Arbitration Law Monthly

In Cranium Adspace Ltd v British American Tobacco (New Zealand) Ltd [2016] NZHC 2922 Edwards J in the High Court of New Zealand has rejected the argument that an arbitration clause was inoperative or incapable of being performed simply because a third party had become involved in the dispute.

The marathon judgment of Walker J in Teekay Tankers Ltd v STX Offshore & Shipbuilding Co Ltd [2017] EWHC 253 (Comm); [2017] 1 Lloyd's Rep 387 is for the most part concerned with the binding effect of contracts for the construction and sale of vessels where no delivery date was specified. However, there is important analysis of two issues that arise regularly in litigation: what is the effect of an arbitration award upon the rights of third parties; and when may an arbitration award be disclosed without infringing duties of confidentiality?

The English courts will not recognise or enforce an award – whether it is purely domestic or whether it is made abroad and the application is under the New York Convention – where such enforcement is contrary to public policy. However, the exception is a limited one. The courts are unwilling to undermine an award where the public policy issues have been considered and rejected.

The lengthy judgment of Marcus Smith J in Microsoft Mobile OY Ltd v Sony Europe Ltd and Others [2017] EWHC 374 (Ch); [2017] 2 Lloyd's Rep 119 considers a range of complex questions on the jurisdiction of the English courts over a number of defendants. The point of greatest interest for present purposes is the applicability of an arbitration clause to a claim for damages for alleged infringement of EU competition law.

Where there is an appeal against an arbitration award, the court has power under section 70 of the Arbitration Act 1996 to order the applicant to provide security for costs (section 70(6)) and also security for the award itself (section 70(7)), failing which the application can be dismissed. The conditions to be satisfied for the making of an order (section 70(7)) were discussed by Sir Jeremy Cooke in Erdenet Mining Corporation LLC v ICBC Standard Bank plc and Others [2017] EWHC 1090 (Comm); [2017] 2 Lloyd's Rep 25.