.10, para. 10.
- 34.
AES Ust-Kamenogorsk Hydropower Plant LLC v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647 per Rix LJ at [81].
- 35.
AES Ust-Kamenogorsk per Rix LJ at [81] and [100].
- 36.
The opinion is not even shared between the Court of Appeal judges. See, e.g. Fiona Trust (Court of Appeal) per Longmore LJ at [34], where he stated that under the framework for determining the arbitrator’s substantive jurisdiction under the Arbitration Act 1996 it “will, in general, be right for the arbitrators to be the first tribunal to consider whether they have jurisdiction to determine the dispute. In these circumstances […] the court should, in the light of section 1(1) of the Act, be very cautious about agreeing that its process [i.e. section 72] should be so utilised.” But similarly, see also Thomas J in Vale do Rio (High Court) at [54] where he expressed that the Act set out in very clear terms the steps that a party who contended that there was another party to an arbitration agreement should take: to take steps to constitute the arbitral tribunal and once the arbitral tribunal was constituted, then in accordance with the policy of the Act it was for that tribunal to rule on its own jurisdiction, save for the circumstances specified in section 32.
- 37.
AES Ust-Kamenogorsk Rix LJ at [85].
- 38.
See, e.g. Scott v Avery [1856] 5 HL Cas. 811 per Alderson B. at 845 and Lord Cranworth L.C. at 847; Lee v The Showmen’s Guild of Great Britain [1952] 2 Q.B. 329 per Denning LJ at 342.
- 39.
Merkin and Flannery (2008), para. 8.1.
- 40.
Ibid.
- 41.
Common Law Procedure Act 1854, s 11 (Action commenced by One Party after all have agreed to Arbitration, Court or Judge may stay Proceedings).
- 42.
Arbitration Act 1950, s 4.
- 43.
See supra at Sect. 5.3, paras 1 and 2.
- 44.
Arbitration Act 1975, s 1(1) and 1(4).
- 45.
Arbitration Act 1975, s 1(1).
- 46.
The DAC Report, 19 para. 55. See, e.g. Hayter v Nelson [1990] 2 Lloyd’s Rep 265. The non-existence of a dispute was one of the conditions for granting a summary judgment. Thus prior to the passing of the 1996 Act it was possible to succeed in an action for a summary judgment despite an arbitration clause provided there was no dispute between the parties.
- 47.
The DAC Report, 18 para. 54.
- 48.
Article 1(1) of the Model Law.
- 49.
One of the reasons that attributed to the abolishment of the distinction between domestic and non-domestic arbitration agreements was the ruling in Philip Alexander Securities Ltd. v Bamberger [1996] CLC 1757, affirmed in [1997] IL Pr 73, in which the High Court held that an arbitration clause which discriminated on nationality grounds without objective justification could not be enforced under EU law. The decision was affirmed by the Court of Appeal.
- 50.
Al-Naimi (T/A Buildmaster Construction Services) v Islamic Press Services Inc [2000] 1 Lloyd’s Rep 522. See also T&N infra.
- 51.
Generally, see Cocker v Tempest 151 E.R. 864 per Alderson B: “The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice.” See also Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd. [1981] AC 909 per Lord Diplock at 977. In the arbitration context see Hiscox Underwriting Ltd. v Dickson Manchester & Co Ltd. Cooke J at [41].
- 52.
See also Hiscox Underwriting Ltd. v Dickson Manchester & Co, Cooke J at [41].
- 53.
See also Merkin and Flannery (2008), para. 8.4.
- 54.
See Senior Courts Act 1981, ss 1(1) and 49(3).
- 55.
Merkin and Flannery (2008), para. 8.10.
- 56.
Reichhold Norway ASA & Anor v Goldman Sachs International [1999] C.L.C. 486. The decision has been confirmed on appeal. See Reichhold Norway ASA v Goldman Sachs International [1999] 2 Lloyd’s Rep 567.
- 57.
