Arbitration Issues

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DMC/SandT/19/02

England

Sea Master Shipping Inc v Arab Bank (Switzerland) Limited

English Commercial Court: Popplewell J.: 25 July 2018: [2018] EWHC 1902 (Comm):[[1]]

Summary This was an application under Section 67 of the Arbitration Act 1996 challenging a tribunal’s decision that it lacked jurisdiction to decide against the lawful holder of a bill of lading, Arab Bank (Switzerland) Limited (the “Bank”), in respect of a claim for demurrage and detention brought by the Vessel’s Owners. The Court held that the intended effect of the Carriage of Goods by Sea Act 1992 (“COGSA”) on arbitration clauses was to bind the holder of a bill of lading to the arbitration clause incorporated into that bill, by reason of him being treated as an original party to the contract of carriage under section 2 of the Act. Therefore, for the Tribunal to have jurisdiction over the Bank, it was not necessary for the Bank to have first assumed liabilities to the carrier under section 3 of the Act.


DMC/Arbn/19/01

England

Sonact Group Ltd v Premuda SpA (The “Four Island”)

English Commercial Court: Males J: [2018] EWHC 3820 (Comm): 12 December 2018: [[2]]

VOYAGE CHARTER: ASBATANKVOY FORM: DEMURRAGE & HEATING COSTS CLAIM: SETTLEMENT AGREED BY EMAIL WHICH DID NOT REFER TO ARBITRATION AGREEMENT IN CHARTER: WHETHER ARBITRATORS HAD JURISDICTION TO DETERMINE CLAIM FOR THE AGREED SETTLEMENT SUM: CHALLENGE PURSUANT TO SECTION 67 OF THE ARBITRATION ACT 1996


DMC/Arbn/16/01

England

Shagang South-Asia Trading Co Ltd v Daewoo Logistics

English High Court: Queen’s Bench Division (Commercial Court); Mr Justice Hamblen; [2015] EWHC 194 (Comm); 5 February 2015: [[3]]

ARBITRATION: WHETHER THERE WERE CLEAR INDICATORS THAT THE CURIAL LAW WAS NOT THE LAW OF THE VENUE OF THE ARBITRATION: WHETHER THE ARBITRATOR WAS VALIDLY APPOINTED


DMC/Arbn/15/02

Singapore

Coal & Oil Co LLC v GHCL Ltd DMC/Arbn/15/01

England

Transgrain Shipping BV v Deiulemar Shipping SpA and Eleni Shipping Ltd (The “Eleni P”)

Commercial Court: Teare J: [2014] EWHC 4202 (Comm): 15 December 2014:[[4]]

CHARTERPARTY: PARTIALLY CONFLICTING ARBITRATION AGREEMENTS: BESPOKE ARBITRATION CLAUSE AND STANDARD BIMCO ARBITRATION CLAUSES: CHALLENGE TO TRIBUNAL’S JURISDICTION UNDER SECTION 67 ARBITRATION ACT 1996: PROPER CONSTRUCTION OF ARBITRATION AGREEMENTS: PROPER CONSTITUTION OF TRIBUNAL


DMC/Arbn/14/07

England

Viscous Global Investment Ltd v Palladium Navigation Corp (The “Quest”)

English Commercial Court: Males J: [2014] EWHC 2654 (Comm): 30 July 2014:[[5]]

ARBITRATION: BILLS OF LADING (“BLS”): P&I CLUB LETTER OF UNDERTAKING (“LOU”): WHETHER ARBITRATION AGREEMENT IN LOU REPLACED ARBITRATION AGREEMENTS IN BLS: ARBITRATION ACT 1996 SECTION 32 APPLICATION


DMC/Arbn/14/06

England

Emirates Trading Agency LLC v Prime Mineral Exports Private Limited

English High Court: Teare J.: [2014] EWHC 2104 (Comm): 1 July 2014:[[6]]

