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Arbitration in England

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The Three Paths of Justice

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 10))

Abstract

Arbitration in England rests on the Arbitration Act 1996 (England and Wales). The main reasons why commercial parties opt for arbitration are: confidentiality; party control (selection of arbitrators—especially where the parties are situated in different countries—a neutral panel; choice of governing norms and of the applicable arbitral procedure); and finality. However, there is a restricted power to challenge the arbitration award by appeal to the English High Court on the basis of an error of English law (but not errors of fact, nor errors of foreign law). As for enforcement in England of foreign arbitral awards, the UK Supreme Court in Dallah Real Estate & Tourism Holding Co v. Pakistan (2010) held that a Paris award could not be recognized in England, under the New York Convention (1958), because the French arbitration tribunal had (in the Supreme Court’s view) incorrectly determined that the Pakistan Government was a party to the relevant arbitration agreement.

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Notes

  1. 1.

    UNCITRAL’s web-site records that the following have produced arbitration codes ‘based on’ the Model Law: ‘Armenia (2006), Australia (1989, 2010*), Austria (2005), Azerbaijan (1999), Bahrain (1994), Bangladesh (2001), Belarus (1999), Bulgaria (2002), Cambodia (2006), Canada (1986), Chile (2004), China (the Hong Kong Special Administrative Region (1996) and the Macao Special Administrative Region (1998)), Croatia (2001), Cyprus, Denmark (2005), Dominican Republic (2008), Egypt (1994), Estonia (2006), Georgia (2009*), Germany (1998), Greece (1999), Guatemala (1995), Honduras (2000), Hungary (1994), India (1996), Iran (Islamic Republic of) (1997), Ireland (1998, 2010*), Japan (2003), Jordan (2001), Kenya (1995), Lithuania (1996), Madagascar (1998), Malta (1995), Mauritius (2008*), Mexico (1993), New Zealand (1996, 2007*), Nicaragua (2005), Nigeria (1990), Norway (2004), Oman (1997), Paraguay (2002), Peru (1996, 2008*), the Philippines (2004), Poland (2005), the Republic of Korea (1999), the Russian Federation (1993), Rwanda (2008*), Serbia (2006), Singapore (2001), Slovenia (2008*), Spain (2003), Sri Lanka (1995), Thailand (2002), the former Yugoslav Republic of Macedonia (2006), Tunisia (1993), Turkey (2001), Uganda (2000), Ukraine (1994), the United Kingdom of Great Britain and Northern Ireland (Scotland (1990) and Bermuda, an overseas territory of the United Kingdom), the United States of America (the States of California (1996), Connecticut (2000), Florida (2010*), Illinois (1998), Louisiana (2006), Oregon and Texas), Venezuela (Bolivarian Republic of) (1998), Zambia (2000) and Zimbabwe (1996).* Indicates legislation based on the text of the UNCITRAL Model Law on International Commercial Arbitration with amendments as adopted in 2006.’ See (21 April 2011): http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration.html.

  2. 2.

    M. Mustill and S. Boyd, Commercial Arbitration: 2001 Companion Volume (London: Butterworths, 2001), 14–15; ibid., 7–9 for discussion of the decision not to adopt the Model Law in England, Wales and Northern Ireland, but instead to combine some of the UNCITRAL Model Law’s main ideas and produce a more detailed national arbitration statute. For details of the position in other common law jurisdictions, with regard to the Model law, see K. Uff, ‘Common Law Arbitration-An Overview’ (2004) IDR (Jo of Int Dispute Resolution), 10, 11.

  3. 3.

    2006 ‘Report on the Arbitration Act 1996 (England and Wales)’; report prepared for the Commercial Court Users’ Committee, the British Maritime Law Association, the London Shipping Law Centre, and other bodies (the authors were various barristers, solicitors, and other arbitration specialists—see Appendix A of report for details); for the text, see http://www.idrc.co.uk/aa96survey/Report_on_Arbitration_Act_1996.pdf.

  4. 4.

    Available on-line at: http://www.pwc.com/Extweb/pwcpublications.nsf/docid/0B3FD76A8551573E85257168005122C8.

  5. 5.

    New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (in MB (2001), Appendix 3); For background discussion of this topic in the following leading works, but none contains specific reference to the Dallah case (see next note): Redfern and Hunter, International Commercial Arbitration (5th edn, Oxford: Oxford University Press, 2009), 10.32 to 10.91; 11.42 to 11.120; Russell on Arbitration (23rd edn, 2007), 8-020 to 8-046; Mustill and Boyd, Commercial Arbitration (2001 Companion Volume), 82–96; 381–4; R. Merkin, Arbitration Law (2006 update), 19.45 ff.

  6. 6.

    http://www.arbitrators.org/Institute/PR_international_dispute.asp.

  7. 7.