Reichhold Norway ASA & Anor v Goldman Sachs International [1999] C.L.C. 486, Moore-Bick LJ at 491.
- 58.
Maybe & Johnson Ltd. v Danos [2007] EWHC 1094 (Ch).
- 59.
Mabey & Johnson Ltd. v Danos, Henderson J at [26].
- 60.
Ibid. at [38].
- 61.
Merkin and Flannery (2008), para. 9.4. See also, e.g. Christopher Brown Ltd. v Genossenschaft Oesterreichischer Waldbesitzer Holzwirtschaftsbetriebe GessmbH [1954] 1 QB 8.
- 62.
See also Merkin and Flannery (2008), para. 9.4.
- 63.
The DAC Report, 32 para. 137.
- 64.
In that respect the provision differs from Article 16(1) of the Model Law.
- 65.
See Albon v Naza, Lightman J at [11]; AES Ust-Kamenogorsk, Rix LJ at [81].
- 66.
Including questions of whether, e.g. the arbitration clause has been incorporated into the main agreement, the arbitration agreement has been terminated by repudiation, a person is a party to the arbitration agreement, a matter is capable of being referred to arbitration by reason of non-justiciability at common law. See Merkin and Flannery (2008), para. 9.1.
- 67.
Arbitration Act 1996, s 82(1) in connection with s 30(1).
- 68.
J.T. Mackley & Company Limited v Gosport Marina Limited [2002] B.L.R. 367.
- 69.
The DAC Report, 33 para. 138.
- 70.
For similar reasons, Merkin noted that the formulation of section 30(1) of the Act is “ambiguous and misleading”. See Merkin and Flannery (2008), para. 9.8.
- 71.
See Arbitration Act 1996, s 31.
- 72.
Arbitration Act 1996, s 31(4). The drafters of the Act chose not to introduce the Model Law’s concept of a “preliminary ruling”. Awards on jurisdiction will thus have the benefit of the provisions dealing with awards generally and may be enforced in the same way as any other award. See the DAC Report, 33 para. 132.
- 73.
An award as to jurisdiction should involve equally comprehensive investigation of evidence as determination of the merits by a final award. See, e.g. Aoot Kalmneft v Glencore International AG, Andrew W A Berkeley [2002] 1 Lloyd’s Rep 128, Colman J at [83].
- 74.
The DAC Report, 34 para. 143.
- 75.
Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46 per Lord Mance at [26] and [30]. See also infra at Sect. 6.5.4.10, para. 9.
- 76.
Leibinger v Styker Trauma GmbH [2005] EWHC 690 (Comm).
- 77.
See also The Republic of Kazakhstan v Istil Group Inc [2006] EWHC 448 (Comm), where the court held the judgment of the French Court a judgment on the merits for the purposes of res judicata despite the fact that the judgment was implicit rather than explicit as to the claimant’s arbitration defence.
- 78.
Carl Zeiss v Rayner & Keeler Limited (No 2) [1967] AC 853.
- 79.
The Sennar (No 2) [1985] 1 W.L.R. 490.
- 80.
Leibinger, Cooke J at [22]–[23].
- 81.
See, e.g. Azov Shipping Co v Baltic Shipping Co (No 1) [1999] 1 Lloyd’s Rep 68; Astra SA Insurance and Reinsurance Co v Sphere Drake Insurance Ltd. [2000] 2 Lloyd’s Rep 550; AOOT Kalmneft v Glencore [2001] EWHC 464 (Comm); Zoporozhye Production Aluminium Plan Open Shareholders Society v Ashly Ltd. [2002] EWHC 1410 (Comm); Electrosteel Castings Ltd. v Scan-Trans Shipping & Chartering SDN BHD [2002] APP.L.R. 10/09. See also Merkin and Flannery (2008), para. 9.17. But cf. Ranko Group v Antartic Maritime SA, The Robin [1998] ADRLN 35, where the court held that, on appeal, a court reviewed the decision, but did not conduct a fresh hearing (with fresh evidence) of the issue of jurisdiction.
