Contents 1 London Maritime Arbitration 2 The Arbitration Act
1996 3 Mediation and Arbitration 4 The Arbitration Agreement 5 The
Conflict of Laws 6 Disputes about the Tribunals Jurisdiction 7
Stays of English Court Proceedings Brought in Breach of an
Agreement to Arbitrate 8 Injunctions and Arbitration 9 Extending
Agreed Time Limits for Beginning Arbitral Proceedings 10
Appointment of Arbitrators and Umpires 11 The Arbitrator 12
Procedure and Evidence 13 Confidentiality in Arbitration 14
Remedies for Delay 15 Arbitration and Third Parties 16 Preliminary
Issues 17 Security for Costs 18 Security for Claims in Arbitration
19 Arbitration Awards 20 Arbitrators Fees and Expenses 21 Costs 22
Challenging an Award in the English Courts 23 Enforcement of Awards
APPENDIX A: Arbitration Act 1996 APPENDIX B: THE LMAA Terms (2006)
APPENDIX C: The LMAA Small Claims Procedure APPENDIX D: The LMAA
Intermediate Claims Procedure 2009 APPENDIX E: The LMAA/Baltic
Exchange Mediation Terms (2009) APPENDIX F: The UNCITRAL Model Law
APPENDIX G: CPR Part 62 on Arbitration Claims APPENDIX H: Practice
DirectionArbitration APPENDIX I: The Admiralty & Commercial
Courts Guide APPENDIX J: Departmental Advisory Committee on
Arbitration Law Report on the Arbitration Bill APPENDIX K:
Departmental Advisory Committee on Arbitration Law Supplementary
Report on The Arbitration Act 1996* APPENDIX L(i): LMAA Standard
Procedure APPENDIX L(ii): LMAA ICP Procedure APPENDIX L(iii): LMAA
Small Claims Procedure APPENDIX L(iv): Arbitration Claims
Chapter 1London Maritime ArbitrationLondon Maritime Arbitration
1. Introduction 2. The London Maritime Arbitrators Association 3.
LMAA Terms 4. The Small Claims Procedure 5. FALCA Rules 6.
Intermediate Claims Procedure 7. Maritime arbitration and the Civil
Procedure Rules 8. Arbitration and the Human Rights Act 1998 9.
Arbitration and European Competition Law1.INTRODUCTIONArbitration
is a private method of resolving disputes. It is used when parties
agree to refer their dispute to an impartial tribunal consisting of
one or more arbitrators. Parties normally agree to arbitration by
means of an arbitration clause in a contract made before a dispute
has arisen. It can also be agreed after a dispute has arisen.
Arbitration differs radically from court proceedings in that it
arises out of an agreement and the rules of procedure governing
litigation do not apply, thus allowing a flexible and confidential
procedure to be adopted to suit the parties convenience.
Arbitrators are generally appointed and paid by the parties; they
are usually chosen for their familiarity with the commercial,
technical or legal aspects of the dispute. The advantages of
arbitration are its privacy and its potential as a flexible, speedy
means of resolving commercial disputes. However, the efficiency of
arbitration depends on the cooperation of the parties (and their
lawyers and indeed the arbitrators) in preparing a case and
minimising the areas of substantive dispute. The Arbitration Act
1996 places duties on the parties and the arbitrators to ensure the
dispute is resolved efficiently. However, in practice it may be
difficult to enforce these duties and arbitration can be just as
slow and expensive as litigation if the parties will not cooperate
and if the arbitrators do not take a firm approach to the
proceedings.London maritime arbitration is a broad term usually
applied to arbitration taking place in London where the dispute
involves in some way a shipfor instance a dispute under a
charterparty, a bill of lading or a ship sale agreement. There is,
however, no strict definition of maritime arbitration which would
require the involvement of a ship and any arbitration carried out
on the terms of the London Maritime Arbitrators Association (the
LMAA Terms) might be termed a maritime arbitration. This book aims
to provide a practical guide to the law and practice of maritime
arbitrations in London, particularly arbitrations proceeding under
the LMAA Terms.2.THE LONDON MARITIME ARBITRATORS ASSOCIATION (THE
LMAA)History and aimsTraditionally, maritime arbitrators were
members of the shipping trade who found time to act as arbitrators
largely on an honorary basis. Maritime arbitration is now much more
time-consuming and formal. Most arbitrations are carried out by
full-time professional arbitrators, technical experts, or lawyers
who charge a professional fee. It appears that more than half of
London maritime arbitrations are being decided by about half a
dozen individuals.1The LMAA is a professional association which was
set up in 1960, originating from a group of brokers at the Baltic
Exchange who were listed as available to be appointed as
arbitrators. Unlike the International Chamber of Commerce (ICC) or
the Grain and Feeds Trade Association (GAFTA), the LMAA does not
actively supervise or administer arbitrations. However, the LMAA
may assist in a limited way as agreed by the parties. For example,
under LMAA Terms, the President of the LMAA may make appointments
where an arbitrator has resigned. The business of the LMAA is
managed by the LMAA Committee, which is chaired by the LMAA
President and elected by full members.The LMAA plays a central and
supportive role in London maritime arbitration. Its members conduct
the vast majority of maritime arbitrations in London; most years
they receive around 3,000 appointments and issue more than 400
awards.2The LMAA is responsible for drawing up the LMAA Terms (and
other rules such as the Small Claims Procedure) and laying down
standards of conduct for its members. It has an informative role:
maintaining a website, issuing a handbook, publishing a newsletter
and generally keeping members informed of relevant developments,
for instance by holding seminars. The LMAA website and handbook are
very useful sources of information on practice and individual
arbitrators.3In addition, the LMAA may be called upon to appoint
arbitrators in accordance with the LMAA Terms or an arbitration
clause and to give members advice on specific questions. In a wider
context it seeks to maintain high professional standards in
maritime arbitration and to act as a representative body, for
instance by making representations about proposed legislation
relevant to its members interests.MembersThe LMAA consists of two
main groups of members. There are currently 35 full members who are
generally prepared to undertake maritime arbitration of any
description or duration. Approximately half of these have a
predominantly legal background and the rest have technical or
commercial expertise. Many full members arbitrate as a full-time
occupation. They would almost certainly be treated as commercial
men or engaged in the shipping trade for the purpose of satisfying
such a qualification required in an arbitration clause.4To become a
full member the applicant must demonstrate his knowledge of the
relevant areas of English law and competence in writing awards. The
general rule is that an applicant for full membership must have
been engaged for at least 15 years in a position of responsibility
within the shipping industry, generally in commercial, technical or
legal areas. Applicants must be UK residents or otherwise able to
attend London hearings at short notice. A substantial commitment to
arbitration will normally be required to ensure that sufficient
time can be given to arbitrations and to help secure the
impartiality of an independent arbitrator. The LMAA election
sub-committee will interview potential full members in meetings.
The sub-committee will report on each applicant but election to
full membership is ultimately decided by the LMAA Committee. The
LMAA Committee has powers (which have never had to be used) to
remove a member from the LMAA where his conduct is inconsistent
with LMAA membership.The second group of LMAA members consists of
around 800 supporting members drawn mainly from the shipping trade,
solicitors firms, barristers and P&I clubs. Supporting members
do not, as a general rule, practise as arbitrators or umpires but
they lend their support to the objects of the LMAA. Applicants for
supporting membership should be aged at least 28 with suitable
commercial or technical experience or be qualified as a lawyer for
five years. The application must be supported by one full member or
two referees, preferably supporting members. The names of any
supporting members who would accept appointments as an arbitrator
and are willing to be named as a would be arbitrator are listed in
the LMAA Newsletter.The supporting members represent the users of
London maritime arbitration. The Supporting Members Liaison
Committee plays an important role in raising matters of interest
and liaising with the LMAA, for example in the drafting of LMAA
Terms. Most significant changes in practice will only be adopted
after consultation with this committee. Supporting members also
have the opportunity to meet full members throughout the year at
seminars, lunches, meetings and the annual dinner.3.THE LMAA
TERMSLMAA Terms were first introduced in 1984 and amended versions
came into force in 1987, 1991, 1997, 2002 and most recently in 2006
(Appendix L contains flow charts setting out the usual procedure
under the 2006 Terms). The Terms are flexible in that the parties
and the arbitrators may agree to alter or dispense with any part of
them. The combination of clarity, convenience and flexibility found
in the LMAA Terms means that they are often chosen to govern
arbitrations where the arbitrators are not members of the LMAA, for
instance where the sole arbitrator is a practising lawyer. The
current version (the LMAA Terms (2006)) applies to all arbitrations
commenced on or after 1 January 2006.5The current Terms (like the
previous LMAA Terms) largely reflect the provisions of the 1996
Act. Paragraph 7(a) provides a general rule that:The arbitral
proceedings and the rights and obligations of the parties in
connection therewith shall be in all respects governed by the
[1996] Act save to the extent that the provisions of the Act are
varied, modified or supplemented by these Terms.The Terms provide
further detail and, in some respects, confer greater powers on the
tribunal, for example by enabling the tribunal to make orders for
concurrent hearings. The changes introduced in 2006 are intended to
address needs that have become apparent since 2002. Most
significantly, paragraph 22 of the LMAA Terms 2006 now provides for
a reasoned award to be made unless the parties agree otherwise,
This change reflects the actual practice in LMAA arbitrations, as
well as being in line with the trend in other arbitral bodies. The
more specific effects of the LMAA Terms are discussed throughout
the rest of this book. References to the LMAA Terms in this book
are to the current LMAA Terms (2006).When are LMAA Terms
applicable?If an arbitration clause specifies that LMAA Terms apply
to the arbitration then this agreement will bind the parties and
the tribunal. Maritime arbitrators usually accept appointments on
or subject to the LMAA Terms in force for the time being, either by
expressly stating this or by a printed notice to that effect on
their writing paper and fax heading. An arbitrators acceptance of
appointment on LMAA Terms will mean that those Terms govern his
appointment and his relationship with the party appointing him, for
example as regards his right to booking fees. However, this alone
will not be sufficient to render the Terms applicable to the
conduct of the arbitration because this requires the agreement of
both parties, typically by agreement in the arbitration clause, or
where the arbitrator is appointed as sole arbitrator or the other
partys arbitrator has also accepted an appointment on LMAA Terms.
