Arbitration Law Monthly

ED & F Man Sugar Ltd v Belmont Shipping Ltd (The Amplify) [2011] EWHC 2992 (Comm), a decision of Teare J, raised a crucial point on the conduct of arbitrators. To what extent is an arbitrator required to draw to the attention of a party a possible argument that he has missed? The answer given by Teare J is: not at all.

A significant point of principle arose before the Court of Appeal in PC Harrington Contractors Ltd v Systech International Ltd [2012] EWCA Civ 1371. The question was whether an adjudicator whose decision was set aside for breach of the rules of natural justice and want of jurisdiction was entitled to his contractual fees. The Court of Appeal, reversing the first instance judgment of Akenhead J, held that payment was conditional on the production of an enforceable decision.

The decision of Blair J in BNP Paribas SA v Open Joint Stock Company Russian Machines [2012] 1 Lloyd’s Rep 61 discussed in the May 2012 issue of Arbitration Law Monthly, has been affirmed by the Court of Appeal [2012] 1 Lloyd’s Rep 649.

In Petrochemical Industries Co (KSC) v The Dow Chemical Co [2012] EWHC 2739 (Comm) a challenge to an award was brought before Andrew Smith J on the primary ground that the arbitrators had failed to consider a key issue put to them, contrary to section 68(2)(d) of the Arbitration Act 1996. The application was rejected on its facts, but the judgment contains useful analysis on the proper construction of section 68(2)(d) and indeed the unfairness ground of challenge in section 68(2)(a) of the 1996 Act.

The rules of GAFTA (and also those of FOSFA) contain procedures for an appeal to an appeal board. The tiered process cannot of course preclude an appeal to the court under sections 67 and 68 of the Arbitration Act 1996 for want of jurisdiction or procedural error, but such appeals may be brought only within 28 days of the award. The issue in PEC Ltd v Asia Golden Rice Co Ltd [2012] EWHC 846 (Comm) was the application of that period to a tiered procedure. As will be seen, the answer is not straightforward.