Arbitration Law Monthly

The Arbitration Act 1996 recognises arbitrations conducted in accordance with religious law. The further question in Jivraj v Hashwani [2009] EWHC 1364 (Comm) was whether it was permissible in English law to require a religious qualification from the arbitrators. Mr Justice David Steel ruled that the principle of party autonomy in the Arbitration Act 1996 was paramount, and that there was nothing in either employment legislation or human rights principles which prevented the parties from so agreeing.

The Court of Appeal, in Syska v Vivendi Universal SA [2009] EWCA Civ 677, has upheld the decision of Mr Justice Christopher Clarke, [2008] EWHC 2155 (Comm) – discussed in the February 2009 issue of Arbitration Law Monthly – on the question of the effect of insolvency on arbitration proceedings. If the insolvent party is undergoing an insolvency procedure in England, the general principle is that the liquidator, administrator or trustee in bankruptcy (as the case may be) has the right to disclaim the contract to which the arbitration clause relates. The arbitration may, accordingly, continue unless and until this occurs. However, not all jurisdictions adopt this approach, and instead the effect of the insolvency of a foreign party may, under the insolvency rules applicable to that party, operate to terminate the insolvency proceedings forthwith. That solution is adopted by the law of Poland. In Syska the question was whether English or Polish insolvency law should be applied to a Polish company which was party to an arbitration with its seat in England.

Compania Sud-Americana De Vapores SA v Nippon Yusen Kaisha [2009] EWHC 1606 (Comm) is one of the rare cases in which a claimant has made out a case under s68(2)(a) of the Arbitration Act 1996 that the arbitrators failed to act fairly. The allegation here was that the defendant had been permitted at a late stage in the arbitration to raise an argument which had earlier been abandoned and which the claimant had no chance to rebut. However, Mr Justice Beatson ultimately dismissed the appeal on the ground that the serious irregularity had not resulted in substantial injustice.

The decision of the Court of Appeal in Konig v Zwiebel, 1 July 2009, has not been reported, although there are summaries of the case on both Lexis and Lawtel. It appears from those summaries that an important point on the running of time for an appeal has been determined by the Court of Appeal. The full facts are not clear, although they are not necessary for the point in issue to be appreciated.

The decision of Mr Justice Ramseys in Farm Assist Ltd v Secretary of State for the Environment, Food & Rural Affairs (No 2) [2009] EWHC 1102 (TCC) involved an application by a mediator to overturn a witness summons requiring her to give evidence as to what had gone on at a mediation for the purposes of determining whether the subsequent settlement agreement had been tainted by economic duress. The court reviewed the law on confidentiality and privilege, and determined that the witness summons should not be set aside. It is to be noted that the application in the present case was not one that arose from a failure of the parties to agree and which led to later litigation in which evidence of what had been said in the mediation was to be used in the later proceedings on the dispute itself. The facts in the present case were, therefore, somewhat exceptional and should not be regarded as laying down any general rule that mediators can be summoned to give evidence in court or arbitration proceedings.