REPUDIATION OF ARBITRATION AGREEMENT

John Downing v Al Tameer Establishment [2002] EWCA Civ 721, [2002] BLR 323

The Court of Appeal in John Downing v Al Tameer Establishment [2002] EWCA Civ 721, [2002] BLR 323 affirmed that an arbitration agreement can be repudiated and the repudiation accepted in the same way as any other contract can be repudiated and the repudiation accepted. On the facts of the case the defendants’ denial of the existence of a binding agreement between the parties was not only a repudiation of the agreement between the parties but also a repudiation of the arbitration agreement. Further, the Court of Appeal held, on this point reversing the decision of the trial judge, that the claimant had accepted the defendants’ repudiation when he issued court proceedings against the defendants. The Court of Appeal did not conclude that the act of issuing court proceedings will always amount to an acceptance of a repudiation of an arbitration agreement. In each case it will be necessary to have regard to the facts and circumstances of the case but it was held that, on the present facts, the claimant had accepted the defendants’ repudiation when he issued court proceedings.