Arbitration Links - Linklaters
  • Year: 2018
  • Topic: Challenges & Set Aside

English High Court rejects revived application to set aside order to enforce arbitral award

22 November 2018 Sadie Buls; Gráinne Hawkes, England & Wales; France

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In Eastern European Engineering Ltd v Vijay Construction (Proprietary) Ltd [2018] EWHC 2713 (Comm) the English Commercial Court provided useful confirmation of the high bar to be met in an application to set aside enforcement of an international arbitration award where the award had already been unsuccessfully challenged at the seat of the arbitration.

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English High Court takes a “broad view of the factual matrix” in deciding scope of matters referred to arbitration

08 November 2018 Stephen Lacey; Sadie Buls, England & Wales

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The English High Court decision of Bond v Mackay and others [2018] EWHC 2475 (TCC) concerned a situation where, when a claimant sought to bring further issues before an arbitral tribunal, the court was asked to determine whether those issues fell within the scope of the matters referred to the arbitrator and therefore within his jurisdiction. In assessing this, the court took a “broad view of the factual matrix”, finding that the second claim fell within the substantive jurisdiction of the existing arbitration.

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Striking out arbitration claims for inordinate and inexcusable delay

17 October 2018 Joanne Finnegan, England & Wales; Europe

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In Dera Commercial Estate v Derya Inc [2018] EWHC 1673 (Comm), the English Commercial Court provided useful guidance on when arbitration claims may be dismissed for inordinate and inexcusable delay under s.41(3) Arbitration Act 1996 (the “AA”).

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The foreign act of state doctrine in English arbitration proceedings

20 September 2018 Akshay Sewlikar, England & Wales; India

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In Reliance Industries v Union of India [2018] EWHC 822 Reliance Industries Limited and BG Exploration and Production India Limited (the “Claimants”) challenged awards made in favour of the Union of India (the “Government”) under the Arbitration Act 1996 (the “AA 1996”). The English High Court (the “Court”) had the opportunity to consider the issue of the applicability of the foreign act of state doctrine to English seated arbitration proceedings.

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English High Court considers the interpretation of an arbitration clause written in a foreign language

22 August 2018 Stephen Lacey, England & Wales; Europe

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A recent decision of the English High Court provides important guidance about the interpretation of arbitration clauses under English law when first written in a foreign language. The essence of the judgment is that, where the translation is contested, any ambiguity should be resolved by standard methods of contractual construction.

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English commercial court considers requirement for party to be given fair opportunity to respond

07 August 2018 Sadie Buls; Stephen Lacey, England & Wales; Europe

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In the recent decision of Grindrod Shipping v Hyundai Merchant Marine [2018] EWHC 1284, the English Commercial Court considered the degree to which issues relied upon by the tribunal must have been put before it; in particular, whether points raised by one of the parties in one context can be deployed by the tribunal in another. The short answer is that there is no problem with this, provided the issues can be said to have been “in play” so as to give the other a fair opportunity to respond.

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Dutch Supreme Court applies strict interpretation of the (alternative) time limit for filing for the annulment of an arbitral award

06 July 2018 Marc Noldus; Caroline De Ruiter-Vleggaar, Europe; The Netherlands

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The Dutch Supreme Court has ruled in favour of a strict application of the (alternative) time limit for filing for the annulment of an arbitral award. If the first time limit of three months after the deposit or dispatch of the award has lapsed, a claim for annulment cannot be filed until the start of the second time limit of three months after service of the award and leave for enforcement.

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English Court of Appeal considers grounds for removing an arbitrator

06 June 2018 Alex Hannington, England & Wales; Europe

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The English Court of Appeal in Halliburton Co v Chubb Bermuda Insurance Ltd (and others) [2018] EWCA Civ 817 accepted that an arbitrator’s acceptance of multiple appointments concerning overlapping subject matter, without disclosure, did not provide grounds for his removal under s.24(1)(a) of the Arbitration Act 1996 (the “Act”).

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English Court of Appeal considers “public policy” exception to enforcement of an Award

29 May 2018 Mikhail Vishnyakov, England & Wales; Europe

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In RBRG Trading (UK) Limited v Sinocore International Co Ltd [2018] EWCA Civ 838 an Award debtor (“RBRG”) argued that enforcement of an international arbitration award (an “Award”) under the New York Convention would be contrary to English “public policy”.

Finality is one of the key advantages of arbitration. However, if enforcing an Award would offend English public policy then enforcement may be refused by the English Courts. For example, Awards obtained by perjury or fraud can be susceptible to challenge. If an Award is otherwise tainted by illegality (for example, if the underlying contract is illegal), its enforcement may also offend English public policy. The determination of illegality and its effect on enforcement is a matter on which judicial guidance is always welcome.

