PART A – When a Court in England ; Wales is

Part A – When a Court in England & A ; Wales is asked to help an arbitrational court or a party to an arbitration, it is as indispensable for the Court to fulfill itself that there is a existent job to be resolved by the court as it is for the tribunal itself to be satisfied that there is a existent job to be resolved by the court.

To what extent do you see the above statement as being accurate, and why?

This inquiry relates to the legal power of the English Court to help an arbitrational court or a party to arbitration before that arbitrational court. The statement above contends that the Court possesses the necessary competency in such state of affairss to govern on its ain legal power, which will needfully imply an appraisal of the affairs which have been submitted to arbitration and an rating of the comparative virtues of such an question. The statement seems to propose that where the Court is unable to fulfill itself that there is a existent job to be resolved by the court, the Court will non render its aid in such proceedings. Implied in the statement is that such a deliberation is of the same sort as required of the tribunal itself, i.e. a substantial deliberation of the facts of the difference and the virtues of the several claims ( s.30 ) . This farther clarifies what the statement means by ‘it is as indispensable for the Court to fulfill itself that there is a existent job to be resolved by the tribunal’ .

In this essay I shall measure this claim, with peculiar mention to the powers conferred on the Court by Chapter 23 of the Arbitration Act 1996. I shall get down this appraisal by placing those possible state of affairss where a Court might be asked to supply aid either by the arbitrational tribunal itself, or by a party to those proceedings. I shall so place the relevant commissariats of the Act which specify the appropriate process in regard of each such petition, and shall determine whether or non a substantial deliberation of the facts of the difference and the virtues of the several claims is required of the Court by that Act in each such state of affairs.

Let us now commence by placing all those possible state of affairss where a Court might be asked to supply aid either by the arbitrational tribunal itself, or by a party to those proceedings, and continue to measure whether, in each such state of affairs, it is necessary for the Court to prosecute in a substantial deliberation on the several virtues of the difference at manus:

( I ) Under what fortunes might an English Court be asked to help an arbitrational court? In each such state of affairs, must the Court engage in a substantial deliberation of the several virtues of the difference at manus?

Under s32 ( 2 ) ( B ) of the Act, the arbitrational tribunal ‘may’ seek the Court’s aid to find any inquiry as to the substantial legal power of the court. The Court will, in order to measure the cogency of such a petition, under s32 ( 2 ) ( B ) behavior an probe into the facts of the difference in be satisfied ( I ) that the finding of the inquiry is likely to bring forth significant nest eggs in costs, ( two ) that the application was made without hold, and ( three ) that there is good ground why the affair should be decided by the tribunal. It is hence necessary for the Court to fulfill itself that there is a existent job to be addressed by the Tribunal when supplying such aid.

The arbitrational court may besides seek aid from the Court where one or more parties to that arbitration have failed to follow with any of the tribunal’s peremptory order within the clip stipulated. Such aid may be sought by virtuousness of s42 ( 2 ) ( a ) , although it should be noted that the court is obliged to advise the parties to the arbitration that it so intends to seek the Court’s aid. The Court will non be obliged to come in into any substantial treatments refering to the facts of the difference, but will simply order that the tribunal’s peremptory order ( s ) is/are complied with by the relevant party.

The court may besides seek aid from the Court under s50 of the Act, bespeaking that the Court extend the clip bounds for doing an award. Unless, by virtuousness of s50 ( 1 ) , such aid is specifically precluded by understanding of the parties to the arbitration, so the Court will widen the clip for such period on such footings as it thinks fit ( s50 ( 4 ) ) , and do an order to this consequence if satisfied that a significant unfairness would otherwise be done ( s50 ( 3 ) ) . Such an appraisal of the demand for a clip bound extension will of class involve a substantial deliberation of the facts of the difference, but non in relation to the ‘validity’ of such a difference, instead merely in relation to the unfairnesss which might ensue in visible radiation of the limited clip frame in which the court may do an award. The statement at the top of this essay is hence non an accurate contemplation of the Courts deliberative demands when helping the tribunal under s50 of the Act.

