arbitration act 1996 – The Institute of International Shipping & Trade Law (IISTL) Blog

Halliburton v Chubb: Is Timing Everything?

Simon Rainey QC and Gaurav Sharma

On 27 November 2020, the Supreme Court handed down its highly anticipated judgment in Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48, unanimously dismissing Halliburton’s appeal. In doing so, it found that, at the relevant time of assessment, a fair-minded observer would not have considered that the circumstances gave rise to reasonable doubts as to the impartiality of the chairman of the tribunal hearing the parties’ dispute arising out of the Deepwater Horizon incident in 2010.

Critics of the decision will undoubtedly focus on the consequences of the court’s view that the “relevant time” was the time of the hearing to remove chairman under section 24(1)(a) of the Arbitration Act 1996 (the Act), rather than the time of his acceptance of an appointment by Chubb in a separate arbitration – also relating to non-payment by Chubb under an insurance policy related to the Deepwater Horizon incident – around six months after his appointment in the arbitration between Halliburton and Chubb.

However, the decision brings finality to a key issue in the English law of arbitration, namely the existence of a legal duty to disclose an arbitrator’s participation in other arbitrations involving the same subject matter and a common party. In addition, it delivers clarity in relation to certain other aspects of disclosure and arbitral practice more generally – notably including the interaction between the duty of disclosure on one hand and the obligation of confidentiality on the other, and the application of the English rules on disclosure just as equally to party-appointed arbitrators as to tribunal chairs.

The Disputes, The Arbitrations, The Appeals

The Deepwater Horizon was an offshore oil and gas drilling rig leased by BP and operated by Transocean at BP’s Macondo Prospect in the Gulf of Mexico. Cementing and well monitoring services were provided by Halliburton. On 20 April 2010, the rig experienced a major blowout in the course of the temporary abandonment and plugging of a well, resulting in the tragic loss of several rig workers’ lives, significant oil spills and environmental damage, and the sinking of the rig on 22 April 2010.

The US Government brought proceedings against BP, Transocean and Halliburton in relation to the damage caused by the incident. A trial to determine liability before the Federal Court for the Eastern District of Louisiana resulted in a judgment on 4 September 2014 apportioning blame in percentage terms as between the three defendants. Halliburton settled certain of the US Government’s claims against it in the amount of US$1.1 billion, but its liability insurer, Chubb, resisted its subsequent insurance claims on the basis that the settlement amount was not reasonable. Accordingly, Halliburton commenced London arbitration proceedings against Chubb under its Bermuda Form policy, resulting in the High Court’s appointment on 12 June 2015 of Mr Kenneth Rokison QC as chair of the tribunal in default of agreement by the two party-appointed arbitrators.

Mr Rokison subsequently accepted an appointment by Chubb in December 2015 in its separate arbitration with Transocean arising out of the same incident following Transocean’s settlement of claims with the US Government; and an appointment in a third arbitration arising out of the same incident between Transocean and another insurer in August 2016.

At the time, Mr Rokison made no disclosure in the arbitration between Halliburton and Chubb of his appointment in the other two references. In November 2016, Halliburton became aware of these appointments and applied to the court pursuant to section 24(1)(a) of the Act to remove him as chair of the tribunal on the grounds of perceived bias. The High Court dismissed the application following a hearing on 12 January 2017 and Halliburton appealed against this decision. The Court of Appeal dismissed Halliburton’s appeal, resulting in Halliburton’s appeal to the Supreme Court.

The Legal Duty To Disclose Multiple Appointments With A Common Party

The issues before the Supreme Court were (i) whether and to what extent an arbitrator may accept appointments in multiple references concerning the same or overlapping subject matter with only one common party without thereby giving rise to an appearance of bias, and (ii) whether and to what extent the arbitrator may do so without disclosure.

Giving the leading judgment, Lord Hodge made clear that in cases of apparent bias such as the present, the court was not concerned “to ‘make windows into men’s souls’ in search of an animus against a party or any other actual bias, whether conscious or unconscious.” Instead, its task was to examine “how things appear objectively”. [Para. 52]

The analysis was done in the context of section 24(1)(a) of the Act which allows for the removal of an arbitrator where “circumstances exist that give rise to justifiable doubts” as to the arbitrator’s impartiality. The court considered that this could be the case “if the arbitrator at and from the date of his or her appointment had such knowledge of undisclosed circumstances as would, unless the parties waived the obligation, render him or her liable to be removed under section 24 of the 1996 Act”. Agreeing with the Court of Appeal, the Supreme Court affirmed that this gave rise to a legal duty to make a disclosure of such matters which would otherwise cause the arbitrator to be in breach of their “statutory obligation of fairness”. In other words, “an arbitrator who knowingly fails to act in a way which fairness requires to the potential detriment of a party is guilty of partiality”. [Para. 78]

The court accepted the submissions of the ICC, LCIA and CIArb who favoured the recognition of such a legal duty in international arbitration proceedings; and those of the GAFTA and the LMAA to the effect that parties who chose to arbitrate their commodities and shipping disputes under those specialist rules understood that the smaller pool of specialist arbitrators involved might well act in multiple arbitrations arising out of the same subject matter, without needing to disclose that fact. Lady Arden reinforced the importance of having clear evidence of a practice of dispensing with parties’ consent for arbitrators to appear in multiple arbitrations: while the English courts might trust arbitrators to decide cases on the basis of the evidence before them and set aside any inequality of arms and material asymmetry of information, this was something that “may not translate easily for the many parties to arbitrations who are familiar with different legal systems”. [Para 164]

Right Place, Wrong Time

The question therefore arose whether participants in Bermuda Form arbitrations would typically expect disclosure of an arbitrator’s involvement in related arbitrations. The court found no evidence of parties acceding to a general practice of non-disclosure, which was also consistent with the fact that Mr Rokison had made disclosures to the parties in the other two arbitrations that arose out of the present subject matter of his role in the arbitration between Halliburton and Chubb. Accordingly, the court found that Mr Rokison’s appointment in the second and third arbitrations should have been disclosed to Halliburton, and his failure to do so was a breach of legal duty which meant that a fair-minded and informed observer may well have concluded that there was a real possibility of bias. [Para 147]

Ultimately this was of little consequence, however, as the court ruled that the relevant time for the determination of possible bias was not when he was appointed in the second reference (December 2015) – but the date of the hearing of the application to remove him as an arbitrator (January 2017).

