Arbitration Law Monthly

In Glencore International AG v PT Tera Logistic Indonesia; Glencore International AG v PT Arpeni Pratama Ocean Line TBK [2016] EWHC 82 (Comm) the question before Knowles J was the scope of the reference to arbitration. The arbitration notice referred to “all disputes” and the question was whether that phrase encompassed counterclaims not at the time made. Knowles J held that it did, but refused to be drawn on the question whether the alternative phrase “all claims” operated in the same way.

Section 12A of Singapore’s International Arbitration Act is drafted in all but identical terms to section 44 of the English Arbitration Act 1996. Both provisions authorise the court to grant interim relief preserving assets or evidence where the arbitrators themselves have not been appointed or are otherwise unable to act. Belinda Ang Saw Ean J in Five Ocean Corporation v Cingler Ship Pte Ltd [2015] SGHC 311 has considered the operation of that provision where the relief sought is the sale of the assets that form the heart of the dispute between the parties.

The facts of Maass v Musion Events Ltd and Others [2015] EWHC 1346 (Comm) are somewhat curious. They involved an arbitrator who initially appeared to make an award on jurisdiction without having heard any argument, but having corrected his error then proceeded to do just that. The case involves useful analysis of the meaning of an award, the duty of an arbitrator not to proceed without a hearing and the test for substantial injustice where there has been procedural irregularity of this type.

The decision of Burton J in Egiazaryan and Another v OJSC OEK Finance [2015] EWHC 3532 (Comm) makes an important point on the question of determining whether a person is a party to an arbitration clause and can be joined to the arbitration. The court ruled that the issue is to be determined not by the law applicable to the arbitration clause but rather by the law of the domicile of the signatory of the arbitration clause.

In Emirates Trading Agency LLC v Sociedade de Fomento Industrial Private Ltd [2015] EWHC 1452 (Comm) the High Court has once again been required to consider the effects of a pre-requisite to arbitration whereby the parties are required to undertake “friendly discussion” in order to resolve their dispute. In the present case the validity or otherwise of the clause, and indeed whether it had been satisfied, ultimately did not need to be decided. The question became whether the failure of a party to appeal against a partial award holding that the clause did not bar arbitration barred an appeal against a later final award where the arbitrators refused to revisit their earlier view.

In Cassa di Risparmio di Parma e Piacenza SpA v Rals International Pte Ltd [2015] SGHC 264 Vinodh Coomaraswamy J considered the inherent conflict between the obligation of contracting parties to go to arbitration and the autonomy of obligations under negotiable instruments. The case concerned an assignee of a negotiable instrument, the question being whether the claim had to be brought by the assignee against the defaulting purchaser in arbitration. The court concluded that the arbitration clause did not extend to the assignee.

The English courts will, wherever possible, seek to enforce an agreement between the parties to refer disputes to arbitration. If proceedings are commenced abroad, an anti-suit injunction will normally be issued as a matter of course, unless there are powerful reasons why that should not happen. In Crescendo Maritime Co and Another v Bank of Communications Co Ltd and Others [2015] EWHC 3364 (Comm) it was unsuccessfully argued that there were exceptional grounds for refusing relief.

The vexed question of the arbitrability of shareholder disputes has recently been considered by the Singapore Court of Appeal in Tomolugen Holdings Ltd v Silica Investors Ltd [2015] SGCA 57. The Court of Appeal has rejected the complex reasoning at first instance of Quentin Loh J, in Silica Investors Ltd v Tomolugen Holdings Ltd [2014] SGHC 101, and has followed the approach of the English Court of Appeal in Fulham Football Club (1987) Ltd v Richards [2012] Ch 333.

The Court of Appeal in Hashwani and Others v OMV Maurice Energy Ltd [2015] EWCA Civ 1171 has confirmed the long-standing approach of the English courts to the effect that, if there is a dispute as to the existence or scope of an arbitration agreement, the court will rarely exercise its inherent jurisdiction to stay its own proceedings and allow the arbitrators the first opportunity to resolve the matter.

The decision of Mimmie Chan J in P v S [2015] HKEC 1707 illustrates the general approach of the Hong Kong courts to allegations of procedural irregularity. The argument here was that the case management directions for the conduct of the arbitration did not afford a proper right to be heard. The decision is considered by Edward Liu, an associate at Reed Smith Richards Butler.

The issue before Walker J in Essar Shipping Ltd v Bank of China Ltd [2015] EWHC 3266 (Comm) was whether an anti-suit injunction should be granted under section 37 of the Senior Courts Act 1981 to prevent the defendant bank from pursuing judicial proceedings in China in breach of a London arbitration clause. The only disputed matter was whether the claimant, Essar, should be refused relief by reason of its delay in seeking the injunction.

The English courts will, by anti-suit injunction, readily restrain a party to an arbitration clause from commencing or maintaining judicial proceedings elsewhere. The question in Ecobank Transnational Inc v Tanoh [2015] EWCA Civ 1309 was whether an injunction should be granted to restrain the enforcement of judgments obtained in overseas proceedings brought in contravention of an arbitration clause. The Court of Appeal recognised that the necessary jurisdiction existed, although it was likely to be in limited situations only.