Arbitration Law Monthly

Section 32 of the Arbitration Act 1996 introduced into English law a procedure whereby an application could be made to the court for a preliminary ruling on the tribunal’s substantive jurisdiction. The procedure was regarded as one to be invoked in exceptional circumstances only. VTB Commodities Trading Dac v JSC Antipinsky Refinery [2019] EWHC 3292 (Comm) is one of the very few cases where the court has considered a section 32 application.

Barniville J in the Irish High Court has, in XPL Engineering Ltd v K & J Townmore Construction Ltd [2019] IEHC 665, explored two questions that have reached the English courts on a number of occasions: has the right to apply for a stay been lost; and is there a dispute between the parties?

The allegation in Obrascon Huarte Lain SA v Qatar Foundation for Education, Science & Community Development [2019] EWHC 2539 (Comm) was that the arbitral tribunal had decided the case on an argument not put to it, and thereby deprived the appellant of a fair hearing contrary to section 33 of the Arbitration Act 1996. As will be seen Carr J rejected that analysis of the award and refused to remit or vary the award under section 68(2)(a) of the Arbitration Act 1996.

The decision of Andrew Baker J in Daelim Corporation v Bonita Co Ltd [2020] EWHC 697 (Comm) is best classified as a good example of an attempt to persuade the English court to go beyond what is permitted by section 44(3) of the Arbitration Act 1996 in terms of the use of powers to preserve assets pending an arbitration.

The key issue in Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) [2020] 1 Lloyd’s Rep 269, enforcement proceedings in England for an award issued by a tribunal in an arbitration seated in Paris, was whether the arbitration clause in a contract governed by English law was also governed by English law. If so, it was clear that under English law the tribunal had no jurisdiction.