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Agrimex Ltd. v Tradigrain SA [2003] APP.L.R. 07/09
S28 AA 1996 : Adjustment of fees Costs : Arbitrator’s fees s28(2) & (3) ; Recovery of winning party’s costs before a GAFTA appeal tribunal from the losing party. “In my judgment, the size of the team employed and the time spent was wholly excessive and disproportionate to the issues involved. The Claimants had been prepared to pay, prior to the hearing, the sum of £6,500; that was in my view a generous amount in all the circumstances, but I will not go below it. I summarily assess the costs at £6,500.” Application s28(2) & (3) for adjustment of arbitrator’s fees : court concurred and ordered that the sum offered in settlement become the due amount. “the size of the team employed and the time spent was wholly excessive and disproportionate to the issues involved.” QBD Commercial Court. 9th July 2003
by Mr Justice Thomas : Crown Copyright

Associated Electric & Gas Ins. Services Ltd v. European Reinsurance Co of Zurich (Bermuda) [2003] APP.L.R. 01/29
Confidentiality Privacy : application for injunction against disclosure ; Scope of rules of privacy and whether an award could be used as evidence in a subsequent award. In the circumstances a prior injunction that had been revoked by the CA continued to be lifted. Injunction to prevent disclosure of arbitral award to third parties. Applicants on appeal wish to produce a prior award subject to a confidentiality agreement as evidence to establish an issue estoppel. Held : Not admissible. Injunction against submission upheld. Privy Council. 29th January 2003.
by Lords Bingham ; Hoffmann ; Hobhouse ; Millett ; Sir Christopher Staughton. Crown Copyright

BLCT (13096) Ltd. v J Sainsbury Plc [2003] APP.L.R. 06/30
S69 AA 1996 : Appeal against a refusal to appeal a refusal to appeal ; Human Rights ; Grounds of application to appeal a refusal to grant an oral hearing of an appeal against a refusal to appeal : section 69(6) of the Arbitration Act 1996 is incompatible with Article 6(1) of the European Convention on Human Rights because of its effect in entirely preventing in the circumstances such as have arisen in this case any consideration by the Court of Appeal of an application to appeal it. Held : “I do not accept the submission that it is a requirement of Article 6 that there should be an oral hearing unless there are exceptional circumstances in the case.” CA on appeal from Chancery (Mr Justice Pumfrey) : Appeal against a refusal to grant an oral hearing of a s69 application to appeal on a point of law. Compatibility with Human Rights Act : Held : Proportionate to the value : No breach – and CA then rejected the appeal itself. No real prospect of success. CA. 30th June 2003.
by Arden LJ; Longmore LJ. Crown Copyright

BNP Paribas s v Deloitte & Touche LLP [2003] APP.L.R. 11/28
S43 AA 1996 : CPR Rule 34.4 Witness summons ; Application to issue to issue and serve the witness summons : whether court has the power to order a third party to an arbitration to disclose evidence / documents. Application dismissed. Commercial Court. 28th November 2003.
by Mr Justice Morison : Crown Copyright

Boots The Chemist Ltd v Westfield Shopping Towns Ltd [2003] APP.L.R. 02/13
S69 AA 1996 : Interim award challenge ; Was the issue one of general importance? Concerned form of lease common in a shopping precinct – held : not sufficiently of importance. Appeal application rejected. Further no serious doubt as to the correctness of the award. QBD Northern Ireland. 13th February 2003.
by HHJ Coghlin : Crown Copyright

Checkpoint Ltd. v Strathclyde Pension Fund [2003] APP.L.R. 02/06
Challenge s68 serious irregularity : Rent review resulted in doubling of rent : but that alone did not amount to a serious irregularity. CA. 6th February 2003.
by Ward LJ; Mummery LJ; Jonathan Parker LJ. Crown Copyright

CMA CGM S.A. v Classica Shipping Co Ltd. [2003] APP.L.R. 03/27
S69 AA 1996 : point of law : Limitation CLC ; Is a charterer entitled to limitation of liability in an action by an owner, pursuant to the Convention on Limitation of Liability for Maritime Claims 1976 No. Charter only entitled to limitation when acting qua owner. Charterers appealed award on the basis of a right to limit liability under the 1976 Convention on the Limitation of Liability for Maritime Claims., Appeal failed and The Aegean Sea [1998] 2 Lloyds Rep.39 applied. QBD Commercial Court. 27th March 2003.
by Mr Justice David Steel : Crown Copyright