This, said the court, was because of section 24(1)(a) of the Act’s use of the present tense requiring an examination of whether circumstances “exist” when the issue of an arbitrator’s removal arises for determination by the court. By the time of the removal hearing concerning Mr Rokison, Halliburton had discovered his appointment in the other arbitrations and questioned him about that in correspondence, resulting in him providing an explanation for his failure to disclose – based on an oversight and belief that there would not be material overlap between the different sets of proceedings. Halliburton accepted this explanation as being truthful, and the court was not persuaded that a fair-minded and informed observer assessing the situation at the date of the removal hearing – having the benefit of Mr Rokison’s explanation for his failure to disclose – would infer that there was a real possibility of bias on Mr Rokison’s part. [Para 149]

So, Arbitrators Have A Statutory Duty to Disclose. But What If They Don’t?

In their judgments, both Lord Hodge and Lady Arden recognised the risk of affirming the existence of the legal duty to make a disclosure which might not lead to an arbitrator’s disqualification or removal if not complied with. Lady Arden acknowledged that “There is a concern that the duty of disclosure carries no sanction if an application is made to the court about a non-disclosure by the arbitrator and fails.” But in her view, this missed the point, which was that “it would still be a breach of the terms of appointment with such consequences, if any, as the law of contract prescribes. In addition, a person may commit a breach of contract but incur no liability as a result, and the situation postulated falls into that category.” [Para 169]

Lord Hodge explained how in circumstances of a breach of the legal duty to disclose, an “arbitrator might, depending on the circumstances, face an order to meet some or all of the costs of the unsuccessful challenger or to bear the costs of his or her own defence.” [Para 111]
In other words, the failure would amount to a breach of a strictly legal obligation with the usual consequences associated with such a breach – though it would have no bearing on the situation obtaining at the date of a removal hearing and the assessment to be carried out then.

Conclusion

The Supreme Court’s decision may cause disquiet in some quarters, especially amongst those who expect a failure to make a material disclosure to have more significant consequences – notably disqualifying an arbitrator from acting, or continuing to act, altogether. The fact that the disclosable information in this case came to light by chance will only reinforce the sense of arbitrariness that some observers may have in the idea of assessing the issue at some point in time after the disclosure should have been made, but was not. This in turn risks perpetuating any concerns participants in international arbitration proceedings may have as to the willingness and ability of English law to police the conduct of those who decide their disputes and their failure to make material disclosures affecting the fairness of proceedings.

More generally, one cannot help but wonder whether the court’s decision might result in some arbitrators showing less concern for their duty to make disclosures of relevant information in English-seated arbitrations in future. This would be a shame, especially in light of the highly confidential nature of commercial arbitration and the difficulty of obtaining credible information as to the reliability and trustworthiness of arbitrators in advance of appointment as things stand.

However, it is not a given, and we must hope that it will not be the case. Further, we should welcome the fact that the court’s decision brings clarity as to the nature of an arbitrator’s legal duty of disclosure, and how and when the examination of apparent bias will fall to be conducted.

Equally, we should be thankful for the court’s clarification as to the interaction between the duty to disclose involvement in multiple proceedings and any duties of confidentiality owed by that arbitrator to the various parties involved across the disputes. Lady Arden explained that “the implied term as to confidentiality is independent of the implied term that the arbitrator should comply with his impartiality duty. It is truly a self-standing term”. [Para 175.] A customary high-level disclosure made on an anonymised basis will usually suffice to provide a party with the necessary information to enable it to assess whether or not it wishes to object to an arbitrator’s appointment. However, if further information that is confidential is reasonably required by a party to make that assessment and would require another party’s consent in order to be divulged, then “if consent is not forthcoming, the arbitrator will have to decline the proposed appointment”. [Para. 188] It is not hard to appreciate the reasonableness of Lady Arden’s logic: arbitrators are, for better or worse, private judges who undertake paid appointments on a commercial and contractual basis. If a request for consent to provide detailed information is made in the context of “the voluntary decision of the arbitrator to pursue a further appointment” (para. 180) and refused, then that is tough luck for the arbitrator in question who will simply “have to decline the proposed appointment”. (Para. 188).

Finally, we should congratulate the Supreme Court for spelling out in terms that party-appointed arbitrators are subject to precisely the same obligations, and precisely the same standards, as tribunal chairs when it comes to impartiality and considerations of fairness. This point was made in passing in reference to Halliburton’s appointment of Mr William Park as its arbitrator in three references against different insurers in insurance claims arising out of the Deepwater Horizon disaster, without any disclosure; juxtaposed with Mr Park’s statement of “profound disquiet about the arbitration’s fairness” made when the award was rendered in the Halliburton v Chubb arbitration, based on Mr Rokison’s non-disclosure of other appointments (Para. 26). The court was, understandably, unimpressed by the suggestion that a party-appointed arbitrator should be afforded greater leniency in respect of his or her choice of disclosures compared with a chair, since “that is not a distinction which English law would recognise as a basis for a party-appointee avoiding the obligation of disclosure. The disagreement among people involved in international arbitration as to the role of the party-appointed arbitrator is a circumstance which points to the disclosure of such multiple nominations; it does not provide a ground for nondisclosure”. (Para 144). This view echoes the position taken by the courts of other major arbitral centres around the world in relation to the strict disclosure obligations of party-appointed arbitrators (see for example the 25 February 2020 decision International Commercial Chamber of the Paris Court of Appeal in Dommo v Barra y Enauta). Moreover, it is hugely reassuring to hear the court reaffirm what all participants in international arbitration proceedings hope and expect to be the case in respect of each and every one of the arbitrators mandated with the resolution of their legal dispute.