- 82.
Primetrade AG v Ythan Ltd. the Ythan [2006] 1 Lloyd’s Rep 457.
- 83.
See, e.g. Vale do Rio v Bao Steel, Thomas J at [44]. Similarly, but more hesitantly, see also Fiona Trust (Court of Appeal) per Lord Justice Longmore at [34]. See infra. See also Merkin and Flannery (2008), para. 8.21, who, in reliance on section 1(c), admits it might be argued that arbitrators should be allowed to deal with the question of jurisdiction and the court should not seek to reach its own determination on the matter.
- 84.
Merkin and Flannery (2008), para. 9.3. In addition, section 73 of the Act lays down requirements for a statutory waiver of the right to object.
- 85.
The question of arbitral jurisdiction may also arise in the course of court proceedings in support of arbitration. For example, in Holloway and Holloway v Chancery Meal Ltd. [2007] EWHC 2495 (TCC), the court, on application to appoint an arbitrator pursuant to section 18, held that the appropriate course of action was for the court to resolve whether a pre-arbitration procedure had been observed. The jurisdictional issue was thus treated as a precondition to the application of section 18.
- 86.
Channel Tunnel Group Ltd. and Another Appellants v Balfour Beatty Construction Ltd. and Others [1993] 2 W.L.R. 262 per Lord Mustill at 354.
- 87.
See also Merkin and Flannery (2008), para. 8.5.
- 88.
Inco Europe Ltd. and Others v First Choice Distribution (A Firm) and Others [2000] 1 Lloyd’s Rep 467.
- 89.
Section 9 does not deal with the joinder of a third party to the proceedings.
- 90.
Merkin and Flannery (2008), para. 8.15.
- 91.
The Mayor and Commonalty & Citizens of the City of London v Ashok Sancheti [2008] EWCA Civ 1283 per Lord Justice Lawrence Collins: “The fact that section 9 refers only a ‘party to an arbitration agreement against whom legal proceedings are brought … in respect of a matter which under the agreement is to be referred to arbitration’ does not obviate the need for the claimant also to be a party. It is not sufficient that there simply be ‘a matter’ which is to be referred to arbitration.”
- 92.
- 93.
See also section 95 with regard to statutory arbitrations. Pursuant to section 96(2) of the Act section 30(1) shall be construed as a reference to whether the enactment applies to the dispute or difference in question.
- 94.
See Albon v Naza. The case will be discussed infra at Sect. 6.5.4.7 et seq.
- 95.
Birse Construction Ltd. v St David Ltd. (No.1) [1999] B.L.R. 194.
- 96.
Although, the decision was reversed on appeal (see Birse Construction Ltd. v St David Ltd. (No.1) [2000] B.L.R. 57), it was subsequently cited by Lord Justice Waller in Al-Naimi (t/a Buildmaster Construction Services) v Islamic Press Agency Inc [2000] 1 Lloyd’s Rep 522, who found HHJ Lloyd’s analysis very helpful. LJ Waller further noted that the reversal by the Court of Appeal resulted from the fact that the parties had failed to make clear to the judge that they were not agreed that he should decide the question whether there was an arbitration agreement on the affidavit evidence alone and because the majority of the Court of Appeal thought that without that agreement, it would be an illegitimate exercise of discretion in that case to determine the question whether there was a contract upon affidavit evidence, which showed a genuine dispute of relevant fact. In other words, the reversal resulted from the improper application of the chosen approach to section 9 rather than from a wrongful identification of the various approaches open to the judge.
- 97.
His Honour Judge Humphrey Lloyd, Q.C., quoted by Waller LJ in Al-Naimi at 524.
- 98.
Rules of the Supreme Court, Civil Procedure Rules (CPR) Schedule 1. The rules have been slowly replaced by the new CPR. The relevant provision of the CPR is Rule 62.8(3) CPR which reproduces almost verbatim RSC Order 73. See also supra at Sect. 2.3.1.1, para. 3.
- 99.
