He then granted the claimant a final injunction. The main submission of Mr Hirst QC for the defendant insurer was that the judge had been wrong to hold that the arbitration agreement itself was governed by English law merely because the seat of the arbitration was London. He argued that the arbitration agreement itself was silent as to its proper law but that its proper law should follow the proper law of the contract as a whole, namely New York law, rather than follow from the law of the seat of the arbitration namely England.
The fact that the arbitration itself was governed by English procedural law did not mean that it followed that the arbitration agreement itself had to be governed by English law. The proper law of the arbitration agreement was that law with which the agreement had the most close and real connection; if the insurance policy was governed by New York law, the law with which the arbitration agreement had its closest and most real connection was the law of New York.
It would then follow that, if New York law permitted a challenge for manifest disregard of the law, the court in England should not enjoin such a challenge. In my view they must be taken to have so agreed for the reasons given by the judge.
The whole purpose of the balance achieved by the Bermuda Form English arbitration but applying New York law to issues arising under the policy is that judicial remedies in respect of the award should be those permitted by English law and only those so permitted.
Mr Hirst could not say and did not say that English judicial remedies for lack of jurisdiction on procedural irregularities under sections 67 and 68 of the Act were not permitted; he was reduced to saying that New York judicial remedies were also permitted.
That, however, would be a recipe for litigation and what is worse confusion which cannot have been intended by the parties. No doubt New York law has its own judicial remedies for want of jurisdiction and serious irregularity but it could scarcely be supposed that a party aggrieved by one part of an award could proceed in one jurisdiction and a party aggrieved by another part of an award could proceed in another jurisdiction.
Similarly, in the case of a single complaint about an award, it could not be supposed that the aggrieved party could complain in one jurisdiction and the satisfied party be entitled to ask the other jurisdiction to declare its satisfaction with the award.
There would be a serious risk of parties rushing to get the first judgment or of conflicting decisions which the parties cannot have contemplated. It follows from this that a choice of seat for the arbitration must be a choice of forum for remedies seeking to attack the award. As the judge said in paragraph 27 of his judgment, as a matter of construction of the insurance contract with its reference to the English statutory law of arbitration, the parties incorporated the framework of the Act.
For example section 49 of the Act gives an arbitration tribunal power to award interest. That provision is one of the non-mandatory provisions of the Act.
It was argued in Lesotho Highlands Development Authority v Impregilo SpA [] 1 AC that, if the proper law of the underlying contract did not permit an award of interest, the choice of that proper law amounted to an agreement to the contrary so as to preclude the Tribunal from awarding interest. Lord Steyn with whom the majority of the House agreed pointed out para. In other words there has to be a choice of law with regard to the specific provision of the Act which the parties agree is not to apply.
Still less would it entitle the defendant to mount a challenge to the award in a country other than the seat of the arbitration. But since the point was fully argued, I will express my view upon it. It is necessary to distinguish between the proper law of the underlying insurance contract which is, by agreement, the internal law of New York and the arbitration agreement which is, by virtue of section 7 of the Act, as well as by virtue of common law, a separable and separate agreement, see Harbour Assurance Co.
There is also the law of the seat of the arbitration, namely English law, which will be relevant. The question then arises whether, if there is no express law of the arbitration agreement, the law with which that agreement has its closest and most real connection is the law of the underlying contract or the law of the seat of arbitration. It seems to me that if contrary to what I have said above this is a relevant question, the answer is more likely to be the law of the seat of arbitration than the law of the underlying contract.
No doubt it would conversely have been said that, if a contract had an express choice of law clause, the law of the arbitration agreement would have been the same as the proper law of the contract. A [] AC in which it was pointed out that the inquiry must always be to discover the law with which the contract has the closest and most real connection.
It was there decided that the mere fact that arbitration was to be in London did not mean that what was in reality a French contract of affreightment had to be governed by English rather than French law.
It did not matter at all that English arbitrators would have to apply French law. In these circumstances it cannot be automatic that if the relevant inquiry is the converse inquiry namely to discover the proper law of an arbitration agreement the answer to that inquiry is to be the proper law of the agreement. The inquiry is, as I have said, to discover the law with which the agreement to arbitrate has the closest and most real connection. The matter is not entirely free from authority.
In Black-Clawson v Papierwerke [] 2 Lloyds Rep , Mustill J set out the three potentially relevant laws, namely i the law governing the substantive agreement; ii the law governing the agreement to arbitrate and the performance of that agreement; and iii the law of the place where the reference is conducted the lex fori.
He then said But this will not always be so. Answered By: Lisa Hawksworth. Last Updated: Nov 03, Views: Brown and Davies are the parties involved [] is the date of the judgment EWCA Civ is the court in which the case was heard; in this case, the Court of Appeal England and Wales, Civil Division is the case number [9] refers to paragraph number 9.
Some lower courts and tribunals have since adopted a neutral citation system. Toggle action bar FAQ Actions. Print Tweet Share on Facebook Was this helpful? Comments 0. Find out more about cookies. A neutral citation is the unique reference given to a particular judgment by HM Courts and Tribunals Service. Unlike the majority of citations, neutral citations do not refer to a specific report of a case, but to the judgment itself.
A neutral citation by itself therefore cannot be used to locate a law report without further research; however, it is particularly useful when citing or tracing an unreported case. Neutral citations were introduced in Which Law report should you cite? For a lot of cases you come across there will be a number of different law reports of that case.
It is important to try and cite the most authorative law report. For many countries there is an official series but in the UK there are a large number of different report series. To find the most authorative series for the UK you can use an online case citator tool such as Westlaw Case Analysis, JustCite or Lexis Library's Case Search which will have the list of law reports in order of authority.
More information can be found in the UK Libguide on this series. Contact us Send us your feedback. Google Analytics anonymously tracks individual visitor behaviour on this web site so that we can see how LibGuides is being used. We only use this information for monitoring and improving our websites and content for the benefit of our users you. Licensed under a Creative Commons Attribution 4.
Subject and research guides.
0コメント