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Award need not be deferred pending determination of same issues in another forum

21 May 2018 Mikhail Vishnyakov, England & Wales; Europe

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In SCM Financial Overseas Ltd v Raga Establishment Ltd [2018] EWHC 1008 the English High Court held that a Tribunal’s decision not to defer its Award pending judgment from a foreign court on the same issues did not render the Award susceptible to challenge for “serious irregularity” pursuant to Section 68 of the Arbitration Act 1996.

Although the Tribunal could have deferred its Award, the decision on whether to do so fell within the Tribunal’s legitimate discretion. In this case, the Tribunal properly exercised its discretion and the challenge was therefore dismissed.

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English Commercial Court considers arbitration clause in implied contract in s.67 challenge

09 May 2018 Stephen Lacey; Sadie Buls, England & Wales; Europe

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In SEA2011 Inc v ICT Ltd [2018] EWHC 520 (Comm), London’s Commercial Court rejected three challenges to an arbitrator’s jurisdiction, two based on the identification of the parties to the arbitration clause and one based on the nature of the contract. The judgment is an interesting illustration of how, when English law applies, ordinary rules of contract can assist in identifying both the parties to a contract and whether an arbitration clause is incorporated where that contract is “implied”.

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Successful challenge on basis of serious irregularity – A tribunal’s failure to deal with contribution claim

13 April 2018 Sadie Buls, England & Wales

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In P v D & Ors [2017] EWHC 3273 (Comm), London’s Commercial Court upheld a challenge to a London Court of International Arbitration award brought under s.68 Arbitration Act 1996 for serious irregularity. The claimant sought remission of the award on the basis that the Tribunal failed to deal with all the issues that were put to it (in particular, it failed to consider the claimant’s contribution claim in the proceedings), thereby causing the claimant substantial injustice. In its judgment, the Court identified a number of errors in the Tribunal’s award and provided guidance on when a LCIA Tribunal can exercise post-award powers to make corrections or issue additional awards under the LCIA Rules.

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Does a slip buy more time? English High Court considers the relationship between corrections of awards and time limits for appeal

05 April 2018 Stephen Lacey, England & Wales; Europe

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In DSMG v Songa [2018] EWHC 538 (Comm), the English High Court has examined whether an application to the tribunal to make straightforward corrections to an award extends, under the English Arbitration Act 1996 (the “Act”), the period for bringing a challenge in court against the award. It appears that it is only where an application for corrections is material - in the sense of enabling a party to know whether it has grounds to challenge an award - that it will do so.

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English High Court considers the impact of third party funding in the context of a challenge to an Award

28 February 2018 Mikhail Vishnyakov, England & Wales

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In Progas Energy Limited et al v the Islamic Republic of Pakistan [2018] EWHC 209 (Comm) the English High Court considered the conditions to be imposed on the Claimants who sought to challenge an award.

The Court ordered security for costs against the Claimants notwithstanding the fact that they had the support of a commercial third party funder. However, third party funding did not impact on the Court’s refusal to order, as a condition of the challenge, the security of sums due under the award being challenged.

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Successful section 68 challenge where no opportunity to make submissions on costs

14 February 2018 Joanne Finnegan, England & Wales

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In Oldham v. QBE Insurance (Europe) Ltd [2017] EWHC 3045 (Comm), the Commercial Court allowed a challenge to an arbitral award under section 68 of the Arbitration Act 1996 on grounds of serious irregularity where the applicant had not been given a reasonable opportunity to make submissions as to costs.

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Set aside decision highlights important practice point for Requests for Arbitration under LCIA rules

31 January 2018 Stephen Lacey; Sadie Buls; Matthew Weiniger, England & Wales

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In A v B [2017] EWHC 3417 London’s Commercial Court held that the LCIA rules did not permit a Request for Arbitration filed by the claimant to include related claims under two contracts and their associated LCIA arbitration agreements (thereby denying the tribunal jurisdiction). Claimants in LCIA arbitrations may therefore well wish to consider filing multiple requests in like circumstances in future.

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Do arbitration clauses catch cartel damages claims? First German court decision answers this question in the affirmative

09 January 2018 Dr. Rupert Bellinghausen; Julia Grothaus, Europe; Germany

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Whilst the CJEU’s 2015 landmark decision in CDC v. Akzo Nobel et al. considered whether cartel damages claims fall within the scope of jurisdiction clauses in favour of EU Member States, what about arbitration clauses? The first German court decision on this issue, handed down by the Regional Court of Dortmund (Landgericht Dortmund), has concluded that, where German law applies to the clause, they do – irrespective of whether the clause is worded broadly or narrowly (judgment of 13 September 2017, case no. 8 O 30/16 [Kart]).

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