Arbitration Archives - Page 2 of 2

Light at the end of the tunnel? Gibraltar dispute reviews key FIDIC Yellow Book provisions

Light at the end of the tunnel? Gibraltar dispute reviews key FIDIC Yellow Book provisions

As disputes under the FIDIC forms of contract are normally resolved in private Dispute Adjudication Board (“DAB”) proceedings or confidential arbitration proceedings, reported FIDIC cases are rare and often of considerable precdential value either formally or informally. In this article, originally published in The International Construction Law Review, Corbett & Co. Director Victoria Tyson considers one such recent decision which was transferred from the Gibraltar courts.

By Victoria Tyson|September 14th, 2014|Arbitration, Dispute Boards, Knowledge Hub|Comments Off

FIDIC Guidance Memorandum – A Half Baked Solution?

FIDIC Guidance Memorandum – A Half Baked Solution?

This article discusses whether the recently issued FIDIC Guidance Memorandum really does provide the answer to the vexed question of enforcement of binding, but not yet final DAB decisions. On 1 April 2013 the FIDIC Contracts Committee issued a Guidance Memorandum to users which is intended to be used with the Conditions of Contract for Construction (the ‘Red Book’), the Conditions of Contract for Plant and Design-Build (the ‘Yellow Book’), and the Conditions of Contract for EPC/Turnkey Projects (the ‘Silver Book’). The FIDIC Contracts Committee have stated that compliance with the guidance is highly recommended when using the 1999 FIDIC Red, Yellow or Silver Books. This article considers briefly whether the Guidance Memorandum is either necessary or useful.

By Andrew Tweeddale|June 1st, 2014|Arbitration, Dispute Boards, Knowledge Hub|Comments Off

Mind The Gap: Analysis of Cases and Principles Concerning the Ability of ICC Arbitral Tribunals to Enforce Binding DAB Decisions Under the 1999 FIDIC Conditions of Contract

Mind The Gap: Analysis of Cases and Principles Concerning the Ability of ICC Arbitral Tribunals to Enforce Binding DAB Decisions Under the 1999 FIDIC Conditions of Contract

Read the full article here.

By Taner Dedezade|January 1st, 2014|Arbitration, Dispute Boards, Knowledge Hub|Comments Off

S69- Of Chablis, Smoked Salmon and Trifles

S69- Of Chablis, Smoked Salmon and Trifles

In the first two months of 2013 twelve cases were reported that dealt with Arbitration Act 1996 (“AA”) issues. Of these twelve cases, a quarter involved applications for leave to appeal under s.69(3) AA 1996 and a further quarter dealt with applications under s.68 (serious irregularities). The statistics are not surprising. The AA 1996 has now been in force for a little over 16 years and a substantial body of case law exists. However, when a party loses a case it may feel that it has no option but to challenge the award. There are often commercial reasons for this and/or the unsuccessful party may also feel genuinely aggrieved by the award. The recent case law dealing with leave to appeal has, however, shown that challenging an award under s.69 AA 1996 is no easy option. This article considers the grounds on which leave to appeal an arbitrator’s award will be granted. The courts, when considering an application for leave to appeal, place high hurdles for any applicant to overcome. Leave to appeal under s.69(3) was not granted in any of the reported cases on Bailii up to 1 March 2013 this year. However, it is evident from the reported cases that some applications for leave to appeal are successful, especially where the issue relates to matters of general public importance: Dalmare SpA v Union Maritime Ltd & Anor.

