Arbitration Law Monthly

In Papas Olio JSC v Grains & Fourrages SA & Anor [2009] EWCA Civ 1401, the Court of Appeal has upheld the decision of Gross J, [2009] EWHC 1257 (Comm) (discussed in the November 2009 issue of Arbitration Law Monthly), in which the learned judge ruled that the applicant, Papas, was barred by the time limits in the rules of FOSFA from appealing against an award. The only reasoned judgment was given by Toulson LJ.

A range of procedural challenges to an award under s68 of the Arbitration Act 1996 were made inDouble K Oil Products 1996 Ltd v Neste Oil Oyj [2010] 1 Lloyd’s Rep 141. The allegations ranged from suppression of evidence to reliance on privileged documents. All were ultimately dismissed by Blair J.

In Lidl GmbH v Just Fitness Ltd [ 2010] EWHC 39 (Ch) the losing party in arbitration proceedings contended that a key issue which had been raised had not been resolved, and accordingly that he was entitled to commence a fresh arbitration on that point. Frances Kirkham J disagreed, and held that in such circumstances there was an estoppel against the applicant.

There are many authorities on the question whether an arbitration clause can be incorporated from one document into the contract between the parties. The cases have drawn a distinction between ‘two contract’ cases, where clear words of incorporation are required, and other cases, where the rules for incorporation are more generous. Habas Sinai VE Tibbi Gazlar Isthisal Endustri AS v Sometal SAL [2010] EWHC 29 (Comm) raised a previously unresolved question, namely, whether general or specific words are necessary to incorporate an arbitration clause from an earlier contract between the same parties. Christopher Clarke J held that the more generous rules were applicable in such a case.

In Norscot Rig Management PVT Ltd v Essar Oilfields Services Ltd [2010] EWHC 195 Burton J considered whether disputes arising under earlier contracts between the parties fell within the scope of an arbitration clause contained in a later contract, so that they could be brought into the arbitraton by way of set-off. The learned judge was satisfied that the contracts were sufficiently closely connected to justify a finding that the set-off at the very least ‘related to’ the later contract, as required by the arbitration clause.