Arbitration Law Monthly

The grounds upon which recognition and enforcement are to be withheld from an arbitration award are strictly limited, particularly where the award is a foreign one and its validity falls to be determined under the New York Convention. Tugendhat J in Accentuate Ltd v Asigra Inc [2009] EWHC 2655 (QB), has added to the list of awards which cannot be recognised and enforced in England. The learned judge has held that certain aspects of the Commercial Agents (Council Directive) Regulations 1993, which implement into English law the Commercial Agents Directive, Council Directive 86/653/EEC, are incapable of being set aside by contract, so that any award which is incompatible with them is not to be given the force of law in England.

It is settled law that perjury or the deliberate withholding of material documents in the course of an arbitration will justify the setting aside of the award. However, the mere fact that the arbitrators have not been presented with all available documents is not necessarily enough to justify judicial intervention. As is shown by the decision of Judith Prakash J in Swiss Singapore Overseas Enterprises Pte Ltd v Exim Rajathi India Pvt Ltd [2009] SGHC 231, it has to be shown that fraud or unconscionable conduct were present and that the documents, if disclosed, would have affected the outcome.

In most cases the issue of the validity or scope of an arbitration clause comes before the court where party A brings judicial proceedings, and party B seeks a stay in reliance on an alleged arbitration clause. In that type of case the settled approach is that the court will generally make a ruling on jurisdiction on the evidence before it rather than leave it to the arbitrators. In British Telecommunications plc v SAE Group Inc [2009] EWHC 252 (TCC) Ramsey J has decided that an equivalent approach should be adopted where party A seeks a declaration that no arbitration agreement exists.

There are various mechanisms for challenging an arbitration award in the Arbitration Act 1996. One is by means of a direct appeal under s67. Another is the seeking of a declaration under s72 that the arbitrators did not possess jurisdiction. The latter can be used at any stage in the arbitral process, and there are no time limits for its use. By contrast, s67 requires an application to be made within 28 days of the publication of the award. In Broda Agro Trade (Cyprus) Ltd v Alfred C Toepfer International GmbH [2009] EWHC 3318 (Comm) both provisions were relied upon, but neither was available for procedural reasons.