Chipping away at the ‘narrow approach’ to the Court’s powers in aid of arbitration?

A and B v C, D and E [2020] EWCA Civ 409

Simon Rainey QC looks at the Court of Appeal’s decision:

The long-standing controversy as to whether orders made by the Court “for the purposes of and in relation to arbitral proceedings” under s. 44 of the Arbitration Act 1996 can be made against non-parties to the arbitration received at least a partial resolution on Thursday 19th March 2020, when the Court of Appeal handed down its judgment in A and B v C, D and E [2020] EWCA Civ 409.

The case concerned a New York arbitration in relation to a dispute over net balances due under settlement agreements. One issue which arose was whether certain payments to a central Asian government were properly deducted as ‘signature bonuses’ (as the Respondents contended) or were bribes and therefore to be left out of account (as the Appellants submitted). The persons said to be involved in the negotiations for the making of the payments included one E, an English resident. He refused to go to New York to give evidence. With the permission of the Tribunal, the Appellants sought to compel his testimony and applied to the English Court under s. 44(2)(a) for an order under CPR34.8 for the taking of E’s evidence by deposition.

Accordingly, the application centred on the Court’s power as to “the taking of the evidence of witnesses”.

Foxton J. refused the application (with some reluctance) on the basis of accrued first instance Commercial Court authority, making it clear that his view would have been, absent authority, that the particular order sought was one the Court had jurisdiction to make under section 44: see [2020] EWHC 258 (Comm) at [18]. Recognising the controversy over the issue, he granted permission to appeal, notwithstanding the settled first instance view, a course of action which the Court of Appeal considered “obviously sensible”: [55].

On an expedited appeal, the Court of Appeal (Flaux, Newey and Males L.JJ held), with little hesitation, that s.44(2)(a) did give the Court power to make an order for the taking of evidence by way of deposition from a non-party witness in aid of a foreign or domestic arbitration. But the Court declined to go any further than that or to express any concluded view on the position in relation to other s.44(2) powers.

It follows that the controversy remains a very live one, pending review by the Supreme Court or the next piecemeal pronouncement by the Court of Appeal in another s.44(2) case involving a different sub-section (2) power.

The s.44 controversy and the previous Commercial Court decisions

On one view, the controversy might be said to be an arid one. S. 44(1) applies to all English seated arbitrations, unless contracted out of. It provides that, absent such contrary agreement, “the court has for the purposes of and in relation to arbitral proceedings the same power of making orders about the matters listed below as it has for the purposes of and in relation to legal proceedings”. A straightforward approach might be to conclude that the Court has the same power to make orders against non-parties to an arbitration as it would have in legal proceedings to make orders against non-parties to the litigation because that is what s.44(1) says (see [7] and Foxton J. at [18]). If the parties do not like it, they can opt of the section, in whole or in part.

That approach runs up against the concern that the powers in s.44(2) are solely in aid of a consensual process of arbitration which binds only those who are party to the relevant arbitration agreement. It is argued that it would be odd if the Court were placed in a stronger position than the underlying tribunal itself and were able to exercise jurisdiction and powers over third parties, in support of an arbitration, where the arbitrators themselves would have no such jurisdiction or power. This concern has proved to be the dominant theme in the Commercial Court decisions prior to A&B.

The leading analysis remains that of Males J. (as he then was) in Cruz City 1 Mauritius Holdings v Unitech Ltd [2014] EWHC 3704 (Comm).

That case concerned the Court’s jurisdiction under s.44(2)(e) as to “the granting of an interim injunction or the appointment of a receiver”. The case turned on the application of CPR 62.5(1)(c). However, after a careful examination of the textual indications in other parts of s.44. Males J. concluded obiter at [47] that “the better view is that section 44 does not include any power to grant an injunction against a non-party” to the arbitration. While limited to the grant of an injunction under section 44(2)(e), the Judge’s reasoning was generally expressed (as he acknowledged in A&B: [52]) and was equally applicable to all the different paragraphs of section 44(2), without distinguishing between them. The thrust of his reasoning was that the wording of e.g. ss.44(4) and 44(5) made it unlikely that Parliament had intended to give the English court jurisdiction to make orders against non-parties in support of arbitrations happening anywhere in the world and that “the section is simply not concerned with applications against non-parties” [48(e)].

In the subsequent decision of DTEK Trading SA v Morisov [2017] EWHC 1704 (Comm), the Court had to consider whether it had jurisdiction under section 44(2)(b) to make an order for the preservation and inspection of a document in the possession of a third party in Ukraine. Sara Cockerill QC (as she then was) rejected various commentators’ criticisms of Males J’s approach (i.e. Merkin & Flannery, Arbitration Act 1996, 5th Edn; see now 6th Edn at 44.7.5) and reached the same analysis as Males LJ, taking a general approach (note that the application was unopposed). Thereafter later decisions applied the position as if settled at first instance (see e.g. Foxton J. and before him, Trans-Oil International v Savoy Trading [2020] EWHC 57 (Comm), Moulder J.).

The “wide” and the “narrow” questions in play on the appeal

So lay the land on the appeal.

The Appellant’s primary case was that the appeal had to be determined first and foremost on the “narrow question” of whether the particular s.44(2) power was one which was exercisable against third parties.

This was accepted by the Court, basing itself on the wide words of s.44(2)(a) with its reference to “witnesses”, not to “parties”, in circumstances where given the wide range of potential witnesses who would not be expected to be only “party” witnesses, “there is no justification in the wording of the statute for limiting “witnesses” to those who are in the control of one or other of the parties. If Parliament had intended that limitation, it would have said so” (Flaux LJ at [37]; see also Males LJ at [59]). Further, the nature of the “legal proceedings” referred to in s.44(1), being High Court and County Court proceedings, connoted the power which those Courts had to take evidence on deposition wherever necessary and just to do so: (; [38]; [61]).

