Arbitration Law Monthly

London Underground Ltd v Citylink Telecommunications Ltd [2007] EWHC 1749 (TCC), a decision of Mr Justice Ramsey, raised both allegations of irregularity and errors of law. There is also some discussion of the procedural aspects where there is a concurrent appeal under s68 of the Arbitration Act 1996 and also an application for permission to appeal under s69.

Ecuador: the facts On 27 August 1993 the US and Ecuador entered into a Bilateral Investment Treaty (BIT). The purpose, as with other BITs, was to encourage investment between the contracting states by conferring, without discrimination, rights upon..

The adjudication scheme under the Housing Grants, Construction and Regeneration Act 1996 provides for the making of a provisional adjudication award, which ceases to be binding if it is overturned by a subsequent arbitration. In Michael John Construction Ltd v St Peter’s Rugby Football Club [2007] EWHC 1857 (TCC) the Court awarded summary enforcement of an adjudication award, and arbitration proceedings were then commenced in a manner which was contrary to the rulings in the enforcement proceedings. The question, which His Honour Judge David Wilcox QC answered in the negative, was whether the court’s own ruling was itself` provisional and subject to modification by any subsequent arbitration.

In Tamil Nadu Electricity Board v ST-CMS Electric Co Private Ltd [2007] EWHC 1713 (Comm) the underlying question for Mr Justice Cooke was whether an arbitration clause governed by English law, and applicable to a contract governed by Indian law, was valid and enforceable in England even though Indian law required the dispute to be resolved by a statutory procedure in India. Cooke J, giving primacy to the separability principle, confirmed that the arbitration clause remained valid.

The English courts have jurisdiction to grant interim relief in support of both English and foreign arbitrations, generally in the form of an order freezing the assets of the defendant by way of security for any future award. An order will be made if there is a real risk that the defendant’s assets will be dissipated and if it is otherwise just and equitqable for an order to be made. In Swift-Fortune Ltd v Magnifica Marine SA, The Capaz Duckling [2007] EWHC 1630 (Comm), David Steel J refused an injunction, on the grounds both of delay and of the claimant’s failure to disclose material facts to a foreign court in support of an ultimately misguided application for relief to that court.

Section 24 of the Arbitration Act 1996 permits a court to remove arbitrators where ‘circumstances exist that are give rise to justifiable doubts about [their] impartiality’. The power is to be exercised in exceptional circumstances only, and it is of little surprise that in ASM Shipping Ltd v Harris [2007] EWHC 1513 (Comm) Mr Justice Andrew Smith refused to exercise that power where the evidence of possible bias was flimsy in the extreme. This case arose from the long-running dispute between ASM and TTMI, which has featured on a number of occasions in the pages of the Lloyd’s Law Reports and of Arbitration Law Monthly in the past few months.