By Andrew Tweeddale|January 1st, 2013|Arbitration, Knowledge Hub|Comments Off

Enforcement of Declarations and conflicting decisions: West Tankers still afloat

Enforcement of Declarations and conflicting decisions: West Tankers still afloat

The case of West Tankers Inc v Allianz SpA and Generali Assicurazione Generali SpA has once again come before the courts on the issue of enforcement. In 2009 the West Tankers case went before the European Court of Justice (ECJ) who held that an anti-suit injunction, issued by an English court to prevent court proceedings progressing in another Member State, was contrary to EC Regulation 44/2001 (the ‘Brussels I Regulation’). The consequence of that ruling is that West Tankers Inc now has an award in its favour in London but risks having a conflicting judgment in the Italian courts. This recent decision of the English High Court in West Tankers addresses how an arbitrator’s award can be protected in the absence of an anti-suit injunction. In this article we set out the facts relating to the West Tankers dispute and the court’s recent decision that, in certain circumstances, it will recognise an arbitrator’s award in declaratory terms. The court has taken a pragmatic rather than logical approach to the problem of conflicting decisions. However, the thorny question of ‘what happens when enforcement is sought of a conflicting regulation judgement where there is already an arbitration award?’ was side-stepped. The issue has been considered by the European Commission in a recent Proposal and by the European Scrutiny Committee of the UK Parliament, in which it expressed reservations regarding the approach proposed by the European Commission.

By Andrew Tweeddale|September 1st, 2011|Arbitration, Knowledge Hub|Comments Off

Contracts rights of third parties act – Arbitration under the Contracts (Right of Third Parties) Act 1999 and Enforcement of an Award

Contracts rights of third parties act – Arbitration under the Contracts (Right of Third Parties) Act 1999 and Enforcement of an Award

The Contracts (Rights of Third Parties) Act 1999 has redressed many of the criticisms made against the English privity of contract rule. Regrettably, however, Parliament ignored the recommendations of the Law Commission and extended the application of the Contracts (Rights of Third Parties) Act 1999 to include arbitration. While this has little impact where a dispute is purely domestic it does have an impact where a dispute has an international character. It may surprise many foreign parties to contracts that are subject to the law of England and Wales that they have, by including reference to English law, potentially given rights to a third party. A third party who has obtained those rights will however find itself having an up-hill struggle to enforce an arbitration award that it might obtain in a foreign jurisdiction. This is because the third party is not a party to the arbitration agreement and the New York Convention applies only to parties to the arbitration agreement. There has not yet been a case on enforcement in a foreign jurisdiction of an award made under the Contracts (Rights of Third Parties) Act 1999 but as the Act is now being used more often this is an issue that may soon have to be addressed by the courts.

By Andrew Tweeddale|January 1st, 2011|Arbitration, Knowledge Hub|Comments Off

Incorporation of Arbitration Clauses Revisited

Incorporation of Arbitration Clauses Revisited

Eight years ago in an article in Arbitration we noted the divergent views of a number of first-instance judges on the subject of the incorporation of arbitration clauses. The key issue was whether an arbitration clause could be incorporated into a contract by general words or whether this required clear express words only. The question of whether an arbitration agreement is incorporated into a contract is fundamental as it determines whether the parties are required to proceed to resolve their dispute by arbitration rather than court proceedings. The starting point for any analysis is the wording of the Arbitration Act 1996 s.6. This states: “6. Definition of arbitration agreement (1) In this Part an ‘arbitration agreement’ means an agreement to submit to arbitration present or future disputes (whether they are contractual or not). (2) The reference in an agreement to a written form of arbitration clause or to a document containing an arbitration clause constitutes an arbitration agreement if the reference is such as to make that clause part of the agreement.” The difficulty arises because of the final words in s.6(2): “if the reference is such as to make that clause part of the agreement”. There has been conflicting authority as to what is required to make “that clause part of the agreement”.

By Andrew Tweeddale|November 1st, 2010|Arbitration, Knowledge Hub|Comments Off

Commencement of Arbitration and Time Bar Clauses

Commencement of Arbitration and Time Bar Clauses

This article considers how English courts construe time-bar clauses and whether there is an advantage in having an arbitration clause in a contract where there is a time-bar clause. It is now common to find time-bar provisions in many of the major forms of construction contracts. They appear in NEC 3, in the FIDIC suite of contracts and the ICE forms. Sub clause 20.1 of the FIDIC forms of contract, for example, creates a time-bar that gives a Contractor just a mere 28 days to put in a notice of a claim for additional cost or an extension of time. Given that the effect of a failure to issue a 28-day notice is an apparent bar on any claim, it is unsurprising that time-bar clauses have been the subject of much consideration and review. Recent decisions in the courts show that these clauses are being construed strictly. This has led one leading English lawyer, in a paper on the FIDIC forms of contract, to comment that quite possibly there are no ways round a sub-cl.20.1 notice.

