RECOGNITION AND ENFORCEMENT OF FOREIGN AWARDS

Recognition and enforcement of foreign awards are governed by Pt II of the Arbitration Act 1950 and Pt III of the 1996 Act.

Court’s Powers under Pt I of the 1996 Act: The parties to arbitration can, in certain circumstances and on notice to the other parties, apply to the court to exercise its powers under the 1996 Act. The procedure for making applications to the court is governed by the Civil Procedure Rules Pt 62 and Practice Direction 62.

The court has power to extend agreed time limits to commence arbitration or other dispute resolution procedures: s.12. An order under s.12 does not affect the operation of the Limitation Acts.

In Cathiship SA v Allanasons Ltd (The Catherine Helen) [1998] 3 All E.R. 714 it was held that a court’s power to permit an extension of time for commencing arbitration proceedings under s.12 was more restricted than under the Arbitration Act 1950 s.27, its predecessor. Since s.12(3) laid down a condition requiring the court to be satisfied that circumstances were such as to be “outside the reasonable contemplation of the parties” at the time of the agreement, the court was not entitled to extend time on the basis that, on balance, it was just to do so. Further, s.12(3) had to be interpreted as requiring the court to consider not only what the parties had in mind but also what they reasonably would have had in mind, necessitating a consideration of usual practice relating to that particular type of transaction.

In certain circumstances the court has power to set aside the appointment of an arbitrator: s.17(3) – see above.

Where there has been a failure in the appointment procedure, the court has powers to (a) give directions as to the making of any necessary appointments; (b) direct that the tribunal shall be constituted by such appointments (or any one or more of them) as have been made; (c) revoke any appointment already made; (d) make any necessary appointments itself: s.18

The court has power to remove an arbitrator on the grounds specified in s.24(1), namely justifiable doubts as to his impartiality, qualifications, physical or mental incapacity, or a failure to conduct the proceedings properly or timeously. For discussion of the application of s.24 see Laker Airways Inc v FLS Aerospace Ltd [2000] 1 W.L.R. 113. Where the court removes an arbitrator, it may make such order as it thinks fit with respect to his entitlement (if any) to fees or expenses, or the repayment of any fees or expenses already paid.

An arbitrator who resigns his appointment may (upon notice to the parties) apply to the court (a) to grant him relief from any liability thereby incurred by him, and (b) to make such order as it thinks fit with respect to his entitlement (if any) to fees or expenses or the repayment of any fees or expenses already paid: s.25(3).

The court may, on the application of a party to the arbitration (upon notice to the other parties), determine any question as to the substantive jurisdiction of the tribunal: s.32 Unless the parties otherwise agree, the court may make an order requiring a party to comply with a peremptory order made by the tribunal: s.42(1).

Unless otherwise agreed by the parties, the court has for the purposes of and in relation to arbitration the same power of making orders about the matters listed in s.44(2) as it has for the purposes of and in relation to legal proceedings: s.44(1). If the case is one of urgency, the court may, on the application of a party or proposed party to the arbitration, make such orders as it thinks necessary for the purpose of preserving evidence or assets: s.44(3) and see Cetelem SA v Roust Holdings Ltd [2005] EWCA Civ 618; [2005] 1 W.L.R. 3555. See also Euroil Ltd v Cameroon Offshore Petroleum Sarl [2014] EWHC 12 (Comm)

Unless otherwise agreed by the parties, the court may on the application of a party to arbitration (upon notice to the other parties) determine any question of law arising in the course of the proceedings which the court is satisfied substantially affects the rights of one or more of the parties: s.45(1).

Where the time for making an award is limited by or in pursuance of the arbitration agreement the court may by order extend that time, unless otherwise agreed by the parties: s.50 The court will only make an order if satisfied that a substantial injustice would otherwise follow.

If the tribunal does not determine the recoverable costs of the arbitration, any party to the arbitration may apply to the court (upon notice to the other parties) to determine the recoverable costs on such basis as it thinks fit or order how they should be determined: s.63(4) and see s.64(2).

On an application challenging an award of the arbitral tribunal as to its substantive jurisdiction, the court may by order

  • confirm the award,
  • vary the award, or
  • set aside the award in whole or in part: s.67(3).

If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award, the court may

  • remit the award to the tribunal, in whole or in part, for reconsideration,
  • set the award aside in whole or in part, or
  • declare the award to be of no effect, in whole or in part: s.68(3).

On an appeal on a point of law the court may by order (a) confirm the award, (b) vary the award, (c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the court’s determination, or (d) set aside the award in whole or in part: s.69(7).

Where service of a document in the manner agreed by the parties or pursuant to s.76 is not reasonably practicable, the court may make such order as it thinks fit for service in such manner as the court may direct, or dispense with service of the document: s.77.