    Ibid. at [61], noting The Departmental Advisory Committee on Arbitration Law, Report on the Arbitration Bill, 1996 (‘the DAC report’) (reprinted inMustill and Boyd, Commercial Arbitration: 2001 Companion Volume, Appendix 1).

  8. 8.

    (5th edn, Oxford University Press, 2009), 2.176.

  9. 9.

    [2008] EWCA Civ 184; [2008] Bus LR 1361; [2008] 1 Lloyd’s Rep 616; noted H. Dundas, ‘Confidentiality in English Arbitration: The Final Word? Emmott v. Michael Wilson & Partners,’ Arbitration 74 (2008): 458–66; for background discussion of this topic in the following: (only (i) contains reference to this recent case): (i) Redfern and Hunter, International Commercial Arbitration, 2.145 to 2.176; (ii) Russell on Arbitration (23rd edn, 2007), 5-172 to 5-180; (iii) Mustill and Boyd, Commercial Arbitration: 2001 Companion Volume, 112–3. For background journal articles: various authors, (1995) 11 Arb Int 3, 319; F. Dessemontet, ‘Arbitration and Confidentiality,’ Am Rev Int’l Arb 7 (1996): 299; P. Neill, ‘Confidentiality in Arbitration,’ Arbitration International 12 (1996): 287; A. Rogers and D. Miller, ‘Non-confidential Arbitration Proceedings,’ Arbitration International 12 (1996): 319; M. Pryles, ‘Confidentiality’, in The Leading Arbitrators’ Guide to International Arbitration, eds. L.W. Newman and R.D. Hill (Bern, Switzerland: Juris Publishers, 2004), Chap. 19; K. Noussia, Confidentiality in International Commercial Arbitration (Germany: Springer Verlag, Heidelberg, 2010).

  10. 10.

    [1999] 1 WLR 314, CA.

  11. 11.

    Ibid., at 326 D.

  12. 12.

    [2008] EWCA Civ 184; [2008] Bus LR 1361; [2008] 1 Lloyd’s Rep 616, at [105], [106].

  13. 13.

    Ibid., at [79].

  14. 14.

    [2008] EWCA Civ 184; [2008] Bus LR 1361; [2008] 1 Lloyd’s Rep 616.

  15. 15.

    (in descending order chronologically): Associated Electric and Gas Insurance Services Ltd v. European Reinsurance Co of Zurich [2003] UKPC 11; [2003] 1 WLR 1041; Glidepath BV v. Thompson [2005] 2 Lloyd’s Rep 549, Colman J; Department of Economics, Policy and Development of the City of Moscow v. Bankers Trust Co [2004] EWCA Civ 314; [2005] QB 207; Ali Shipping Corporation v. Shiphard Trogir [1999] 1 WLR 314, CA; Insurance Co v. Lloyd’s Syndicate [1995] 1 Lloyd’s Rep 272; London and Leeds Estates Ltd v. Paribas Ltd [1995] 1 EGLR 102; [1995] EG 134, Mance J; Hassneh Insurance Co of Israel v. Mew [1993] 2 Lloyd’s Rep 242; Dolling-Baker v. Merrett [1990] 1 WLR 1205; Oxford Shipping Co Ltd v. Nippon Kaisha (‘The Eastern Saga’) [1984] 3 All ER 835, Leggatt J.

  16. 16.

    Redfern and Hunter, International Commercial Arbitration, 2.145 ff, noting Esso Australia Resources Ltd v. Plowman (1995) 193 CLR 10, H Ct Aust (criticised Neill, ‘Confidentiality in Arbitration’; Commonwealth of Australia v. Cockatoo Dockyard Pty Ltd (1995) 36 NSWLR 662; on US decisions, Redfern and Hunter, ibid at 2.155; on Swedish law, ibid., 2.162; French law, ibid., 2.164; ICSID decisions, ibid., 2.167 ff; World Intellectual Property Organization decisions, ibid., 2.172 to 2.174; Spanish legislation, ibid., 2.175. Lawrence Collins LJ, in Michael Wilson & Partners Ltd v. Emmott [2008] EWCA Civ 184; [2008] Bus LR 1361, at [74], cited these foreign cases: ‘In United States v. Panhandle Eastern Corpn 1988 US Dist Lexis 1177 it was held, in a civil action by the US Federal Maritime Administration, that the defendant was not entitled to withhold from discovery documents generated in a Swiss ICC arbitration. One of the grounds of the decision was that the defendant had not shown that the effect of the ICC Rules was to impose an obligation of confidentiality: see also Caringal v. Karteria Shipping Ltd 2001 US Dist Lexis 1312; Contship Containerlines Ltd v. PPG Industries, Inc 2003 US Dist Lexis 6857 and Lawrence E Jaffe Pension Plan v. Household International, Inc 2004 US Dist Lexis 16174.’

  17. 17.