The Appellant nevertheless also mounted an attack on the wider front that the s.44 controversy was not to be resolved by looking at the consensual nature of arbitration and that the starting point for section 44 is not the consensual nature of the arbitration agreement but what powers the Court is to have in a defined situation.

The Court of Appeal avoided getting into the debate as to whether Cruz City and DTEK were correctly decided. Given that the position was clear for s.44(2)(a), it was not considered necessary to go any further on different s.44 powers.

The end of the wide Cruz City view?

While the Court of Appeal refrained from tackling the correctness of the Cruz City wide approach, it is difficult to see how that approach can survive its decision. Either s.44 as a section is dealing with powers against parties only (as Males LJ opined in Cruz City) or it is not.

If it is not (as has now been held), then there are only two possible positions: either (a) the wide view that all of the s.44(2) powers are exercisable generally against non-parties is correct or (b) each separate power will turn on its own terms, so that different results may apply; indeed, it may be that only the s.44(2)(a) ‘evidence / witness’ power is a non-party power, while the remainder of s. 44(2) are powers are exercisable against arbitral parties only.

In so far as it is possible to identify the Court of Appeal’s view, this was in favour of the latter, ‘power by power’, approach.

Flaux LJ recognised that the effect of the decision and of the Court’s “narrow approach” was to posit that s.44 (2)(a) applies to non-parties, whereas the other heads of the subsection may not do so, based on the previous decisions. He left the position open by stating that “Any apparent inconsistency between the various heads of subsection (2) may be explained by the different language of those heads.” [44].

Males LJ, who had adopted obiter the wider view in his decision in Cruz City was careful to confine Cruz City to the particular power then before him. Like Flaux LJ he contemplated the possibility that different powers in s.44(2) might lead to different results. In particular, he made it clear that he saw “no reason to doubt” what he carefully referred to as “the actual decisions in in Cruz City and DTEK”(emphasis added) and only went on (at [56]) to “reserve my opinion whether their reasoning on this point is correct as regards the other paragraphs of section 44(2). […] it may be that the position varies as between the various paragraphs of subsection (2).” He however recognised that there were “strong arguments” either way.

So where are we now?

While the Court’s decision on s.44(2(a) make the position clear for that s.44 power, the s.44(2)(b) and (e) powers remain for the present governed by the Cruz City / DTEK decisions, although arguably open to fresh challenge on the basis that the Court of Appeal chose not to endorse the decisions as such. The position for other s.44(2) powers, not yet dealt with by any current Commercial Court or other decision is fully up for grabs. It is perhaps regrettable that the opportunity for at least a much clearer obiter ‘steer’ was not grasped by the Court of Appeal, although if the Court favoured a ‘power by power’ approach (as it appears implicitly to have done) then as it heard no argument on each power, this may not be surprising. No permission to appeal was sought to take the matter further to the Supreme Court, so the s.44 controversy is unfortunately set to rumble on for a little longer yet.

Clarifying / Correcting an Award …. and the Effect on the 28 days for Challenge: Clarity at last

Daewoo Shipbuilding & Marine Engineering Company Ltd v Songa Offshore Endurance Ltd [2018] EWHC 538 (Comm)

Overview

Where a party seeks correction or clarification of an arbitral award as a precursor to challenging the award either under s.67 or 68 or 69 of the Arbitration Act 1996, when does the Act’s 28 day time period for the challenge start? From the date of the award? Or of the correction or clarification? And does that apply to any correction or clarification or only to certain types? If the latter, what types and why? And what happens if the tribunal declines to correct?

The decision of Bryan J. (handed down on 16th March 2018) in Daewoo Shipbuilding & Marine Engineering Company Ltd v Songa Offshore Endurance Ltd [2018] EWHC 538 (Comm) brings welcome and definitive clarity to the position. It sets out what should now be regarded as the settled practice of the Court to these problems and to the correct construction of the 28 day time limit provisions in s.70(3). It resolves an apparent conflict in other first instance decisions once and for all.

In summary, after a thorough analysis of the authorities, the Court held:

The arbitral process of correction and clarification of an award by the tribunal under s.57 of the Act is not “any arbitral process of appeal or review” under s.70(3) for the purposes of the running of the 28 days.
Accordingly, simply applying for a correction will not, of itself, push back the start date for the running of time: the decision in Surefire Systems Ltd v Guardian ECL Ltd [2005] EWHC 1860 (TCC) to the contrary effect was wrong.
But where a correction or clarification must necessarily be sought in order to be able to bring the challenge to the award itself (pursuant to section 70(2)), then time runs from the date of that type of correction or clarification being made (a ‘material’ correction).
To give effect to that, the “date of the award” in section 70(3) is to be read as “the date of the award as corrected” by a correction of this kind, but this kind only.
The submission that the decision in K v S [2015] EWHC 1945 (Comm) was wrong would be rejected.

Leave to appeal was refused.

Simon Rainey QC, leading Tom Bird, represented the successful applicant.

The Background

DSME contracted with Songa to build a series of drilling rigs. The hull design (including the front-end engineering design (“FEED”) documentation) was to be provided by a third party design consultancy. Construction proved to be very protracted and DSME claimed in respect of delays and cost over-runs, alleging that the cause was defects in the FEED. It alleged that under the contracts, responsibility for design, including the FEED, was with Songa not DSME and DSME was entitled to recover all costs and expenses and was not responsible for delay. This was contested by Songa.

The question of design responsibility under the contracts was determined as a preliminary issue in two arbitrations. The Tribunal (Sir David Steel, John Marrin QC and Stewart Boyd QC) held that Songa was correct and that DSME bore full responsibility for the design, including for the FEED.

The Awards were published on 18th July 2017.

Under section 70(3) of the Arbitration Act, DSME had 28 days in which to apply for permission to appeal, expiring on 15th August. Section 70(3) provides:

“Any application or appeal must be brought within 28 days of the date of the award or, if there has been any arbitral process of appeal or review, of the date when the applicant or appellant was notified of the result of that process.”