By Andrew Tweeddale|November 1st, 2009|Arbitration, Knowledge Hub|Comments Off

Are you in? Or are you out? An analysis of Section 69 of the English Arbitration Act 1996: Appeals on a question of law

Are you in? Or are you out? An analysis of Section 69 of the English Arbitration Act 1996: Appeals on a question of law

This article is divided into ﬁve parts, namely: Introduction; How can the court’s jurisdiction be ousted (‘‘Are you out?’’); How can the court’s jurisdiction be included (‘‘Are you in?’’); When will the courts give permission to appeal; and Procedural aspects of s.69 of the English Arbitration Act 1996[1] (‘‘the 1996 Act’’). Introduction The fundamental message behind this article is that the parties should agree at as early a stage as possible on whether: they wish to oust the jurisdiction of the courts in relation to appeals on a question of law (Are you out?—s.69(1)) or whether they wish to agree to include the ability to appeal to the courts on a question of law (Are you in?—s.69(2)).

By Taner Dedezade|January 1st, 2006|Arbitration, Knowledge Hub|Comments Off

Confidentiality in Arbitration & The Public Interest Exception

Confidentiality in Arbitration & The Public Interest Exception

The question whether arbitral proceedings are, or ought to be confidential, has been the source of much academic debate and was recently reviewed by the ICC Commission on Arbitration.[2] In much of Europe the prevailing view is that arbitral proceedings are confidential. However, even if they are confidential, that confidentiality cannot be absolute. As noted by Paulsson and Rawding, this would result in a paradox.[3] If the parties to an arbitration ever sat down and thought about the issue of confidentiality, they would inevitably conclude that neither of them would want a rule that arbitrations were confidential without exception. The parties may need to show the award to insurers or to a parent company. The parties may also want to enforce the award if it is not honoured and the only way to do this is in the courts, which will often be a public forum. In a number of countries which adopt the position that arbitrations are confidential there will be a list of exceptions to the confidentiality obligation. Some countries consider that where the arbitration raises issues which have a public interest, then this should be an exception to the confidentiality obligation. This 'public interest exception' has been considered recently in three international arbitrations. On each occasion the argument that there ought to be a public interest exception was rejected. This article does not seek to re-visit the question of whether there is or ought to be a duty of confidentiality in arbitration.[4] Its focus is on one question; namely, should there be an exception to the duty of confidentiality where the arbitration raises issues of public interest?

By Andrew Tweeddale|January 1st, 2005|Arbitration, Knowledge Hub|Comments Off

Incorporation of Arbitration Clauses

Incorporation of Arbitration Clauses

The Arbitration Act 1996 (AA 1996) s.6(1) defines arbitration agreements and section 6(2) deals with incorporation of arbitration agreements by reference: (1) In this Part an ‘‘arbitration agreement’’ means an agreement to submit to arbitration present or future disputes (whether they are contractual or not). (2) The reference in an agreement to a written form of arbitration clause or to a document containing an arbitration clause constitutes an arbitration agreement if the reference is such as to make that clause part of the agreement. It would appear, at first sight, that referring to a written agreement containing an arbitration clause is sufficient for there to be an ‘‘arbitration agreement’’. However, the law is never that simple. Case law suggests that, in most circumstances, a general reference to a contract will not incorporate the arbitration provisions within that contract. If a party wishes to incorporate the arbitration provisions then it will need to refer expressly to those provisions.