    Michael Wilson & Partners Ltd v. Emmott [2008] EWCA Civ 184; [2008] Bus LR 1361, Lawrence Collins LJ at [66], citing ICC Commission on Arbitration, Forum on ICC Rules/Court: Report on Confidentiality as a Purported Obligation of the Parties in Arbitration (2002); Fouchard, Gaillard, Goldman, International Commercial Arbitration (Dordrecht: Kluwer, 1999), para 1412; J. Lew, L. Mistelis, and S. Kröll, Comparative International Commercial Arbitration (The Hague: Kluwer, 2003), 24–99 ff; for other references, Redfern and Hunter, International Commercial Arbitration, 2.147, 2.148.

  18. 18.

    In Michael Wilson & Partners Ltd v. Emmott [2008] EWCA Civ 184; [2008] Bus LR 1361; [2008] 1 Lloyd’s Rep 616, Lawrence Collins LJ at [64], states: ‘The privacy of arbitration is almost universally recognised by institutional rules. Thus the privacy of the hearings is provided for in Article 19(4) of the Rules of London Court of International Arbitration (“LCIA”); Article 21(3) of the Rules of the Court of Arbitration of the International Chamber of Commerce (“ICC”); Article 53(c) of the arbitration rules of the World Intellectual Property Organisation (“WIPO”); and Article 25(4) of the UNCITRAL Rules.’

  19. 19.

    Michael Wilson & Partners Ltd v. Emmott [2008] EWCA Civ 184; [2008] Bus LR 1361, Lawrence Collins LJ at [67] to [70] notes: (1) rules expressly governing this: Article 30.1 of the LCIA Rules; the Swiss Rules of International Arbitration, January 2006, Section VI, Article 43; the World Intellectual Property Organisation Arbitration Rules, Article 52(a)(iii))—concerning ‘intrinsic’ confidentiality protection, and Articles 73, and 74(a) concerning procedural confidentiality. (2) And noting that ‘some important arbitral rules are silent on confidentiality, such as the ICC Rules and the UNCITRAL Rules’.

  20. 20.

    Michael Wilson & Partners Ltd v. Emmott [2008] EWCA Civ 184; [2008] Bus LR 1361, Lawrence Collins LJ at [65], states: The confidentiality of the award is provided for by Article 30(1) of the LCIA Rules and also by the principle of non-publication of the award in Article 30(3); by Article 28(2) of the ICC Rules; by Article 75 of the WIPO Rules; and by Article 32(5) of the UNCITRAL Rules. The Privy Council’s decision in Associated Electric and Gas Insurance Services Ltd v. European Reinsurance Co of Zurich [2003] UKPC 11; [2003] 1 WLR 1041 is also important here; Hassneh Insurance Co of Israel v. Mew [1993] 2 Lloyd’s Rep 242; and Redfern and Hunter, International Commercial Arbitration, 2.158 ff.

  21. 21.

    Michael Wilson & Partners Ltd v. Emmott [2008] EWCA Civ 184; [2008] Bus LR 1361, at [66], per Lawrence Collins LJ, citing (among other sources) Fouchard, Gaillard, Goldman, International Commercial Arbitration (1999), para 1412; J. Lew, L. Mistelis, and S. Kröll, Comparative International Commercial Arbitration.

  22. 22.

    Wilson & Partners Ltd v. Emmott [2008] EWCA Civ 184; [2008] Bus LR 1361, at [107].

  23. 23.

    Ibid., at [101], per Lawrence Collins LJ: ‘[disclosure is] permissible when, and to the extent to which, it was reasonably necessary for the establishment or protection of an arbitrating party’s legal rights vis-à-vis a third party in order to found a cause of action against that third party or to defend a claim, or counterclaim, brought by that third party. It would be this exception which would apply where insurers have to be informed about the details of arbitral proceedings…’

  24. 24.

    Ibid., at [111].

  25. 25.

    On expertise and arbitration, L. Blom-Cooper, ed., Experts in Civil Courts (Oxford: Oxford University Press, 2006), Chap. 10.

  26. 26.

    [2010] EWCA Civ 712; [2011] 1 All ER 50.

  27. 27.

    Reg 6(1) states: It is unlawful for an employer, in relation to employment by him at an establishment in Great Britain, to discriminate against a person—(a) in the arrangements he makes for the purpose of determining to whom he should offer employment; (b) in the terms on which he offers that person employment; or (c) by refusing to offer, or deliberately not offering, him employment.

  28. 28.

    Reg 7(2) states: This paragraph applies where, having regard to the nature of the employment or the context in which it is carried out—(a) being of a particular religion or belief is a genuine and determining occupational requirement; (b) it is proportionate to apply that requirement in the particular case; and (c) either—(i) the person to whom that requirement is applied does not meet it, or (ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it, and this paragraph applies whether or not the employer has an ethos based on religion or belief. (3) This paragraph applies where an employer has an ethos based on religion or belief and, having regard to that ethos and to the nature of the employment or the context in which it is carried out—(a) being of a particular religion or belief is a genuine occupational requirement for the job; (b) it is proportionate to apply that requirement in the particular case; and (c) either—(i) the person to whom that requirement is applied does not meet it, or (ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it.

