Arbitration Law Monthly

In A Lloyd’s Syndicate v X [2011] EWHC 2487 (Comm), Teare J was asked to grant an injunction to restrain the defendant, an expert witness, from giving evidence as to the construction of a clause in a reinsurance contract. The expert had discussed that very wording with the claimant’s solicitors two years earlier, but in the context of a different arbitration in which the expert was acting for the claimant. Teare J refused relief on the facts and did not address wider jurisdictional issues.

It is regularly held by the courts that an error of fact does not give rise to judicial review under the Arbitration Act 1996. Two attempts were made in Micoperi SrL v The Shipowners’ Mutual Protection & Indemnity Association (Luxembourg) [2011] EWHC 2686 (Comm) to persuade the court to overturn an award on that very basis: that the arbitrators had misapplied the law to the facts (error of law under s69 of the Arbitration Act 1996); and that the arbitrators had taken into account matters which had not been argued before them (serious irregularity under s68 of the 1996 Act). Burton J dismissed both arguments. Perhaps the most surprising aspect of the case is that permission to appeal under s69 was given in the first place.

In Five Oceans Salvage Ltd v Wenzhou Timber Group Co [2011] EWHC 3282 (Comm) the award made by the arbitrator was, for reasons beyond his control, not enforceable. The questions raised in this case were whether the arbitrator could himself make a new award and, in the alternative, whether the existing award could be set aside for serious irregularity.

Complex issues relating to the ability of the arbitrators to issue a supplementary award where the initial award is not clear were raised in Re PetroChina International (Hong Kong) Corporation Ltd [2011] 4 HKLRD 604. The case is discussed by Edward Yang Liu, Legal Assistant, Reed Smith Richards Butler, Hong Kong.

In Five Oceans Salvage Ltd v Wenzhou Timber Group Co [2011] EWHC 3282 (Comm) the award made by the arbitrator was, for reasons beyond his control, not enforceable. The questions raised in this case were whether the arbitrator could himself make a new award and, in the alternative, whether the existing award could be set aside for serious irregularity.

It is regularly held by the courts that an error of fact does not give rise to judicial review under the Arbitration Act 1996. Two attempts were made in Micoperi SrL v The Shipowners’ Mutual Protection & Indemnity Association (Luxembourg) [2011] EWHC 2686 (Comm) to persuade the court to overturn an award on that very basis: that the arbitrators had misapplied the law to the facts (error of law under s69 of the Arbitration Act 1996); and that the arbitrators had taken into account matters which had not been argued before them (serious irregularity under s68 of the 1996 Act). Burton J dismissed both arguments. Perhaps the most surprising aspect of the case is that permission to appeal under s69 was given in the first place.

Judith Prakash J, in her interesting judgment in Kempinski Hotels SA v PT Prima International Development [2011] SGHC 171, discussed a number of important questions as to how an arbitrator should deal with new information coming to light in the course of an arbitration where partial awards have been issued on other questions. The judgment makes it clear that it is necessary for that new information to be introduced formally into the arbitration rather than simply raised by way of clarification to the earlier awards.

The question raised in Barclays Bank plc v Nylon Capital LLP [2011] EWCA Civ 826 is one that is familiar in arbitration but has not previously arisen in the context of expert determination: if there is a dispute as to whether the issue falls within the scope of the expert’s mandate, should the court resolve the point or should it stay its proceedings and leave it to the expert? Unsurprisingly, given the English approach to arbitration, the Court of Appeal has decided that it will often be appropriate for the court to deal with the jurisdictional question in advance of the carrying out of the expert determination.

The English court has jurisdiction under the New York Convention to refuse or stay the enforcement of an award given in another country where the award is not binding, or is subject to challenge in that country. The manner in which these defences should be approached was discussed by Burton J in Dowans Holdings SA and Anr v Tanzania Electric Supply Co Ltd [2011] EWHC 1957 (Comm).