This is reflected by paragraph 5(b) of the LMAA Terms which
provides that the parties shall be taken to have so agreed whenever
a sole arbitrator or both the original arbitrators have been
appointed on the basis that the Terms apply to their appointment.
Paragraph 5 further supports this by going on to provide
that:Whenever a sole arbitrator or both the original arbitrators
have been appointed on the basis referred to at (b), such
appointments or the conduct of the parties in taking part in the
arbitration thereafter shall constitute between the parties an
agreement that the arbitration agreement governing their dispute
has been made or varied so as to incorporate these Terms and shall
further constitute authority to their respective arbitrators so to
confirm in writing on their behalf.Paragraph 5(a) of the LMAA Terms
provides that the parties shall be taken to have agreed to the
application of the LMAA Terms where the dispute is referred to a
sole arbitrator who is a full member of the LMAA, or the original
arbitrators appointed by the parties are full members (unless both
parties have agreed otherwise). The effectiveness of this provision
in making the arbitral proceedings subject to LMAA Terms is
doubtfulif the parties have not agreed to the application of the
Terms, the Terms cannot effectively bind them to be taken to have
so agreed.6The mere fact of appointing full members of the LMAA
would probably not, in itself, always amount to an agreement
(whether implied or as a matter of custom) to the application of
the LMAA Terms. Some full members of the LMAA also accept
appointments pursuant to other arbitration rules, for example GAFTA
or LCIA rules so it is not a universal practice that full members
of the LMAA accept all appointments on LMAA Terms.The decision of
Saville J inFal BunkeringvGrecale Inc of Panama7concerned this type
of scenario. A dispute arose out of a charterparty which provided
for arbitration but without reference to arbitration rules. The
owners appointed a full member of the LMAA who expressly accepted
the appointment on LMAA Terms. The charterers were not informed of
the terms of that appointment and their arbitrator (also a full
member of the LMAA) accepted appointment without reference to any
terms. The owners applied to the arbitrators for security for
costs, relying on the LMAA Terms which gave the arbitrators
jurisdiction to grant security for costs. The charterers sought,
and were granted, a declaration that the owners were not entitled
to apply to the arbitrators for security.Saville J held that the
starting point in deciding the terms governing a reference is the
parties express or implied agreement. What the parties impliedly
agreed was to be found by looking at what each party was reasonably
entitled to conclude from the attitude of the other. It was not
possible to assume from the fact that both arbitrators were known
to be members of the LMAA that, as a matter of usage, the
arbitration should be conducted on LMAA Terms. It was not shown
that LMAA members universally and invariably only accepted
appointments on LMAA Terms. On the facts, there was no agreement on
the terms governing the reference. Saville J applied a contractual
analysis of the arbitrators relationship with the parties and
suggested,obiter, that if the charterers arbitrator had accepted
appointment on LMAA terms this would probably have been sufficient
to incorporate the LMAA Terms in the reference.8It is questionable
as to whetherFal Bunkeringremains good authority that the
appointment of full LMAA members as arbitrators (or the appointment
of one arbitrator, but not the others, expressly on LMAA Terms) in
an ordinary shipping dispute does not in itself mean that the
reference is subject to the LMAA Terms. Now it might well be held
that it is universal practice for LMAA full members to accept
appointments in charterparty or bill of lading disputes only on
LMAA Terms.The problem is unlikely to arise in practice since full
members of the LMAA usually accept appointments expressly subject
to the LMAA Terms. Their correspondence will usually contain
notices to the effect that they accept appointment on LMAA Terms so
that parties continuing in the arbitration without objection to the
Terms would probably be treated as agreeing by conduct to
incorporate them.9If an arbitrator accepts appointment on LMAA
Terms and becomes the sole arbitrator by default (whether by a
court appointment or a contractual mechanism or by statute, see
Chapter 10 on default appointments) it is unlikely that the LMAA
Terms would apply to the arbitration because there is no agreement
as such. However, if the party in default took part in the
arbitration he would probably be treated as having agreed by
conduct to the application of the Terms (though this may only be
the case if the defaulting party knew or should reasonably have
known that the arbitrator had accepted appointment on those
Terms).Which LMAA Terms apply?The LMAA Small Claims Procedure (or
FALCA Rules or the Intermediate Claims Procedure) will normally
apply where there is provision to that effect in the arbitration
clause or an agreement by the parties after the dispute has arisen.
In general, however, maritime arbitrators accept appointments on
the current LMAA Terms or those in force for the time being. The
LMAA arbitration clause makes clear that the arbitration shall be
conducted in accordance with the LMAA Terms current at the time
when the arbitration proceedings are commenced. The current LMAA
Terms are stated to apply to all arbitrations commenced on or after
1 January 2006.10Uncertainty as to the applicable terms may arise
where the arbitration agreement was made before the current rules
came into force and it provides for arbitration according to the
rules in force at the date of the contract. The question of which
version of the LMAA Terms will apply is a matter of construction of
the arbitration agreement and the arbitrators terms of appointment.
Where an arbitration agreement provides that certain rules apply,
thenprima faciethat refers to the rules in force at the time the
arbitration is begun.11InThe Robin,12a charter made in January 1997
included an arbitration clause providing that where appropriate the
LMAA Small Claims Procedure (1989) will be used. The 1989 procedure
had been superseded by a later procedure and Toulson J found that
the 1989 procedure did not apply: the probable intention of the
parties was that the procedure current at the relevant date (i.e.
commencement of arbitration) would apply and the reference to 1989
was an error.It is doubtful whether amendments to arbitration rules
made after the commencement of an arbitration would apply in
preference to the rules in force at the date of commencement.
Amended arbitration rules would probably only be given preference
in so far as the old rules had become out of date and impractical
to apply.134.THE SMALL CLAIMS PROCEDUREThe LMAA Small Claims
Procedure is designed to provide a quicker and cheaper way of
dealing with small claims: it is currently suggested for use where
neither the claim nor the counterclaim exceeds $50,000 (excluding
interest and costs). The procedure will apply if agreed by the
parties: typically a charter party arbitration clause may provide
that it applies automatically to disputes below a certain sum. The
LMAA Commentary on the Small Claims Procedure (2006) stresses that
this procedure is not suitable in the case of complex issues, or
where examination of witnesses may prove necessary. Further, the
LMAA comments that the widespread use of the small claims
procedure, regardless of its suitability for the case at hand, is a
regrettable tendency which may lead parties to be dissatisfied with
the ultimate results. Nevertheless, the LMAA still recognises that
the procedure may be suitable for dealing with larger claims
involving a single issue where no hearing is required. The
Procedure is popular14with parties but it is generally not a
lucrative area of practice for arbitrators due to the fixed fees;
members of the LMAA agree to deal with disputes under this
procedure as a service to the industry.15The procedure is set out
in Appendix C (with a flow chart at Appendix L) but the main
features are: use of a sole arbitrator; fixed arbitrators fees of a
sum to be determined from time to time by the LMAA Committee16and
to be paid as a condition precedent to the valid commencement of
the Small Claims Procedure; in respect of challenges to
jurisdiction, such work must be paid for on aquantum meruitbasis
before the arbitrator resolves the challenge. These fees are borne,
in the first instance only, by the claimant. This 2006 change
reflects the large quantity of work that an arbitrator may have to
undertake in resolving a jurisdictional challenge; a strict
timetable for exchange of submissions aimed to be completed within
three months; no oral hearing unless in exceptional circumstances;
only relevant documents to be disclosed on exchange of
submissions;17 recoverable costs are limited to such sum as is
determined from time to time by the LMAA Committee;18 unless
otherwise agreed or requested by the arbitrator, parties are not
required to present schedules of the costs claimed: the amount is
to be left to the arbitrators discretion; no right of appeal,
subject to challenges to jurisdiction allowable under the
Arbitration Act 1996;19 pursuant to paragraph 9, in any case where
it is determined or agreed, because of the nature and/or weight of
a case, that the Small Claims Procedure is inappropriate and shall
not be applicable, it shall cease to apply in its entirety. This
represents a departure from the earlier versions of the Small
Claims Procedure, and is designed to combat the regrettable
tendency to over-use this procedure.Further aspects of the
procedure are dealt with more fully in Chapter 12.5.THE FALCA
RULESFALCA stands for Fast and Low Cost Arbitration. These rules
were adopted in 1996 to provide a speedy and more inexpensive
method of resolving middle range disputes; typically involving
claims up to $250,000 (the sum deemed to be agreed in the FALCA
arbitration clause). The FALCA Rules have proved relatively
unpopular20as compared to the Small Claims Procedure and it is
likely that their use will decline further as the new Intermediate
Claims Procedure, discussed below, takes over more medium-sized
disputes. Nevertheless, as the FALCA Rules do still exist, they
will be briefly discussed.FALCA Rules will apply where the parties
have agreed on them, ordinarily in the arbitration clause or after
the dispute has arisen. They share many of the features of the
Small Claims Procedure: sole arbitrator; timetable designed to
produce an award within eight months of appointment; no oral
hearing unless the arbitrator requires it; and no right of
appeal.Under FALCA Rules, however, neither the arbitrators fees nor
the recoverable costs are limited, although the parties may
generally not seek security for costs in excess of
7,500.6.INTERMEDIATE CLAIMS PROCEDUREIn March 2009 the LMAA
introduced the Intermediate Claims Procedure (ICP) to deal with
medium-sized claims deserving a fuller procedure than the Small
Claims Procedure but not, on grounds of proportionality, the full
procedure offered by the LMAA Terms. FALCA had proved relatively
unpopular and the LMAA established a working group in 2006 to
investigate alternative methods for dealing with medium-sized
claims. The ICP was then developed in collaboration with the Baltic
Exchange. The intention behind the procedure is that it should
normally provide its own momentum and that costs should be largely
predictable at the outset.The full terms of the ICP (together with
the LMAA commentary) are set out in Appendix D and should be
referred to for details. The ICP will only apply where the parties
have so agreed, either in their contract or after the dispute has
arisen. Parties may have to consider redrafting arbitration clauses
to make reference to the Intermediate Claims Procedure. The LMAA
has provided suggestions as to suitable arbitration clauses which
provide for the Intermediate Claims Procedure to apply.21The
parties may agree on a monetary limit for the application of the
ICP but in the absence of such express agreement the ICP will apply
where the total amount of claims or counterclaims (excluding
interest and costs) is between the size of US$100,000 (or the
agreed upper limit for the LMAA Small Claims Procedure) and
US$400,000. If either party at any time advances claims or
counterclaims which in total exceed US$400,000 then the tribunal
has discretion as to whether to continue the reference under the
ICP or the LMAA Terms.The full procedure is set out in Appendix D
with a flow chart at Appendix L, but the main features of the
procedure are as follows: The parties may agree on the composition
of the tribunal, but in the absence of agreement, the tribunal
shall consist of three arbitrators. There is no automatic right to
an oral hearing, and only exceptionally will one be held. If an
oral hearing is allowed, it will generally be limited to a maximum
of five hours and is intended to allow for cross-examination of
witnesses with provision for closing written submissions
thereafter. A strict timetable is set up for exchange of opening
submissions, with no formal disclosure stage. All relevant
documents must be disclosed with opening submissions. Parties must
give notice of intention to serve factual witness statements and
serve them within 28 days of completion of opening submissions.
