London Maritime Arbitration

Clare Ambrose; Karen Maxwell and Michael Collett KC

Document

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CHAPTER 24 Applications to the English court relating to arbitration

A. Types of application to court

Arbitration claims

24.1 Most applications to court concerned with arbitration take the form of an “arbitration claim”. Specific rules of procedure, laid out in Part 62 of the Civil Procedure Rules (“CPR”) and the accompanying Practice Direction (“PD”), apply to such claims. Essentially, the Part 62 procedure contemplates a streamlined and (in some respects) truncated procedure aimed at swift determination of the issues. This is consonant with the policy in favour of speedy disposal of disputes. 24.2 Part 62 is divided into three mutually exclusive1 sections. The first section is headed “Claims under the 1996 Act” but in fact extends wider than this.2 The second section is headed “Other arbitration claims” and concerns arbitrations commenced before 31 January 1997: in practice, this section is virtually obsolete. The third section is concerned with enforcement and applies to all enforcement proceedings, other than proceedings by a claim on the award. With the exception of enforcement proceedings, then, arbitration claims are governed by the procedure in the first section of CPR Part 62. 24.3 “Arbitration claim” is defined in CPR Part 62.2:

(1) In this Section of this Part “arbitration claim” means −
- (a) any application to the court under the 1996 Act;
- (b) a claim to determine −
  - (i) whether there is a valid arbitration agreement;
  - (ii) whether an arbitration tribunal is properly constituted; or
  - (iii)
    
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    what matters have been submitted to arbitration in accordance with an arbitration agreement;
- (c) a claim to declare that an award by an arbitral tribunal is not binding on a party; and
- (d) any other application affecting −
  - (i) arbitration proceedings (whether started or not); or
  - (ii) an arbitration agreement.

24.4 The definition is very broad, and does not necessarily contemplate an application made under a provision of the Arbitration Act 1996. For example, applications for anti-suit injunctions, although made pursuant to section 37 of the Senior Courts Act 1981 (and not under the 1996 Act) nevertheless constitute “arbitration claims” and fall within Part 62.3 Similarly, other arbitration – related applications would fall within the very wide definition, even if not made under the Act.

Other arbitration-related applications and proceedings

24.5 However, not every arbitration-related application is governed by the Part 62 procedure. The principal exception is an application for a stay, which is made using an ordinary application notice in the proceedings sought to be stayed.4 Similarly, applications made within arbitration claims (for example, applications for disclosure, security for costs or directions) would not require the issue of a second arbitration claim form: an ordinary application notice could be used. Very minor procedural applications concerned with case management may be made by letter.5 An action on the award falls outside the scope of Part 62. 24.6 Parties to London maritime arbitral proceedings may also find it necessary to make applications to foreign courts – for example, to arrest a vessel or obtain other security. The scope of such relief, and the applicable procedure, is beyond the scope of this book.

B. Commencing an arbitration claim

24.7 The rules governing the procedure for commencing an arbitration claim are set out in the Civil Procedure Rules (specifically, Part 62), Practice Direction 62 and the Admiralty and Commercial Courts Guide. The procedure for making an arbitration claim is also set out in the flow chart on court applications at .

Time limits

24.8 Statutory time limits apply in respect of some arbitration claims – in particular, applications challenging an award under sections 67 to 69 of the Arbitration Act 1996 must be

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made within 28 days of the date of the award,6 though the court has power to extend this time in appropriate cases.7 24.9 For these purposes, an arbitration claim is made when it is issued, not when it is served.8

Issue of arbitration claim form

24.10 Arbitration claims are required to be issued in the High Court.9 Arbitration claims relating to London maritime arbitration are invariably issued in the Commercial Court. The claim is made on Form N8 (arbitration).10 An application made within existing proceedings (for example, an application for a stay or an application for procedural orders relating to the arbitration claim) is made using an application notice on form N244(CC). Very minor procedural applications concerned with case management may be made by letter.11 24.11 Because arbitration claim proceedings are private, the claim form may be inspected only with the permission of the court (unlike other claim forms, which are available for public inspection).12