On 4th August, DSME applied to the Tribunal for the correction of what it itself described as four “clerical errors in the Awards arising from accidental slips” such as transposing Songa for DSME, etc. The corrections were unopposed.

The Tribunal issued a Memorandum of Corrections on 14th August (27 days after the Awards).

On 8th September, 24 days late, DSME issued an Arbitration Claim Form seeking permission to appeal the Awards under section 69, on the basis that the Tribunal’s construction of the contract as to design responsibility was obviously wrong in law.

Songa applied to strike the application out as being out of time.

DSME responded that the 28 days ran from the date of the Memorandum of Corrections and so was brought in time; alternatively it sought an extension of time under s. 80(5) because its management structure and intervening holidays meant that a decision to appeal could not reasonably have been taken any sooner. (Given the 24 day delay and this ‘justification’, unsurprisingly this application was dismissed on ordinary principles.)

The Issues Raised by Songa’s Application

Section 70(3) contains only two express start dates for the running of the 28 days for any challenge to the award: (a) “the date of the award” and (b) the date when the parties are notified of the outcome of “any arbitral process of appeal or review”.

How does this work in the context of a request for the correction or clarification of an award? Section 70(3) is silent on the topic and there is prima facie a lacuna in the drafting of the Act.

A connected issue is the so-called ‘Catch 22’ inherent in section 70(2) which requires a party to exhaust all available arbitral routes of recourse (including under s.57) before being entitled to challenge the award. In relation to corrections, if these are ones which have to be sought before a challenge can be made, then how can time run from the date of the original, uncorrected, award if this date is what has to be taken for s.70(3) purposes?

Question (1): Can the correction / clarification process under s.57 be regarded as an “available process of appeal or review” under section 70(3)?

DSME’s primary argument was that the term “any available process of appeal or review” covered a correction or clarification process carried out by a tribunal itself. It argued that the process of correction involved, in one sense, a process of ‘reviewing’ the award and accordingly this was enough. It also relied upon the definition of a different term (“available arbitral process”) in s. 82(1) as one which “includes any process of appeal or review by an arbitral or other institution or person” as showing that “appeal or review” did not just mean appeal or review by some other arbitral body (such as common forms of ‘two-tier’ arbitral procedures in commodity arbitration under GAFTA or FOSFA Rules) but must be wider and therefore had to cover an ‘internal’ corrective review.

DSME relied heavily on an unreported decision of Jackson J. in Surefire Systems Ltd v Guardian ECL Ltd [2005] EWHC 1860 (TCC), noted in the textbooks. In that case, Jackson J. baldly stated; “In my view, the arbitrator’s clarification issued on 2nd May 2005 constitutes “an arbitral process of … review” for the purposes of section 70(3) of the Act”.

Bryan J rejected DSME’s argument for three reasons.

(1) First, on the plain meaning of the statutory language.

The construction was contrary to the plain and ordinary meaning of the term “appeal or review” as used in section 70(3) which had to be viewed in the light of s.70(2). Section 70(2) requires an applicant seeking to challenge any award to have first exhausted, as a pre-requisite to the right of challenge, all routes of recourse to the arbitral process. It distinguishes in this context between “any available arbitral process of appeal or review” (s.70(2)(a)) and “any available recourse under section 57” (s.70(2)(b)). The Judge held that this was “a clear, and indisputable, distinction” [52]. He considered that the “ordinary and natural meaning” of the reference to “appeal or review”, in the context of a statutory provision that draws a delineation between an appeal or review and a correction, “is that it is a reference to a process by which an award is subject to an appeal or review by another arbitral body”.

(2) Secondly, on the better view of previous decisions

The Judge regarded this as being as the settled approach which had been taken in the previous cases (Price v Carter[2010] EWHC 1451 (TCC); K v S [2015] EWHC 1945 (Comm) and Essar Oilfields Services Ltd v Norscot Rig Management Pvt Ltd [2016] EWHC 2361 (Comm) as well as the commentaries. He regarded the view of Jackson J. in Surefire as wrong. [53]

(3) Thirdly, as contrary to the founding principles of the 1996 Act.

The Judge held the questions of construction of the Act before him had to be approached in the light of the guiding principles in s.1(1)(a) of the Arbitration Act. One of these is that “the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense”.

“The principles of speed and finality of arbitration are of great importance. These would be undermined if the effect of making any application for a correction is that time for appealing runs from the date the appellant is notified of the outcome of that request. This is not simply a “concern” (nor is it one that has been over-stated as alleged by DSME) rather it is contrary to the whole ethos of the Act. It would be open to parties who have freely agreed to arbitrate their disputes to frustrate and delay that agreed mechanism of dispute resolution by relying upon completely irrelevant minor clerical errors. This cannot have been the intention of Parliament …” [55].

Question (2): Is the term “the date of the award” in section 70(3) to be read as meaning the date of the award as and when corrected, irrespective of the nature of the correction?

DSME argued next that an award could not be regarded as final for the purposes of time running until and unless any process of correction started in respect of the award had been fully completed; that applied as much to a material correction impinging upon a potential ground of challenge as to an immaterial textual or other clerical correction. The date when the process was completed was the “date of the award” for s.70(3) purposes.

DSME contended that there was no warrant for treating “the date of the award” as running from a corrected award where the correction was ‘material’ (whatever that meant) but not where it was a purely typographical correction. The date was either affected by corrections for all purposes or none. The Court having previously held that it was affected for material ones, then this applied equally to all other corrections.

Songa argued that the key to the resolution of the lacuna was to recognise the inter-relationship between section 70(3) and section 70(2). Under the latter, a party had to seek a correction or clarification of the award where this affected the challenge which it intended to make against the award as a pre-condition to challenging the award. This need to exhaust arbitral recourse to the tribunal under section 57 identified a class of corrections and clarifications which were indeed ‘material’, because if they were not sought, then the challenge would be barred. It was in relation to these and these only that the lacuna arose. Therefore the distinction between ‘material’ and non-material corrections was inherent in the Act itself and the term “date of the award” would be construed accordingly.