Expert evidence can be adduced only with the express permission of
the tribunal. Supplementary factual and expert witness statements
are only allowed with the express permission of the tribunal. There
is limited provision for written closing submissions where there is
an oral hearing or further evidence has been exchanged following
the completion of opening submissions. In order to ensure that the
timetable of the arbitration maintains momentum, a party may apply
for peremptory orders for failure to comply with time limits.
Further, any submissions or evidence submitted after the expiry of
a time limit set by a peremptory order shall not be admissible. The
tribunal will make every effort to publish the award within six
weeks from the service of the last submissions of the parties. Any
right of appeal to the courts is excluded, except the parties are
deemed to have agreed that there will be a right of appeal where
the tribunal certifies in its award that the dispute between the
parties involves a question of law of general interest or
importance to the trade or industry in question. This novel
provision is intended to avoid a dichotomy of views between a
tribunal and the courts as to whether the award contains a legal
question of general importance and to avoid the cost of applying
for permission to appeal where it has been demonstrated to the
tribunal that the award involves a question of general importance.
The tribunal is to assess costs at its discretion on a summary and
commercial basis, according to what is fair, reasonable and
proportional to the matters in dispute. The parties recoverable
costs are to be capped at a maximum figure of 30 per cent of the
claim advanced (plus, should there be a counterclaim that the
tribunal considers to be distinct22from the claim, 30 per cent of
the counterclaim). If there is an oral hearing the percentage cap
on recoverable costs will be increased to 50 per cent (not
including the cost of hiring a venue and catering). If non-monetary
relief is sought, the tribunal will decide what overall cap to
apply following completion of opening submissions. Security for
costs will not be granted in a sum above the amount at which the
parties respective costs have been capped. Save in exceptional
circumstances, the tribunals costs (excluding the appointment fee
and costs in respect of a challenge to the tribunals jurisdiction)
shall not exceed one-third of the total sum at which the partys
costs are capped, or two-thirds thereof in the case of a two- or
three-person tribunal.As at publication these provisions are brand
new: it remains to be seen how popular they will prove to be with
parties and practitioners.7.MARITIME ARBITRATION AND THE CIVIL
PROCEDURE RULESThe Civil Procedure Rules (the CPR), first
introduced in 1999, are the court rules applicable to civil
litigation in the English High Court and county court. At its
outset the CPR expressly states its aim, or overriding objective,
as follows: (1) These Rules are a new procedural code with the
overriding objective of enabling the court to deal with cases
justly. (2) Dealing with a case justly includes, so far as is
practicable (a) ensuring that the parties are on an equal footing;
(b) saving expense; (c) dealing with the case in ways which are
proportionate (i) to the amount of money involved; (ii) to the
importance of the case; (iii) to the complexity of the issues; and
(iv) to the financial position of each party; (d) ensuring that it
is dealt with expeditiously and fairly; and (e) allotting to it an
appropriate share of the courts resources, while taking into
account the need to allot resources to other cases.The parties are
under a duty to help the court to further the overriding
objective.23Particular features of the CPR involve the use of
active case management; this means the court is involved in giving
directions to ensure that the case proceeds efficiently, it will
identify the issues at an early stage and decide which need trial
and which could be decided summarily. The court will also take
steps to trim the non-essential features of litigation, in
particular by restricting, where possible, the amount of oral
evidence, expert evidence and disclosure of documents. Avoiding the
accumulation of excessive costs is a high priority and this is
given effect in various ways, in particular by the use of
settlement offers, encouraging alternative dispute resolution and
making the parties more aware of costs being incurred (e.g. by
making orders for summary assessment of costs as soon as an
application is heard). Delay is tackled in particular by using
stricter timetables for preparing a case which cannot simply be
extended at the will of the parties. The CPR also aims to be
user-friendly; it avoids technical legal terms and Latin
expressions.The CPR covers applications to court relating to
arbitration,24but has not significantly changed procedure as the
court rules adopted to give effect to the 1996 Act already adopted
the philosophy of dealing with cases expeditiously. More specific
features of the CPR as adopted in the Commercial Court are now
features of arbitration, for example the test for disclosure.The
CPR has, however, had a wider impact on arbitration because it has
raised new priorities in resolving civil disputes. The judge is
expected to take a proactive approach in taking charge of a case at
an early stage and managing its conduct. The overriding objective
clearly echoes the duty on an arbitral tribunal under section 33 of
the 1996 Act to act fairly as between the parties and to adopt
procedures suitable to the circumstances of the case, avoiding
unnecessary expense and delay. The parties duty to give effect to
the overriding objective under the CPR also reflects the parties
duty in an arbitration under section 40 of the 1996 Act to do all
things necessary for its proper and expeditious conduct. Lord Woolf
MR has suggested that the underlying spirit of the 1996 Act is very
much in accord with that of the CPR in that it sets out in readily
understandable terms what is required of the parties.25It is
noteworthy, however, that although the 1996 Act encouraged autonomy
and independence of arbitration from court procedure, many
arbitrators have now adopted practices from the CPR, for example
when making costs orders.26The procedural rules set out in the
Second Schedule of the LMAA Terms (2006) adopt the CPRs test for
standard disclosure of documents and expressly provide that parties
will generally not be required to provide broader disclosure of
documents than required by the courts. In addition, they adopt a
fairly strict timetable for exchange of submissions. However, the
LMAA Terms give the arbitrators very wide discretion over procedure
and CPR practice would only be adopted if appropriate to combat
undue costs and delay.Adoption of some aspects of case management
in arbitration will be welcomed since they may be useful, in
particular if the parties are failing to cooperate with each other
or one party is being obstructive. Cresswell J has recommended that
in major arbitrations, arbitrators should consider asking the
parties to produce a short agreed list of the important issues and
the common ground between the parties, thus following practice
under the CPR and the LMAA Terms.27Limiting disclosure is also
valuable since this has often proved to be a disproportionately
expensive and time-consuming part of the preparation for an
arbitration. However, arbitrators should exercise some caution in
adopting the CPR. First, in an arbitration the parties may choose
the procedure for resolving their dispute; the tribunals broad
powers to decide procedural matters only apply to the extent that
there is no such agreement. Second, the CPR is designed to cover a
wider range of cases where parties have not necessarily entered
into a contract (e.g. tort claims). In such circumstances it will
be particularly important to ensure that the parties are on an
equal footing so that a wealthy litigant cannot exploit the rules
to intimidate a weaker party. In arbitration, however, the parties
are generally commercial concerns who have chosen to arbitrate
pursuant to a commercial contract; accordingly there will often be
less need to make allowances for inequality between the parties.