CONTRACT: DISPUTE RESOLUTION CLAUSE REQUIRING PARTIES TO TRY TO RESOLVE DISPUTES BY FRIENDLY DISCUSSION WITHIN A CONTINUOUS PERIOD OF FOUR WEEKS BEFORE RESORTING TO ARBITRATION: WHETHER ARBITRATORS LACKED JURISDICTION BECAUSE THIS PROVISION NOT COMPLIED WITH: WHETHER PROVISION UNENFORCEABLE AS UNCERTAIN: WHETHER PROVISION HAD BEEN COMPLIED WITH


DMC/Arbn/14/05

England

Caresse Navigation Ltd v Office National de l’Electricité (the "Channel Ranger"): [2013] EWHC 3081 (Comm): Males J.: 14 October 2013:[[7]]

BILL OF LADING: WHETHER WORDS OF INCORPORATION REFERRING TO ARBITRATION ARE SUFFICIENT TO INCORPORATE CHARTERPARTY JURISDICTION PROVISIONS


DMC/Arbn/14/04

England

Cottonex Anstalt v Patriot Spinning Mills Ltd [2014] EWHC 236 (Comm)

English High Court: Hamblen J.: 14 February 2014:[[8]]

SALE AND PURCHASE: WHETHER CONTRACT INCORPORATED ALL TERMS OF THE BY-LAWS AND RULES OF THE INTERNATIONAL COTTON ASSOCIATION OR ONLY THE ARBITRATION PROVISIONS: GUIDANCE ON THE INTERPRETATION OF CONTRACTS ON APPEAL FROM AN ARBITRAL TRIBUNAL WITH EXPERIENCE OF THE RELEVANT TRADE


DMC/Arbn/14/03

England

Beijing Jianlong Heavy Industry Group v Golden Ocean Group Ltd and Others

English Commercial Court: HHJ Mackie QC: [2013] EWHC 1063 (Comm): 1 May 2013: [[9]]

ARBITRATION: SECTION 67 OF THE ARBITRATION ACT 1996: APPEAL AGAINST SUBSTANTIVE JURISDICTION OF TRIBUNALS: GUARANTEES ALLEGEDLY ILLEGAL AND UNENFORCEABLE UNDER CHINESE LAW: VALIDITY OF ARBITRATION AGREEMENTS: PUBLIC POLICY


DMC/Arbn/14/02

The Netherlands

Transport and Maritime Arbitration Rotterdam-Amsterdam ("Tamara") Arbitration

Anonymous, Procedural Order of a Tamara arbitration tribunal, 10 December 2012:[[10]]

ARBITRATION UNDER TAMARA RULES: WHAT THE LANGUAGE OF THE ARBITRATION SHOULD BE FAILING A CHOICE PREVIOUSLY MADE BY THE PARTIES


DMC/Arbn/14/01

England

AES Ust-Kamenogorsk Hydropower Plant LLP v. Ust-Kamenogorsk Hydropower Plant JSC

Supreme Court; Lords Neuberger, Mance, Clarke, Sumption, Toulson SCJJ; [2013] UKSC 35, 12 June 2013:[[11]]

WHETHER POWER TO INJUNCT COURT PROCEEDINGS IS MERELY ANCILLARY TO CURRENT OR INTENDED ARBITRATION PROCEEDINGS: WHETHER S.44 ARBITRATION ACT 1996 LIMITS THE COURT’S INJUNCTIVE POWERS UNDER S.37 SENIOR COURTS ACT 1981


DMC/Arbn/13/06

England

Fortress Value Recovery Fund I LLC (and others) v Blue Skye Special Opportunities Fund LLP (and others)

English Court of Appeal; Pill, Toulson, Tomlinson LJJ; [2013] EWCA Civ 367; 31 January 2013:[[12]]

ARBITRATION CLAUSE: THIRD PARTIES: CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999, SS 8(1) & 8(2)


DMC/Arbn/13/05

Hong Kong

Grand Pacific Holdings Ltd and Pacific China Holdings Ltd (in liq) (No 1)

