Arbitration Law Monthly

In Quanzhou Sanhong Trading Ltd Liability Co Ltd v ADM Asia-Pacific Trading Pte Ltd [2017] SGHC 199 it was argued before Chua Lee Ming J that the Singapore courts ought to refuse to enforce a foreign award under the New York Convention because the tribunal had erred in ruling that the substantive contract was governed by Chinese law rather than English law. The court found that an error of that type was no basis for refusing enforcement.

In Costain Ltd v Tarmac Holdings Ltd [2017] EWHC 319 (TCC) Coulson J had to determine not only whether there was an arbitration agreement in respect of the subject matter of the legal proceedings, but also whether – for a wide variety of suggested reasons – any such agreement was null and void or inoperative.

In Celtic BioEnergy Ltd v Knowles Ltd [2017] EWHC 472 (TCC) a challenge was made to an arbitration award for serious irregularity under section 68(2)(g), namely, that the award had been obtained by fraud. The alleged fraud in this case consisted of the respondent securing an award to the effect that it was no longer pursuing claims against a third party when in fact it was doing exactly the opposite.

In Symbion Power LLC v Venco Imtiaz Construction Co [2017] EWHC 348 (TCC) Jefford J had to determine whether the arbitration tribunal had failed to deal with all the issues that were put to it so that the award should be set aside or varied on the grounds of serious irregularity under section 68(2)(d) of the Arbitration Act 1996.

In Berkeley Burke SIPP Administration LLP v Charlton and Another [2017] EWHC 2396 (Comm) Teare J decided that the Financial Ombudsman Service was not an arbitrator because its rulings were not binding on the complainant. The decision discusses section 58 of the Arbitration Act 1996, and makes the important point that there can only be an arbitration award if there is an underlying arbitration agreement within section 6 of the 1996 Act.

The English courts have accepted that an arbitrator may be removed for demonstrating actual bias or putting themselves in a position where there are circumstances which objectively give rise to the possibility of an appearance of bias. In H v L and Others [2017] EWHC 137 (Comm) the primary allegation – dismissed by the court – was that the arbitrator had wrongly accepted two subsequent appointments creating a risk of overlap but without disclosing those later appointments.

In Associated British Ports v Tata Steel UK Ltd [2017] EWHC 694 (Ch) the questions before Rose J were: whether the parties had entered into a valid arbitration agreement or whether it was void for uncertainty; and whether even if valid the clause was one capable of being operated. Those questions arose in the usual context of an application for the stay of judicial proceedings.

In Eastern European Engineering Ltd v Vijay Construction (Proprietary) Ltd [2017] EWHC 797 (Comm), Andrew Baker J considered whether a defendant who had applied to set aside an enforcement order pending a determination on the validity of the award in the curial courts could be required to provide security for the award in proceedings brought by the claimant to adjourn the defendant’s application.