Did you know that about 40% of all cases in the Commercial Court have their origins in arbitration?
Aside from interim measures that the Court may provide in support of arbitration, one of the benefits of having the seat of the arbitration in England is the right to appeal the decision. The English Arbitration Act sets out the grounds for appeal and these are more substantial than many other jurisdictions. However, there is a limited time to file an application to appeal and it is amazing how many times clients fail to make the application in time.
Witness the decision in Daewoo Shipbuilding & Marine Engineering Company Ltd v Songa Offshore Endurance Ltd [2018] EWHC 538 (Comm). The facts if this case are immaterial save to say that numerous preliminary issues concerning a shipbuilding contract were determined by the Tribunal who issued an interim award in favour of the buyers. The yard decided to appeal but failed to file their application in time. They tried to file the application out of time and the matter came before the Court.
One interesting point that arose was whether, in circumstances where an Award is corrected under the slip rule, the 28 day time limit to file an appeal should be extended. In this case a number of clerical errors were present in the Award and there was an application to the Tribunal to have these corrected. However, those errors had no bearing on the outcome. It was held that the 28 days runs from the date of the Award and not from the date of the corrected Award. It was said that the position might have been different had the clerical errors been material but it was said that they had no bearing on the decision to appeal. The yard was capable of making that decision regardless of the clerical errors.
The outcome was that the right of appeal was lost and and the Court declined to exercise its discretion to allow a late filing.
The moral of the story? Leaving aside the tactical games that are sometimes played when the Award becomes available – arbitrators have the right to hold on to the Award until they are paid – if a party picks up the Award then, in almost all cases, they must work on the basis that time runs from the date of the Award. If it takes 2 weeks to sort out payment and collect the Award then this has no bearing on the time limit for filing an application for permission to appeal. Likewise if an application is made under the slip rule to correct one or more errors, this does not impact on the time limit which still runs from the date of the Award.
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