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ARBITRATION APPEALS in the ENGLISH COURTS: NEW TRENDS and HOPELESS CASES

ARBITRATION APPEALS in the ENGLISH COURTS: NEW TRENDS and HOPELESS CASES. a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb International Arbitrator, Mediator & Expert Determiner ICMA XVI Singapore 27 th February 2007. BASES of APPEAL. Jurisdiction (s.67)

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ARBITRATION APPEALS in the ENGLISH COURTS: NEW TRENDS and HOPELESS CASES

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  1. ARBITRATION APPEALS in the ENGLISH COURTS: NEW TRENDS and HOPELESS CASES a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb International Arbitrator, Mediator & Expert Determiner ICMA XVI Singapore 27th February 2007

  2. BASES of APPEAL • Jurisdiction (s.67) • Interim Challenge (s.32) • Ultimate Determination by the Courts (Azov Shipping) • Procedural Irregularity (s.68) • Question of Law (s.69) • Interim Application (s.45) • European Convention on Human Rights

  3. POLICY CONSIDERATIONS • New York Convention 1958 • Consistency with Model Law 1985 • Minimal Interference by Courts • London is Arbitration-Friendly • Role of London in the International Seascape

  4. APPEAL on QUESTION of LAW - 1 • Threshold Hurdles (s.69(3)) • High, Generally Getting Higher • Leave to Appeal (LTA) • Substantial Effect on Rights of a Party • Tribunal asked to determine Question • Tribunal Decision Obviously Wrong OR Decision Open to Serious Doubt • Just & Proper for Court to Determine

  5. APPEAL on QUESTION of LAW - 2 • Substantive Appeal • Hopeless Cases • Sinclair v Woods #2 • New Trends • Fact-Based Complaints disguised as QoL • ECHR-based Applications • Recent Cases • Elektrim v Vivendi – fraud/public policy issues • “The Count” - valid QoL, Arbitrators Correct

  6. APPEAL on PROCEDURAL IRREGULARITY • 2-Stage Test • Procedural Irregularity AND • Substantial Injustice • S.68 is a Long Stop • Arbitration Has Gone Badly Wrong • Issues of Bias • Recent Cases • Sumukan v Commonwealth Secretariat #2

  7. APPEAL under ECHR • Recent Development in Arbitration • Arbitration is Partial Waiver of Art.6 • Provided it is Consensual • Provided it is Freely-Agreed • Recent Cases • S.69 Exclusion Agreements • Permission to Appeal

  8. CONCLUSIONS (1) • Courts Strongly Supportive of Arbitration • Fiona Trust/Sinclair v Woods/Sumukan • Hopeless Appeals Robustly Dismissed • Especially TCC • Doubts over LTA in Commercial Court • Back-Door ECHR Challenges Rejected • Tribunal in Control • Fiona Trust/Sumukan/TCC cases

  9. CONCLUSIONS (2) THANK YOU for listening to me today

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