A cautionary tale Once again, the English courts have confirmed that non-payment of an arbitrator’s fees, delaying issue of the award, is not an acceptable excuse to justify missing the deadline to challenge the award under section 69 of the UK Arbitration Act 1996. In Squibb Group v Pole 2 Pole Scaffolding [2017 EWHC 2394 (TCC) the Court declined to exercise its discretion to extend time for making an application for permission to appeal an award in circumstances where the delay was caused by no reason other than the parties’ failure to pay the arbitrator’s fee leading to a delay in the parties uplifting the award. O’Farrell J referred to the principles applicable to the court’s discretion to extend time identified by Popplewell J inTerna v Al Shamsi [2012] EWHC 3283(Comm), the primary factors being: 1. the length of the delay; 2. whether the delaying party was acting reasonably in allowing the time limit to expire; and 3. whether others had contributed to the delay.
English High Court removes arbitrator
In Tonicstar Limited v Allianz Insurance and Sirius International Insurance Corporation [2017] EWHC 2753, the English High Court considered an application under Section 24 of the UK Arbitration Act 1996 for the removal of an arbitrator where the question was whether a barrister was a person “with not less than 10 years’ experience of insurance or reinsurance” for the purposes of a standard form arbitration clause in a reinsurance contract. It was argued that the clause required experience in the business of insurance or reinsurance itself, and not experience of insurance or reinsurance law.
The Court decided to remove the arbitrator on the basis that he had experience of insurance and reinsurance law, rather than required experience in the business of insurance and reinsurance. The Judge considered himself bound by the decision of Mr Justice Morison in Company X v Company Y, an unreported decision of July 2000, having found that it was not obviously wrong. He indicated however, that unless he had been so bound, he may well have decided that the ordinary and natural construction of the phrase did not limit the fields in which experience of insurance or reinsurance could be acquired.
The judgment is of particular interest given that questions of the removal of arbitrators do not often come before the courts because they are, in institutional arbitration, typically decided by arbitral institutions so are not usually public). The decision highlights the importance of the careful drafting of arbitration clauses which specify characteristics of an arbitrator. It also serves as a reminder of the importance of precedent in the English judicial system.