We can therefore conclude that merely where the tribunal seeks aid from the Court on the issue of substantial legal power must the ‘Court… satisfy itself that there is a existent job to be resolved by the tribunal’ , as is suggested by the statement at the top of this essay. Let us now identify those fortunes in which an English Court might be asked for aid by a party to arbitration proceedings, and assess whether in each such state of affairs the Court is obliged to ‘satisfy itself that there is a existent job to be resolved by the tribunal’ .

( two ) Under what fortunes might an English Court be asked to help a party to arbitration proceedings? In each such state of affairs, must the Court engage in a substantial deliberation of the several virtues of the difference at manus?

Under s9 of the 1996 Act, “ ( 1 ) A party to an arbitration understanding against whom legal proceedings are brought ( whether by manner of claim or counterclaim ) in regard of a affair which under the understanding is to be referred to arbitration may ( upon notice to the other parties to the proceedings ) apply to the tribunal in which the proceedings have been brought to remain the proceedings so far as they concern that affair. ( 4 ) On an application under this subdivision the tribunal shall allow a stay unless satisfied that the arbitration understanding is void and null, inoperative, or incapable of being performed.” On confronting such a petition for aid, it is clearly necessary for the Court to fulfill itself that there is a existent job to be addressed by the Tribunal in the instance in order to measure whether or non there are good grounds for non allowing a stay under this subdivision of the Act.

Similarly, the Court will be faced with such an duty when a petition for a clip extension is made by one of the parties to the proceedings under s12 of the Act. Under s12 ( 3 ) such an appraisal will needfully affect the Court fulfilling itself “ ( a ) that the fortunes are such as were outside the sensible contemplation of the parties when they agreed the proviso in inquiry, and that it would be merely to widen the clip, or ( B ) that the behavior of one party makes it unfair to keep the other party to the rigorous footings of the proviso in question.” It is hence clearly necessary for the Court to fulfill itself that there is a existent job to be addressed by the Tribunal in the instance in order to measure whether or non these conditions have been satisfied.

When a party seeks aid from the tribunal in the signifier of the remotion of the arbiter from the arbitrational court ( s24 of the Act ) , the Court need non prosecute with the substance of the difference, non find the cogency of the difference, but will instead see the behavior of the arbiter ( s24 ( 1 ) ( a ) ) , the mental and physical makings of that individual ( s24 ( 1 ) ( B ) & A ; ( c ) ) , and whether or non the adjudicator conducted the proceedings suitably ( s24 ( 1 ) ( vitamin D ) ) . The statement at the top of this essay is hence non an accurate contemplation of the Courts deliberative demands when helping the competence [ in the non-legal sence ] of the arbiter to preside under s24 of the Act.

Sing the state of affairs where a party to arbitration proceedings seeks aid from the Court by manner of an order pertaining to the costs collectible to an arbiter ( s28 ) ; such a deliberation clearly takes topographic point outside the context of the substantial facts of the difference! Likewise with the application to measure the parties recoverable costs under s63 ( 4 )

A party to the proceedings may besides seek aid from the Court where the other party to that arbitration has failed to follow with any of the tribunal’s peremptory orders within the clip stipulated. Such aid may be sought by virtuousness of s42 ( 2 ) ( B ) , or ( degree Celsius ) [ where the parties have expressly pre-agreed to such aid being sought ] . The Court will non be obliged to come in into any substantial treatments refering to the facts of the difference, but will simply order that the tribunal’s peremptory order ( s ) is/are complied with by the relevant party ; after all, the tribunal authorization to do such orders is legitimate.

Under s45, a party may use to the Court with a inquiry of jurisprudence which needs to be decided. Under s45 ( 2 ) ( B ) , the Court will merely supply such aid where it is satisfied ( I ) that the finding of the inquiry is likely to bring forth significant nest eggs in costs, and ( two ) that the application was made without hold. Such an appraisal of the point of jurisprudence does non needfully necessitate a substantial appraisal of the facts of the difference, but instead a specific deliberation on a point of jurisprudence. The statement at the top of this essay is hence non eve an accurate contemplation of the Courts deliberative demands when measuring the legal issues raised in an arbitrational court!