  29. 29.

    (1) (i) and (ii) are covered by the reference to ‘the law chosen by the parties as applicable to the substance of the dispute’ in s 46 (1)(a), Arbitration Act 1996 (England and Wales); (iii) is admitted by the reference in s 46(1)(b), Arbitration Act 1996 (England and Wales) to ‘such other considerations as are agreed by them or determined by the tribunal’; MB (2001), 326–8 (and 124–127). (2) The point at (iii) (non-English and non-foreign state law) renders arbitration practice under English rules more flexible that other contractual choices of law; this was acknowledged in Halpern v. Halpern (No 2) [2007] EWCA Civ 291; [2008] QB 195, at [37].

  30. 30.

    The need for arbitrators not simply ‘to copy the CPR’ (or Commercial Court Guide) is echoed in a recent report on the operation of the Arbitration Act ‘Report (2006) on the Arbitration Act 1996 (England and Wales)’, at [43] to [45]; report prepared for the Commercial Court Users’ Committee, the British Maritime Law Association, the London Shipping Law Centre, and other bodies; accessible at http://www.idrc.co.uk/aa96survey/Report_on_Arbitration_Act_1996.pdf.

  31. 31.

    D. Joseph, Jurisdiction and Arbitration Agreements and their Enforcement (2nd edn, London: Sweet & Maxwell, 2010); an agreement to arbitrate is subject to the traditional analysis of repudiatory breach and ‘acceptance’ by the innocent party: J. Levy (2007) New Law Journal 1036, noting Bea Hotels NV v. Bellway LLC [2007] EWHC 1363 (Comm), Cooke J; and Downing v. Al Tameer Establishment [2002] EWCA Civ 721, at [21], [25], [26], also noting the seminal ‘contractual’ analysis of arbitration agreements in Bremer Vulcan v. South India Shipping Corporation Limited [1981] AC 909, HL; ‘The Hannah Blumenthal’ [1983] 1 AC 854, HL; ‘The Splendid Sun’ [1981] QB 694, CA and ‘The Leonidas D’ [1985] 1 WLR 925, CA (on this stream of authority, MB (2001), 503 ff). Selected Journal Comments: J. Lew, ‘Achieving the Dream: Autonomous Arbitration,’ Arbitration International 22 (2006): 179; R. Park, ‘Determining Arbitral Jurisdiction: Allocation of Tasks Between Courts and Arbitrators,’ Am Rev Int Arb 8 (1997): 133.

  32. 32.

    s 3, Arbitration Act 1996 (England and Wales); MB (2001), 16, 258 ff; for an important discussion of arbitration clauses affecting sovereign states, Svenska Petroleum Exploration AB v. Government of the Republic of Lithuania (No 2) [2006] EWCA Civ 1529; [2007] QB 886, considering s 9(1), State Immunity Act 1978.

  33. 33.

    [2007] UKHL 40; [2007] 4 All ER 951, notably Lord Hoffmann’s speech at [17] to [19]; otherwise known as Premium Nafta Products Ltd v. Fili Shipping Co Ltd. Considered in JSC BTA Bank v. Ablyazov [2011] EWHC 587 (Comm), Christopher Clarke J (granting a stay of English civil proceedings because an arbitration clause had been shown to exist by the party seeking the stay, and the party seeking to oppose the stay had not shown that this clause had been avoided on the ground of non-disclosure).

  34. 34.

    NB Three Shipping Ltd v. Harebell Shipping Ltd [2004] EWHC 2001(Comm); [2005] 1 All ER (Comm) 200; [2005] 1 Lloyd’s Rep 509, Morison J; Law Debenture Trust Corp plc v. Elektrim Finance BV and others [2005] EWHC 1412 (Ch); [2005] 2 All ER (Comm) 476; [2005] 2 Lloyd’s Rep 755, Mann J; on these developments, S. Nesbitt and H. Quinlan, ‘The Status and Operation of Unilateral or Optional Arbitration Clauses,’ Arbitration International 22 (2006): 133; Joseph, Jurisdiction and Arbitration Agreements and their Enforcement; R. Merkin, Arbitration Law (London: Informa Business Publishing, 2006).

  35. 35.

    [2010] EWCA Civ 712; [2010] IRLR 797; [2010] NPC 73.

  36. 36.

    [2001] UKHL 65; [2002] 1 WLR 107.

  37. 37.

