Arbitration Law Monthly

The Court of Appeal in Secretariat Consulting Pte Ltd and Others v A Company [2021] EWCA Civ 6 considered the scope of the duties of an expert witness in a construction arbitration, and whether the expert was in breach of any duty by allowing an associated company to give evidence in a parallel arbitration against the expert’s employer. The Court of Appeal was able to dispose of the issue by reference to the contractual retainer and found it unnecessary to give any opinion on wider issues of law and equity. The leading judgment was given by Coulson LJ, and shorter assenting judgments were delivered by Males and Carr LJJ.

The judgment of Calver J in A v B [2020] EWHC 3657 (Comm) is a straightforward application of settled principles relating to the incorporation of an arbitration clause from a charterparty into a bill of lading and to the grant of anti-suit relief despite a short delay in the application.

In Lenkor Energy Trading DMCC v Puri [2020] EWHC 1432 (QB) Murray J considered the circumstances in which an English court could refuse to recognise or enforce the judgment of a foreign court on the ground that the contract to which it related was illegal. The case did not involve an arbitration award, but the relevant principles were regarded by Murray J as applicable in both situations. The decision makes it clear that if a foreign court has considered and rejected arguments based on illegality, there is very limited scope for the English court to invoke domestic public policy principles.

Calver J in LavenderShipmanagement Inc v Ibrahima Sory Affretement Trading SA and Others [2020]EWHC 3462 (Comm) dismissed two jurisdictional challenges to an arbitrationaward under section 67 of the Arbitration Act 1996. Those challenges raised thequestions whether arbitration clauses in six bills of lading had beenconsolidated into a single clause and whether the tribunal had been validlyappointed.

The 28-day period permitted for an appeal to the courts against an arbitration award may be extended in the discretion of the court, but in practice only the shortest delays have attracted the sympathy of the court, at least in the absence of some form of sharp practice from the successful party in the arbitration. Federal Republic of Nigeria v Process & Industrial Developments Ltd [2020] EWHC 2379 (Comm); [2021] 1 Lloyd’s Rep 121 demonstrates that “fraud unravels all” and that undiscovered and undiscoverable fraud by the successful party will not preclude an extension of time even if a period of years has elapsed, as long as the applicant has moved quickly following the discovery of the fraud.