Arbitration Law Monthly

The appeal to the Court of Appeal in Midgulf International Ltd v Groupe Chimique Tunisien [2010] EWCA Civ 66 from two judgments of Teare J [2009] EWHC 963 (Comm) and [2009] EWHC 1684 (Comm), was concerned with two issues: whether an arbitration clause had been incorporated into the parties’ agreement and, if so, whether an anti-suit injunction should be granted to prevent the respondent from continuing judicial proceedings in Tunisia. The leading judgment was given by Toulson LJ, with Mummery and Patten LJJ expressing their agreement, and the decision confirms that the power of the English courts to grant anti-suit relief is, European cases aside, unaffected.

Section 12 of the Arbitration Act 1996 permits the court to extend a contractual time limit for the commencement of arbitration proceedings. The terms of s12 are deliberately drafted in a restrictive fashion, and it is apparent from the decided cases that the courts will extend time only in exceptional circumstances. The most important feature of SOS Corporación Alimentaria, SA v Inerco Trade SA [2010] EWHC 162 (Comm) was that the arbitrators were themselves given power to extend time, but had refused to do so, Hamblen J recognised that the existence of that power made judicial intervention an even more remote possibility. The decision draws a clear distinction between the wide discretion of the court to extend time under s27 of the Arbitration Act 1950, and the approach taken under the 1996 Act.

Gavin Kealey QC, sitting as a Deputy High Court Judge, has, in Buyuk Camlica Shipping Trading & Industry Co Inc v Progress Bulk Carriers Ltd [2010] EWHC 442 (Comm) laid down a series of important principles in respect of appeals to the court under s68 of the Arbitration Act for alleged serious irregularity. The decision analyses the scope of s68(2)(d) (failure by arbitrators to deal all of the issues put to them), and then discusses the procedural formalities for an appeal, including the need to exhaust other remedies and the extension of time where a tactical decision has been made not to pay for and collect the award.