    OT Africa Line Ltd v. Magic Sportwear Corpn [2005] EWCA Civ 710; [2006] 1 All ER (Comm) 32; [2005] 2 Lloyd’s Rep 170; [2005] 1 CLC 923, Longmore LJ said, at [33]: ‘a party who initiates proceedings in a court other than the court, which has been agreed with the other party as the court for resolution of any dispute, is acting in breach of contract. The normal remedy for this breach of contract is the grant of an injunction to restrain the continuance of proceedings unless it can be shown that damages are an adequate remedy; but damages will not usually be an adequate remedy in fact, since damages will not be easily calculable and can indeed only be calculated by comparing the advantages and disadvantages of the respective fora. This is likely to involve an even graver a breach of comity than the granting of an anti-suit injunction.’ And he said at [38]: ‘In the present case there is no doubt that the Canadian courts have jurisdiction; the only question is whether a party is to be allowed to invoke that undoubted jurisdiction. If he has agreed not to do so, there is no impropriety in his being restrained from so doing.’

  38. 38.

    OT Africa Line Ltd v. Magic Sportwear Corpn [2006] FCA 284; [2007] 1 Lloyd’s Rep 85 (Federal Court of Appeal, Canada).

  39. 39.

    C v. D [2007] EWCA Civ 1282; [2008] 1 Lloyd’s Rep 239.

  40. 40.

    Ibid., at [17], per Longmore LJ.

  41. 41.

    This is the result of the definition of ‘question of law’ in s 82(1), Arbitration Act 1996 (England and Wales); affecting scope of s 69, Arbitration Act 1996 (England and Wales) (appeal to court on a ‘question of law arising out of an award made in the [arbitration] proceedings’; choice of substantive law covered by s 46(1), 1996 Act.

  42. 42.

    s 68, Arbitration Act 1996 (England and Wales) (serious irregularity); an error of law is not an excess of power for the purpose of s 68(2)(b), as Lord Steyn held in Lesotho Highlands Development Authority v. Impregilo SpA [2005] UKHL 43; [2006] 1 AC 221, at [31] and [32] (Lords Scott, Rodger, and Hoffmann concurring on this point; Lord Phillips dissenting).

  43. 43.

    [2009] EWHC 957, at [39].

  44. 44.

    [2010] EWCA Civ 66; [2010] 1 CLC 113.

  45. 45.

    Allianz SpA etc v. West Tankers (C-185/07) [2009] 1 AC 1138; [2009] 1 All ER (Comm) 435; [2009] 1 Lloyd’s Rep 413; [2009] 1 CLC 96; [2009] ILPr 20; The Times, 13 February, 2009; noted E Peel (2009) 125 Law Quarterly Review 365.

  46. 46.

    Allianz SpA etc v. West Tankers, ‘The Front Comor’ (C-185/07) [2009] 1 AC 1138; [2009] 1 All ER (Comm) 435; [2009] 1 Lloyd’s Rep 413; [2009] 1 CLC 96; [2009] ILPr 20; The Times, 13 February, 2009; noted E Peel (2009) 125 Law Quarterly Review 365; Claudio Consolo, ‘Arbitration and EC Law: an Italian reaction to the Heidelberg Colloquium,’ Lis Int’l (2009): 102–8; H. Seriki, ‘Declaratory Relief and Arbitration: The Aftermath of “The Front Comor”,’ JBL 7 (2010): 541–55; H. Seriki, ‘Anti-suit Injunctions, Arbitration and the ECJ: An Approach Too Far?’ JBL 7 (2010): 24; Peter Schlosser, ‘Europe—Is It Time to Reconsider the Arbitration Exception from the Brussels Regulation?’ Int ALR (2009): 45; Alexis Mourre and Alexandre Vagenheim, ‘The Arbitration Exclusion in Regulation 44/2001 after West Tankers,’ Int ALR (2009): 75; Philip Clifford and Oliver Browne, ‘Lost at Sea or a Storm in a Tea Cup? Anti-suit Injunctions after West Tankers,’ Int ALR (2009): 19; Andrew Pullen, ‘The Future of International Arbitration in Europe: West Tankers and the EU Green Paper,’ Int ALR (2009): 56.

  47. 47.

    Council Regulation 44/2001 of 22 December 2001 on ‘jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’).

  48. 48.

    Ibid., at [28], [29], citing Erich Gasser GmbH v. Misat Srl Case C-116/02 [2003] 1 ECR 14693; [2005] QB 1; [2004] 1 Lloyd’s Rep 222; Overseas Union Insurance Ltd v. New Hampshire Co Case C-351/89 [1991] 1 ECR I-3317; [1992] QB 434; [1992] 2 All ER 138; [1992] 1 Lloyd’s Rep 204.

  49. 49.

    Observation communicated to the author at a European colloquium.

  50. 50.

    [2005] 1 AC 101; [2004] ECR I-3565, at [30].

  51. 51.

    Council Regulation 44/2001 of 22 December 2001 on ‘jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’.

  52. 52.

    [2009] EWCA Civ 175; The Times, 27 March 2009, at [32].

  53. 53.

    [2009] EWCA Civ 1397.

  54. 54.

    [2009] EWHC 196 (Comm).

  55. 55.