A party to the proceedings may besides seek aid from the Court under s50 of the Act, in the same manner as discussed in the old subdivision of this essay. As complete antecedently on the responsibilities of the Court under this subdivision, such an appraisal of the demand for a clip bound extension will of class involve a substantial deliberation of the facts of the difference, but non in relation to the ‘validity’ of such a difference, instead merely in relation to the unfairnesss which might ensue in visible radiation of the limited clip frame in which the court may do an award. The statement at the top of this essay is hence non an accurate contemplation of the Courts deliberative demands when helping the tribunal under s50 of the Act.

A party may besides seek aid from the Court under s67 of the Act if such a party wants to dispute the tribunal’s award by seeking ‘an order declaring an award made by the court on the virtues to be of no consequence, in whole or in portion, because the court did non hold substantial legal power. ( s67 ( 1 ) ( B ) ) .’ Here the Courts appraisal will needfully affect a deliberation over the specific facts of the difference, and substantial legal power will non be found where that Court can fulfill itself that there is no existent job to be resolved by the court. This is the sort of responsibility to which the statement at the top of this paper is mentioning.

A similar petition under s68 will non affect such a deliberative procedure nevertheless, as this subdivision pertains to the challenging of the tribunal’s award on the footing of procedural abnormality instead than on its deficiency of substantial legal power.

Similarly, on a petition for an entreaty on a point of jurisprudence, under s69 of the Act, the Court’s appraisal of that point of jurisprudence does non needfully necessitate a substantial appraisal of the facts of the difference, but instead a specific deliberation on the point of jurisprudence. The statement at the top of this essay is hence non an accurate contemplation of the Courts deliberative demands under s69, when a party may seek its aid on legal reading and pertinence.

Decision:

In visible radiation of our designation of all the possible state of affairss where a Court might be asked to supply aid either by the arbitrational tribunal itself, or by a party to those proceedings, and our appraisal of whether, in each such state of affairs, it is necessary for the Court to prosecute in a substantial deliberation on the several virtues of the difference at manus, in the same manner as a tribunal is required to make under this Act, it should instantly be clear that the statement at the top of this paper is non an accurate 1. Whilst it is surely true that in some state of affairss, it is as indispensable for the Court to fulfill itself that there is a existent job to be resolved by the court as it is for the tribunal itself to be satisfied that there is a existent job to be resolved by the court, the court is under a general responsibility to carry on such an question, whereas the Court will merely be obliged to make so in a comparatively little figure of state of affairss where the court or a party to the proceedings request its aid ; viz. , upon application by the court for aid under s32 ( 2 ) ( B ) of the Act, and upon application by a party to the proceedings for aid under s9, s12 and s67 of the Act.

This is the decision which 1 must anticipate in visible radiation of the distinguishable several functions of the arbitrary court and the Court. The court is non a Court of jurisprudence ; its function is to preside over commercial differences without the demand to fall back to test. The lone legal authorization of the court is that which it is afforded to it by virtuousness of the adhering contractual understanding between the parties to that difference that they will subject to the legal power of the arbitrary court and abide by its determinations ; when the tribunal’s orders have non been complied with, so an application to the jurisprudence Court will consequence these awards by virtuousness of the philosophy of specific public presentation and injunction. Likewise, when a point of jurisprudence is raised, it is to the jurisprudence Courts that the tribunal must use for elucidation. The Court’s function is hence as supervisor, and hatchet man, and these functions do non needfully necessitate a elaborate substantial appraisal of every facet of the difference as the statement at the top of this paper seems to propose.