Third, judges have to consider how much of the courts finite and
publicly funded resources should be spent on a particular case with
regard to the interests of other litigants in the queue. In
contrast, an arbitrators authority derives from the fact that he
was appointed by the parties for the express purpose of spending
time to resolve their dispute. He should not accept an appointment
if he cannot find adequate time to deal with the case, and
accordingly the issue of appropriate allocation of time between
appointments should not cause conflict. However, the principle of
proportionality will apply in arbitration in accordance with
section 33 of the 1996 Act (i.e. choosing a fair procedure and
avoiding unnecessary delay or expense) so that an arbitrator can
decide on the most appropriate procedure for a particular case
depending on its size, significance and complexity. In addition,
hearing dates will generally depend on the tribunals other
commitments.A final note of caution in case management arises from
the fact that the CPR requires the parties to put substantial work
into a case at the outset in identifying the issues and the merits
of the case. This front-loading effect means that high costs are
incurred at an early stage. The CPR also requires the parties to
stick to the courts timetable and streamlining measures. Most
parties will favour the efficiency of this approach but the fast
track is not always the best track;28some may choose arbitration
for a more flexible and thorough approach; if that preference is
agreed it should be respected by the tribunal.8.ARBITRATION AND THE
HUMAN RIGHTS ACT 1998The Human Rights Act 1998 came into force in
English law on 1 October 2000 and comparatively quickly it began to
have an impact, however modest, in maritime arbitration.29The
purpose of the Human Rights Act is to give effect, within English
law, to the rights and freedoms protected by the European
Convention on Human Rights. This Convention is an international
treaty drawn up in the aftermath of the atrocities of the second
world war and the European Court of Human Rights in Strasbourg was
set up to protect the rights recognised.The Convention is directed
towards giving the individual (including legal persons such as
bodies corporate) rights which are enforceable against public
authorities. Accordingly, commercial arbitration will very rarely
involve substantive Convention rights such as freedom of speech
since arbitration is normally between private parties and concerns
issues of private lawtypically contractual claims. However, the
right to a fair hearing is a fundamental human right and its scope
is fairly often disputed in a commercial disputeusually in
procedural issues such as whether certain evidence should be
admitted. Article 6(1) of the Convention provides that everyone is
entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal established by law. The Human
Rights Act has not, however, had any significant effect on
confidentiality and procedural autonomy in arbitration because, in
accordance with the Strasbourg jurisprudence, the parties choice of
arbitration amounts to a renunciation of the guarantees of a public
court procedure given by Article 6(1).30Consideration was given to
this issue in a non-maritime context inDepartment of Economics
Policy & Department of the City of MoscowvBankers Trust
Co.31For similar reasons the existing statutory restrictions on
access to court would probably be treated as compatible with the
Human Rights Act, in particular since mandatory procedural
safeguards are maintained under the 1996 Act.32There have been
attempts to argue that arbitration clauses as a whole should be
found contrary to Article 6 of the Convention because they restrict
access to a court hearing. Such attempts have been unsuccessful
because Convention jurisprudence accepts that, by agreeing to
arbitrate, parties waive their rights to a court hearing under
Article 6(1).InStretfordvFootball Association,33the Court of Appeal
considered an argument that an arbitration clause in respect of
disciplinary proceedings under the FA Premier League Rules (and the
disciplinary proceedings carried out thereunder) were contrary to
Article 6. The Court of Appeal found, however, that the Arbitration
Act 1996 complied with the requirements of Article 6. The only
Article 6 requirements not formally met by the Act were those that
the hearing be held in public, that the tribunal members be
independent, that the tribunal be established by law and the
judgment be pronounced publicly. However, by entering into the
arbitration agreement voluntarily, the parties thereto were to be
considered as having waived their Article 6 rights, provided that
the waiver was agreed without constraint and was not contrary to
any important public interest. English law itself protected parties
from such constraint, and further provided for the courts to put
right any partiality or lack of procedural fairness.Similarly inEl
NashartyvJ Sainsbury plc,34Tomlinson J rejected the argument that
an arbitration agreement was in breach of Article 6 by depriving
the parties of access to the courts. Further, an argument that one
party could not now afford the costs of arbitration, and therefore
was being deprived of access to justice, was rejected. InSumukan
LtdvCommonwealth Secretariat35Colman J considered that an exclusion
agreement precluding appeals under section 69 of the Arbitration
Act, was not in breach of Article 6. The case continued to the
Court of Appeal, but on different points.36The Human Rights Act has
more commonly been invoked to challenge legislation and practice
relating to proceedings linked to arbitration. The courts have
taken a robust but carefully considered approach to such human
rights points and have generally found that English law is
compatible with Convention rights. For example, the civil procedure
rules provide that most arbitration claims are heard in private and
these rules were carefully considered and upheld inDepartment of
Economics Policy & Development of the City of MoscowvBankers
Trust Co.37The rule that applications for permission to appeal are
ordinarily decided without an oral hearing has also been
upheld.38However, some practices have changed in light of the Human
Rights Act, in particular judges now give reasons for their
decision on an application for permission to appeal under section
69 of the 1996 Act.InNorth Range Shipping LtdvSeatrans Shipping
Corporation39Steel J had refused to give full reasons for refusing
permission to appeal from an award, instead referring simply to the
statutory grounds for refusing permission. The applicants argued
that under the Human Rights Act 1998 the court should give full
reasons in accordance with Strasbourg jurisprudence on the right to
a fair hearing under Article 6(1). The Court of Appeal upheld Steel
Js decision but held that the practice of giving no reasons
established inThe Antaios40was incompatible with the Human Rights
Act. At the very least, the unsuccessful applicant for permission
should be told which of the statutory tests he had failed to meet.
Whether or not the judge must go further and explain why the test
was not satisfied would depend on the circumstances, but very brief
reasons would be sufficient.41Statutory restrictions on court
intervention have also been challenged but have been found to be
compatible with the Human Rights Act because they reflect the
parties choice, in the interests of finality, privacy and
efficiency, to waive their rights to have a public court hearing in
favour of having an arbitrator decide their dispute. In addition,
the courts have been willing to uphold statutory restrictions
because the 1996 also maintains mandatory procedural
safeguards.42For instance, the tribunal is under a mandatory duty
to act fairly and impartially between the parties43and the Court of
Appeal has a residual jurisdiction to intervene to prevent
arbitrariness in a judges decision making.InRepublic of
KazakhstanvIstil Group Ltd44the Court of Appeal had to consider
whether the restrictions on appeals in section 67(4) of the 1996
Act45were compatible with the right to fair trial set down in
Article 6 of the Convention. It decided that section 67(4) was both
legitimate and proportionate, in that it was legitimate for
Parliament to seek to restrict further appeals and that it was
proportionate to limit second appeals to those cases where the
judge found there to be a reasonable prospect of success. A further
safeguard in the interests of fairness was provided in that it was
open to the Court of Appeal to review the fairness of the decision
making process engaged in under section 67(4). This exception,
which is meant to provide an effective safety net, derives fromCGU
International Insurance plcvAztraZeneca Insurance Co Ltd,46where it
was alleged that the procedure in reaching the decision was so
flawed that the decision could not be properly called a decision at
all. Intervention under this residual jurisdiction would, however,
be exceptional since it requires a substantial defect in fairness,
going beyond even perversity, such that the decision is
invalidated. A residual jurisdiction to this effect was considered
by the court to have existed prior to the Human Rights Act in any
event.These decisions show that the law of arbitration is subject
to the Human Rights Act but substantial changes in law and practice
have been relatively limited.The applicability of the Human Rights
Act within the arbitral process itself has not been fully tested
but the Act will probably be applicable in an arbitration governed
by English law by reason of an arbitrators implied duty to apply
the law. If English law applies to the substance of the dispute,
arbitrators would be required to interpret legislation compatibly
with Convention rights and to recognise the unlawfulness of public
authorities violating Convention rights.47A tribunals failure to
apply these principles of law would render the award potentially
challengeable for an error of law. More controversial is whether an
arbitral tribunal is under a duty to act compatibly with Convention
rights in making procedural decisions, for example in admitting
evidence which was obtained in breach of the parties right to
privacy.48The full impact of the Human Rights Act on arbitration
will depend on the development of human rights principles by the
courts. Human rights issues are becoming increasingly important in
commercial disputes in the same way that European Community points
have become increasingly relevant in what might once have been
regarded as purely domestic cases. The case law on Article 6(1)
(both from Strasbourg and the English courts) is increasingly
invoked in arbitration cases.499.ARBITRATION AND EUROPEAN
COMPETITION LAWIf a competition law issue arises in a London
maritime arbitration it will usually be governed by English law and
accordingly will depend on principles of European competition law
which now govern English law in this area. This book does not
propose any in-depth treatment of European competition law (or any
other anti-trust rules) but rather attempts a brief introduction to
the growing relationship between this field and maritime
arbitration.Substantive European competition law is contained in
Articles 81 and 83 of the EC Treaty. The basic principle under EU
law is that competition law prohibits anti-competitive agreements
and the abuse of a dominant position. Until fairly recently the
main means of enforcing competition law was by means of
investigation by national competition authorities such as the
Office of Fair Trading or the European Commission. Pursuant to
Regulation 01/2003, increased power to apply competition law was
devolved from the European Commission to national competition
authorities and courts of the EU Member States. However, Articles
81 and 83 have direct effect in English law and are therefore
enforceable in an arbitration governed by English law. The most
common issue to arise in an arbitration is the enforceability and
effect of an agreement that breaches competition law.At the outset
an issue may arise as to the very arbitrability of such issues.
