Arbitration Law Monthly

In Yegiazaryanv Smagin [2016] EWCA Civ 1290 the Courtof Appeal heard an appeal from the judgment of Teare J on the meaning of adispute resolution clause. By common consent the arbitration clause was poorlydrafted and purported to bind a person who was not a party to the agreements towhich the clause related. The Court of Appeal agreed with Teare J that theprovision did indeed qualify as an arbitration clause.

Arbitration is by its nature consensual and betweenthe parties to the arbitration agreement. A question arising from time to timeis whether an arbitrating company that ceases to exist in the course of thearbitration and transfers its undertaking to a third party is entitled toassign the benefit of the arbitration clause.

Michael Wilson & Partners Ltd v Sinclair andAnother [2017] EWCA Civ 3, the latestinstalment in the decade-long dispute between MWP and its ex-employees, hasallowed the Court of Appeal to adjudicate upon a difficult issue in relation tothe effect of an arbitration award upon a third party. The essential question,albeit arising in a complex factual scenario, was whether an arbitration awardholding that A had no claim against B for improperly acquiring shares, in thatthe shares belonged to C, precluded a claim in judicial proceedings by Aagainst C in respect of those shares.

The decision of Belinda Ang J in the High Court of Singapore in BMO v BMP [2017] SGHC 127 covers a lot ofground, including the law applicable to an arbitration clause and the properapproach to its interpretation. However, the most important aspect of thedecision is the detailed analysis of the circumstances in which a right toarbitrate is lost by a party who commences litigation instead of arbitrating.