Hong Kong Court of Appeal: Tang VP, Kwan and Fok JJA: CACV No.136 of 2011, [2012] 4 HKLRD 1: 9 May 2012:[[13]]

http://www.hklii.hk/eng/hk/cases/hkca/2012/200.html

ARBITRATION: APPLICATION TO SET ASIDE ARBITRAL AWARD: ALLEGED VIOLATION OF ARTS.34(2)(A)(II) AND (IV), UNCITRAL MODEL LAW: AWARD TO BE SET ASIDE ONLY IF VIOLATION SUFFICIENTLY SERIOUS: DISCRETION OF COURT TO REFUSE TO SET ASIDE DESPITE VIOLATION


DMC/SandT/13/04

Australia

Dampskibsselskabet Norden A/S v Gladstone Civil Pty Ltd

Full Court, Federal Court of Australia: Mansfield, Rares and Buchanan JJ: [2013] FCFCA 107, 18 September 2013:[[14]]

ENFORCEMENT IN AUSTRALIA OF FOREIGN ARBITRATION AWARD UNDER VOYAGE CHARTER: WHETHER VOYAGE CHARTER A “SEA CARRIAGE DOCUMENT” FOR THE PURPOSES OF S.11 OF THE AUSTRALIAN CARRIAGE OF GOODS BY SEA ACT 1991: WHETHER ARBITRATION AWARD UNENFORCEABLE BECAUSE NOT MADE IN AUSTRALIA


DMC/Arbn/13/03

Singapore

Maldives Airports Co Ltd & Anor v. GMR Male International Airport Pte Ltd, [2013] SGCA 16: Singapore Court of Appeal: Judgment delivered by Sundaresh Menon CJ, Andrew Phang Boon Leong JA and Woo Bih Li J on 6 December 2012:[[15]]

Arbitration: Interim Order for Injunction under Section 12A(4) of International Arbitration Act ("IAA"): Meaning of “asset” under Section 12A(4) IAA: Preservation of contractual rights and choses in action as “assets” under Section 12A(4) of IAA


DMC/Arbn/13/02

Singapore

Astro Nusantara International BV and others v. PT Ayunda Prima Mitra and others [2012] SGHC 157: Singapore High Court: Judgment delivered by Belinda Ang Saw Ean J on 22 October 2012: [[16]]

ARBITRATION: INTERNATIONAL COMMERCIAL ARBITRAL AWARD MADE IN SAME TERRITORY AS FORUM IN WHICH RECOGNITION AND ENFORCEMENT SOUGHT: PARTY NOT ENTITLED TO CHALLENGE JURISDICTION OF ARBITRAL TRIBUNAL AT SETTING-ASIDE OR ENFORCEMENT STAGE OF PROCEEDINGS: PARTY WHO FAILS TO CHALLENGE AWARD ON JURISDICTION PURSUANT TO ART. 16 OF MODEL LAW DEEMED TO ACCEPT FINALITY OF AWARD ON JURISDICTION


DMC/Arbn/13/01

England

Chantiers de L’Atlantique SA v Gaztransport & Technigaz SAS

English High Court (Commercial Court): Flaux J: [2011] EWHC 3383 (Comm): 20 December 2011: [[17]]

ARBITRATION: SETTING ASIDE ARBITRAL AWARD ON GROUND OF FRAUD: EXTENSION OF TIME GRANTED, GIVEN THE IMPORTANCE OF THE ALLEGATIONS: FRAUD BY TECHNICAL REPRESENTATIVE OF WINNING PARTY IN EVIDENCE TO ARBITRAL TRIBUNAL: DELIBERATE CONCEALMENT OF TECHNICAL TEST RESUTLS: LACK OF CAUSAL LINK BETWEEN NON-DISCLOSURE AND DECISION OF TRIBUNAL


DMC/Arbn/12/03

Singapore

Singapore High Court

Daimler South East Asia Pte Ltd v. Front Row Investment Holdings (Singapore) Pte Ltd [2012] SGHC 157 : Judgment delivered by Woo Bih Li J on 31 July 2012: [[18]]

ARBITRATION: WAIVER OF RIGHT OF RECOURSE UNDER ICC RULES OF ARBITRATION (1998): EXCLUSION OF APPEAL ON QUESTION OF LAW ARISING OUT OF ARBITRATION AWARD PURSUANT TO SECTION 49(2) ARBITRATION ACT


