ReSolution: In Brief
7 ReSolution | Nov 2017
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.
Astro v First Media: the next instalment
In the long-running Astro v First Media dispute, the Court of Final Appeal of Hong Kong has granted First Media leave to appeal (against the Court of Appeal’s decision refusing an extension of time to apply to set aside orders for the enforcement of awards against it) on the following questions of law on the grounds of general or public importance:
• What is the proper test for determining whether an extension of time should be granted for the purposes of an application to resist enforcement of an arbitral award under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards?
• In determining whether to extend time for the purposes of an application to resist enforcement of an arbitral award under the New York Convention, is the fact that the award has not been set aside by the courts of the seat of arbitration a relevant factor?
The appeal is to be heard 12 and 13 March 2018.
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