    Council Regulation 44/2001 of 22 December 2001 on ‘jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’.

  56. 56.

    [2009] EWCA Civ 1397, at [46].

  57. 57.

    [2009] EWCA Civ 1397, at [118]; Seriki, ‘Declaratory Relief and Arbitration: The Aftermath of The Front Comor’.

  58. 58.

    [2008] EWHC 2791(Comm); [2009] Lloyd’s Rep 213.

  59. 59.

    Council Regulation 44/2001 of 22 December 2001 on ‘jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’.

  60. 60.

    The position arising from the West Tankers case is currently under review by the European Commission: The EU Commission’s Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters Brussels 14/12/2010 COM (2010) 748 Final 2010/0383 (COD).

  61. 61.

    Allianz SpA etc v. West Tankers, ‘The Front Comor’ (C-185/07) [2009] 1 AC 1138; [2009] 1 All ER (Comm) 435; [2009] 1 Lloyd’s Rep 413; [2009] 1 CLC 96; [2009] ILPr 20; The Times, 13 February, 2009; noted E Peel (2009) 125 Law Quarterly Review 365; Seriki, ‘Declaratory Relief and Arbitration: The Aftermath of “The Front Comor”’; H. Seriki, ‘Anti-suit Injunctions, Arbitration and the ECJ: An Approach Too Far?’; Peter Schlosser, ‘Europe—Is It Time to Reconsider the Arbitration Exception from the Brussels Regulation?’; Alexis Mourre and Alexandre Vagenheim, ‘The Arbitration Exclusion in Regulation 44/2001 after West Tankers’; Philip Clifford and Oliver Browne, ‘Lost at Sea or a Storm in a Tea Cup? Anti-suit Injunctions after West Tankers’; Andrew Pullen, ‘The Future of International Arbitration in Europe: West Tankers and the EU Green Paper’.

  62. 62.

    The EU Commission’s ‘Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters Brussels 14/12/2010 COM (2010) 748 Final 2010/0383 (COD).’

  63. 63.

    [2008] EWHC 2791(Comm); [2009] Lloyd’s Rep 213.

  64. 64.

    Under English law, punitive damages are not available for breach of contract.

  65. 65.

    Colman J in West Tanker case [2005] EWHC 454 (Comm); [2005] 2 Lloyd’s Rep 257 at [66], [67], [69].

  66. 66.

    Lord Hobhouse was prepared to assume in Donohue v. Armco Inc that in the analogous situation of a breach of an exclusive jurisdiction clause, the innocent party would have a claim for breach of the contract, giving him at any rate compensation for costs not awarded in the relevant foreign jurisdiction: [2001] UKHL 64; [2002] 1 Lloyd’s Rep 425 at [48], [75], and see the passing remark of Steyn LJ in Continental Bank NA v. Aeakos Compania Naviera SA [1994] 1 WLR 588, 598, CA, that, in the case of breach of an exclusive jurisdiction clause, ‘a claim for damages for breach of contract would be a relatively ineffective remedy’.

  67. 67.

    [1980] 1 Lloyd’s Rep 375, CA; CMA CGM SS v. Hyundai Mipo Dockyard Co [2008] EWHC 2791; [2009] 1 Lloyd’s Rep 213, where Burton J awarded damages for breach of an arbitration clause.

  68. 68.

    [2008] EWHC 2791(Comm); [2009] Lloyd’s Rep 213.

  69. 69.

    British Institute of International and Comparative Law, 12 May 2009.

  70. 70.

    s 33(1)(b), Arbitration Act 1996 (England and Wales).

  71. 71.

    s 69(2)(3), Arbitration Act 1996 (England and Wales) 1996; there are many cases on this provision, for example, Flaux J in ASM Shipping Ltd of India v. TTMI Ltd of England, (‘The Amer Energy’) [2009] 1 Lloyd’s Rep 293, at [17] to [19]; the report by V.V. Veeder and A. Sander (2009) notes that the Commercial Court, in London, considered 36 applications in 2006, and granted leave in 9; in 2007, 58, leave granted in 13; in 2008, 57, leave granted in 14; disclosing an average of 50 a year, with leave granted in 12 (noted M. O’Reilly, ‘Provisions on Costs and Appeals: An Assessment from an International Perspective’, paper delivered at the British Institute of International and Comparative Law conference, London, February 2010).

  72. 72.

    s 69, Arbitration Act 1996 (England and Wales)(3), 1996.

  73. 73.

    s 67, Arbitration Act 1996 (England and Wales) 1996 states: (1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court—(a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or (b) for an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because the tribunal did not have substantive jurisdiction. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3). (2) The arbitral tribunal may continue the arbitral proceedings and make a further award while an application to the court under this section is pending in relation to an award as to jurisdiction. (3) On an application under this section challenging an award of the arbitral tribunal as to its substantive jurisdiction, the court may by order—(a) confirm the award, (b) vary the award, or (c) set aside the award in whole or in part. (4) The leave of the court is required for any appeal from a decision of the court under this section.

