Geographic barriers have fallen and technology is helping us reach parts of the world which 20 years' ago would never have been possible. As we face today and the next generation, our members will support and enable; individuals, businesses, governments and the judiciary to connect. It is imperative to embrace the change in recognising how the legal world can support dispute avoidance, management and resolution mechanisms around the globe.
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LEGAL /
Endorsements for dispute avoidance, management and resolution mechanisms |
HOW WILL THE LEGAL WORLD BE CHANGING ?
"Ultimately, with todays technology in our hands and a positive attitude, the legal world will soon be at the centre of a big shift in the way we live and resolve disputes out of Court" Prime Dispute - President |
Join us and support - The Legal & Dispute Resolution Commitment
(a) be proactive in the management of potential disputes and in working to prevent disputes arising or escalating;
(b) include dispute resolution mechanisms within complaints/dispute handling procedures;
(c) use prompt, cost effective and efficient processes for undertaking and completing negotiations and resolving disputes;
(d) choose processes appropriate in style and proportionate in costs to the issues that need to be resolved;
(e) recognise that the use of appropriate dispute resolution processes can often avoid the high costs, time and resources of going to court;
(f) educate employers/employees and officials in appropriate dispute resolution techniques in order to enable the best possible chance of success when using them.
(a) be proactive in the management of potential disputes and in working to prevent disputes arising or escalating;
(b) include dispute resolution mechanisms within complaints/dispute handling procedures;
(c) use prompt, cost effective and efficient processes for undertaking and completing negotiations and resolving disputes;
(d) choose processes appropriate in style and proportionate in costs to the issues that need to be resolved;
(e) recognise that the use of appropriate dispute resolution processes can often avoid the high costs, time and resources of going to court;
(f) educate employers/employees and officials in appropriate dispute resolution techniques in order to enable the best possible chance of success when using them.
CASE SUMMARIES
UK Court Decisions & Legal Updates
UK Court Decisions & Legal Updates
The Civil Procedure (Amendment No 3) Rules 2024, which came into force on 01 October 2024, amended the Civil Procedure Rules (CPR). Whilst the Court has always expected parties to engage with ADR (Alternative Dispute Resolution), it is clear now that the Court can order ADR and failure to comply could see costs sanctions imposed. Read More
The English Commercial Court concluded in Aiteo Estern E & P Company Limited v Shell Western Supply and Trading Limited & Ors [2024] EWHC 1993 (Comm), that there was apparent bias by one of the three members of the Tribunal. Aiteo claimed Dame Gloster of apparent bias due to her professional connections with Freshfields. Aiteo applied to the Commercial Court under section 68 Arbitration Act 1996 to set aside the awards on the grounds of apparent bias being a serious irregularity that unfairly affected them. Read More
The decision in AZ v BY [2024] EWHC 1847 (Comm) confirmed that, in most cases, the court will not interfere unnecessarily in the interpretation of arbitral awards. The court determined that an indemnity granted under this section was equivalent to a court order and that the dispositive part of the arbitral award, which starts with "the tribunal hereby DECIDES AND AWARDS as follows," forms a comprehensive statement of the remedies available to a party. Read More
The Privy Council examined, an appeal from the Court of Appeal of the Eastern Caribbean Supreme Court (BVI) in Sian Participation Corporation (In Liquidation) v. Halimeda International Ltd [2024] UKPC 16, which addressed whether a company should be wound up when the debt upon which the winding up application is based is subject to an arbitration agreement and is disputed or the subject of a cross-claim. Read More
In Zhongshan Fucheng Investment Co Ltd v The Federal Republic of Nigeria [2024] EWHC 1503 (Comm), The High Court of Justice for England and Wales ordered final charging orders on residential properties owned by the Nigeria High Commission in London in relief of an arbitration award, dismissing arguments that the property was not in commercial use and thus enjoyed state immunity from execution. Read More
