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Robert Evans, Keating Chambers At our June meeting, Robert Evans proved once again that Keating Chambers can always be relied on to provide a high calibre speaker! Robert started by apologising for the fact that, with so much to cover in such a short space of time, he was afraid his talk might be a little dry. He said he'd do his best to liven it up as much as he could - and encouraged the audience to contribute any questions along the way - and a highly informative hour followed. Robert needn't have made his apology either, as his expert delivery, coupled with undoubted enthusiasm for and knowledge of his subject made, his talk anything but dry as he'd feared. Robert's talk, which was intended to bring us up to date with some of the key arbitration cases from the last 12 months, was divided in to three sections: (i) arbitration agreements; (ii) arbitral proceedings and court interventions; and (iii) human rights. Robert started the first section by providing us with the definition of an arbitration agreement set out in Russell on Arbitration (2008, para 2-002):
The first case he touched on was Fiona Trust v Privalov [2007 UKHL 40], in which the House of Lords considered the modern approach that should be taken to arbitration agreement and confirmed the principles for severability. Despite allegations that the contract between the parties (the owners of eight vessels and the charterers) had been procured by bribery, the House of Lords held that the owners' claims for rescission should be stayed whilst the disputes between the parties were dealt with by arbitration in accordance with the contractual arbitration agreement. Lord Hoffman optimistically suggested that the intentions of the parties should be interpreted based on the assumption of them being "rational businessmen", which in his view meant that the parties were likely to have intended that all disputes arising out of the relationship would be decided by arbitration, unless it was clear that certain questions were to be excluded from the arbitrator's jurisdiction. The House of Lords also held that, on the issue of separability, even invalidity or rescission of the main contract did not necessarily have the same effect on the arbitration agreement and that the arbitration agreement could be treated as having been separately concluded. Robert then moved on to the case of C v D [2007 EWCA Civ 182], which involved the arbitration clause in a policy issued to a US firm by a US insurer using a Bermuda form. The policy was governed in accordance with the law of New York, but contained an arbitration clause which provided that any dispute arising out of the policy would be finally and fully determined in London, England. The arbitral tribunal awarded in favour of the insured, and the insured said that it would challenge the award in the US courts. The insured obtained an injunction, and the matter was finally dismissed by the Court of Appeal who held that by choosing London as the seat of the arbitration the parties were taken to have agreed that proceedings on the award should be those permitted by English law. The Court of Appeal also drew a distinction between the law applicable to the insurance contract, namely the law of New York, and the arbitration agreement, which was determined by the seat of the arbitration (in this case, England). The final case on arbitration agreements was BEA Hotels v Bellway LC [2007 EWHC 1363 (Comm)] which considered an issue of practical importance with particular relevance to multi-party arbitrations. The dispute concerned a joint venture to purchase a company's shares in Romania, and an arbitrator was appointed by the LCIA in accordance with the arbitration clause. The respondent commenced court proceedings in Israel, and served particulars of claim against the applicant and other for a number of different claims. The arbitrator made a partial award on jurisdiction that the respondent had not repudiated the contract and the applicant remained obliged to arbitrate. The applicant appealed. The issue for the court was whether the issue of arbitration proceedings amounted to a repudiation of the parties' arbitration agreement and render an arbitrator devoid of jurisdiction. The court dismissed the applicant's appeal. Robert then moved on to arbitral proceedings and court intervention. He again referred to a definition from Russell on Arbitration (para 7-001):
Emphasis added First Robert gave an overview of West Tankers v Ras Riunione Adriatica Di Sicurta (The "Front Comor") [2007 UKHL 4], which considered the English courts' jurisdiction to grant anti-suit injunctions to prevent a person from bringing an action in another jurisdiction in contravention of an arbitration clause. The dispute, concerning a vessel's collision with an oil rig, has wrestled its way through an insurance policy governed by Italian law and a right to arbitrate in London, and has ended up via the House of Lords in the European Court of Justice. The House of Lords has sought a preliminary ruling by the European Court asking:
Whilst the opinions of the Law Lords are set out in the House of Lords judgment, the ruling from the ECJ is (at the time of Robert's talk), eagerly awaited. In Albon v Naza Motor Trading Sdn Bhd [2007 EWCA Civ 1124], the Court of Appeal considered whether an English court could grant an anti-arbitration injunction against a party to a foreign arbitration and held that it could, and should use its discretion to do so in this case. However, Waller LJ noted that this case was not an ordinary case. In Brown v Crosby [2008 EWHC 817 (TCC)], the Technology and Construction court considered a number of practical points, including whether a party could rely in court on evidence that had had its credibility questioned in earlier arbitration proceedings and the weight to be given to the strength or weakness of an application made under section 68(2)(g) (serious irregularity) of the Arbitration Act. Disclosure of documents in the second arbitration led to allegations of perjury in the first, and the court was therefore asked to grant an extension of time to challenge the Award. Having considered the length of the delay in bringing the application, its causation and the reasonableness of the parties' conduct, Akenhead J refused the application as he could see no good reason to excuse the delay. He also concluded that no exceptional circumstances existed in this case to alter the fact that the matter of deciding whether or not a witness was lying was for the arbitrator. More practical points were considered in Taylor Woodrow v RMD Kwikform Ltd [2008 EWHC 825], relating to the appointment of an arbitrator and the initiation of arbitration proceedings. The case dealt with claims brought against the sub-contractor and the contractor following a scaffolding collapse. The parties ultimately applied to the court for a decision on:
On the facts of the case, Ramsey J found that insufficient notice had been given to commence arbitration proceedings. With time running out, Robert then moved on to the final section of his talk on human rights cases. He admitted that it perhaps seemed strange to have a section on human right in an arbitration update, but he had found a number of principles of relevance in relation to Article 6(1) of the European Convention, which provides;
Comment is once again provided by Russell on Arbitration (1-039):
Robert's overview of the last three cases was necessarily, but skilfully, brief, as enthusiastic involvement of the audience throughout had left him with little time remaining. He firstly told us of the case of Stretford v Football Association Ltd [2007 EWCA Civ 238], in which the Court of Appeal gave a detailed analysis of the relationship between Article 6 and arbitration. The arbitration clause included a provision that:
The court held that, on the facts of the Stretford case, the arbitration clause was not contrary to Article 6. The court considered that the provisions of the Arbitration Act provided for a fair hearing by an impartial tribunal, but in this case the parties had voluntarily waived their rights to a public hearing and for the judgment to be pronounced publicly. The penultimate case was Sumukan Ltd v The Commonwealth Secretariat [2007 EWCA Civ 243]. The appeal concerned the parties' rights to exclude an appeal against an award for error of law (section 69 of the Arbitration Act). After considering some jurisdictional points, the Court of Appeal affirmed the decision of Colman J that the right to appeal against the arbitration award for error of law had in fact been excluded from the appeal by incorporating an arbitration clause that stated that the judgment of the tribunal would be final and binding. Robert finally came to the case of The Republic of Kazakhstan v Istil Group [2008 EWCA]. This case concerned whether the appeal process enacted by section 67(4) was in violation of the ECHR. The court rejected the argument that section 67(4) was incompatible with the ECHR, as long as it was open to the court to review the fairness of the procedure adopted in the lower court. On the facts of this case, the Court of Appeal found that there had been no unfairness. The length of this report, which barely scratches the surface of the detail Robert shared with us and doesn't even begin to deal with his expert handling of the queries raised, just goes to show how much Robert managed to squeeze in to just over an hour! In making this report the writer has been greatly assisted by the detailed paper Robert prepared to accompany his talk, and he has generously given his permission for us to include it on the Branch website. If you would like to download Robert's full paper, which is strongly recommended as this report can't possibly do it justice, please visit www.arbitrate.org.uk. Report by Helena Brown |
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