Historically, some jurisdictions held that competition claims were
not properly arbitrable since they raised issues of public policy
that could not properly be determined in a private
arbitration.50However, it is now firmly established that
competition issues are arbitrable under English law.51Competition
issues do, however, raise particular problems in the context of
arbitration. First, an arbitral tribunal will not be able to
provide the range of remedies available to official competition
regulators (e.g. fines or exemptions). In addition, competition
issues may often require extensive disclosure and complex expert
economic evidence which may be costly and unfamiliar to most
maritime arbitrators. Issues of competition law will also commonly
involve third parties that may not easily be bound by the arbitral
process.52However, notwithstanding these problems, an arbitral
tribunal should generally address a competition issue where it
arises since otherwise its award may be unenforceable. The European
Court of Justices key ruling inEco Swiss China Time LtdvBenetton
International BV53has had a significant, and controversial, impact
on arbitration law in this respect.TheEco Swisscase concerned a
dispute over a licence to make watches with the Benetton name.
Benetton unilaterally terminated the agreement, and subsequently an
arbitration was commenced to determine whether Benetton was in
breach of its obligations under the licence agreement. During the
arbitration neither the parties nor the tribunal raised the issue
of whether the agreement was in accordance with European
competition law. The arbitrators made two awardsa partial and final
awardboth of which found against Benetton. Benetton subsequently
applied to the Dutch courts for annulment of both awards on the
grounds that they should be considered contrary to Dutch public
policy, as the original licence agreement was contrary to European
competition law. The matter went to the Dutch Supreme Court, who
sought guidance from the European Court of Justice as to whether a
national court should grant annulment of an arbitration award if
the national court determined that the award was contrary to
European competition law.The European Court of Justice concluded
that Article 81 was a matter of public policy. Therefore, where a
domestic court should, according to its own rules, annul an
arbitration award on the grounds of failure to comply with national
public policy, it should similarly annul an award if it failed to
comply with Article 81. Further, the European Court held that
competition law rules should be considered as public policy for the
purposes of Articles V(1)(c) and (e) and II(b) of the New York
Convention, and therefore national courts should refuse recognition
and enforcement of awards which did not comply with competition
law. However, the court did not decide whether arbitrators should
be obliged to raise competition law issues of their own volition if
they were relevant to the dispute before it.This last issue has
caused some controversy, and no clear position seems to have been
reached in England on this subject. Given the paucity of published
arbitration awards, uncovering the reasoning and positions adopted
by arbitral tribunals faced with this problem is difficult. Insofar
as a tribunal fails to consider competition law points (even if not
raised by the parties), it may render an award that is ultimately
unenforceable, and therefore may be remiss in its duty to render an
enforceable award.54However, maritime arbitrators may be reluctant
to deal with competition law issues which frequently involve a
quasi-public economic analysis outside their normal experience.
This factor should be taken into account when appointing
arbitrators, if a familiarity with competition law would be
advantageous in the context of the arbitration.55Arbitration
tribunals do not have the ability to seek guidance from the
European Court of Justice in the way that is open to national
courts.56Similarly, if a tribunal sought guidance from the European
Commission it could place itself in breach of its obligation of
confidentiality to the parties. However, pursuant to section 37 of
the Arbitration Act 1996, the tribunal could appoint an expert to
provide it with appropriate advice.Parties approaching an
arbitration involving competition elements must also consider
whether the remedies which an arbitral tribunal can provide are apt
to deal with competition law problems. For instance, insofar as a
party is alleging that there is some form of anti-competitive
collusion between one party to the arbitration and a third party,
the arbitral tribunal has extremely limited scope in providing
remedies that could bind the third party.57It is difficult to
ascertain the frequency with which competition issues are arising
in London maritime arbitrations, given the confidentiality of
awards. However, the ambit of competition law is expanding in the
maritime field and there is an increasing scope for issues to
arise. This is particularly the case in respect of joint venture
agreements in the field of maritime law, and disputes involving
slot chartering.58Parties may find that this is an area which
increasingly needs to be addressed in the context of maritime
arbitration, and both practitioners and the arbitrators they
appoint need to be live to the issues and pitfalls that this may
create.1Bruce Harris, [1995] ADRLJ 18 at 19.2See the statistics
regularly published in the LMAA Newsletter.3www.lmaa.org.uk. The
LMAA can be contacted via the Honorary Secretary. Personal details
of said Honorary Secretary may change and therefore reference
should be made to the website.4The Myron (Owners)vTradax Export
SA,The Myron[1969] 1 Lloyds Rep 411, at 415,Rahcassi Shipping
Company SAvBlue Star Line Ltd, The Bede[1967] 2 Lloyds Rep 261.5For
the meaning of commencing arbitration, see section 14 of the 1996
Act and Chapter 10 on appointments.6Fal Bunkering of
SharjahvGrecale Inc of Panama[1990] 1 Lloyds Rep 369, 373.7[1990] 1
Lloyds Rep 369. At the time of the decision arbitrators only had
the power to grant security for costs if this was agreed by the
parties.8Saville J at 373 made an analogy withClarkevDunraven[1897]
AC 59 where competitors in a regatta had each agreed with the
secretary of the yacht club to obey certain rules during the race.
It was held that there was a contract on those rules between the
competitors.9The last sentence of paragraph 5 of the LMAA Terms
would support this view.10The issue of when an arbitration is
treated as commenced is considered in Chapter 10. See section 14 of
the 1996 Act.11China Agribusiness Development CorporationvBalli
Trading[1998] 2 Lloyds Rep 76;PerezvJohn Mercer & Sons(1922) 10
Ll L Rep 584;Bunge SAvKruse[1979] 1 Lloyds Rep 279 andEDM JM
Mertens & Co PVBAvVeevoeder Import Export Vimex BV[1979] 2
Lloyds Rep 372 at 383.12Ranko GroupvAntarctic Maritime SA[1998]
LMLN 492, see transcript of 12 June 1998.13Bunge SAvKruse[1979] 1
Lloyds Rep 279 at 286.14See statistics in the LMAA
Newsletter.15LMAA Handbook, commentary on the Small Claims
Procedure.16The fee level will be published on the LMAA website and
in the LMAA Newsletter. As of July 2008, the fee stands at 2,000,
with an additional fee of 1,250 where there is a counterclaim which
exceeds the amount of the claim.17The disclosure aspect of the
Small Claims Procedure will probably be viewed similarly to
paragraph 9 of the Second Schedule to the LMAA Terms (2006) which
provides that a party will only be required to disclose the
documents on which it relies or which adversely affect its own case
as well as the documents which either support or affect the other
partys case. It is likely that a similar test will be applied in
practice in the Small Claims Procedure.18As of July 2008, the
limitation on costs stands at 2,750 or 3,250 where the counterclaim
exceeds the amount of the claim (3,000 for arbitrations commenced
before 1 July 2008).19This is an appeal under section 69 of the
1996 Act, challenge under sections 67 and 68 cannot be excluded by
agreement.20See LMAA Statistics (e.g. LMAA Newsletter Spring 2000,
Autumn 2001).21Seewww.lmaa.org.ukfor details.22In deciding whether
the counterclaim is distinct from the claim the tribunal is likely
to use the same principles that are in applicable in deciding
whether to award security for the costs of a counterclaim, see
Chapter 17.23Paragraph 1.3 of Part 1 of the CPR.24CPR Part 62
supplemented by the Arbitration Practice
Direction.25PatelvPatel[2000] QB 551.26For example, Harris,
Planterose and Tecks,The Arbitration Act 1996.A Commentary(4th
edn), p. 289, see also the award set out inEastrade Commodities
IncvGannet Shipping Ltd[2002] 1 Lloyds Rep 713.27Petroships Pte
LtdvPetec Trading & Investment Corporation of Vietnam,The Petro
Ranger[2001] 2 Lloyds Rep 348 at 358.28Mustill & Boyd, 2001
Companion, p. 32.29Mousaka IncvGolden Seagull Maritime Inc[2001] 2
Lloyds Rep 657, upheld on appeal inNorth Range ShippingvSeatrans
Shipping Corporation[2002] EWCA Civ 405; [2002] 2 Lloyds Rep
1.30DeweervBelgium, A/35, 27 February 1980, (1980) 2 EHRR 439, E Ct
HR, paragraph 49,StretfordvFootball Association[2007] EWCA Civ 238;
[2007] 2 Lloyds Rep 31,Department of Economics Policy &
Development of the City of MoscowvBankers Trust Co[2004] EWCA Civ
314; [2004] 2 Lloyds Rep 179, para 27. For further discussion see
Mustill & Boyd, 2001 Companion, pp. 76-79, C. Ambrose,
Arbitration and the Human Rights Act 1998 [2000] LMCLQ 468 at
481-483.31[2003] EWHC 1377 (Comm); [2003] 1 WLR 2885 and on appeal
at [2004] EWCA Civ 314; [2004] 2 Lloyds Rep 179.32Notably in
sections 24, 33 and 68. InMousaka IncvGolden Seagull Maritme
