Arbitration Law Monthly

In Gater Assets Ltd v NAK Naftogaz Ukrainiy (No 2) [2008] EWHC 1108 (Comm) Mr Justice Beatson considered the power of the English court, when giving a judgment enforcing a New York Convention award, to award interest for the period between the date of the award and the date of payment in circumstances where the arbitrators have not themselves done so.

The Arbitration Act 1996, s70, requires any arbitration appeal to be brought within 28 days of the making of the award. The court does, however, have the power to extend time under s80(5). In L Brown & Sons Ltd v Crosby Homes (North West) Ltd [2008] EWHC 817 (TCC) a claim was brought some 66 days late, the allegation being that the respondent had withheld material documents from the arbitrator. Mr Justice Akenhead in this case discussed the criteria that determine whether or not permission to appeal out of time should be granted, and there is also a helpful analysis by the learned judge of s68(2)(g), the head of appeal where it is alleged that there has been fraud in the arbitration.

In Sheltam Rail Co (Pty) Ltd v Mirambo Holdings Ltd [2008] EWHC 829 (Comm) the claimant commenced proceedings to challenge an award on jurisdictional grounds, and then sought to bring the proceedings to an end by serving a notice of discontinuance. The question for Mr Justice Aikens was whether the notice should be set aside so that the validity of the award could be determined by the English court, or whether it was appropriate to leave the jurisdictional validity of the award an open question which could potentially be raised in enforcement proceedings abroad. Unsurprisingly, Aikens J held that a notice of discontinuance should in principle be set aside in those circumstances.

In Tsavliris Salvage (International) Ltd v The Grain Board of Iraq [2008] EWHC 612 (Comm) the defendant sought to contest the enforcement of an arbitration award against it on the ground that the arbitrator had no jurisdiction, either because the defendant was not a party to the arbitration agreement or because it was entitled to state immunity.

Unless the parties have agreed otherwise, the ordinary limitation periods set out in the Limitation Act 1980 apply to arbitration claims: Arbitration Act 1996, s13. Most arbitration claims are for breach of contract, so where the contract is governed by English law there is a six-year limitation period for the commencement of proceedings, running from the date of breach. Where the action is brought in the High Court, proceedings are commenced when a claim form is issued. In the case of arbitration, the parties are free to agree what constitutes the commencement of proceedings, but if they fail to do so then default rules are provided by s14 of the 1996 Act. In Taylor Woodrow Construction v RMD Kwikform Ltd [2008] EWHC 825 (TCC) two questions fell to be decided by Mr Justice Ramsey: was there an agreement between the parties as to when the arbitration proceedings were deemed to have commenced; and, if not, had the claimant satisfied the statutory default rules?