Republic of Kosovo v ContourGlobal Kosovo LLC [2024] EWHC 877 (Comm) - The High Court has rejected a challenge by the Government of Kosovo to an arbitral award on the grounds of serious irregularity, in accordance to s68 of the Arbitration Act 1996 - s68(2)(a) of the Arbitration Act 1996 provides that an arbitral award can be set aside if an arbitral tribunal fails to comply with s33 of the Act. Read More
The English Commercial Court decided to publish a non-anonymised judgment on an arbitration claim concerning challenges to an arbitration award. In Mordchai Ganz v Petronz FZE & Abraham Goren [2024] EWHC 1011 (Comm), the Court has provided helpful guidance on balancing party expectations of confidentiality in arbitration against the public interest in arbitration proceedings. Read More
While the decision of the adjudicator contained errors in the section of his decision in which he ordered that payment be made to the pursuers, it was held there was no doubt that the adjudicator was ordering the defender to pay the sum of £1.8 million. Some useful points for members regarding 'Grid Solutions Ltd and Amey Power Services Ltd v Scottish Hydro Electric Transmission plc [2024] CSOH 5'. Read More
The Court established that the Czech Republic had lost its right to raise the new challenge to the award because at the time it proceeded to participate in the arbitration proceedings and it could have, with reasonable diligence, identified the grounds for the objection. In 'Czech Republic -v- Diag Human SE & another [2024] EWHC 708 (Comm)' the Court, refused leave to amend. Read More
Sharp Corp Ltd v Viterra BV [2024] UKSC 14, judgment provides definitive guidance on the limits within which the English Court can act on an appeal under s69 (Appeal on point of law) of the Arbitration Act 1996. The Supreme Court held that the Court of Appeal breached those limits by; asking itself a question which the tribunal hadn't been requested to determine and making factual findings when answering that question. Read More
A useful read - The High Court upheld a tribunal’s decision to decline jurisdiction over a dispute, in the case of Ganz v Petronz FZE and another [2024] EWHC 635 (Comm), as the party challenging the award failed to prove the existence of an authentic and binding agreement to arbitrate. The claimant argued that the respondent had agreed to buy shares in a company under a Share Purchase Agreement. However, the arbitrator determined, in the circumstances where a party to the SPA alleged its signature had been forged, that it had no jurisdiction on the available evidence to hear the substantive dispute. The claimant’s challenges under s67 and s68 of the English Arbitration Act 1996 both failed. Read More
s.24. Power of court to remove arbitrator - The English Commercial Court removed a sole #arbitrator under s.24 of the Arbitration Act 1996 (the Act). In H1 & another -v- W & others [2024] EWHC 382 (Comm), the Court found that there could be no reasonable objection to the fact that the sole arbitrator knew a number of the factual witnesses/all three of the #expertwitnesses on one side. It is useful to note that within a specialist sector this is expected - However, the Court agreed that there was an appearance of bias, placed on the arbitrator’s comments about the parties expert witnesses generally, and specifically the comments made towards the assured’s experts, which suggested that the arbitrator did not have an open mind on one of the core issues in dispute. Read More
In Unicredit Bank GmbH v Ruschemalliance LLC [2024] EWCA Civ 64, the English Court of Appeal overturned a Commercial Court decision to refuse an anti-suit injunction on grounds that the English court had no jurisdiction to grant that relief in relation to a Paris seated arbitration. The Court of Appeal found that, under the general principle laid down in Enka Insaat Ve Sanayi AS v Insurance Company Chubb [2020] UKSC 38, the arbitration agreement was governed by English law and satisfied a jurisdictional gateway, and England was the appropriate forum for the claim. Read More
THE KING’S SPEECH 2023 | ARBITRATION BILL – The King’s Speech has confirmed that the Law Commission of England and Wales's recommendations will definitely reach the statute book. Read More