See also Anglia Oils, discussed infra at Sect. 6.5.4.3 et seq., where the court held that to refer the matter to arbitrators to decide would amount to a “back door” finding of the existence of an arbitration agreement.
- 100.
Similarly also Fiona Trust & Holding Corp v Privalov [2006] EWHC 2583 (Comm) (High Court), Morison J at [29].
- 101.
See infra at Sect. 6.5.4.5 et seq.
- 102.
See, e.g. Hesham Amin Hamza El Nasharty, Amira Gamal El Din Kafafi, Amal Farag Abou El Seoud, Dr. Said Mahmoud Seif El Yazal v J Sainsbury Plc [2003] EWHC 2195 (Comm), where Flaux J at para. [29] expressed doubts as to whether Waller J in Al-Naimi, when referring to Birse Construction was discussing the court’s inherent jurisdiction. See infra at Sect. 6.5.4.5, para. 11 et seq. See also Albon v Naza, where Lightman J applied the “virtually” certain criterion to the court’s inherent jurisdiction to stay. See infra at Sect. 6.5.4.7 et seq. Similarly also Excalibur Ventures LLC v Texas Keystone Inc [2011] 2 Lloyd’s Rep 289, Gloster J at [70]. See infra at Sect. 6.5.4.10 et seq.
- 103.
See supra at Sect. 4.5.4.1.1 et seq.
- 104.
Al-Naimi (T/A Buildmaster Construction Services) v Islamic Press Services Inc [2000] 1 Lloyd’s Rep 522.
- 105.
The contracts are produced by the Joint Contracts Tribunal (JCT). JCT Contracts are a wide variety of construction contracts, guidance notes and other standard documentation that cover a spectrum of construction projects.
- 106.
See supra.
- 107.
Al-Naimi per Waller LJ at 525.
- 108.
Al-Naimi per Chadwick LJ at 527.
- 109.
The court should proceed pursuant to section 9 to grant a stay of the proceedings “only where the court considers that it is virtually certain that there is an arbitration agreement or if there is only a dispute about the ambit or scope of the arbitration agreement”. See supra at Sect. 6.5.4.1 et seq.
- 110.
Al-Naimi per Waller LJ at 525.
- 111.
See also El Nasharty, Flaux J (sitting as a Deputy High Court Judge) at [29]. See infra at Sect. 6.5.4.5 et seq.
- 112.
See supra at Sect. 6.5.4.1 et seq.
- 113.
Al-Naimi per Waller LJ.
- 114.
Anglia Oils Limited v The Owners/Demise Charterers of the Vessel Marine Champion [2002] EWHC 2407 (Admiralty). But cf. Excalibur Ventures, discussed infra at Sect. 6.5.4.10 et seq., where the High Court decided to restrain arbitration proceeding pending in New York.
- 115.
A standard Charter-party agreement: Time Charter Party, Shelltime 4, 1963, amended in 1984, published by Shell International Petroleum.
- 116.
Anglia Oils Gross J at para. [15].
- 117.
See supra at Sect. 6.5.4.1, para. 1.
- 118.
With regard to the remainder of the claim the court found that no lien was sustainable in English law over the Sogescol cargo for monies allegedly due under the charter-party, because the claimant was not a party to that charter-party.
- 119.
Excalibur Ventures Gloster J at [64]. See infra at Sect. 6.5.4.10 et seq.
- 120.
Excalibur Ventures Gloster J at [70].
- 121.
T&N Ltd. v Royal & Sun Alliance plc [2002] EWHC 2420 (Ch) [2004], Lloyd’s Rep IR 102.
- 122.
T&N, Lloyd J at para. [18].
- 123.
T&N, Lloyd J at para. [19].
- 124.
T&N, Lloyd J at para. [21].
- 125.
T&N, Lloyd J at para. [23].
- 126.
On the question of the exercise of the court’s inherent jurisdiction to stay proceedings where the existence (conclusion) of the arbitration agreement is in issue see Albon v Naza per Lightman J at [36]. See infra at Sect. 6.5.4.7 et seq.
