Commencing an arbitration: time limits

Arbitration clauses frequently require arbitration to be commenced within a stated period, often running from the date of the dispute. In most cases the effect of such a clause will be to lay down a period shorter than the statutory period of six years from the date of breach as set out in the Limitation Act 1980.

Arbitration, Service

Commencing an arbitration: the requirements of arbitration notices

The complicated facts of Finmoon Ltd and Another v Baltic Reefers Management Ltd and Others [2012] EWHC 920 (Comm) gave rise to two important procedural questions relating to the commencement of arbitration proceedings.

Arbitration, Notice of Arbitration

Anti-arbitration injunctions

Despite doubts expressed in some recent cases, it would seem that English courts do possess the power to grant anti-arbitration injunctions, restraining a party from commencing or participating in arbitration proceedings. This remedy is clearly exceptional, in that the pro-arbitration stance adopted by the courts requires them to step back where the arbitrators are seised of an issue relating to their own jurisdiction. Claxton Engineering Services Ltd v TXM Olaj-és Gázkutató Kft (No 2) [2011] EWHC 345 (Comm) is an example of exceptional circumstances in which an anti-arbitration injunction was thought to be appropriate.

Service, Reliefs & Remedies, Anti-Arbitration Injunctions

Time limits and extension of time

Contractual provisions for the service of notice of arbitration proceedings typically lay down time limits. Section 12 of the Arbitration Act 1996 permits the court to extend time if specific conditions are satisfied. In Anglian Water Services Ltd v Laing O’Rourke Utilities Ltd [2010] EWHC 1529 (TCC) the issue arose in the context of adjudication, where the dispute resolution provisions agreed to by the parties required arbitration to be commenced within 28 days of the adjudication.

Arbitration, Notice of Arbitration, Service

Where a series of cargo owners have claims against a carrier under the various bills of lading issued to them, their representative may give a single notice of arbitration to the carrier. Doubtless the intention of such a notice is to trigger as many arbitrations as there are claimants. In Easybiz Investments v Sinograin Chinatex [2010] EWHC 2565 (Comm) the carrier took the point that such a notice, if capable of being construed as requiring a consolidated arbitration, is void.

Contractual and statutory limitation periods apply to arbitrations in exactly the same way as they apply to litigation. In Bulk & Metal Transport (UK) LLP v Voc Bulk Ultra Handymax Pool LLC [2009] EWHC 288 (Comm) the questions were whether a communication which gave the respondent a short period to pay failing which arbitration would be commenced constituted an immediate notice of arbitration, and whether the respondent was entitled to rely upon that notice as satisfying the time limit for a counterclaim.

It is very common to find in insurance policies issued by the London market to US policyholders a service of suit clause under which the insurers agree to submit to the jurisdiction of any court of competent jurisdiction in the US. In Ace Capital Ltd v CMS Energy Corporation [2008] EWHC 1843 (Comm) that form of wording was accompanied by an arbitration clause specifying arbitration in London. How are the two provisions to be reconciled? Mr Justice Christopher Clarke chose to give primacy to the latter.

The Arbitration Act 1996 provides that, in the absence of contrary agreement, an arbitration is to be commenced by the appointment of an arbitrator or a request to the other party to agree an arbitrator, as the case may be. The main issue in Bernuth Lines Ltd v High Seas Shipping Ltd, The Eastern Navigator [2005] EWHC 3020 (Comm), a decision of Christopher Clarke J, was whether service of the arbitration notice could legitimately be effected by email and, if so, to which email address? The judgment contains valuable analysis of the relationship between ss67–69 and s72 of the 1996 Act.