Clarification from the UK Supreme Court on a stay of legal proceedings under Section 9 Arbitration Act 1996. The UK Supreme Court delivered its judgment in Republic of Mozambique v Privinvest Shipbuilding SAL (Holding) and others [2023] UKSC 32. The judgment provides significant guidance on the conditions for a stay of court proceedings brought in respect of a “matter” covered by an arbitration agreement, pursuant to section 9 of the Arbitration Act 1996. Read More
The English Commercial Court rejected an application for an anti-suit injunction ASI, to restrain proceedings brought in breach of an arbitration agreement. The agreement provided for the arbitration to be seated in Paris and the court held that; given French law does not recognise ASIs, it was not appropriate for the English court to intervene in support of the arbitration. The judgement highlights that parties should ensure that arbitrations are seated in England or another jurisdiction that issues ASIs in order to ease the risk that a party may commence parallel proceedings in a state court. When drafting arbitration agreements, it is suggest that parties choose an arbitral seat such as England where the courts issue ASIs. SQD v QYP [2023] EWHC 2145 (Comm). Read More
The judgment provides another example of the Irish Courts’ continued support for adjudication and gives useful guidance in relation to an adjudicator’s obligations under the Construction Contracts Act 2013. "An adjudicator does not have a role in cajoling the parties to elaborate or improve upon their cases. The adjudicator was entitled, consistent with fair procedures, to reach a decision on the basis of the materials put before him by the parties. The adjudicator was not obliged to enter into a dialogue with the employer nor to invite the employer to shore up its defence by adducing further evidence. Indeed, there would be no such obligation on a court of law to do so in similar circumstances." DNCF Ltd v Genus Homes Ltd [2023] IEHC 490. Read More
The Commercial Court rejected a challenge to a partial award brought under s68 of the Arbitration Act 1996. s73 of the Arbitration Act 1996 meant the claimant was precluded from bringing a serious irregularity challenge; having failed to object during the arbitration once it became alert of the alleged irregularity. The judge dismissed the s68 application, holding that s73 of the Arbitration Act 1996 precluded Radisson from raising its objection to the alleged serious irregularity. Read the full judgement to 'Radisson Hotels APS Denmark v Hayat Otel Işletmeciliği Turizm Yatırım Ve Ticaret Anonim Şirketi [2023] EWHC 892 (Comm)' Read More
In Global Aerospares Limited v Airest AS [2023] EWHC 1430 (Comm) the English Commercial Court dismissed a claim for directions under s18 of the Arbitration Act 1996. Failing to serve a Request for Arbitration under s14(4) of the Act, with the consequence that the process for the appointment of an arbitrator hadn't validly started, was not considered a failure of procedure for the appointment of an arbitrator. Therefore, s18 of the Act was not engaged and the claim was dismissed. To avoid misspent time and costs, as was the case here it would be appropriate to specify an arbitrator appointment mechanism in the arbitration clause. Read More
The English High Court has recently considered the extent to which the public interest in public judgments outweighs the confidentiality attached to arbitral proceedings. The Court rejected Radisson's application seeking to redact the identities of the parties and any details that may identify them in the judgment. Radisson made the application to preserve the confidentiality of the underlying arbitration. Whilst the judge acknowledged Radisson's desire to keep the arbitration confidential, this ultimately did not outweigh the general public interest in open justice. Read More
The Technology & Construction Court (TCC) has addressed the law on if a party resisting the enforcement of an adjudicator’s decision can obtain an order for set off or withholding on the basis of another adjudicator's decision. In this judgement 'FK Construction Limited v ISG Retail Limited [2023] EWHC 1042 (TCC)' the TCC held that no set off or withholding was applicable and therefore enforced the decision in full. Read More
The Court of Appeal recently ruled that an #ADR clause in a contract was unenforceable due to lack of clarity. This judgment is a useful reminder for parties to contracts that include a #disputeresolution procedure (DRP) clause, and to members drafting DRP clauses. Such clauses may be found unenforceable if they lack sufficient clarity and certainty regarding the DRP process. Kajima Construction Europe (UK) Ltd v Children’s Ark Partnership Ltd [2023] EWCA Civ 292 - Read More