Inc[2001] 2 Lloyds Rep 657, it was common ground that the statutory
restrictions on the right to appeal from an award under section 69
of the 1996 Act were consistent with Article 6(1). The requirement
of independence in addition to impartiality was rejected in the
1996 Act as unnecessary and undesirable in arbitration, see
paragraph 101 of the DAC Report.33[2007] EWCA Civ 238; [2007] 2
Lloyds Rep 31.34[2007] EWHC 2618 (Comm); [2008] 1 Lloyds Rep
360.35[2006] 2 Lloyds Rep 54; [2006] EWHC 304.36[2007] EWCA Civ
1148; [2008] 1 Lloyds Rep 40. An arbitration clause providing for
arbitrators to be drawn from a religious class was upheld
inJivrajvHashwani[2009] EWHC 1364 (Comm).37[2004] EWCA Civ 314;
[2004] 2 Lloyds Rep 179, for further discussion of the case see
Chapter 13 on confidentiality.38Section 69(5) of the 1996 Act. The
absence of an oral hearing for determining an application for
permission to appeal was regarded as compatible with Convention
rights inBLCT (13096) LtdvJ Sainsbury plc[2003] EWCA Civ 884;
[2004] 1 CLC 24.39[2002] EWCA Civ 405; [2002] 2 Lloyds Rep 1,
upholding the decision inMousaka IncvGolden Seagull Maritime
Inc[2001] 2 Lloyds Rep 657.40Antaios Compania Naviera SAvSalen
Rederierna AB[1985] 1 AC 191.41The Court of Appeals decision that
it had residual jurisdiction to intervene inNorth Range Shippingwas
confirmed inCGU International Insurance plcvAstraZeneca Insurance
Co Ltd[2006] EWCA Civ 1340; [2007] 1 Lloyds Rep 142; [2006] 2 CLC
441.42SeeStretfordvFootball Association[2007] EWCA Civ 238; [2007]
2 Lloyds Rep at 31 andRepublic of KazakhstanvIstil Group Ltd[2007]
EWCA Civ 471; [2007] 2 Lloyds Rep 548. InMousaka IncvGolden Seagull
Maritime Inc[2001] 2 Lloyds Rep 657 it was common ground that the
statutory restrictions on the right to appeal from an award under
section 69 of the 1996 Act were consistent with Article 6(1).43The
requirement of independence in addition to impartiality in Article
6 was not incorporated into the 1996 Act because it was regarded as
unnecessary in arbitration, see paragraph 101 of the DAC
Report.44[2007] EWCA Civ 471; [2007] 2 Lloyds Rep 548.45Section
67(4) provides that: The leave of the court is required for any
appeal from a decision of the court under this section.46[2006]
EWCA Civ 1340; [2006] 2 CLC 441; [2007] 1 Lloyds Rep 142, see
alsoASM Shipping Ltd of IndiavTTMI Ltd of England[2006] EWCA Civ
1341; [2007] 1 Lloyds Rep 136.47Human Rights Act 1998, sections 3
and 6, Arbitration Act 1996, section 46.48C. Ambrose, Arbitration
and the Human Rights Act 1998 [2000] LMCLQ 468, see, also,Al Hadha
Trading CompanyvTradigrain SA[2002] 2 Lloyds Rep 512.49Department
of Economics Policy & Development of the City of MoscowvBankers
Trust Co[2004] EWCA Civ 314; [2004] 2 Lloyds Rep 179.50E. Lecchi,
M. Cover, Arbitrating Competition Law Cases
[2008]Arbitration65.51ET Plus SAvWelter[2005] EWHC 2115 (Comm);
[2006] 1 Lloyds Rep 251, paragraph 51.52See Chapter 15 on third
parties.53Case C-126/97 [1999] ECR I-3055; [1999] 2 All ER (Comm)
44.54P. Landolt,Modernised EC Competition Law in International
Arbitration(Kluwer, 2006) No. 7-122.55H. van Houtte, Arbitration
and Articles 81 and 82 EC TreatyA State of Affairs,ASA Bulletin,
23/3 (2005); P. Lomas,Arbitration: Jurisdiction over EC Competition
Law Issues(Practical Law, 2004).56Nordsee Deutsche Hochseefischerei
GmbHvReederei Mond Hochseefischerei Nordstern AG & Co KGCase
C-102/91 [1982] ECR 1095.57See Chapter 15 on third parties.58C.
Hancock QC, Containerisation, Slot Charters and the Law, Chapter 14
inLegal Issues Relating to Time Charterparties(2008), Ed. Professor
D. Rhidian Thomas.
Chapter 2The Arbitration Act 1996The Arbitration Act 1996 1.
Introduction 2. History 3. Aims 4. Application 5. Interpretation 6.
Time limits1.INTRODUCTIONMost maritime arbitration in London will
be governed by the Arbitration Act 1996 (the 1996 Act). This
statute came into force on 31 January 1997. It was innovative in
many respects, particularly in setting out a fresh statement of the
law and imposing duties on the tribunal to adopt efficient
procedures. The 1996 Act also maintained many of the established
features of the English system, for instance appeals for errors of
law. Its main hallmarks are party autonomy and minimising court
intervention. However, many provisions apply as a matter of public
interest regardless of the parties agreement: for example the
tribunals duty to act fairly and impartially.Overall, the 1996 Act
has been extremely successful. There is now less anxiety that the
English system is losing ground to competing jurisdictions. Those
who use arbitration have generally responded favourably to the 1996
Act, due largely to the fact that it reflected careful
consultation. For example, a 2006 survey of arbitration users
carried out by Bruce Harris for the Commercial Court Users
Committee, the British Maritime Law Association and the London
Shipping Law Centre concluded that the Act is working well. In
particular, the authors of the survey concluded that, despite some
unfavourable commentary about the appeals process under the Act
(and the general perception that it had become too difficult to
obtain permission to appeal, with the result that English maritime
law was being starved of nourishment), most users felt that it was
effective. The only area of dissatisfaction related to
jurisdictional issues, where a significant proportion of users felt
that the arbitral tribunal should have the power to rule finally
(i.e., without review by the courts) on their own jurisdiction. The
survey is available on the International Dispute Resolution Centre
website (www.idrc.co.uk). There has been a substantial amount of
litigation under the 1996 Act but its drafting has generally
withstood tests except for one error regarding rights of
appeal.1Overall, the law has settled down remarkably quickly, due
in part to the courts respect for the approach adopted by the
Departmental Advisory Committee on Arbitration Law (the
DAC).2.HISTORYThe Mustill ReportThe starting point for the 1996 Act
was the 1989 Mustill Report2produced by the Departmental Advisory
Committee on Arbitration Law (the DAC) under the chairmanship of
Lord Justice Mustill (now Lord Mustill). The DAC had been asked to
consider reform of English law, in particular whether the UNCITRAL
Model Law on International Commercial Arbitration (the Model Law)
should be adopted. The Model Law is a statement of rules and
principles of arbitration adopted in 1985 by the United Nations
Commission on International Trade Law (UNCITRAL). It has been
implemented in many countries, including Scotland. The Mustill
Report recommended against the adoption of the Model Law on the
grounds that English law on arbitration was sufficiently well
developed and satisfactory to its users; the practical
disadvantages of enacting the Model Law would outweigh its
potential advantages. The Mustill Report also decided that radical
changes to the content of English arbitral law were not needed.
However, it indicated that the existing law was unsatisfactory
since it was mostly found in case law only accessible to specialist
lawyers. The statute law which did exist was dispersed in the
Arbitration Acts of 1950, 1975 and 1979 and various amending
statutes such as the Limitation Acts. The old statutes provided a
disjointed and illogically arranged set of rules which were often
drafted in complex terms incomprehensible to the
layman.Recommendations for reform were set out in paragraph 108 of
the Report:In these circumstances we recommend an intermediate
solution, in the shape of a new Act with a subject-matter so
selected as to make the essentials of at least the existing
statutory arbitration law tolerably accessible, without calling for
a lengthy period of planning and drafting, or prolonged
parliamentary debate. It should in particular have the following
features: (1) It should comprise a statement in statutory form of
the more important principles of the English law of arbitration,
statutory and (to the extent practicable) common law. (2) It should
be limited to those principles whose existence and effect should be
uncontroversial. (3) It should be set out in a logical order, and
expressed in language which is sufficiently clear and free from
technicalities to be readily comprehensible to the layman. (4) It
should in general apply to domestic and international arbitrations
alike, although there may have to be exceptions to take account of
treaty obligations. (5) It should not be limited to the subject
matter of the Model Law. (6) It should embody such of our proposals
for legislation as have by then been enacted. (7) Consideration
should be given to ensuring that any such new statute should, so
far as possible, have the same structure and language as the Model
Law, so as to enhance its accessibility to those who are familiar
with the Model Law.The Report recommended that the proposed
legislation should not attempt to codify the entire English law of
arbitration or provide a restatement in the style of the American
Restatements, but it should do more than merely consolidate the
existing statutory provisions since mere consolidation would leave
many important principles hidden in the law reports.The Marriott
Working GroupThe initiative towards a new arbitration act was taken
up by Mr Arthur Marriott QC who led a group of lawyers and arbitral
institutions (the Marriott Working Group) in a project for the
privatised drafting of the new statute.3They commissioned Mr Basil
Eckersley, a distinguished arbitrator and barrister, to draft a
bill. His work was widely approved by the arbitration industry.