Part B – On 12 August 2004, Anoop Kumar Inc. ( Anoop Kumar – a company incorporated in India ) entered into an understanding ( the Agreement ) with Nohria Mittroff Inc. ( Nohria Mittroff – a company incorporated in Australia ) for the sale and purchase of a cargo of computing machines, related equipment and plans all of which were to be developed, manufactured and delivered by Anoop Kumar non subsequently than 30 June 2005. The arbitration clause in the Agreement is in the undermentioned footings:

‘Disputes originating out of this Agreement are to be referred to arbitration. The regulating jurisprudence of this clause is the same as the regulating jurisprudence of this Agreement. ‘

The regulating jurisprudence of the Agreement is English jurisprudence.

Delivery was non made until 3 February 2006, by which clip Nohria Mittroff had already reached the point of get downing arbitration. Deborah Hardin was subsequently appointed as arbiter ; and she proceeded to make a determination that Anoop Kumar Inc. was required to pay Nohria Mittroff the amount of US $ 35,000 plus an sum of involvement, and besides costs to be determined. The Award – dated 18 May 2006was to that consequence, and stated the regulating jurisprudence ( as stated in the Agreement ) , and besides stated the place as being Montreal, Canada. To day of the month, Anoop Kumar Inc. has non paid the sums awarded.

The computing machines, equipment and plans were installed in the premises of Nohria Mittroff by the terminal of April 2006, and proving began in late June 2006. Testing was finally completed in August 2006 and revealed that the computing machines were non working every bit good as had been expected by Nohria Mittroff. Arbitration was commenced by Nohria Mittroff by notice dated 6 October 2006. On the same day of the month, Nohria Mittroff made an application to the English High Court for an order forestalling Anoop Kumar Inc. from utilizing its bank history at HSBC, Great Portland Street, London. The High Court made the order on 9 October 2006, and a transcript was served on HSBC on the same day of the month.

In the normal manner of such applications, Anoop Kumar Inc. was non cognizant of the application or the order made by the Court. But, Anoop Kumar Inc. has now been served with notice of the application and the order, and a day of the month has been set for Anoop Kumar ‘s application to hold the Court order discharged. Nohria Mittroff has given notice of its application to the High Court for a farther order, viz. , for specific grounds to be made available to it which Nohria Mittroff intends to utilize in the arbitration commenced on 6 October 2006.

You have been instructed to rede Nohria Mittroff You have learned that Anoop Kumar are meaning to dispute the legal power of the High Court: ( a ) to do the order dated 9 October 2006, on the land that the arbitration clause was ne’er valid ; and ( B ) to do an order associating to the grounds becauseeven saying that the arbitration clause is valid – the arbitration clause has been exhausted, or that the affair which Nohria Mittroff has referred to arbitration is non within the range of the arbitration clause.

Please rede Nohria Mittroff Inc.

For the intents of this response I shall mention to Nohria Mittroff Inc. as ‘NM’ , Anoop Kumar as ‘AK’ and Deborah Hardit, the appointed adjudicator, as ‘DH’ . The relevant jurisprudence applicable to this instance is contained within the commissariats of the Arbitration Act 1996, which I shall mention to as ‘the Act’ for the intents of this paper.

Let us foremost see the legal issues originating in relation to AK’s challenge of the legal power of the High Court to do the order dated 9 October 2000 on the evidences that the arbitration clause was ne’er valid:

It seems hard to back up AK’s contention ; the arbitration clause within the contract between AK and NM does look to fulfill the unequivocal demands as stipulated in s6 of the Act- whilst it is true that the rigorous reading of the diction ‘referred’ in the contractual clause does non needfully intend that both parties agreed ‘to submit to arbitration present or future disputes’ [ s6 ( 1 ) of the Act ] , it seems more than clear that both parties intended that this clause would mention all differences future or present to arbitrational court, the determination of which would be adhering upon them in its entireness. AK’s claim that the High Court does non hold legal power to do such an order on these evidences would doubtless neglect. Under s44 of the Act the tribunal is entitled to do ‘such orders as it thinks necessary for the intent of continuing grounds or assets’ [ s44 ( 3 ) ] , and to allow ‘an interim injunction or the assignment of a receiver’ [ s44 ( 2 ) ( vitamin E ) ] , where such an order is needed as a affair of urgency, and where the arbitrational court, ‘has no power or is unable for the clip being to move effectively’ [ s44 ( 5 ) ] . On top of this, the sort of concluding employed by the High Court in the instance of Westland Helicopters Ltd. v. Sheikh Salah Al-Hejailan, Case No. 2004 Folio 036, might be employed to forestall AK, by virtuousness of the philosophy of estoppel, from claiming that the understanding was invalid ; he had chance to do a claim against the tribunal legal power on this affair under s67 of the Act, and the fact that he did non make this suggests that, at this earlier point, he did non oppugn the cogency of the arbitration clause- if AK is to accept that the court has legal power over the clause, so he must be estopped from claiming that the High Court does non hold legal power fluxing from this under s44 of the Act, in peculiar s44 ( 2 ) ( vitamin E ) .

If AK is hence to successfully reason that the High Court did non possess sufficient legal power to make this order dated 9 October 2006, so he must look for alternate evidences upon which to establish such a claim:

AK could reason that the urgency demand of s44 ( 3 ) was non satisfied in this instance, particularly in visible radiation of the fact that NM were in ownership of the computing machines which would hold provided equal security against these monies. AK could so trust on s44 ( 4 ) of the Act which states that “if the instance is non one of urgency, the tribunal shall move merely on the application of a party to the arbitrational proceedings ( upon notice to the other parties and to the court ) made with the permission of the court or the understanding in authorship of the other parties, ” to reason that in visible radiation of the fact that it did non hold to this application, and that there is no indicant that the tribunal gave permission for such, so the tribunal did non possess the needed legal power to allow an order in this affair. AK could besides seek to reason that in visible radiation of s44 ( 5 ) which merely grants such legal power to the Court where the court would otherwise be unable to consequence an immediate order of the sort required, that the High Court did non possess sufficient legal power to do such an order, reasoning that the court did possess such legal power under s38 ( 4 ) ( a ) which states that “The court may give waies in relation to any belongings which is the topic of the proceedings or as to which any inquiry arises in the proceedings, and which is owned by or is in the ownership of a party to the proceedings- ( a ) for the review, photographing, saving, detention or detainment of the belongings by the court, an expert or a party.” NM might reason that the court is unable to do a freezing order under s44 ( 2 ) ( vitamin E ) , and as such that s44 ( 5 ) is irrelevant.

In respects to the first statement, I feel that AK would neglect ; it had non yet complied with the courts award against it, and it is apprehensible that NM would hence be desperately worried that AK might avoid paying this award by embezzling its financess off from the history into which the monies were paid my NM.

In respects to AK’s 2nd statement, that the legal power of the tribunal had non yet come into consequence because the court was in a place to hold made such waies itself, I feel that NM’s statements to the reverse would win.

Even if AK’s statements were to convert the High Court, it should be noted that in the instance of Hiscox Underwriting Ltd and another V Dickson Manchester & A ; Co Ltd and another [ 1 ] , Cooke J held that the diction of s44 ( 3 ) should be understood to be permissive instead than prohibitory: At paragraph 37 he stated: ‘By contrast to those subdivisions [ 44 ( 4 ) and ( 5 ) ] , wherein the diction appears “shall act only” , the words in subdivision 44 subdivision 3 are permissive and non prohibitory. The words used are “the tribunal may” instead than “the tribunal shall” or “the tribunal shall move only” in given circumstances.’

In these fortunes, the applicable proviso is s44 ( 2 ) ( vitamin E ) / ( 3 ) of the Act which will function to supply the High Court the legal power to do an asset-freezing order, an order which can non be made by the tribunal, therefore preventing AK’s trust on s44 ( 5 ) , even if the diction of this suggestion was to be construed to forestall a tribunal for being awarded legal power in such instances. N.B. Whilst the usage of these ‘freezing orders’ was late described as being slightly ‘Draconian’ by the Departmental Advisory Committee on Arbitration Law, [ 2 ] there is no instance jurisprudence to propose that these should be excluded from the range of s44 ( 3 ) .