- 127.
See also AES Ust-Kamenogorsk where Rix LJ at [81] held that where the parties differ as to the matter as fundamental as whether they have agreed any contract, or any contract containing an arbitration clause, it was most unlikely that one or the other of them will rest content with the decision of arbitrators as to their jurisdiction. See supra at Sect. 6.1, para. 19.
- 128.
Hesham Amin Hamza El Nasharty, Amira Gamal El Din Kafafi, Amal Farag Abou El Seoud, Dr. Said Mahmoud Seif El Yazal v J Sainsbury Plc [2003] EWHC 2195 (Comm) [2004], 1 All ER (Comm) 728.
- 129.
El Nasharty, Flaux J (sitting as a Deputy High Court Judge) at [17].
- 130.
El Nasharty, Flaux J (sitting as a Deputy High Court Judge) at [29].
- 131.
El Nasharty, Flaux J (sitting as a Deputy High Court Judge) at paras [30]–[32].
- 132.
Law Debenture Trust Corp Plc v Elektrim Finance BV [2005] EWHC 1412 (Ch).
- 133.
Section 72 of the Act was discussed supra at Sect. 6.4, para. 5.
- 134.
Section 49(3) of the Supreme Court Act 1981 (now “Senior Courts Act 1981”) reads as follows: “Nothing in this Act shall affect the power of the Court of Appeal or the High Court to stay any proceedings before it, where it thinks fit to do so, either of its own motion or on the application of any person, whether or not a party to the proceedings.”
- 135.
Section 1(c) sets out the general principle that the court should not intervene except as provided by Part I of the Act. See supra at Sect. 6.1, paras 4 and 5.
- 136.
Vale do Rio doce Navegacao SA v Shanghai Bao Steel Ocean Shipping Co Ltd. (t/a Bao Steel Ocean Shipping Co) [2000] 2 Lloyd’s Rep 1.
- 137.
See supra at Sect. 6.5.4.3.
- 138.
DAC Report, 61 para. 295.
- 139.
Moreover, when referring to the Al-Naimi decision, Mann J refrained from including Waller J’s remarks as to the court’s inherent jurisdiction to stay.
- 140.
Albon (trading as NA Carriage Co) v Naza Motor Trading Sdn Bhd and another (No 3) [2007] EWHC 665 (Ch), 2 All ER (Comm) 513.
- 141.
Albon v Naza, Lightman J at 520 para. [14].
- 142.
Fiona Trust & Holding Corp v Privalov (Also known as: Premium Nafta Products Ltd. v Fili Shipping Co Ltd) [2007] EWCA Civ 20.
- 143.
Fiona Trust & Holding Corp v Privalov [2006] EWHC 2583 (Comm); [2007] 1 All E.R. (Comm) 81.
- 144.
Fiona Trust (High Court), Morison J at [29].
- 145.
Fiona Trust & Holding Corp v Privalov [2007] UKHL 40.
- 146.
Fiona Trust (Court of Appeal) per Longmore LJ at [34].
- 147.
See supra at Sect. 6.5.4.1, para. 1 et seq.
- 148.
Albon v Naza, Lightman J at [12].
- 149.
Similarly, for an arbitration agreement to be “inoperative” it must have been concluded, but ceased to have legal effect. To support this interpretation, Lightman J cited the decision of the (US) 3rd Circuit Court of Appeals in Rhone Mediterranee v Achille Lauro 712 F.2d50, in which the court held that the term “null and void” should be read narrowly; i.e. that an arbitration agreement was null and void only where it was subject to an internationally recognised defence (e.g. duress, mistake, fraud or waiver), or where it contravened fundamental policies of the forum State. See also the discussion supra at Sect. 5.6.3.6.2 et seq.
- 150.
Downing v Al Tameer Establishment [2002] EWCA Civ 721; [2002] 2 All E.R. (Comm) 545 per Potter LJ at [20].
- 151.