A case concerning an appeal under s.69 of the Arbitration Act 1996 on a point of law - The Commercial Court upheld the implication of a term requiring the inspection of a vessel’s holds without delay into a charterparty. The Court decided that although the arbitral award suggested that it was reasonable to imply the term, which is not a sufficient basis to do so, the award was valid if read in a reasonable and commercial manner. Pan Ocean Co Ltd v Daelim Corporation (DL LILAC) [2023] EWHC 391 (Comm). Read More
An interesting read regarding section 45 of the Arbitration Act 1996 (Determination of preliminary point of law) - The English Court of Appeal has recently decided a key question of shipping law. The Court of Appeal’s decision on the nature of demurrage is important in arbitration terms, not only because section 45 applications are rare, but also because section 45 itself provides limited grounds of appeal to the Court of Appeal from the decision of the High Court on the substantive point of law. Read More
The High Court granted leave to enforce the decision of an adjudicator in accordance with Section 6(11) of the Construction Contracts Act 2013. This Judgement serves to reaffirm the “pay now, argue later” principle. Read More
The Judicial Committee of the Privy Council considered a challenge to an #arbitralaward on the basis of “serious irregularity”, under s.90 of the Bahamas Arbitration Act 2009 (the Act). "The Privy Council found...The test of serious irregularity imposes a “high threshold” or “high hurdle”. In order to cross that threshold, the applicant needs to show both that there has been an irregularity of one or more of the kinds listed in s.90 and that that has caused or will cause substantial injustice to the applicant..." Read More
The Commercial Court handed down a judgment dismissing a challenge to an award in a Congo mining dispute brought under section 68 of the Arbitration Act 1996. Read More
An interesting read - In Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait), the Supreme Court ("UKSC") has provided further confirmation of the approach to determining the law that will govern an arbitration agreement. The Commercial Court, the Court of Appeal and now the Supreme Court have all found in Kout's favour. Read More
AIG Europe SA v John Wood Group plc [2021] EWHC 2567 (Comm). Interesting read - The High Court continued antisuit injunctions restraining the defendant from pursuing proceedings in Canada in breach of an exclusive jurisdiction clause and a valid arbitration agreement. Wood Groups insurer Chubb’s point was that the insurance policy contained an exclusive jurisdiction clause in favour of the English court and sought an injunction to prevent Wood Group commencing proceedings in Canada which would breach that provision. Mr JUSTICE JACOBS considered that there was a high degree of probability that the policy did contain an exclusive jurisdiction clause in favour of the English court and that there had been no failure in its duty of full & frank disclosure when it initially obtained the injunction on an ex-parte basis. Read More
NWA v NVF [2021] EWHC 2666 (Comm) - An interesting read in which the Commercial Court, THE HONOURABLE MR JUSTICE CALVER, has confirmed that the failure of a party to comply with a contractual term requiring mediation before a dispute is referred to arbitration is not a matter which affects the jurisdiction of an arbitral tribunal and rather is only relevant to the admissibility of the dispute. Read More
Quadro Services Ltd v Creagh Concrete Products Ltd [2021] EWHC 2637 (TCC) - An interesting read in which Quadro sought summary enforcement of an adjudication decision against Creagh, who said that the adjudicator had no jurisdiction because three disputes were referred to them. An adjudicator will not have jurisdiction to adjudicate more than one dispute in a single adjudication. Her Honour Judge Sarah Watson noted that, if Creagh’s argument was correct, then "...the result would be that the parties would be put to the very significant cost and inconvenience of numerous separate adjudications to recover a single claimed balance under a single contract. That would be contrary to the policy underlying the adjudication process of efficient, swift and cost-effective resolution of disputes on an interim basis." Read More
