Arbitration Law Monthly

In Union Marine Classification Services LLC v The Government of the Union of Comoros and Another (No 2) [2017] EWHC 2364 (Comm) a challenge was made to an arbitration award on the ground that the issue resolved by the arbitrator had not been a part of the original submission to arbitration. HHJ Waksman QC ruled that the parties had agreed to ad hoc arbitration on the point.

There were numerous issues and a copious citation of authority in Fitzpatrick v Emerald Grain Pty Ltd [2017] WASC 206, a decision of Martin CJ in the Supreme Court of Western Australia. The main questions concerned the scope of the arbitration clause, effect of parallel jurisdiction and arbitration provisions and the arbitrability of matters involving a trust.

Section 9 of the Arbitration Act 1996 requires the court to stay its proceedings if there is an arbitration agreement in writing covering the matter before the court. The meaning of writing is set out in section 5 of the 1996 Act. HHJ Pelling QC in Bony v Kacou and Others [2017] EWHC 2146 (Ch) was required to determine whether the parties had entered into an agreement incorporating a written arbitration clause.

In Smyth-Tyrrell and Another v Sowden [2017] EWHC 2331 (Ch) HHJ Paul Matthews considered and refused an application for an extension of the 28-day period permitted for an appeal under the Arbitration Act 1996. The arbitration was held under the mandatory requirement in the Agricultural Holdings Act 1986, but the court proceeded on the basis that the 1996 Act’s principles applied.

In English law there is serious irregularity capable of leading to an award being set aside where the tribunal decides issues not put to it. GD Midea Air Conditioning Equipment Co Ltd v Tornado Consumer Goods Ltd [2017] SGHC 193 is an illustration of the point from Singapore, under legislation differently drafted but to the same effect.

In the usual course of events, where a foreign arbitration award has been set aside by the curial court, the English courts will treat themselves as bound by the ruling of the court and will not recognise or enforce the award under the New York Convention as implemented by the Arbitration Act 1996. In Maximov v Open Joint Stock Company “Novolipetsky Metallurgichesky Kombinat” [2017] EWHC 1911 (Comm) the award holder tried to persuade the English court that the ruling of the Russian curial courts setting aside the award should not be recognised, by reason of the bias of those courts. Sir Michael Burton rejected the argument on the facts.