Albon v Naza, Lightman J at [20].
- 152.
Albon v Naza, Lightman J at [24].
- 153.
See supra at Sect. 6.5.4.1, para. 3.
- 154.
Classic Maritime Inc v Lion Diversified Holdings Berhad and Limbungan Makmur SDN BHD [2009] EWHC 1142 (Comm).
- 155.
Accordingly, the issue was a matter under section 9(4) rather than section 9(1) of the Arbitration Act.
- 156.
Classic Maritime, Cooke J at [19].
- 157.
Classic Maritime, Cooke J at [22].
- 158.
Classic Maritime, Cooke J at [23].
- 159.
JSC BTA Bank v Mukhtar Ablyazov, Idar Gayarevich Khazhaev, CJSC Tekhinvest, Konvis LLC, Paladioexport LLC, Citybestplus LLC, Colligate Investments Limited [2011] EWHC 587 (Comm).
- 160.
See supra at Sect. 6.5.4.1, para. 1.
- 161.
JSC BTA Bank, Clarke J at [29].
- 162.
See supra at Sect. 6.5.4.7, paras 16 and 17.
- 163.
JSC BTA Bank, Clarke J at [33].
- 164.
Ibid.
- 165.
This is also in line with Lightman J’s reasoning in Albon v Naza. See supra at Sect. 6.5.4.7, paras 16 and 17.
- 166.
A v B [2007] 1 Lloyd’s Rep 237 per Colman J at 261.
- 167.
Similarly also Fiona Trust (Court of Appeal), where at [36] Longmore LJ expressed that where there was an issue of whether the arbitration agreement came into existence at all, the court would have the discretion to determine that issue.
- 168.
Excalibur Ventures LLC v Texas Keystone Inc [2011] 2 Lloyd’s Rep 289.
- 169.
Excalibur Ventures, Gloster J at [54]. See also Black Clawson International Ltd. v Papierwerke Waldhof-Aschaffenberg AG [1981] 2 Lloyd’s Rep 446, 458; Cetelem SA v Roust Holdings Ltd. [2005] 2 Lloyd’s Rep 494 per Clarke LJ at [74]; Weissfisch v Julius [2006] 1 Lloyd’s Rep 716 per Lord Phillips CJ at [33]; Elektrim SA v Vivendi Universal (No 2) [2007] 2 Lloyd’s Rep 8 at [51]; Albon v Naza Motor Trading Sdn Bhd (No 4) [2007] 2 Lloyd’s Rep 420; affirmed [2008] 1 Lloyd’s Rep 1; Claxton Engineering Services v TXM [2011] EWHC 345.
- 170.
Excalibur Ventures, Gloster J at [55], referring to Weissfisch v Julius [2006] 1 Lloyd’s Rep 716.
- 171.
See also Collins et al. (2006), 4th Cumulative Supplement at 16-0-88.
- 172.
Dallah Real Estate and Tourism v Ministry of Religious Affairs of the Government of Pakistan [2010] UKSC 46.
- 173.
AES Ust-Kamenogorsk. Hydropower Plant LLC v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647. The circumstances of the case have been described supra at Sect. 6.1, para. 19 et seq.
- 174.
In Dallah the Supreme Court held, inter alia, that despite the doctrine of Competence– Competence, the English courts retained jurisdiction to examine or re-examine for themselves the jurisdiction of arbitrators, and that such jurisdiction could arise in a variety of contexts, including, e.g. section 9 of the Act. See Dallah per Lord Mance at [26]–[30], Lord Collins at [84], [93–98], [105–106].
- 175.
Excalibur Ventures, Gloster J at [64].
- 176.
AES Ust-Kamenogorsk Rix LJ at [81]–[85] and [98]–[100].
- 177.
Azov Shipping Co v Baltic Shipping Co, Rix LJ.
- 178.
Ibid.
- 179.
Excalibur Ventures, Gloster J at [67].
- 180.