Let us now turn to see the legal issues originating in relation to AK’s ‘challenge of the legal power of the High Court to do to an order associating to the grounds because – even saying that the arbitration clause is valid – the arbitration clause has been exhausted, or that the affair which Nohria Mittroff has referred to arbitration is non within the range of the arbitration clause’ .

Simply because the arbitration clause was attached to a contract which has now expired does non needfully intend that the arbitration clause will discontinue to hold consequence between the parties ; s7 of the Act provinces:Unless otherwise agreed by the parties, an arbitration understanding which forms or was intended to organize portion of another understanding ( whether or non in composing ) shall non be regarded as invalid, non-existent or uneffective because that other understanding is invalid, or did non come into being or has become uneffective, and it shall for that intent be treated as a distinguishable agreement.” AK’s statement that the arbitration clause has expired will hence be unsuccessful, as will his claim that the difference in inquiry is beyond the range of its commissariats ; the arbitration clause did non restrict its range to a specific type of difference, but instead stated that ‘Disputes originating out of this Agreement are to be referred to arbitration. The regulating jurisprudence of this clause is the same as the regulating jurisprudence of this Agreement. ‘ The difference in inquiry has surely ‘arisen’ from the earlier understanding as it concerns the belongings which formed the really capable affair of that understanding, and as such, AK will besides neglect in reasoning that this new difference falls outside the range of the arbitration clause. The High Court was therefore justified in doing such an order by virtuousness of s44 ( 2 ) ( B ) of the Act which states that: “Unless otherwise agreed by the parties, the tribunal has for the intents of and in relation to arbitrational proceedings the same power of doing orders about the affairs listed below as it has for the intents of and in relation to legal proceedings… [ one such affair is ] … ( B ) the saving of evidence.” This proviso has been interpreted really widely by the tribunals [ 3 ] , and there is no uncertainty that the facts of this difference would come within its range.

One concluding point I would wish to raise in in respects to Aks failure to follow with the award which was made against him in favor of NM on 8 May 2006. Whilst the clip bounds contained in this award are non provided in the facts of this inquiry, I would propose that we can safely assume that these bounds have expired [ it being several months after the award was made ] and that AK has hence failed to follow with his legal duties. I would therefore advice NM to use to the Court for an order to be made to oblige AK to do payment by virtuousness of s42 of the Act which states:( 1 ) Unless otherwise agreed by the parties, the tribunal may do an order necessitating a party to follow with a peremptory order made by the court. ( 2 ) An application for an order under this subdivision may be made- ( B ) by a party to the arbitrational proceedings with the permission of the court ( and upon notice to the other parties ) .”

AK might reason that the award was non complete as amendss were yet to be determined, and this statement might be accepted by the Court. In this instance, it will be necessary for NM to bespeak the remotion of the arbiter from the arbitrational tribunal under s24 of the Act. The Court will see the behavior of the arbiter ( s24 ( 1 ) ( a ) ) , the mental and physical makings of that individual ( s24 ( 1 ) ( B ) & A ; ( c ) ) , and whether or non the adjudicator conducted the proceedings suitably ( s24 ( 1 ) ( vitamin D ) ) . In this instance I feel that the first or 3rd land here would be sufficient to take the arbiter. The tribunals will so utilize s27 to, in audience with the parties, have a new arbiter appointed, and this arbiter will re-hear the difference and make a new award which both parties must follow. If AK refuses to follow with this new award, so the Court will enforce an order of payment upon him by virtuousness of the s42 process above.

Bibliography:

The Arbitration Act 1996

Bruce Harris, Rowan Planterose, Jonathan Tecks ; The Arbitration Act 1996: A Commentary. Blackwell Publishing, Incorporated ; 3 edition ( July 1, 2003 ) .

Richard Lord, Simon Salzedo ; Guide To Arbitration Act 1996. Routledge Cavendish ; 1 edition ( September 1, 1996 )

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