The Judge accepted that argument. He stated at [63] (original emphasis):

“The purpose is to ensure that before there is any challenge, any arbitral procedure that is relevant to that challenge has first been exhausted. Thus if there is a material ambiguity that is relevant to the application or appeal you have first to go back to the arbitrators, however if what you are doing is seeking correction to typos then that is not a bar to you pursuing your application. Materiality is inherent within section 70(2). It is only where a matter is material that you first have to exhaust the available remedies specified in section 70(2), so that it is only in those circumstances that it is necessary for time only to run after those available remedies have been exhausted. There is no reason or necessity for time not to run, or be extended, in the context of immaterial corrections – these are not matters that have to be corrected before an appeal can be brought. This illustrates that the test of materiality is inherent in the structure of section 70(2) and 70(3).”

Again deploying the ethos of the Act and section 1(1(a), he held that it was contrary to any sensible construction of “the date of the award” to treat it as accommodating trivial or irrelevant corrections [56]. As the Judge held (and as DSME accepted) “these are classic clerical and typographical errors. They are not connected in any way, shape or form with DSME’s subsequent appeal.” [10]

Conclusions: “Materiality” and Unanswered Questions?

The decision is to be welcomed as laying to rest the ‘Surefire argument’ once and for all.

The Court, in refusing permission to appeal, considered the point to have no realistic prospect of success on appeal and stated in terms that it was “high time to draw a line under the debate” given the “consistent and continuing practice of this Court which has particular expertise in the construction of the act, and its application.”

Materiality? The Judge saw no difficulty with a ‘materiality’ test which is “clear and easy to apply” [65]. With the section 70(2) concept in mind, it is submitted that the Judge is plainly right: a party can usually easily tell the difference between points which it has to investigate under s.57 before it can make a challenge under s. 67, 68 or 69 at all and all other corrections or clarifications.

If in doubt however, as the Judge said “[one] could always issue an application for an extension of time before the 28 day time period expired, and indeed seek permission to appeal to the extent that it was able to do so at that time. No doubt in many cases (based on the content of the application for a correction showing materiality) such an application for an extension of time would not even be opposed, or if opposed, would be resolved in the applicant’s favour should any point be taken.” [65]

Refusal to correct? An unanswered question (which the Judge did not have to address) is as to the position if a material correction is sought under s.57 but the tribunal refuses to make any correction. How is the “date of award as corrected” test then to be applied? In Maclean, the Judge thought it would be the date of the notification of the refusal to correct [19]. The same view was implicitly suggested in K v S where Teare J referred to the grounds of challenge being “dependent on the outcome of the application for clarification” [24]. Given Bryan J’s general endorsement of the reasoning in these cases, the same approach to this question must follow.

This seems right. If a material correction is (and has to be) sought in the exercise by an applicant of all available recourse to satisfy the s.70(2) requirement, then the applicant’s fate cannot sensibly be dependent on the whim of the tribunal and whether it is an expansive one, happy to explain better what it has done or, as is not infrequently the case, one which is resentful of the temerity of a suggestion of the need for clarification and whose approach is the ‘nil return’.

A copy of the judgment can be found here.

Time to stop trying? Attempting to sidestep the ‘rehearing’ nature of a s.67 jurisdiction challenge

GPF GP S.à.r.l. v Republic of Poland [2018] EWHC 409 (Comm)

Overview

The recent decision of the Commercial Court in GPF GP S.à.r.l. v Republic of Poland [2018] EWHC 409 (Comm) reinforces what should, by now, be well-known to be the unassailable position that a challenge to jurisdiction under section 67 of the Arbitration Act 1996 takes place as a full rehearing of that challenge and not as a review of the arbitral tribunal’s prior decision on the same issue of jurisdiction.

The patent unpopularity of that position in many quarters of the arbitral community is illustrated by the most recent hard-fought attempt in this case to argue that this approach is not justified and should be restricted wherever possible. The decision demonstrates however that attempts to pick away at the position, post the Supreme Court in Dallah Real Estate v Pakistan [2010] UKSC 46, or to seek by other routes to sidestep the effect of a rehearing will be unavailing.

The decision of Bryan J unsurprisingly but usefully confirms that:

(a) that there is no difference between a question of jurisdiction ratione personae or ratione materiae: both are subject to a rehearing;

(b) that the position is no different where a party fails to raise issues in the arbitration and seeks to raise wholly new points on the s.67 challenge, irrespective of the nature of the jurisdictional aspect in play; and

The decision also contains a useful analysis of the concept, in the context of a BIT, of creeping expropriation qualifying as an expropriation in aggregate effect and the application of a BIT arbitration clause in that context (not addressed in this case note).

The Background

In a dispute between GPF (Griffin) and Poland under a BIT between Belgium, Luxembourg and Poland, Griffin claimed that a Polish court judgment constituted an expropriation measure. Griffin financed a property group seeking to invest in the redevelopment of ex-State properties for commercial and residential use. It claimed for violation of the fair and equitable treatment standard in the BIT and for indirect or creeping expropriation, similarly in breach of the BIT, relying on a series of acts or course of conduct by authorities and the court, attributable to Poland. A distinguished tribunal (Prof. Gabrielle Kaufmann-Kohler, Prof. David Williams QC, Prof. Philippe Sands QC) held that aspects of Griffin’s claim fell outside the arbitration clause in the BIT and could not be pursued, effectively tying Griffin to reliance solely on the court judgment and not the “prior measures” on which it also relied in support of its FET / expropriation claims.

Griffin challenged the Award under section 67 and, in so doing, supplemented in material aspects its case with new evidence as to the drafting history of the BIT and the “prior measures” and developed additional and different arguments. Poland contended that this was not permissible.

Poland’s Two Points and Bryan J’s Decision

Poland took two points, against the background of the general undesirability of the rehearing rule as eroding the efficacy of international arbitration, buttressed with reference to what the Judge referred to as “the spirited attack on the re-hearing approach undertaken by the editors of Arbitration Law 5th edn” (Robert Merkin and Louis Flannery QC).