Co-Operative Group (CWS) Ltd v International Computers Ltd No2 [2003] APP.L.R. 12/19
Natural Justice : unfairness : Serious irregularity ; “The judge has erred so fundamentally in his approach to this trial as to have lost, or at least given the appearance of losing, his ability to try CWS\' claim with an objective judicial mind (cf Locabail (UK) Ltd v. Bayfield Properties Ltd [2000] QB 451 at 480F/G). It is not that he has come to the trial with any preconceived prejudice or predilection or bias: but that over the course of it he has demonstrated an inability to grapple objectively with the issues of fact and law presented to him. In the result the trial was unfair.” CA. 19th December 2003.
by Rix LJ; Tuckey LJ; Jonathan Parker LJ. Crown Copyright

CR Sugar Trading Ltd v China National Sugar & Alcohol Group Corp [2003] APP.L.R. 01/31
S69 AA 1996 : Point of Law : Challenge - amendment ; In event of appeal failing, strike out application pursuant to s5 of the Financial Services Act 1986. Decision of the tribunal, upheld by the court, was that the underlying contract was unenforceable by virtue of the FSA. Claim failed. Commercial sale of raw sugar subject to letters of credit. Challenged a determination by the tribunal that both parties were traders and not users. QBD Commercial Court. 31st January 2003.
by Mr Justice David Steel : Crown Copyright

Department of Economics Policy & Development City of Moscow v Bankers Trust Co [2003] APP.L.R. 06/05
Privacy of award & judgements ; Whether or not the court would enforce the privacy elements of an arbitration agreement – and extent to which any litigation on the award private : regarding a failed s69 application : held – prior judgement withheld from publication. Commercial Court. 5th June 2003
by Mr Justice Cooke : Crown Copyright

Eastbourne Borough Council v Hafez [2003] APP.L.R. 11/05
Bias. Chairman's provisional indication on the case plus lengthy examination of a witness by the lay member held not to amount to bias. UK Employment Appeals Tribunal. 5th November 2003.
by His Honour Judge Ansell : Crown Copyright

EI Du Pont De Nemours & Company v S.T. Dupont [2003] APP.L.R. 10/10
Statutory Appeals : Rehearing or review? Procedure that applies to trade mark dispute appeals. CA. 10th October 2003.
by Aldous LJ; May LJ; Keene LJ. Crown Copyright

Fleming & Wendeln GmbH & Co v Sanofi Sa/ag [2003] APP.L.R. 03/20
S69 AA 1996 : Appeal against revised Gafta award : s67 jurisdiction ; GAFTA appeals tribunal : Appeal - clause 28 of GAFTA form 78, the buyer having held the seller in default and terminated the contract, the buyer is entitled to damages assessed as the difference between the contract price and the market price of the cargo at the end of the delivery period. Board correct to determine that breach occurred at an earlier date and clause 28 not applicable. A s67 Jurisdiction challenge where point referred back to GAFTA by the court failed. Market price and due date for assessment of market price in an international trade claim. Was the date of failure to nominate a silo the date to assess market value – dealt with under s67 – jurisdiction of Gafta appeals board. Held : remission a term of the contract : no excess of jurisdiction : it was a determination the board was entitled to reach. QBD Commercial Court. 20th March 2003.
by Mr Justice Cresswell : Crown Copyright

Haden Young v Dinsmore & McCrindle [2003] APP.L.R. 05/06
Evidence : Court requested to examine by judicial review the exercise of case management by an arbitrator regarding the late introduction of expert evidence and opportunity for cross examination. Court refused to interfere. Outer House Court of Session. 6th May 2003.
by Lord Brodie. Crown Copyright

Hussmann (Europe) Ltd. v Pharaon [2003] APP.L.R. 03/04
S67 AA 1996 : Jurisdiction challenge. First award against a company held invalid - subsequent award this time against the individual : Applicant asserted functus officio : Held : Valid award. CA on appeal from Commercial Court (Mr Michael Brindle QC sitting as a Deputy High Court judge) in an arbitration application. Failed appeal – issue involves who the appropriate parties to an agreement and arbitration are : First award failed – wrong personalities named : second award in amended form issued : could there be a further challenge? NO. CA. 4th March 2003
by Phillips MR, Lord; Rix LJ; Scott Baker LJ. Crown Copyright

Internaut Shipping GmbH v Fercometal Sarl [2003] APP.L.R. 06/17
Personality : Sub-charterparty dispute commenced in the name of the owners, not the main charterers. Court ordered that the title of the arbitration be amended to reflect the correct names of the contractual personalities in dispute. CA. 17th June 2003.
by Mummery LJ; Sedley LJ; Rix LJ. Crown Copyright