Good Law Project Ltd, R (On the Application Of) v Secretary of State for Health and Social Care [2021] EWHC 2595 - An interesting read in which Mr Justice Fraser issued a clear and stark warning that expert evidence has to comply with the rules of court. Mr Justice Fraser was not prepared to allow HSC to rely upon either the expert report because they both failed to comply with the Civil Procedure Rules and with the principles. This includes an expert setting out the source of their information and both sides having access to the same information. “….the court has little sympathy with any litigant who simply ignores the rules in this way. Endless opportunities for compliance are not in accordance with the overriding objective. These requirements are not optional extras, only to be complied with by a litigant and their expert if the court states in a specific case that they are to apply. They apply in all cases.” Read More
Interesting read regarding true scope of the dispute and the adjudicator’s jurisdiction. CC Construction Ltd v Raffaele Minicone [2021] EWHC 2502 (TCC). The Court however agreed with the employer that the adjudicator had taken too restrictive a view on the scope of the dispute and his jurisdiction. The employer’s claim for liquidated damages was held to be part of the dispute because it was a legitimate defence to the claim for payment of the final statement. Read More
The English Commercial Court concluded in Aiteo Estern E & P Company Limited v Shell Western Supply and Trading Limited & Ors [2024] EWHC 1993 (Comm), that there was apparent bias by one of the three members of the Tribunal. Aiteo claimed Dame Gloster of apparent bias due to her professional connections with Freshfields. Aiteo applied to the Commercial Court under section 68 Arbitration Act 1996 to set aside the awards on the grounds of apparent bias being a serious irregularity that unfairly affected them. Read More
The decision in AZ v BY [2024] EWHC 1847 (Comm) confirmed that, in most cases, the court will not interfere unnecessarily in the interpretation of arbitral awards. The court determined that an indemnity granted under this section was equivalent to a court order and that the dispositive part of the arbitral award, which starts with "the tribunal hereby DECIDES AND AWARDS as follows," forms a comprehensive statement of the remedies available to a party. Read More
The Privy Council examined, an appeal from the Court of Appeal of the Eastern Caribbean Supreme Court (BVI) in Sian Participation Corporation (In Liquidation) v. Halimeda International Ltd [2024] UKPC 16, which addressed whether a company should be wound up when the debt upon which the winding up application is based is subject to an arbitration agreement and is disputed or the subject of a cross-claim. Read More
In Zhongshan Fucheng Investment Co Ltd v The Federal Republic of Nigeria [2024] EWHC 1503 (Comm), The High Court of Justice for England and Wales ordered final charging orders on residential properties owned by the Nigeria High Commission in London in relief of an arbitration award, dismissing arguments that the property was not in commercial use and thus enjoyed state immunity from execution. Read More
Republic of Kosovo v ContourGlobal Kosovo LLC [2024] EWHC 877 (Comm) - The High Court has rejected a challenge by the Government of Kosovo to an arbitral award on the grounds of serious irregularity, in accordance to s68 of the Arbitration Act 1996 - s68(2)(a) of the Arbitration Act 1996 provides that an arbitral award can be set aside if an arbitral tribunal fails to comply with s33 of the Act. Read More
The English Commercial Court decided to publish a non-anonymised judgment on an arbitration claim concerning challenges to an arbitration award. In Mordchai Ganz v Petronz FZE & Abraham Goren [2024] EWHC 1011 (Comm), the Court has provided helpful guidance on balancing party expectations of confidentiality in arbitration against the public interest in arbitration proceedings. Read More
While the decision of the adjudicator contained errors in the section of his decision in which he ordered that payment be made to the pursuers, it was held there was no doubt that the adjudicator was ordering the defender to pay the sum of £1.8 million. Some useful points for members regarding 'Grid Solutions Ltd and Amey Power Services Ltd v Scottish Hydro Electric Transmission plc [2024] CSOH 5'. Read More
