Binding effect of arbitration award: status of the Financial Ombudsman Service

In Berkeley Burke SIPP Administration LLP v Charlton and Another [2017] EWHC 2396 (Comm) Teare J decided that the Financial Ombudsman Service was not an arbitrator because its rulings were not binding on the complainant. The decision discusses section 58 of the Arbitration Act 1996, and makes the important point that there can only be an arbitration award if there is an underlying arbitration agreement within section 6 of the 1996 Act.

Awards

Enforcement of foreign awards: excess of powers and public policy

In Quanzhou Sanhong Trading Ltd Liability Co Ltd v ADM Asia-Pacific Trading Pte Ltd [2017] SGHC 199 it was argued before Chua Lee Ming J that the Singapore courts ought to refuse to enforce a foreign award under the New York Convention because the tribunal had erred in ruling that the substantive contract was governed by Chinese law rather than English law. The court found that an error of that type was no basis for refusing enforcement.

Enforcement

Supportive powers of the court: order for the sale of goods

Under section 44 of the Arbitration Act 1996 the High Court may exercise its ordinary powers in support of arbitration where the arbitrators themselves cannot act. In Dainford Navigation Inc v PDVSA Petroleo SA (The Moscow Stars) [2017] EWHC 2150 (Comm) Males J confirmed that the legislation confers jurisdiction upon the court to order a sale of cargo subject to a lien in an arbitration for the recovery of hire charges.

Arbitration, Arbitrators

Enforcement of arbitration awards: estoppel and public policy

Knowles J in Stati v The Republic of Kazakhstan [2017] EWHC 1348 (Comm) was required to decide whether an application to enforce a foreign award under the New York Convention could be rejected on the grounds of public policy when the Swedish curial court had rejected a challenge to the award and a US enforcing court had refused to allow evidence of allegations of fraud in the arbitration.

Enforcement

Arbitrability: shareholder disputes

In Fulham Football Club (1987) Ltd v Richards [2011] EWCA Civ 855 the Court of Appeal decided that disputes arising under shareholder agreements can be referred to arbitration even though there is a statutory remedy for minority shareholder oppression in the Companies Act 2006. Singapore and Australia have taken a similar approach. The most recent decision is that of the New South Wales Supreme Court in Re Infinite Plus Pty Ltd [2017] NSWSC 470.

Arbitration, Agreements

Jurisdiction: appeals against refusal to give permission to appeal

Where there is an appeal to the High Court against an award on the grounds of want of jurisdiction, under section 67 of the Arbitration Act 1996, section 67(4) states that there can be an appeal to the Court of Appeal against the judge’s decision only if the judge himself gives permission to appeal. However, there is a limited exception in that principle, which operates where the judge has not reached a decision at all on the application for permission to appeal.

Appeals, Permission to appeal

Costs: use of litigation funders

The decision of HHJ Waksman QC in Essar Oilfields Services Ltd v Norscot Rig Management PVT Ltd [2016] EWHC 2361 (Comm) is of crucial significance for the growing use of litigation funding. The court has confirmed that an arbitrator may include the enhanced costs of litigation funding in an ordinary award of costs in the arbitration, and that the arbitrator’s exercise of discretion is effectively beyond judicial review.

Arbitrators, Claims & Litigation

Stay of legal proceedings: null and void, inoperative and incapable of being performed

In Costain Ltd v Tarmac Holdings Ltd [2017] EWHC 319 (TCC) Coulson J had to determine not only whether there was an arbitration agreement in respect of the subject matter of the legal proceedings, but also whether – for a wide variety of suggested reasons – any such agreement was null and void or inoperative.

Stay

Stay of proceedings: arbitration clauses and EU competition law

The lengthy judgment of Marcus Smith J in Microsoft Mobile OY Ltd v Sony Europe Ltd and Others [2017] EWHC 374 (Ch); [2017] 2 Lloyd's Rep 119 considers a range of complex questions on the jurisdiction of the English courts over a number of defendants. The point of greatest interest for present purposes is the applicability of an arbitration clause to a claim for damages for alleged infringement of EU competition law.

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