John Mowlem Construction Plc v Neil Jones & Co. Solicitors (a firm) [2003] APP.L.R. 06/23
Costs : insurance cover ; Whether and if so how much costs of arbitration recoverable under insurance policy. TCC. 23rd June 2003.
by Mr Justice David Wilcox : Crown Copyright

Kastor Navigation Co Ltd. v AGF M.A.T [2003] APP.L.R. 03/17
Defendants pay to the Claimants 15% of the Claimants costs, and that the Claimants pay to the Defendants 85% of the Defendants costs. I must stand back & ask myself whether the outcome, effectively that the Claimants will bear all of their own costs and pay 70% of the Defendants costs, is in the light of the Claimants recovery of US$3 million, together with interest, so plainly wrong that it must be regarded as perverse .... It is the logical Commercial Court. 17th March 2003.outcome of considering costs on an issue basis.
by Mr Justice Tomlinson: Crown Copyright

Lawal v. Northern Spirit Ltd [2003] APP.L.R. 06/19
Apparent bias : Test : House of Lords. 19th June 2003
by Lords Bingham ; Nicholls ; Steyn ; Millett ; Rodger. Crown Copyright

Nasharty v J Sainsbury Plc [2003] APP.L.R. 09/30
S9 AA 1996 : Stay application ; Whether arbitration agreement applied to the parties : Held : Yes – stay to Paris arbitration. Commercial Court. 30th September 2003.
by Mr Julian Flaux QC : Crown Copyright

NIIB Group Ltd v Ellis [2003] APP.L.R. 10/17
Case stated; Appeal from a small claims arbitration by way of a case stated by Deputy District Judge Kearney under Article 30(4)(b) of the County Courts (Northern Ireland) Order 1980. QBD Northern Ireland. 17th October 2003.
by HHJ Weatherup : Crown Copyright

Nisshin Shipping Co Ltd v Cleaves & Company Ltd [2003] APP.L.R. 11/07
Jurisdiction : Third Party Rights : Held under s1(1)(b)Contract 3rd Parties Rights Act 1999 -charterparty purported to confer a benefit on brokers : that being so, any dispute arising out of that agreement was subject to the general arbitration provision in the contract. 7th November 2003
by Mr Justice Colman. Crown Copyright

Ocean Marine Navigation Ltd. v Koch Carbon Inc [2003] APP.L.R. 07/31
Arrest as security ; Vessel arrested by charterer as security for an arbitration which the charterer lost. Was the vessel still on hire or off hire or had the vessel been returned? This would impact upon whether any award would be due for that period or whether sums due in respect of the arrest, to provide what proved to be unnecessary security should be pursued in court. Court of the view that the arbitrator’s award was unclear/potentially in error and award remitted for reconsideration/clarification. QBD Commercial Court. 31st July 2003.
by Mr Justice Simon : Crown Copyright

Peoples\' Insurance Co of China v Vysanthi Shipping Co Ltd [2003] APP.L.R. 07/10
S66 AA 1996 Enforcement Challenge s67 : extension of time : PRC judgment ; GA dispute following a grounding. Owners successfully arbitrated the dispute and obtained an enforcement judgment. Subsequent to the award an action was commenced in the PRC followed by a late application to challenge arbitrator’s jurisdiction and application for extension of time. Extension refused. Challenge failed. Arbitrator seized of jurisdiction. Arbitral award : subsequent judicial determination in China : Double jeopardy : Award enforced. QBD Commercial Court. 10th July 2003.
by Mr Justice Thomas : Crown Copyright

Peterson Farms v C & M Farming Ltd [2003] APP.L.R. 09/05
Security s70 re s67 application : security for appeal ; S70(7) AA 1996 : Application for an order that any money payable under the award shall be brought into court or otherwise secured pending the determination of the application or appeal, re an ICC award. Application for posting of security in order to appeal refused. Court held that it would only order security as a precondition to a s67 jurisdiction challenge where it was established that the challenge was flimsy, which in this case it was not. QBD Commercial Court. 5th September 2003.
by Mr Justice Tomlinson : Crown Copyright

Pirie v Shore Potters Society [2003] APP.L.R. 04/08
Parties to an arbitration clause : Members of a society agreed to arbitrate differences. The applicant had been expelled. In consequence he was no longer a member and not entitled to arbitration. Outer House Court of Session. 8th April 2003
by Lord Bonomy. Crown Copyright

