Lloyd's Law Reporter
NATIONAL INVESTMENT BANK LTD V ELAND INTERNATIONAL (THAILAND) CO LTD AND ANOTHER
[2022] EWHC 1168 (Comm), Queen’s Bench Division, Commercial Court, Mr Justice Foxton, 17 May 2022
Arbitration – Jurisdiction – Effect of appointment of arbitrator by the court on the right to contest jurisdiction – Waiver of permissive arbitration clause – Validity of notice of arbitration – Arbitration Act 1996, sections 14, 18 and 72
In 2001 the claimant (NIB), entered into a Collateral Management Agreement with Eland Thailand and Eland Ghana (together, Eland). The parties entered into a further Agreement in 2004, containing an arbitration clause whereby "All parties agree to resolve any differences in a friendly manner by discussions failing which the matter may be referred to an Arbitrator under the Laws of the United Kingdom in London". In April 2014 Eland Thailand commenced proceedings under the 2001 Agreement against NIB in the Accra Court in Ghana. On 19 May 2014, NIB served a defence and counterclaim. Eland Ghana was on NIB's application joined to the proceedings. In May 2016 Eland served a notice of arbitration on NIB, which was rejected by NIB on the ground that it wished to continue the Accra proceedings. In September 2020 Eland obtained an order from Andrew Baker J under section 18 of the Arbitration Act 1996 appointing an arbitrator. NIB applied to the court for relief under section 72 of the 1996 Act, on the basis that it had not participated in the arbitral proceedings and was entitled to contest the jurisdiction of the arbitrator.