The Court established that the Czech Republic had lost its right to raise the new challenge to the award because at the time it proceeded to participate in the arbitration proceedings and it could have, with reasonable diligence, identified the grounds for the objection. In 'Czech Republic -v- Diag Human SE & another [2024] EWHC 708 (Comm)' the Court, refused leave to amend. Read More
Sharp Corp Ltd v Viterra BV [2024] UKSC 14, judgment provides definitive guidance on the limits within which the English Court can act on an appeal under s69 (Appeal on point of law) of the Arbitration Act 1996. The Supreme Court held that the Court of Appeal breached those limits by; asking itself a question which the tribunal hadn't been requested to determine and making factual findings when answering that question. Read More
A useful read - The High Court upheld a tribunal’s decision to decline jurisdiction over a dispute, in the case of Ganz v Petronz FZE and another [2024] EWHC 635 (Comm), as the party challenging the award failed to prove the existence of an authentic and binding agreement to arbitrate. The claimant argued that the respondent had agreed to buy shares in a company under a Share Purchase Agreement. However, the arbitrator determined, in the circumstances where a party to the SPA alleged its signature had been forged, that it had no jurisdiction on the available evidence to hear the substantive dispute. The claimant’s challenges under s67 and s68 of the English Arbitration Act 1996 both failed. Read More
s.24. Power of court to remove arbitrator - The English Commercial Court removed a sole #arbitrator under s.24 of the Arbitration Act 1996 (the Act). In H1 & another -v- W & others [2024] EWHC 382 (Comm), the Court found that there could be no reasonable objection to the fact that the sole arbitrator knew a number of the factual witnesses/all three of the #expertwitnesses on one side. It is useful to note that within a specialist sector this is expected - However, the Court agreed that there was an appearance of bias, placed on the arbitrator’s comments about the parties expert witnesses generally, and specifically the comments made towards the assured’s experts, which suggested that the arbitrator did not have an open mind on one of the core issues in dispute. Read More
In Unicredit Bank GmbH v Ruschemalliance LLC [2024] EWCA Civ 64, the English Court of Appeal overturned a Commercial Court decision to refuse an anti-suit injunction on grounds that the English court had no jurisdiction to grant that relief in relation to a Paris seated arbitration. The Court of Appeal found that, under the general principle laid down in Enka Insaat Ve Sanayi AS v Insurance Company Chubb [2020] UKSC 38, the arbitration agreement was governed by English law and satisfied a jurisdictional gateway, and England was the appropriate forum for the claim. Read More
THE KING’S SPEECH 2023 | ARBITRATION BILL – The King’s Speech has confirmed that the Law Commission of England and Wales's recommendations will definitely reach the statute book. Read More
Clarification from the UK Supreme Court on a stay of legal proceedings under Section 9 Arbitration Act 1996. The UK Supreme Court delivered its judgment in Republic of Mozambique v Privinvest Shipbuilding SAL (Holding) and others [2023] UKSC 32. The judgment provides significant guidance on the conditions for a stay of court proceedings brought in respect of a “matter” covered by an arbitration agreement, pursuant to section 9 of the Arbitration Act 1996. Read More
The English Commercial Court rejected an application for an anti-suit injunction ASI, to restrain proceedings brought in breach of an arbitration agreement. The agreement provided for the arbitration to be seated in Paris and the court held that; given French law does not recognise ASIs, it was not appropriate for the English court to intervene in support of the arbitration. The judgement highlights that parties should ensure that arbitrations are seated in England or another jurisdiction that issues ASIs in order to ease the risk that a party may commence parallel proceedings in a state court. When drafting arbitration agreements, it is suggest that parties choose an arbitral seat such as England where the courts issue ASIs. SQD v QYP [2023] EWHC 2145 (Comm). Read More