Rafaela : JI Macwilliam Co Inc v Mediterranean Shipping Co S.A. [2003] APP.L.R. 04/16
Challenge s69 : Straight or through bills of lading are bills of lading for the purposes of COGSA 71 & Hague & Hage Visby Rules. CA. 16th April 2003
by Peter Gibson LJ; Rix LJ; Mr Justice Jacob. Crown Copyright

Siboti K/S v BP France SA [2003] APP.L.R. 06/11
Jurisdiction Clause : Reaffirmed that express wording in a bill of lading is required to incorporate arbitration clause into a bill of lading. The Merak, The Varenna and The Federal Bulker applied. Refusal to enforce arbitration award. Commercial Court. 11th June 2003
by Mr Justice Gross: Crown Copyright

Stanley Cole (Wainfleet) Ltd. v Sheridan [2003] APP.L.R. 07/25
Legal expertise of arbiter : Can an arbiter rely on a precedent not put to the parties? Yes providing it does not lead to severe injustice. Employmen. CA. 25th July 2003.
by Ward LJ, Buxton LJ, Mance LJ. Crown Copyright

Starsin, Owners of cargo v Starsin, Owners &/or demise charterers [2003] APP.L.R. 03/13
Demise Clauses in Charterparties - Shipowners bill of lading countersigned in charterers name : 1) Whether a charterers bill of lading : YES: 2) whether HVR applies : YES; 3) whether tort action lies for negligent stowage against shipowner - assuming cargo ownership vested in claimant at time of damage : YES : 13th March 2003
by Lords Bingham : Steyn : Hoffmann: Hobhouse : Millett : Crown Copyright

Sun Life Assurance Co of Canada v CX Reinsurance Co Ltd. [2003] APP.L.R. 03/06
S9 AA 1996 : appeal against refusal to grant stay ; Appeal against a refusal to grant a stay on the grounds that there was no arbitration agreement. Whilst there was by mutual agreement an oral agreement, a written treaty was never concluded between the parties. Appeal failed. CA on appeal from QBD (Moore Bick J) : held at first instance and here confirmed that the original agreement was a nullity and hence there was nothing to stay to arbitration. CA. 6th March 2003.
by Potter LJ; Carnwath LJ; Mr Justice Lawrence Collins. Crown Copyright

Tavoulareas v Tsavliris [2003] APP.L.R. 03/21
Forum Conveniens ; Salvage Lloyds Open Form – London arbitration and English Law. Failure to demonstrate that Greek law and jurisdiction applied. QBD Commercial Court. 21st March 2003.
by Mr Justice Tomlinson : Crown Copyright

VAI Industries (UK) Ltd. v Bostock & Bramley [2003] APP.L.R. 07/23
Limitation - Statutory : accrual of action : Did time run from date of dispatch FOB - or was it modified by terms of warranty - including the warranty on faulty replacement parts : Held : Time barred re initial consignment - but replacement part warranty within time - second issue to go to trial. CA 23rd July 2003
by Ward LJ; Carnwath LJ; Mr Justice Newman. Crown Copyright

Warborough Investments Ltd. v S.Robinson & Sons (Holdings) Ltd. [2003] APP.L.R. 06/10
Challenge s68 : Serious Irregularity : Different means of assessement applied not suggested by parties : Whether arbitrator used his own experties. 10th June 2003
by Clarke LJ; Jonathan Parker LJ : Crown Copyright

Welex A.G. v Rosa Maritime Ltd. [2003] APP.L.R. 07/03
Challenge s67 Appeal against jurisdiction & anti-suit ; 1st instance decision that a bill of lading contained an arbitration clause : NYCEAA applied : anti-suit injunction against Polish proceedings. Appeal rejected. CA on appeal from Commercial Court (Mr Justice David Steel) : Here the applicant appears against a determination that a London Arbitration & English Law provision applied and against an anti-suit injunction. Bill of lading dispute. Applications failed. CA. 3rd July 2003.
by Brooke LJ; May LJ; Tuckey LJ. Crown Copyright

Whiting v Halverson [2003] APP.L.R. 03/06
S9 AA 1996 : Appeal against appeal re stay order ; CA on appeal from High Court Newcastle upon Tyne County Court (HHJ Behrens & HHDJ Alderson) : Whether member of a Rotary Club who had been expelled subject to the ADR / arbitration provisions regarding membership disputes. Appeal failed – rules applied. CA. 6th March 2003.
by Schiemann LJ; Brooke LJ. Crown Copyright

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