Exclalibur Ventures, Gloster J at [70]. Although these grounds were not considered in the context of a section 9 application, or the application of the court’s inherent jurisdiction to stay proceedings in the view of an arbitration agreement, they may nevertheless serve as a useful guidance with respect to the interpretation of section 9 or the court’s inherent jurisdiction.
- 181.
Excalibur Ventures, Gloster J at [70]. See also Anglia Oils per Gross J at [16]; Caparo Group Ltd. v Fagor Arrasate Sociedad Cooperative [2000] ASRLJ 254 per Clarke LJ quoting the DAC Report; Law Debenture per Mann J at [35].
- 182.
Quoting Albon v Naza, per Lightman J at [13]–[14], [23]–[24].
- 183.
Excalibur Ventures, Gloster J at [75]. See also Klöckner Holdings v Klöckner Beteiligungs [2005] EWHC 1453 (Comm) for principles governing the grant of a stay of proceedings in favour of proceedings which a claimant has brought elsewhere.
- 184.
Excalibur Ventures, Gloster J at [67].
- 185.
See supra at Sect. 1.3.3, para. 13.
- 186.
See, e.g. Birse Construction, HHJ Lloyd; Anglia Oils, Gross J at [15]; Al-Naimi, Waller LJ at 525 and JSC BTA Bank, Clarke J at [29].
- 187.
See, e.g. Birse Construction, HHJ Lloyd; Al-Naimi, Waller LJ at 525; Albon v Naza, Lightman J at [14]; Fiona Trust (Court of Appeal) per Longmore LJ at [36]; JSC BTA Bank, Clarke J at [33]; Excalibur Ventures, Gloster J at [67].
- 188.
Albon v Naza, Lightman J at [20].
- 189.
Excalibur Ventures, Gloster J at [64].
- 190.
But with respect to a party seeking to establish that there is an arbitration agreement cf. Vale do Rio, where Thomas J held the appropriate course of action anticipated by the Act would be to commence arbitration and allow the arbitrators to rule on their jurisdiction under section 30 of the Act.
- 191.
See, in particular, supra at Sect. 5.6.2 et seq.
- 192.
Pursuant to Joseph such proof is required to the balance of probabilities. Joseph nevertheless expressed that such approach to section 9(1) is flawed. See David Joseph (2010), 339.
- 193.
Albon v Naza, Lightman J at [12], [14].
- 194.
JSC BTA Bank, Clarke J at [35].
- 195.
See also the discussion supra at Sect. 5.6.3.2.3, paras 2–4.
- 196.
See, e.g. Albon v Naza, Lightman J at [14].
- 197.
The DAC Report, 18 para. 54.
- 198.
See also the discussion of the New York Convention infra Sect. 5.6.2, para. 9.
- 199.
Generally, see Cocker v Tempest [1981] 151 E.R. 864 per Alderson B: “The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice.” In the arbitration context see also Hiscox Underwriting Ltd. v Dickson Manchester & Co Ltd. [2004] EWHC 479 (Comm), Cooke J at [41].
- 200.
Dockray (1997), 128.
- 201.
Rule 62.8 CPR. With respect to a stay of proceedings in the court’s case management powers see also Rule 3.1 (2)(f) CPR.
- 202.
Raja v Van Hoogstraten [2009] 1 W.L.R. 1143 at [78].
- 203.
See, e.g. Al-Naimi.
- 204.
See, e.g. Al-Naimi and series of High Court decisions explored above (e.g. Albon v Naza Lightman J at [14]).
- 205.
See, e.g. Al-Naimi, Albon v Naza.
- 206.
See also JSC BTA Bank.
- 207.
Excalibur Ventures, Gloster J at [70].
- 208.
See, in particular, Sect. 9.4.2, para. 11 infra.
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Synková, S. (2013). The Application of Section 9 of the Arbitration Act 1996 (England). In: Courts' Inquiry into Arbitral Jurisdiction at the Pre-Award Stage. Springer, Heidelberg. https://doi.org/10.1007/978-3-319-00134-0_6
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