The judgment provides another example of the Irish Courts’ continued support for adjudication and gives useful guidance in relation to an adjudicator’s obligations under the Construction Contracts Act 2013. "An adjudicator does not have a role in cajoling the parties to elaborate or improve upon their cases. The adjudicator was entitled, consistent with fair procedures, to reach a decision on the basis of the materials put before him by the parties. The adjudicator was not obliged to enter into a dialogue with the employer nor to invite the employer to shore up its defence by adducing further evidence. Indeed, there would be no such obligation on a court of law to do so in similar circumstances." DNCF Ltd v Genus Homes Ltd [2023] IEHC 490. Read More
The Commercial Court rejected a challenge to a partial award brought under s68 of the Arbitration Act 1996. s73 of the Arbitration Act 1996 meant the claimant was precluded from bringing a serious irregularity challenge; having failed to object during the arbitration once it became alert of the alleged irregularity. The judge dismissed the s68 application, holding that s73 of the Arbitration Act 1996 precluded Radisson from raising its objection to the alleged serious irregularity. Read the full judgement to 'Radisson Hotels APS Denmark v Hayat Otel Işletmeciliği Turizm Yatırım Ve Ticaret Anonim Şirketi [2023] EWHC 892 (Comm)' Read More
In Global Aerospares Limited v Airest AS [2023] EWHC 1430 (Comm) the English Commercial Court dismissed a claim for directions under s18 of the Arbitration Act 1996. Failing to serve a Request for Arbitration under s14(4) of the Act, with the consequence that the process for the appointment of an arbitrator hadn't validly started, was not considered a failure of procedure for the appointment of an arbitrator. Therefore, s18 of the Act was not engaged and the claim was dismissed. To avoid misspent time and costs, as was the case here it would be appropriate to specify an arbitrator appointment mechanism in the arbitration clause. Read More
The English High Court has recently considered the extent to which the public interest in public judgments outweighs the confidentiality attached to arbitral proceedings. The Court rejected Radisson's application seeking to redact the identities of the parties and any details that may identify them in the judgment. Radisson made the application to preserve the confidentiality of the underlying arbitration. Whilst the judge acknowledged Radisson's desire to keep the arbitration confidential, this ultimately did not outweigh the general public interest in open justice. Read More
The Technology & Construction Court (TCC) has addressed the law on if a party resisting the enforcement of an adjudicator’s decision can obtain an order for set off or withholding on the basis of another adjudicator's decision. In this judgement 'FK Construction Limited v ISG Retail Limited [2023] EWHC 1042 (TCC)' the TCC held that no set off or withholding was applicable and therefore enforced the decision in full. Read More
The Court of Appeal recently ruled that an #ADR clause in a contract was unenforceable due to lack of clarity. This judgment is a useful reminder for parties to contracts that include a #disputeresolution procedure (DRP) clause, and to members drafting DRP clauses. Such clauses may be found unenforceable if they lack sufficient clarity and certainty regarding the DRP process. Kajima Construction Europe (UK) Ltd v Children’s Ark Partnership Ltd [2023] EWCA Civ 292 - Read More
A case concerning an appeal under s.69 of the Arbitration Act 1996 on a point of law - The Commercial Court upheld the implication of a term requiring the inspection of a vessel’s holds without delay into a charterparty. The Court decided that although the arbitral award suggested that it was reasonable to imply the term, which is not a sufficient basis to do so, the award was valid if read in a reasonable and commercial manner. Pan Ocean Co Ltd v Daelim Corporation (DL LILAC) [2023] EWHC 391 (Comm). Read More
An interesting read regarding section 45 of the Arbitration Act 1996 (Determination of preliminary point of law) - The English Court of Appeal has recently decided a key question of shipping law. The Court of Appeal’s decision on the nature of demurrage is important in arbitration terms, not only because section 45 applications are rare, but also because section 45 itself provides limited grounds of appeal to the Court of Appeal from the decision of the High Court on the substantive point of law. Read More
The High Court granted leave to enforce the decision of an adjudicator in accordance with Section 6(11) of the Construction Contracts Act 2013. This Judgement serves to reaffirm the “pay now, argue later” principle. Read More