By Andrew Tweeddale|January 1st, 2002|Arbitration, Knowledge Hub|Comments Off

Delay in Commencement – Delay in Commencing an Arbitration

Delay in Commencement – Delay in Commencing an Arbitration

Judge Martyn Zeidman recently commented: ‘‘As stated in Magna Carta, justice delayed is justice denied’’. The Limitation Acts are intended to prevent justice being delayed. They do this by preventing a claimant from proceeding with a case where the limitation period has expired. They do not, except in a few cases, extinguish the right of action, but bar a remedy. They are therefore, except in those few cases, procedural rather substantive defences. Issues of limitation should not be raised in a statement of case. It is for the respondent to raise any issue of limitation within the defence and for the issue to be dealt with by the claimant in a reply. The respondent must specifically plead a defence of limitation. The burden then shifts to the claimant to show that the cause of action arose within the relevant limitation period. The Limitation Acts were conceived out of the equitable doctrine of laches, which still has a role to play where a party seeks an equitable remedy. Equitable remedies include an order for specific performance, an injunction and rectification of a contract. The doctrine of laches states that ‘‘equity aids the vigilant, not the indolent’’ and that ‘‘delay defeats equity’’. Therefore, a claim for an equitable remedy will not be granted if the claimant has delayed in commencing a claim, even though the statutory limitation period has not expired. In addition to the Limitation Acts and the doctrine of laches, contractual limitation provisions may provide a defence. They may either bar a claimant’s right to bring a claim or may extinguish it. The distinction between contractual limitation and statutory limitation is important because the court has power to extend time limits for a failure to comply with contractual limitation periods. Only in limited circumstances can it extend statutory periods. Arbitration Act 1996 ss.12 to 14 deal with the commencement of arbitration proceedings and issues of limitation: section 12 with the court’s power to extend contractual time limits for beginning arbitral proceedings; section 13 states that the Limitation Acts apply to arbitral proceedings as they apply to legal proceedings; section 14 deals with the commencement of proceedings.

By Andrew Tweeddale|January 1st, 2002|Arbitration, Knowledge Hub|Comments Off

Recent Cases on Serious irregularity

Recent Cases on Serious irregularity

Recent case law shows that challenging an arbitrator's award because of serious irregularity is no easy option. There are limited grounds upon which a challenge can be made. Even if a case falls within one of them, a party will only succeed in its challenge if it can show that it has suffered a substantial injustice. A technical breach will not suffice. Cases which, under the Arbitration Act 1950, would have been remitted back to the arbitrator because of technical misconduct, will now not be remitted because they either do not fall within the limited grounds or because they have not caused substantial injustice. Over three years have elapsed since the Arbitration Act 1996 (AA 1996) came into force and there is still little case law on the subject of serious irregularity. Most cases in which it has been alleged have had it as an alternative to either a breach of substantive jurisdiction or an appeal on a point of law. If one of the aims of AA 1996 was to restrict the intervention of the courts in dealing with arbitration proceedings, this lack of case law illustrates an unqualified success. Challenges for serious irregularity must be made within 28 days of the date of the award. The lack of case law therefore can only be explained on the basis that parties do not believe they can overcome the hurdles involved with making a challenge.

By Andrew Tweeddale|November 1st, 2000|Arbitration, Knowledge Hub|Comments Off

Enforcing Arbitration Awards Contrary to Public Policy in England

Enforcing Arbitration Awards Contrary to Public Policy in England

A number of cases have recently come before the English courts dealing with applications to set aside orders for the enforcement of awards on the basis that the award is contrary to public policy because of illegality. There has not been a coherent policy adopted by the English courts but rather these issues have been dealt with on a case by case basis. This article sets out the English public policy rule. It then continues with an analysis of how challenges under the public policy rule are made in England on domestic arbitration awards. The severability of the arbitration agreement to the underlying contract is thereafter discussed and an analysis is given of the approach of the courts of England and Wales to the enforcement of foreign arbitration awards. In this regard the courts differentiate between domestic and foreign awards. They have developed a complicated test in deciding whether enforcement of a foreign award will be refused. The courts have stated that they will not permit an award to be enforced in England that is universally repugnant. However, there is some uncertainty as to the full extent of this principle. Where breach of public policy is alleged but does not appear on the face of the award then the courts have been inconsistent in deciding whether they should re-open and re-examine the facts of the case. Finally, where the award permits an act contrary to public policy to be undertaken in a foreign, friendly state then again the courts have been inconsistent as to whether such an award is permitted to be enforced in England. For the purposes of this article references to domestic arbitrations are references to arbitrations conducted in England, Wales or Northern Ireland. Foreign arbitrations are references to arbitrations conducted outside this jurisdiction. Similarly, foreign awards and domestic awards should be construed accordingly.

By Andrew Tweeddale|January 1st, 2000|Arbitration, Knowledge Hub|Comments Off

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