(1) A difference between identity of party and scope of dispute jurisdictional issues?

First, Poland argued that the rehearing approach, enshrined in Dallah, was on analysis only applicable in a case which involved a question of jurisdiction ratione personae, i.e., a fundamental issue concerning a claimant who claimed not to be party to the arbitration agreement, and not where the issue arising is one of jurisdiction ratione materiae, or the scope of disputes referred to arbitration.

It argued that the seminal decision of Rix J. in Azov Shipping Co. v Baltic Shipping Co. [1999] 1 Lloyd’s Rep 68, on which Lord Mance’s speech in Dallah was said to hinge, concerned only a substantial issue of fact as to whether a party had entered into an arbitration agreement, not a scope of disputes issue. Reference was also made to a s.67 decision of Toulson J in Ranko Group v Antarctic Maritime SA [1998] ADRLN 35 (post Azov) in which, he held that it would be wrong for the courts to rely on new evidence which “could perfectly well have been put before the arbitrator, but was not placed before him, and with no adequate explanation why it was not”. Toulson J based his decision, in part, on the reduced role of the courts under the Arbitration Act 1996. With that in mind, Poland argued that the Court should not seek to extend the rehearing principle any further than was strictly justified, i.e. to ratione personae issues only.

Bryan J’s decision was an emphatic rejection of any distinction either in the cases or in principle and a vigorous endorsement of the validity of the Dallah principle [70]:”In each case, where it is said the tribunal has no jurisdiction, it is on the basis that either there is no arbitration agreement between the particular parties, or that there is no arbitration agreement that confers jurisdiction in respect of the claim made. In each case if the submission is proved, the Tribunal has no jurisdiction as no jurisdiction has been conferred upon it by the parties in an arbitration agreement. In such circumstances it is for the Court under section 67 to consider whether jurisdiction does or does not exist, unfettered by the reasoning of the arbitrators or indeed the precise manner in which arguments were advanced before the arbitrators.”

(2) Waiver by Griffin of its Right to Raise New Points / New Evidence

Secondly, Poland argued that the doctrine of waiver applied, because Griffin could have advanced the new materials and arguments before the arbitrators but failed or chose not to do so and should therefore be taken to have waived them or to be precluded from running them, even at a rehearing. The argument is, unfortunately, only shortly summarised in the judgment.

The difficulty with this argument, as explained by the Judge, is that once it is recognised that a rehearing is an entirely de novo determination, it is difficult to see how and where waiver will arise.

He put it this way [72]: “it is difficult to see how a waiver could arise in circumstances where it is well established that there can be a re-hearing under section 67, a fact parties are taken to know), and in the context of no restriction being set out in section 67 itself restricting what arguments may be re-run, no question of any loss of a right to advance particular arguments on a re-hearing under section 67 can arise”.

However, while conceivably some form of formal abandonment of a point in the arbitral jurisdiction hearing on which the other relied to its prejudice and detriment and which could not be redressed at the rehearing might amount to a waiver, in the present case (as in most if not all) Poland dealt with the ‘new’ points in detail and could not point to any prejudice.

Conclusion

While the logical underpinning, the justifications and the demerits of a Dallah approach will doubtless and understandably continue to be discussed in the arbitral community (as illustrated by an entertaining debate between Sir David Steel and Louis Flannery QC at the recent Quadrant Chambers International Arbitration Seminar), in practical ‘practitioner’ terms it has been a wholly sterile one since 2010, and perhaps it is time to recognise that fact.

Arbitral Appeals under s.69…No Second Bites? – Simon Rainey QC and Peter Stevenson

Agile Holdings Corporation v Essar Shipping Ltd [2018] EWHC 1055 (Comm)

Overview: second bites at s.69(3)?

The English statutory regime for appeals against arbitration awards on questions of law under s.69 of the Arbitration Act 1996, as is well known, applies a two stage process: (i) the application of permission to appeal and, (ii), if permission is granted the appeal itself.

Section 69(3) sets out the matters on which the Court is required to be satisfied as pre-conditions for granting permission to appeal. Where a party unsuccessfully resists permission on the basis that some or all of the requirements are not met, can it nevertheless reargue the point or points all over again on the appeal proper?

The position and the few cases in this area were recently considered by the Commercial Court in Agile Holdings Corporation v Essar Shipping Ltd [2018] EWHC 1055 (Comm).

The answer is: “it depends”.

How the issue arose

The claimant sought permission to appeal against an arbitration award on a question of law arising from the Award. The defendant opposed permission on various grounds including a submission that the tribunal had not been asked to decide the relevant question (and therefore that the threshold requirements of s.69(3) of the Arbitration Act were not met). It was contended that the argument now being sought to be run had never been argued in that way before the arbitrators. The claimant disputed that and put in evidence of the written submissions and the transcript of the oral submission. The Judge granted permission, rejected the submission and held that the point had been argued. He refused an application by the defendant for an oral hearing on the point.

On the full appeal, the defendant sought to re-open the issue and re-argue its original submission.

The Commercial Court’s decision

The Judge (HHJ Waksman QC, sitting as a deputy Judge of the High Court) allowed the appeal in full. On the s69(3)(c) point, he held that:

(i) the exercise undertaken by the judge granting leave to appeal involves a detailed consideration of the threshold questions;

(ii) once leave has been granted, there is every reason to move onto the merits of the question without the distraction of re-litigating tangential points which have already been decided;

(iii) a party cannot resist the appeal on the basis that the threshold requirements of s.69(3)(a) and (d) are not met. Those issues arise exclusively at the leave stage and the decision of the judge at that stage is final;

(iv) the position is different in respect of the requirements of s.69(3)(c) because, whether a point was put to the tribunal is tied to the issue of whether there is a question of law arising out of the award at all;

(v) however, while the Court hearing the appeal may not be bound as to whether the question arises from the award, it should give considerable weight to the decision of the judge granting leave.

Simon Rainey QC, leading Peter Stevenson, represented the successful appellant.