Notice requirements

24.12 The 1996 Act requires notice of certain claims or applications to be given. For example, an application to remove an arbitrator pursuant to section 24 must be made “upon notice to the other parties, to the arbitrator concerned and to any other arbitrator”. An application to extend time under section 1213 must be made “upon notice to the other parties”, and challenges to awards also require notice to the parties and to the tribunal. 24.13 “Notice” for these purposes means notice of the court proceedings as stipulated by the CPR – it does not impose any additional requirement.14 Therefore, notice is given to the parties to the arbitration by naming them as defendants in the arbitration claim.15 Where notice must be given to the tribunal, this requires notice to be given individually to each arbitrator or (if the tribunal is not yet fully appointed) to each arbitrator that has been appointed.16 In

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the case of applications to remove arbitrators,17 applications to adjust arbitrators’ fees,18 and applications for delivery of the award,19 notice is given by making each arbitrator a defendant to the arbitration claim.20 In all other cases notice is given by sending to each arbitrator a copy of the claim form and the written evidence which supports it.21 In any case where an arbitrator is given notice of a claim, he may apply to be made a defendant or may make written representations to the court22

Without notice applications

24.14 Urgent applications under section 44(3) of the 1996 Act, for orders (typically freezing injunctions) that are “necessary for the purpose of preserving evidence or assets”, may be made without notice. The application must state grounds for proceeding without notice and must be substantiated by evidence.23 A claimant making an application without notice is under a duty to make full and frank disclosure of material facts. In very urgent cases the application may be made before the claim form is issued, in which case the evidence in support must indicate an intention to issue proceedings.24 In any case, a freezing injunction made on an application without notice will provide for a return date.25

C. Service

24.15 An arbitration claim form is valid for one month for service,26 though the court may extend time. The normal rules governing service of claim forms under the CPR apply: the claim form may be served by first-class post, DX, fax, e-mail or other electronic forms of communication.27

Service out of the jurisdiction

24.16 If the respondent is domiciled outside the jurisdiction28 then it may be necessary to obtain permission to serve the arbitration claim form outside the jurisdiction. In practice this will frequently be unnecessary since the respondent (usually acting by its UK-based solicitors or P & I Club) will agree to accept service within the jurisdiction. This is generally advantageous for both parties as it saves the unnecessary cost of making an application for permission which is likely to succeed where the arbitration is seated within the UK.

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24.17 Even where no such agreement is forthcoming, in practice it is common to seek an order permitting alternative service on solicitors within the jurisdiction: the Commercial Court’s “almost invariable” practice, in respect of arbitrations seated within the jurisdiction, is to permit such service.29 Issues may arise (for example, in respect of post-hearing applications) if the defendant’s solicitors are no longer authorised to act for the defendant or to accept service of the claim form. If the claimant is aware of any such issue, this should be disclosed to the court. 24.18 The court has power to grant permission to serve out of the jurisdiction in the situations specified in CPR Part 62.5, namely: where the claimant seeks to challenge the award or bring an appeal on a question of law arising out of the arbitration award made within the jurisdiction; where the claim is for an order under section 44 of the Act; or where the claimant seeks some other remedy or requires a question to be decided by the court affecting an arbitration, arbitration agreement or award, and the seat of the arbitration is or will be within the jurisdiction, or the conditions of section 2(4) of the Act are satisfied. In addition, CPR Part 6.36 and Practice Direction 6B set out various situations in which permission to serve out may be granted, including where the claim is in respect of a contract which was made within the jurisdiction or governed by English law. A London arbitration clause is generally governed by English law and would, therefore, fall within this definition. 24.19 It is not entirely clear whether permission to serve out of the jurisdiction on a third party is available under CPR Part 62. A claimant may need to serve on a third party, for example where it seeks a freezing injunction against such a party under section 44 of the Act, on the basis of the court’s Chabra jurisdiction.30 There is a line of authority suggesting that the court has power to grant permission to serve out on third parties in such circumstances.31 Even if Part 62 does not extend to service on third parties out of the jurisdiction, the court may have power under the more general service out provisions in CPR Part 6 and the associated Practice Direction.32

In Cruz City 1 Mauritius Holdings v Unitech Ltd and ors,33 the claimant sought to enforce an arbitration award against Unitech by means of a freezing injunction against Unitech subsidiaries. Males J held that there was no basis for granting permission to serve the arbitration claim form out of the jurisdiction on those third party subsidiaries. He held that CPR Part 62.5(1)(c) did not apply to third parties and, further, that permission was not available under Practice Direction 6B34 on the third parties as “necessary and proper parties”, because there was no remaining substantive claim against Unitech as the “anchor” defendant.

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