Arbitration Law Monthly

Calver J in Helice Leasing SAS v PT Garuda Indonesia (Persero) TbK [2021] EWHC 99 (Comm) has reaffirmed the pro-arbitration stance of the English courts, and has ruled that: a contract containing seemingly conflicting arbitration and jurisdiction clauses should be construed as giving primacy to arbitration; and there can be a dispute capable of being referred to arbitration even in the case of an admitted debt.

Section 12 of the Arbitration Act 1996 empowers a court to extend the contractual time limits for the commencement of an arbitration. The legislation is drawn in much narrower terms than its predecessor, section 27 of the Arbitration Act 1996, and focuses on the parties’ agreement with regards to a time bar. In the absence of exceptional circumstances, based either on circumstances not contemplated when the contract was made or conduct on the part of the defendant, an order will not be made. The section was discussed by Cockerill J in FIMBank plc v KCH Shipping Co Ltd (The Giant Ace) [2020] EWHC 1765 (Comm).

The main issue before Jacobs J in Unión Fenosa Gas SA v Arab Republic of Egypt [2020] EWHC 1723 (Comm) was whether an award issued under the auspices of the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) could be enforced in England in the absence of the service of the arbitration claim form seeking enforcement on the defendant state.

In Republic of Kazakhstan v World Wide Minerals Ltd and Another [2020] EWHC 3068 (Comm) the court was faced with an arbitration award which had upheld some but not all of the claims made by the claimant but which had been given evidence of quantum based only on the assumption that all of the claims would be upheld. The court ruled that the tribunal had been guilty of serious irregularity by making its own assessment of damages on a basis not put forward by the claimant.

By section 68(2)(i) of the Arbitration Act 1996 there can be an appeal against an arbitration award by reason of “any irregularity in the conduct of the proceedings or in the award which is admitted by the tribunal or by any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award”. There is little relevant authority on this provision, which makes the decision of Sir Ross Cranston in Doglemor Trade Ltd and Others v Caledor Consulting Ltd and Another [2020] EWHC 3342 (Comm) of particular interest.