DMC/Arbn/12/02

Hong Kong

Gao Haiyan v Keeneye Holdings Limited

Hong Kong Court of Appeal: Tang VP, Fok JA and Sakharani J: CACV No.79 of 2011: 2 December 2011:[[19]]

http://www.hklii.hk/eng/hk/cases/hkca/2011/459.html

ARBITRATION: ENFORCEMENT OF ARBITRAL AWARD OBTAINED IN CHINA: SETTING ASIDE: CONTRARY TO PUBLIC POLICY: WHETHER AWARD TAINTED BY APPARENT BIAS: MEDIATION CONDUCTED IN COURSE OF ARBITRATION: WAIVER


DMC/Arbn/12/01

England

African Fertilizers and Chemicals NIG Ltd (Nigeria) v BD Shipsnavo GmbH & Co Reederei KG (The “Christian D”): English Commercial Court: Beatson J: [2011] EWHC 2452 (Comm): 29 September 2011:[[20]]

ARBITRATION: JURISDICTION OF COURT: DECLARATORY JUDGMENT: SECTION 66 OF THE ARBITRATION ACT 1996: ARTICLE 34(3) OF REGULATION 44/2001: WHETHER COURT HAD JURISDICTION TO MAKE PURELY DECLARATORY JUDGMENT UNDER SECTION 66: WHETHER SECTION 66 DECLARATORY JUDGMENT WAS A “JUDGMENT” FOR PURPOSE OF ARTICLE 34(3)


DMC/Arbn/11/12

England

TTMI Sarl v Statoil ASA

Queen’s Bench Division (Commercial Court): Beatson J: [2011] EWHC 1150 (Comm): 9 May 2011:[[21]]

ARBITRATION: JURISDICTION: PROPER PARTY TO CHARTERPARTY: DISPONENT OWNER WRONGLY IDENTIFIED IN RECAP EMAILS: UNDISCLOSED PRINCIPAL: RECTIFICATION: CHARTERPARTY CREATED BY CONDUCT OF THE PARTIES


DMC/Arbn/11/11

England

Sovarex S.A. v. Romero Alvarez S.A.

English High Court; Hamblen J; [2011] EWHC 1661 (Comm), 29 June 2011:[[22]]

INTERNATIONAL ARBITRATION: SUBMISSION TO JURISDICTION: QUESTIONS OF FACT CAN BE DETERMINED IN PROCEEDINGS BROUGHT PURSUANT TO SECTION 66 OF THE ARBITRATION ACT 1996


DMC/Arbn/11/10

Hong Kong

Democratic Republic of Congo and others v FG Hemisphere Associates LLC

Hong Kong Court of Final Appeal: Bokhary, Chan and Riberio PJJ, Mortimer and Sir Anthony Mason NPJJ: FACV No.5, 6 and 7 of 2010: 8 June 2011: [[23]]

ARBITRATION: RECOGNITION OF FOREIGN AWARD OBTAINED AGAINST FOREIGN STATE: STATE IMMUNITY: WHETHER FOREIGN STATE CAN CLAIM ABSOLUTE IMMUNITY FROM SUIT IN HONG KONG AFTER 1997: WHETHER EXCEPTION FOR COMMERCIAL ACTIVITIES: WAIVER OF IMMUNITY


DMC/Arbn/11/09

England

AES Ust-Kamenogorsk Hydropower Plant LLP v. Ust-Kamenogorsk Hydropower Plant JSC

English Court of Appeal (Civil Division); Rix, Wilson, & Stanley Burnton LJJ; [2011] EWCA Civ 647, 27 May 2011:[[24]]

INTERNATIONAL ARBITRATION: ANTI-SUIT INJUNCTION: BASIS FOR SERVICE OUT OF JURISDICTION: EFFECT OF CIVIL JURISDICTION AND JUDGMENTS ACT 1982: PARTICIPATION IN FOREIGN PROCEEDINGS UNDER PROTEST NOT SUBMISSION TO JURISDICTION


