Arbitration Law Monthly

The English courts are regularly faced with arbitration appeals allegedly based on one or other procedural failure by the arbitrators but in essence amounting to no more than disagreement with the outcome. For an award to be set aside, it is necessary for the claimant to show that something has gone wrong in the procedure which has prevented the appellant from presenting the case.

Conflict of laws issues are particularly complex in arbitration cases. There are four separate matters that have to be distinguished: the law applicable to the substantive contract; the law applicable to the arbitration clause; the law applicable to the procedure of the arbitration; and the law applicable to the reference to arbitration. These matters are potentially entirely separate, and different applicable laws can apply to each. There are various presumptions which apply where there is silence on one or more of these matters. In Shagang South-Asia (Hong Kong) Trading Co Ltd v Daewoo Logistics [2015] EWHC 194 (Comm) the issue was whether a clause which provided for the place of the arbitration also by implication amounted to a choice of the procedural law of that place.

Obtaining an arbitration award and an enforcement order in respect of it is one matter. Getting the award debtor actually to pay is another. The protracted proceedings, most recently before the High Court in Cruz City 1 Mauritius Holdings v Unitech Ltd and Others [2014] EWHC 3704 (Comm), demonstrate some deficiencies in the enforcement process where the award debtor has no assets within the jurisdiction and is determined not to pay.