However, in order to obtain the necessary Government support for
enactment it was essential that a new statute should be drafted by
a lawyer trained as a parliamentary draftsman. The DAC recommended
that the Department of Trade and Industry should carry the work
forward as a Government bill. This recommendation was taken up by
the President of the Board of Trade (Michael Heseltine MP) in April
1992 and the work was taken forward as a public project under the
supervision of the DTI. The project was carried on with the
assistance of the DAC, including members of the Marriott Working
Group.Work under the auspices of the Department of Trade and
IndustryA former parliamentary draftsman was instructed to prepare
a new bill but his draft failed to follow the structure of the
Model Law. Another former parliamentary draftsman was instructed to
produce a consolidating measure.4Her work was used as the basis for
the draft bill which was published in February 1994 with a
consultation paper. The February draft was not warmly received:
many felt that a bolder approach than consolidation was needed and
that the draft did little to improve the accessibility of English
arbitral law. It was felt that a new statute should give clearer
emphasis to party autonomy and the role of the courts in supporting
the parties choice. Both commentators and the DAC considered that
it was essential to make the format and language more user-friendly
than that of the February 1994 draft.Lord Justice Saville (now Lord
Saville) took over the chair of the DAC from Lord Steyn in the
autumn of 1994 and, together with other members of the DAC, he
personally undertook much of the work involved in the new draft and
a consultative paper (the July 1995 Consultative Paper). Their
draft was passed to a parliamentary draftsman, Mr Geoffrey Sellers,
to produce the July 1995 draft. Following a consultation period
over the summer, the Arbitration Bill was introduced into the House
of Lords in December 1995. In February 1996, the DAC published its
Report on the Arbitration Bill (the DAC Report). The Bill was
supported by all parliamentary parties and underwent the Public
Bill Committee Procedure. This procedure, sometimes called the
Jellicoe Procedure, had only previously been used for Law
Commission bills. It involved experts giving evidence on the impact
of the proposed statute at the committee stage in the House of
Lords. The Act received Royal Assent on 17 June 1996 and came into
force on 31 January 1997.53.AIMS OF THE 1996 ACTThe DAC used the
recommendations of paragraph 108 of the Mustill Report (set out
above) as its starting point in identifying its aims, but
reinterpreted them to the extent that the Report had expressly
rejected a restatement of the English law of arbitration.6In 1996
the DAC decided that a bolder approach than consolidation was
necessary and in its title the 1996 Act is expressly described as
an Act to restate and improve the existing statutory and common law
rules. The 1996 Act aims to restate the basic principles of the
English law of arbitration within a logical structure: it is not an
exhaustive code of the law; some aspects such as confidentiality
were deliberately omitted.7Several fundamental objectives underpin
the Act:8 to promote party autonomy: most of the provisions only
come into play to support the arbitration when the parties have not
decided what should happen; to respect the parties decision to
choose a private tribunal rather than a court to resolve their
dispute; to make arbitration a fair, speedy and cost-effective
method of dispute resolution by an impartial tribunal; to limit
court intervention to situations where it is obvious that the
arbitral process needs assistance or there is likely to be a clear
denial of justice; to follow the structure and content of the Model
Law as far as possible; to make the law accessible and
user-friendly (plain English was favoured, Latin terms were
avoided, time limits were included alongside the provision to which
they apply, provisions relating to one topic have been located
together under headings and recurring terms are defined in one
place).Unusually, the general aims of the 1996 Act are enunciated
as general principles at the outset. These general principles are
routinely referred to by the courts when interpreting the Act.
Section 1 provides that:The provisions of this Part are founded on
the following principles and shall be construed accordingly (a) the
object of arbitration is to obtain the fair resolution of disputes
by an impartial tribunal without unnecessary delay or expense; (b)
the parties should be free to agree how their disputes are
resolved, subject only to such safeguards as are necessary in the
public interest; (c) in matters governed by this Part the court
should not intervene except as provided by this Part.The main
impetus for the 1996 Act came from legal and commercial circles,
with the aim of safeguarding the position of London as a world
centre for arbitration.9The Act also implemented wider policies: by
making the law simpler and more accessible, it was hoped to ensure
that business had access to fair and efficient methods of resolving
disputes.10The Act was passed following the publication of the
Woolf Report11(which ultimately led to far-reaching reform of civil
procedure, see Chapter 1) and may be perceived as a parallel
projectalthough it was initiated much earlier by the Mustill
Report. In addition, the Act was intended to have deregulatory
benefits and encourage the competitiveness of the arbitration
industry.124.APPLICATION OF THE 1996 ACTCommencementThe title of
Part I of the 1996 Act, Arbitration pursuant to an arbitration
agreement, indicates that it covers arbitration arising by
agreement as opposed to compulsory arbitration imposed by statute
or otherwise. (Part I is the part of the Act that is relevant to
maritime arbitration and subsequent references to the Act are to
that Part; Part II relates to other matters such as consumer
arbitration agreements, and Part III governs the enforcement of
foreign awards). Section 84 makes clear that the Act applies to
arbitral proceedings commenced after it came into force on 31
January 1997 regardless of the date when the arbitration agreement
was made.13Thus the Act had limited retrospective effect in that it
could apply to an arbitration even though the parties agreement to
arbitrate was made before the Act was passed. The question then
arose as to whether the Act applied where no arbitral proceedings
had been commenced, for instance where a party seeks a stay of
court proceedings or an extension of time to commence arbitration.
The Act does not deal with this expressly, but the statutory
instrument by which it was brought into force makes clear that it
applies to any arbitration application made after 31 January 1997,
whether or not arbitral proceedings have been commenced.14Relevance
of the seatHowever, not all arbitrations will be governed by the
1996 Act: they must have some connection with the English legal
system. This connecting factor is the seat of the arbitration:
section 2(1) of the Act provides that it applies where the seat of
the arbitration is England, Wales or Northern Ireland. The seat of
the arbitration is ordinarily the place where the parties have
agreed that it should be held. However, the concept of the seat of
an arbitration does not refer simply to its geographical location;
it connotes the legal place15of the arbitration. By choosing the
legal place of the arbitration the parties choose the laws of that
place to govern the arbitral proceedings. Thus the parties could
choose London as the seat of the arbitration so that the 1996 Act
would apply, but hearings could take place in other countries,
perhaps for the convenience of witnesses or the
arbitrators.16Section 3 goes on to explain that:In this Part the
seat of the arbitration means the juridical seat of the arbitration
designated (a) by the parties to the arbitration agreement, or (b)
by any arbitral or other institution or person vested by the
parties with powers in that regard, or (c) by the arbitral tribunal
if so authorised by the parties,or determined, in the absence of
any such designation, having regard to the parties agreement and
all the circumstances.This provision is considered in more detail
in Chapter 5, but as a general rule the choice of London for
arbitration will be treated as a designation of London as the seat
of the arbitration, so the 1996 Act will apply. Similarly, the
choice of LMAA Terms17or arbitration under the auspices of an
arbitral institution in London will usually mean that the 1996 Act
applies to the arbitration.InABB Lummus Global LtdvKeppel Fels
Ltd18the parties to a shipbuilding contract had agreed that
disputes shall be referred to the London Court of International
Arbitration. Disputes shall be settled in accordance with Singapore
Law. Clarke J held that this amounted to a choice of London as the
seat of the arbitration.Certain provisions of Part 1 of the 1996
Act will apply even where the seat of the arbitration is not in
England, in particular sections 9 and 11. These provisions apply by
reason of the UKs international obligations under the New York
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards. The courts supportive powers under sections 43 and 44 (to
secure the attendance of arbitral proceedings and grant interim
injunctions) will also apply even if the seat of the arbitration is
not in England or has not been designated unless the court
considers this inappropriate. The corollary of this is that, where
an arbitration has a foreign seat, the English court will not
generally intervene to rule upon matters which would fall within
the jurisdiction of the courts at the foreign seat (e.g.,
injunctive relief. In this connection, section 44 of the Act is
intended to confer power on the English court to grant injunctions
in support of arbitrations, not to restrain the arbitration
itself.19Mandatory provisionsIn accordance with the policy of
enabling the parties to decide for themselves how the arbitration
should be handled the parties may contract out of most provisions
of the 1996 Act. However, some provisions are imposed mandatorily
as a matter of public interest and, where the Act applies, these
will apply regardless of the parties agreement and are usefully
listed in Schedule 1.205.INTERPRETATION OF THE 1996 ACTThe starting
point in construing any statute is to give its words their plain,
ordinary and natural meaning. The court should generally give
effect to the ordinary meaning of the words used by Parliament
without regard to evidence as to the statutes history or purpose.
However, the court will not adopt a literal approach to the
language used. Most questions of interpretation will arise where a
statutes wording is open to more than one interpretation. In
interpreting a statute the court (or arbitral tribunal) should read
it as a whole, taking into account the context and facts known to
Parliament when the statute was enacted.21Thus the courts
interpretative role may, in exceptional cases, enable it to correct
clear drafting errors where the parliamentary purpose is
clear.22The court will also use the various canons of statutory
interpretation that reflect common sense and justice: for instance,
a construction which leads to absurdity will be rejected.
Parliamentary materials such asHansardmay be referred to if there
is ambiguity in the wording which was dealt with in Parliament by
the Government representatives promoting the legislation.23These
general principles apply to the 1996 Act although the courts have
tended to take a noticeably purposive approach to it. In
particular, the courts have been willing to make decisions on the
basis of the spirit or philosophy of the Act.24It is not surprising
that a purposive approach has been favoured because section 1
expressly sets out the principles upon which it is founded, and
against which it should be construed. This is unusual in an English
statute and demonstrates the firm intention to give effect to party
autonomy and minimal court intervention. In addition, the DAC
Report is regarded as an extremely authoritative statement of the
purpose of the various provisions. The DAC recommendations were
accepted by Parliament save for minor drafting changes. Most of the
judges who deal with arbitration cases have had practice in the
area and their general readiness to take a purposive approach
probably reflects their agreement with the underlying policy of the
1996 Act.The drafters of the 1996 Act intended it to restate the
law in a clear and accessible way so that it is readily
understandable to all those who are considering arbitration.25This
objective has been achieved to a large degree, although inevitably
there has been litigation as to the correct meaning of parts of the
Act. The proper construction of various provisions of the 1996 Act
is considered throughout this book. The general issues that have
arisen concern the extent to which cases under the old law remain
relevant, the relevance of the Model Law in interpreting the 1996
Act and the authority of the DAC Report.Relevance of earlier case
lawSection 81(1) expressly preserves the role of the common law by
stating that Nothing in this Part shall be construed as excluding
the operation of any rule of law consistent with the provisions of
this Part. The DAC commented that it seems to us to be necessary to
make clear that the common law (so far as it is consistent with the
Bill) will continue to make its great contribution to our
arbitration law, a contribution that has done much to create and
preserve the worldwide popularity of arbitration in our country.