The Judicial Committee of the Privy Council considered a challenge to an #arbitralaward on the basis of “serious irregularity”, under s.90 of the Bahamas Arbitration Act 2009 (the Act). "The Privy Council found...The test of serious irregularity imposes a “high threshold” or “high hurdle”. In order to cross that threshold, the applicant needs to show both that there has been an irregularity of one or more of the kinds listed in s.90 and that that has caused or will cause substantial injustice to the applicant..." Read More
The Commercial Court handed down a judgment dismissing a challenge to an award in a Congo mining dispute brought under section 68 of the Arbitration Act 1996. Read More
An interesting read - In Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait), the Supreme Court ("UKSC") has provided further confirmation of the approach to determining the law that will govern an arbitration agreement. The Commercial Court, the Court of Appeal and now the Supreme Court have all found in Kout's favour. Read More
AIG Europe SA v John Wood Group plc [2021] EWHC 2567 (Comm). Interesting read - The High Court continued antisuit injunctions restraining the defendant from pursuing proceedings in Canada in breach of an exclusive jurisdiction clause and a valid arbitration agreement. Wood Groups insurer Chubb’s point was that the insurance policy contained an exclusive jurisdiction clause in favour of the English court and sought an injunction to prevent Wood Group commencing proceedings in Canada which would breach that provision. Mr JUSTICE JACOBS considered that there was a high degree of probability that the policy did contain an exclusive jurisdiction clause in favour of the English court and that there had been no failure in its duty of full & frank disclosure when it initially obtained the injunction on an ex-parte basis. Read More
NWA v NVF [2021] EWHC 2666 (Comm) - An interesting read in which the Commercial Court, THE HONOURABLE MR JUSTICE CALVER, has confirmed that the failure of a party to comply with a contractual term requiring mediation before a dispute is referred to arbitration is not a matter which affects the jurisdiction of an arbitral tribunal and rather is only relevant to the admissibility of the dispute. Read More
Quadro Services Ltd v Creagh Concrete Products Ltd [2021] EWHC 2637 (TCC) - An interesting read in which Quadro sought summary enforcement of an adjudication decision against Creagh, who said that the adjudicator had no jurisdiction because three disputes were referred to them. An adjudicator will not have jurisdiction to adjudicate more than one dispute in a single adjudication. Her Honour Judge Sarah Watson noted that, if Creagh’s argument was correct, then "...the result would be that the parties would be put to the very significant cost and inconvenience of numerous separate adjudications to recover a single claimed balance under a single contract. That would be contrary to the policy underlying the adjudication process of efficient, swift and cost-effective resolution of disputes on an interim basis." Read More
Good Law Project Ltd, R (On the Application Of) v Secretary of State for Health and Social Care [2021] EWHC 2595 - An interesting read in which Mr Justice Fraser issued a clear and stark warning that expert evidence has to comply with the rules of court. Mr Justice Fraser was not prepared to allow HSC to rely upon either the expert report because they both failed to comply with the Civil Procedure Rules and with the principles. This includes an expert setting out the source of their information and both sides having access to the same information. “….the court has little sympathy with any litigant who simply ignores the rules in this way. Endless opportunities for compliance are not in accordance with the overriding objective. These requirements are not optional extras, only to be complied with by a litigant and their expert if the court states in a specific case that they are to apply. They apply in all cases.” Read More
Interesting read regarding true scope of the dispute and the adjudicator’s jurisdiction. CC Construction Ltd v Raffaele Minicone [2021] EWHC 2502 (TCC). The Court however agreed with the employer that the adjudicator had taken too restrictive a view on the scope of the dispute and his jurisdiction. The employer’s claim for liquidated damages was held to be part of the dispute because it was a legitimate defence to the claim for payment of the final statement. Read More
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