  74. 74.

    s 68, Arbitration Act 1996 (England and Wales) 1996; s 68(2) specifies: Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant—(a) failure by the tribunal to comply with section 33 (general duty of tribunal); (b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction: see section 67); (c) failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties; (d) failure by the tribunal to deal with all the issues that were put to it; (e) any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award exceeding its powers; (f) uncertainty or ambiguity as to the effect of the award; (g) the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy; (h) failure to comply with the requirements as to the form of the award; or (i) any irregularity in the conduct of the proceedings or in the award which is admitted by the tribunal or by any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award.

  75. 75.

    Lord Steyn in Lesotho Highlands Development Authority v. Impreglio SpS [2006] 1 AC 22, HL.

  76. 76.

    This is the result of the definition of ‘question of law’ in s 82(1), Arbitration Act 1996 (England and Wales); affecting scope of s 69, Arbitration Act 1996 (England and Wales) (appeal to court on a ‘question of law arising out of an award made in the [arbitration] proceedings’; choice of substantive law covered by s 46(1), 1996 Act.

  77. 77.

    C v. D [2007] EWCA Civ 1282; [2008] 1 Lloyd’s Rep 239.

  78. 78.

    [2009] EWHC 2097 (Comm).

  79. 79.

    [2008] EWHC 2855 (Comm); [2009] 1 Lloyd’s Rep 167.

  80. 80.

    Allianz SpA etc v. West Tankers (C-185/07) [2009] 1 AC 1138; [2009] 1 All ER (Comm) 435; [2009] 1 Lloyd’s Rep 413; [2009] 1 CLC 96; [2009] ILPr 20; The Times, 13 February, 2009.

  81. 81.

    [2008] EWHC 532 (Comm); noted Adam Johnson (2008) Civil Justice Quarterly 433–44.

  82. 82.

    Neil Andrews, The Modern Civil Process (Tübingen, Germany: Mohr & Siebeck, 2008), 4.03 ff.

  83. 83.

    Ibid., at [5].

  84. 84.

    Ibid., at [28].

  85. 85.

    A. Redfern, ‘Interim Measures,’ in The Leading Arbitrators’ Guide to International Arbitration, eds. L.W. Newman and R.D. Hill (Bern: Staempfli Verlag, 2004), at 217 ff and F. Knoepfler, ‘Les Mésures Provisoires et l’Arbitrage,’ in Médiation et Arbitrage: Alternative Dispute Resolution-Alternative a la Justice ou Justice Alternative? Perspectives Comparatives, eds. L. Cadiet, E. Jeuland, and T Clay (Litec, Paris: Lexis Nexis, 2005); Mustill and Boyd, Commercial Arbitration: 2001 Companion Volume, 314–6, 323–4; H. van Houtte, ‘Ten Reasons Against a Proposal for Ex Parte Interim Measures of Protection in Arbitration,’ Arbitration International 20 (2004): 85; A. Baykitch and J. Truong, ‘Innovations in International Commercial Arbitration: Interim Measures a Way Forward or Back to the Future,’ The Arbitrator and Mediator 25 (2005): 95.

  86. 86.

    Neil Andrews, ‘Provisional and Protective Measures: Towards an Uniform Provisional Order,’ Uniform L Rev (Rev dr unif) VI (2001): 931; Stephen Goldstein, ‘Revisiting Preliminary Relief in Light of the ALI/UNIDROIT Principles and the New Israeli Rules,’ in Studia in honorem: Pelayia Yessiou-Faltsi (Athens: Sakkoulas Publications, 2007), 273–96.

  87. 87.

    ALI/UNIDROIT: Principles of Transnational Civil Procedure (Cambridge University Press, 2006), principle 8; on which Stephen Goldstein, ibid.

  88. 88.

    [2010] UKSC 46; [2010] 3 WLR 1472.

  89. 89.

    Article V.1, NYC (1958): ‘Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that:

    1. (a)

      The parties to the agreement referred to in Article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or

    2. (b)

      The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or

    3. (c)

      The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced; or

    4. (d)

      The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or

    5. (e)

      The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.’

  90. 90.

    s 103, Arbitration Act 1996 (England and Wales) provides: Refusal of recognition or enforcement.

    (1) Recognition or enforcement of a New York Convention award shall not be refused except in the following cases. (2) Recognition or enforcement of the award may be refused if the person against whom it is invoked proves—(a) that a party to the arbitration agreement was (under the law applicable to him) under some incapacity; (b) that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made; (c) 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; (d) that the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration (but see subsection 4); (e) that the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, with the law of the country in which the arbitration took place; (f) that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made. (3) Recognition or enforcement of the award may also be refused if the award is in respect of a matter which is not capable of settlement by arbitration, or if it would be contrary to public policy to recognise or enforce the award. (4) An award which contains decisions on matters not submitted to arbitration may be recognised or enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those on matters not so submitted. (5) Where an application for the setting aside or suspension of the award has been made to such a competent authority as is mentioned in subsection (2)(f), the court before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the recognition or enforcement of the award. It may also on the application of the party claiming recognition or enforcement of the award order the other party to give suitable security.