DMC/Arbn/11/08

England

JSC BTA Bank v. Mukhtar Ablyazov & Ors

English High Court; Clarke J; [2011] EWHC 587 (Comm), 28 March 2011;[[25]]

INTERNATIONAL ARBITRATION: STAY OF COURT PROCEEDINGS: AGREEMENT NULL AND VOID: SEPARABILITY: CASE MANAGEMENT GROUNDS


DMC/Arbn/11/07

Hong Kong

Gao Haiyan v Keeneye Holdings Ltd

Hong Kong Court of First Instance: Reyes J in Chambers: HCCT No.41 of 2010: 12 April 2011: [[26]]

ARBITRATION: ENFORCEMENT OF ARBITRAL AWARD OBTAINED IN CHINA: SETTING ASIDE: CONTRARY TO PUBLIC POLICY: AWARD TAINTED BY ACTUAL OR APPARENT BIAS: MEDIATION CONDUCTED IN COURSE OF ARBITRATION: “MED-ARB”: ESTOPPEL


DMC/Arbn/11/06

England

B v S

English High Court: Flaux J.: [2011] EWHC 691 (Comm): 23 March 2011:[[27]]

COMMODITIES: FOSFA/GAFTA STANDARD FORM CONTRACTS: SCOTT V AVERY CLAUSE: WHETHER RIGHT TO INJUNCTIVE AND OTHER RELIEF UNDER S.44 ARBITRATION ACT 1996 EXCLUDED


DMC/Arbn/11/05

England

West Tankers Inc v Allianz SpA, Generali Assicurazione Generali SpA

English High Court: Field J.; [2011] EWHC 829 (Comm): 6 April 2011:[[28]]

ARBITRATION AWARDS: ENFORCEMENT: WHETHER A DECLARATORY AWARD MAY BE ENFORCED UNDER THE ARBITRATION ACT 1996, S.66


DMC/ARBn/11/04

United Kingdom

Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious Affairs, Government of Pakistan:[[29]]

UK Supreme Court: Lord Hope, Deputy President Lord Saville, Lord Mance, Lord Collins and Lord Clarke: [2010] UKSC 46: 3 November 2010

ENFORCEMENT OF ARBITRAL AWARDS: CHALLENGE TO JURISDICTION: WHETHER THIRD PARTY BOUND BY ARBITRATION AGREEMENT: COMPÉTENCE-COMPÉTENCE: SCOPE OF REVIEW BY ENFORCING COURT


DMC/Arbn/11/03

English Court of Appeal

National Navigation Co v Endesa Generacion SA (The “Wadi Sudr”) English Court of Appeal: Waller, Carnwath and Moore-Bick LJJ: [2009] EWCA Civ 1397, [2010] 1 Lloyd’s Rep 193: 17 December 2009[[30]]

CONFLICT OF LAWS: BILL OF LADING:SPANISH COURT JUDGMENT THAT ARBITRATION CLAUSE NOT INCORPORATED INTO BILL OF LADING: WHETHER SPANISH COURT JUDGMENT FELL WITHIN ARBITRATION EXCEPTION IN ARTICLE 1(2)(D)OF EC REGULATION 44/2001: WHETHER RECOGNITION SHOULD BE REFUSED IN ENGLISH ARBITRATION PROCEEDINGS: WHETHER CONTRARY TO PUBLIC POLICY


DMC/Arbn/11/02

Singapore

Singapore High Court

Front Row Investment Holdings (Singapore) Pte Ltd v Daimler South East Asia Pte Ltd [2010] SGHC 80: Singapore High Court; Judgment delivered by Andrew Ang J, 15 March 2010; [2010] SGHC 80: [[31]]

Rajah & Tann LLP for the Plaintiff, Front Row

Chelliah & Kiang for the Defendant, Daimler

ARBITRATION: RECOURSE AGAINST AWARD: WHETHER FAILURE TO CONSIDER A PARTY’S SUBMISSIONS ON AN ISSUE CONSTITUTES A BREACH OF NATURAL JUSTICE