Thus, reliance on previous case law is possible where the 1996 Act
does not deal with an issue, (e.g., confidentiality); or if it has
left the issue open (e.g., regarding what is required for the
incorporation of an arbitration agreement by reference to another
contract).26However, where the Act does address a particular area,
the proper approach to construing a consolidating statute is to
give the words their ordinary meaning without recourse to decisions
on the previous legislation unless real and substantial ambiguity
arises which cannot be resolved by the usual canons of
construction.27Approving the dicta of Thomas J, the House of Lords
has indicated that, in general, pre-Act authority is not relevant
to its interpretation:28It is also necessary to consider how the
1996 Act should be interpreted. In his speech already cited Lord
Wilberforce pointed out that Many laymen have to participate in
arbitrations and many arbitrations are conducted by people who are
not lawyers (col 777). Can they realistically be asked to interpret
the 1996 Act in the light of pre-existing case law? Clearly not.
InSeabridge Shipping ABvAC Orssleffs EFTFs A/S[1999] 2 Lloyds Rep
685 at 690 Thomas J (now Thomas LJ), a judge with enormous
experience in this field, made valuable observations on which I
cannot improve. He said, at p 690: One of the major purposes of the
Arbitration Act 1996 was to set out most of the important
principles of the law of arbitration of England and Wales in a
logical order and expressed in a language sufficiently clear and
free from technicalities to be readily comprehensible to the
layman. It was to be in user friendly language. (See the Report on
the Bill and the Act made by the Departmental Advisory Committee,
published in Arbitration International, vol 13, at p 275.) As this
has been the actual achievement of the Act, it would in my view be
a retrograde step if when a point arose reference had to be made to
pre-Act cases. Reference to such cases should only generally be
necessary in cases where the Act does not cover a pointas, for
example, in relation to confidentiality or where for some other
reason it is necessary to refer to the earlier cases. A court
should, in general, comply with the guidance given by the Court of
Appeal and rely on the language of the Act. International users of
London arbitration should, in my view, be able to rely on the clear
user-friendly language of the Act and should not have to be put to
the trouble or expense of having regard to the pre-1996 Act law on
issues where the provisions of the Act set out the law. If
international users of London arbitration are not able to act in
that knowledge, then one of the main objectives of the reform will
have been defeated.The reference to an earlier decision of the
Court of Appeal is toPatelvPatel[2000] QB 551. I would respectfully
endorse the observation inSeabridge.Despite, this, reliance on case
law may be useful where the statute has enacted rules set out in
case law: for instance, section 7 states the common law principle
of separability, and pre-Act authorities were referred to by the
House of Lords when construing this provision.29In general, the
courts have been pragmatic in relying on case law under the
previous system where it assists.30This is justified on grounds of
consistency and justice: the safe and well-known rule of
construction is to assume that the legislature when using
well-known words upon which there have been well-known decisions
uses those words in the sense which the decisions have attached to
them.31Recourse to the Model LawThe DAC Report maintained that the
Model Law should not be adopted wholesale but that its structure
had been followed and many provisions of the 1996 Act reflected its
content.32The DAC had adopted the policy of party autonomy and
minimal court intervention that underlies the Model Law. The DAC
also recognised the need to make the English system more accessible
to international users and more competitive with other
jurisdictions.33The fact that many provisions reflect the Model Law
but do not reproduce its wording gives the courts wide discretion.
In some instances the court has relied on the wording of the Model
Law,34in others it has rejected it on the basis that the same
wording has not been adopted.35Overall, however, the courts will
take a purposive approach where it is clear that a provision was
intended to follow the Model Law.Use of the DAC reportUnder
traditional principles of statutory interpretation preparatory
materials such as the DAC Report should only be taken into account
where there is an ambiguity in the statutes wording.36However, in
many cases relating to the 1996 Act the courts have made reference
to the Report and treated it as an authoritative statement as to
the Acts meaning. InCetelem SAvRoust Holdings Ltd,37the Court of
Appeal described the DAC Report as a valuable aid to construction,
and referred to the many other cases where the courts had relied
upon it.6.TIME LIMITSIn the interests of speedy dispute resolution
the 1996 Act gives effect to time limits for various steps in an
arbitration or for challenging an arbitral award. Different types
of time limits can be identified: (a) time limits applicable to the
making of an appeal or application to court (e.g., section 70(3)
imposes a 28-day time limit from the making of an award for making
an appealit is considered in Chapter 22); (b) time limits agreed by
the parties for any matter relating to the arbitral proceedings
(e.g., under paragraph 9 of the LMAA Terms each party is required
to appoint an arbitrator not later than 14 days after a request to
do so); (c) time limits specified in the 1996 Act applying to the
arbitral proceedings in default of agreement (e.g., section 17
imposes a 7-day limit for appointing an arbitrator).Reckoning time
limitsCourt rules will apply in reckoning the time limits
applicable to court applications so that the 28-day period will not
include the day on which the period begins.38Thus if the award is
dated 2 July, the application must be made on or before 30 July. As
regards time limits agreed by the parties or time limits specified
in the 1996 Act, the parties may agree on how time is reckoned, but
in the absence of agreement, section 78 applies. It provides that:
(3) Where the act is required to be done within a specified period
after or from a specified date, the period begins immediately after
that date; (4) Where the act is required to be done a specified
number of clear days after a specified date, at least that number
of days must intervene between the day on which the act is done and
that date. (5) Where the period is a period of seven days or less
which would include a Saturday, Sunday or a public holiday in the
place where anything which has to be done within the period falls
to be done, that day shall be excluded.Extension of time limitsThe
1996 Act also allows for time limits to be extended in limited
circumstances. The time limits for making court applications under
sections 67 to 69 of the 1996 Act apply regardless of the parties
agreement but it would be open for a party not to take a point on a
late application (although the court could still dismiss the
application on grounds of it being out of time). The court has
power to extend these time limits under section 80(5). The
principles governing its discretion are discussed in more detail in
Chapter 22.Section 79 of the 1996 Act applies to the extension of
time limits relating to the arbitral proceedings which are agreed
by the parties or specified in that Act.39Section 79 provides: (1)
Unless the parties otherwise agree, the court may by order extend
any time limit agreed by them in relation to any matter relating to
the arbitral proceedings or specified in any provision of this Part
having effect in default of such agreement.This section does not
apply to a time limit to which section 12 applies (power of court
to extend time for beginning arbitral proceedings, etc.) (2) An
application for an order may be made (a) by any party to the
arbitral proceedings (upon notice to the other parties and to the
tribunal), or (b) by the arbitral tribunal (upon notice to the
parties). (3) The court shall not exercise its power to extend a
time limit unless it is satisfied (a) that any available recourse
to the tribunal, or to any arbitral or other institution or person
vested by the parties with power in that regard, has first been
exhausted, and (b) that a substantial injustice would otherwise be
done. (4) The courts power under this section may be exercised
whether or not the time has already expired. (5) An order under
this section may be made on such terms as the court thinks fit.In
most cases extensions of time can be agreed or dealt with by the
tribunal, only exceptional cases should require court applications.
However, the fact that the parties have agreed on a time limit in
the arbitration clause or institutional rules will not exclude the
courts jurisdiction under section 79.40The requirement of
substantial injustice leaves the court with a wide discretion as to
whether or not to grant an extension of time. Relevant
considerations will include the parties choice of arbitration as a
speedy method of dispute resolution, whether the delay is
excusable, the amount at stake, the merits (if they are plain), and
any prejudice caused by the delay.411Inco Europe LtdvFirst Choice
Distribution[2000] 1 WLR 586.2[1989] 6Arbitration
International1.3See Steyn LJ (as he then was) in [1994]
10Arbitration International1.4Denning Lecture [1995]
61Arbitration157 at 159.5The Arbitration Act 1996 (Commencement No
1) Order 1996.6Paragraph 107 of the Mustill Report [1990]
6Arbitration International36.7Paragraph 17 of the DAC Report.8See
the Explanatory Memorandum accompanying the 1996 Bill, the July
1995 Consultative Paper and the DAC Report generally.9Page 2 of the
July 1995 Consultative Paper.10Page 1 of the July 1995 Consultative
Paper.11Access to Justice: Interim Report to the Lord Chancellor on
the Civil Justice System in England and Walesby the Rt Hon the Lord
Woolf, published in June 1995.12Page 2 of the July 1995
Consultative Paper.13The Arbitration Act 1996 (Commencement No 1)
Order 1996the meaning of commencement of arbitral proceedings is
defined in section 14. See Chapter 10 on appointments.14The
Arbitration Act 1996 (Commencement No 1) Order 1996.15ABB Lummus
Global LtdvKeppel Fels Ltd[1999] 2 Lloyds Rep 24 at 33, andUnion of
IndiavMcDonnell Douglas Corporation[1993] 2 Lloyds Rep 48 at
50,Dubai Islamic Bank PJSCvPaymentech Merchant Services Inc[2001] 1
Lloyds Rep 65,Arab National BankvEl-Adbali[2004] EWHC 2381 (Comm);
[2005] 1 Lloyds Rep 541, DAC Supplementary Report on the
Arbitration Act 1996, paragraph 11.16Section 34(2)(a) of the 1996
Act,Naviera