  91. 91.

    This is the Court of Appeal’s summary of this curious aspect: [24] …the [arbitration] tribunal did not accept [that Dubai law or Saudi law governed the arbitration clause], nor did it hold that by choosing arbitration in Paris the parties had made an implied choice of French law. Instead, it held that all issues relating to the validity and scope of clause 23, including the question whether the Government of Pakistan was a party to it, were to be determined by reference to “those transnational general principles and usages which reflect the fundamental requirements of justice in international trade and the concept of good faith in business”. The tribunal… held that the Government of Pakistan was a true party to the Agreement, including the arbitration clause. [25]…[As for] the tribunal’s reasoning, …the two important matters to emphasise are, first, that it did not purport to apply French law in order to determine the issue before it and, second, that its decision was based mainly, if not entirely, on inferences drawn from the documents. The judge, on the other hand, not only had some additional documents before him, but, more importantly, [as the enforcing court under English arbitration law] he was bound by section 103(2) of the [English] Arbitration Act 1996 to apply French law to the facts as he found them.

  92. 92.

    On this Moore-Bick LJ said at [18]: there is nothing in the [New York] Convention to suggest that the supervisory court [viz the court of the place where the award is made: here the French courts] is intended to have primacy in the sense that enforcing courts are expected, much less required, to treat the award as valid and binding unless and until successfully challenged in the supervisory court. If that had been intended, Article V.1 would have taken a very different form. In particular, it would not have given courts of other jurisdictions an unrestricted power to refuse enforcement in cases where defects in the arbitral process of the kind which it describes could be proved. On the contrary, it is well established … that a person against whom an award has been made is not bound to challenge it before the supervisory court in order to challenge its enforcement in another jurisdiction: see Svenska Petroleum Exploration AB v. Lithuania (No 2) [2006] EWCA Civ 1529; [2006] 2 CLC 797 at [104] and the cases there cited. In my view the terms of Article V.1 read as a whole amply bear out the submission of Mr Landau QC that one of the fundamental principles enshrined in the Convention is that such a person is entitled to oppose the enforcement of an award on the grounds that it is not based on a valid agreement to arbitrate.

  93. 93.

    On this Moore-Bick LJ said at [56]: the purpose of Article V.1 of the Convention was to preserve the right of a party to a foreign arbitration award to challenge enforcement [viz in the court where such enforcement is sought: here in England] on grounds that impugn its fundamental validity and integrity. The fact that it has not been challenged or that a challenge has failed in the supervisory court [viz the court of the place where the award is made: here the French courts] does not affect that principle.

  94. 94.

    Gouvernement du Pakistan v. Société Dallah Real Estate & Tourism Holding Co, Cour d’appel de Paris, Pôle 1—Chap. 1, no 09/28533 (17 February 2011) (http://www.practicallaw.com/8-505-0043). On which see both the next note and the comment by White & Case: http://www.whitecase.com/insight-03022011/.

    James Clark, http://www.practicallaw.com/4-504-9971?q=&qp=&qo=&qe=: ‘By contrast, the French court did not focus on French law principles and proceeded to a factual enquiry to determine whether the parties had actually consented to go to arbitration. This very practical approach is consistent with French case law. This solution is inspired by the recognised desire of French courts to develop substantive rules for international arbitration that ensure that the outcome of a dispute does not depend on the particularities of a national law. This solution is also consistent with French case law on the extension of arbitration agreements to parties that are non-signatories but have participated in its negotiation and performance.’

  95. 95.

    James Clark, … negotiation and performance.

  96. 96.

    Cour de Cassation, First Civil Chamber, Municipalité de Khoms El Mergeb v. Dalico, 20 December 1993, JDI 1994, 432, note E. Gaillard.

  97. 97.

    The ‘Double Helix’ structure of DNA was discovered by Francis Crick and James Dewey Watson (Nobel Prize 1962); the latter is an Honorary Fellow of Clare College, Cambridge, where the author is a Fellow; and there is a sculpture of the Double Helix within the college’s grounds.

  98. 98.

    Allianz SpA etc v. West Tankers (C-185/07) [2009] 1 AC 1138; [2009] 1 All ER (Comm) 435; [2009] 1 Lloyd’s Rep 413; [2009] 1 CLC 96; [2009] ILPr 20; The Times, 13 February, 2009.

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    Neil Andrews

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Andrews, N. (2012). Arbitration in England. In: The Three Paths of Justice. Ius Gentium: Comparative Perspectives on Law and Justice, vol 10. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-2294-1_10

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