DMC/Arbn/11/01

Singapore

Singapore High Court

The “Engedi” [2010] SGHC 95: judgment delivered by Judith Prakash J, 25 March 2010: [2010] SGHC 95 [[32]]

STAY OF IN REM PROCEEDINGS PENDING ARBITRATION IN LONDON: WHETHER STAY OF PROCEEDINGS OUGHT TO BE GRANTED UNDER SECTION 6 OF THE INTERNATIONAL ARBITRATION ACT WHERE CURRENT OWNER AND INTERVENER WAS NOT A PARTY TO ARBITRATION AGREEMENT


DMC/Arbn/10/5

England

Stellar Shipping Co LLC v Hudson Shipping Lines[[33]]

English Commercial Court: Hamblen J: [2010] EWHC 2985 (Comm): 18 November 2010

Available on BAILII @ http://www.bailii.org/ew/cases/EWHC/Comm/2010/2985.html

ARBITRATION: CONTRACT OF AFFREIGHTMENT CONTAINING GUARANTEE AND ARBITRATION CLAUSE/AGREEMENT: TRIPARTITE CONTRACT: SUBSTANTIVE JURISDICTION OF ARBITRATORS: SECTION 67 OF THE ARBITRATION ACT 1996: WHETHER THERE WAS A BINDING ARBITRATION AGREEMENT BETWEEN GUARANTORS AND GUARANTEED PARTY


DMC/Arbn/10/4

England

Guangzhou Dockyards Co Ltd v ENE Aegiali I

English Commercial Court: Blair J: [2010] EWHC 2826 (Comm): 5 November 2010 [[34]]

ARBITRATION: TRUE CONSTRUCTION OF ARBITRATION AGREEMENT: WHETHER PARTIES COULD AGREE TO APPEALS TO THE COURT ON QUESTIONS OF FACT: WHETHER PARTIES HAD AGREED TO APPEALS TO THE COURT ON QUESTIONS OF FACT


DMC/Arbn/10/3

England

Habas Sinai Ve Tibbi Gazlar Isthisal Endustri AS v Sometal SAL

English Commercial Court: Christopher Clarke J: [2010] EWHC 29 (Comm): 18 January 2010 [[35]]

Available on BAILII @ http://www.bailii.org/ew/cases/EWHC/Comm/2010/29.html

ARBITRATION: INCORPORATION OF ARBITRATION AGREEMENT/CLAUSE INTO CONTRACT: GENERAL REFERENCE TO PRIOR CONTRACTS BETWEEN SAME PARTIES WHICH INCLUDED ARBITRATION AGREEMENT/CLAUSE: WHETHER WORDS USED SUFFICIENT TO INCORPORATE PRIOR ARBITRATION AGREEMENT/CLAUSE


DMC/Arbn/10/2

Hong Kong

Parakou Shipping Pte Ltd v Jinhui Shipping and Transportation Ltd and others[[36]]

Hong Kong Court of First Instance: Reyes J: HCAJ No.184 of 2009: 30 September 2010

http://www.hklii.org/hk/jud/eng/hkcfi/2010/HCAJ000184_2009-73172.html

STRIKING OUT: ABUSE OF PROCESS: COLLATERAL ATTACK ON PREVIOUS ARBITRATION DECISION: ‘RELATED PARTIES’


DMC/Arbn/10/1

The Netherlands

Mr Van Wassenaer Van Catwijck, also acting in his capacity as the representative of Mr Saarberg and Mr Ariens (hereinafter called “the Arbitrators”) v Knowsley SK Limited, Manchester, United Kingdom (hereinafter called “KSK”)[37]

Dutch Supreme Court. D.H. Beukenhorst (chairman), A.M.J. van Buchem-Spapens, J.C. van Oven, F.B.Bakels and W.D.H. Asser, 29 January 2010, Case number 09/00505, published on www.rechtspraak.nl, LJN: BK2007

ARBITRATION: DUTCH LAW: OBLIGATIONS OF ARBITRATORS TOWARDS PARTIES IN ARBITRATION PROCEEDINGS