The Detailed Reasoning of the Court

The defendant submitted that the Court did not have jurisdiction to entertain an appeal because the threshold requirements of s.69(3) were not met.

In support of that proposition it relied upon two authorities: Motor Image v SCDA Architects [2011] SGCA 58, a decision of the Court of Appeal of Singapore, and The Ocean Crown [2010] 1 Lloyd’s Rep. 468 a decision of Gross J (as he was).

(1) In Motor Image v SCDA Architects, the Singaporean court considered identical appeal provisions in s.49 of the Singapore Arbitration Act 2002. The judge at first instance (Prakash J., as she was) had granted permission to appeal a question of law under those provisions. When the same judge heard the appeal she decided that the question did not arise on the facts as decided by the tribunal. She took the view that as a result the appeal should be dismissed. The Court of Appeal agreed. It held that this sort of point could be reargued on appeal because it went to the very jurisdiction of the court to hear the appeal in the first place. In other words, the grant of leave was a finding that the court had the relevant jurisdiction. So if on further analysis, one of the threshold conditions was not made out, the court was actually deprived of jurisdiction and could not hear the appeal.

HHJ Waksman QC rejected that analysis. He held that once leave has been granted, the question of whether the Court has jurisdiction to determine the appeal has been determined. Subject to any challenge to that decision, the Court has jurisdiction to determine the appeal. The effect of this finding is that it is not open to a party to meet an appeal under s.69 by re-arguing points which relate exclusively to the threshold requirements for permission. Specifically the Judge held that a party cannot re-argue (i) that the determination of the question will not substantially affect the rights of the parties (s.69(3(a)); or (ii) that it is not just and proper for the court to determine the question (s.69(3)(d)).

(2) The decision The Ocean Crown was of a different nature. In that case there were three separate questions of law for appeal for which permission had been granted. The third question involved the allegation by the appellant that the tribunal had sought to restrict the ambit of a well-known legal principle concerning salvage remuneration and had thereby committed an error of law. The respondent argued that the tribunal had done no such thing but was merely dealing with how that principle was to be applied on the particular facts of the case. On that analysis there was no error of law at all.

Gross J. held that, in determining whether a question of law arises out of the award (a pre-requisite of allowing an appeal) the court is not bound by the decision of the judge granting leave.

As HHJ Waksman QC noted, Gross J’s decision not concerned with the threshold requirements of s.69(3) of the Act. It is concerned with whether s.69 is engaged at all: s.69 only permits appeals on questions of law arising from an award (s.69(1)). The Judge described this as ‘the Law Question’ which he distinguished from the issue of whether the question of law was actually put to the tribunal (which he described as ‘the Determination Question’).

However, although not addressing the point head on, the Judge appears to have accepted that the Determination Question is connected to the Law Question and is therefore not merely a threshold requirement for obtaining leave, but may also be considered as part of the substantive appeal.

Having drawn this distinction the Judge held that he was not prohibited from reconsidering whether the question of law raised in the appeal was one that the tribunal had been asked to determine. But he emphasised that the Court should give ‘considerable weight’ to the decision of the judge granting leave to appeal, particularly if (i) the decision was made after an oral hearing; and/or (ii) the materials before the judge granting permission are the same or substantially the same as those before the appeal court.

Adopting that approach the Judge reviewed the material advanced by the defendant and held that he was in no doubt that the question of law was one that the tribunal had been asked to determine.

Conclusions

The decision of the Judge is helpful in three respects.

First, it clarifies that the decision of the judge granting permission to appeal is final and determinative of that issue. It is not open to a party to meet an appeal by arguing that the threshold requirements for leave to appeal were not met and leave should not have been granted. In that respect it drew a clear distinction between the position under English law and the approach taken by the Singaporean Court of Appeal in Motor Image v SCDA Architects.

Second, it confirms that when determining whether the question of law arises from the award, the Court hearing the appeal is not bound by the decision to grant leave and, as part of that process, can reconsider whether the question was one that the tribunal was asked to determined.

Third, it provides clear guidance as to the weight that should be given to the decision of the judge granting leave to appeal. If the judge granting leave considered the issue and had the same material before him/her, ‘very considerable weight’ should be given to the original decision.

It is to be hoped that this robust approach discourages defendants who are unsuccessful at the permission stage from re-opening such points thereby rendering the s.69 process more time-consuming and more costly.

Don’t be late. Arbitrate.

We are all familiar with the ‘Italian Torpedo’ where a party to a contract containing an arbitration clause commences proceedings in a jurisdiction which will not recognise its effect. The Africa Reefer [2015] EWHC 1950 (Comm), provides a salutary lesson against overconfidence that one’s chosen court will, indeed, determine that arbitration does not apply.

Pears were carried from Argentina to Antwerp under a bill of lading incorporating a charterparty subject to London arbitration. The bill of lading was subject to the Hague-Visby Rules and a one year time limit. The claimants commenced proceedings in Belgium and the parties awaited the final report of the court surveyor. After this was produced the defendant, in November 2012, served a defence objecting to the jurisdiction of the Belgian courts on the grounds that the dispute was subject to London arbitration. The claimants took no steps to commence arbitration, confident that it would succeed on this point under article 96 of the Belgian Private International Code and article 91 of the Belgian Maritime Law. Much to their surprise, in 2014 the Belgian court found for the defendant.

In 2015 the claimants sought an extension of time of three years and eight months for commencing arbitration relying on s.12(3) (b) of the Arbitration Act 1996 which provides for the court to order that an extension be given where: “the conduct of one party makes it unjust to hold the other party to the strict terms of the provision in question”. Burton J declined to grant the requested extension. There was no conduct by the defendants upon which the claimants could rely which made it unjust to hold the claimants to the one year time limit. The defendants had been entitled under Belgian law to participate in the Belgian proceedings up until the time when they raised the jurisdiction objection in November 2012, and it was common ground that by doing so the defendants had not waived their right to claim arbitration. Thereafter, the claimants took no steps to commence arbitration until their rude awakening in 2014 when the Belgian court found for the defendant.