ReSolution Issue 17, May 2018 | Page 6

ReSolution: In Brief

The Commercial Court recently considered a peculiar challenge to two partial final awards under section 67 of the Arbitration Act 1996 based on evidence that neither the Applicant nor the Respondent were in fact the same entities that had entered into the arbitration agreement, which was, of course, the foundation of the arbitrator’s jurisdiction.
English court sets aside tribunal’s award finding procedural rules do not permit single arbitration of disputes under multiple contracts
In A v B [2017] EWHC 3417 (Comm), the English Commercial Court considered whether a single request for arbitration under the London Court of International Arbitration (LCIA) Rules 2014, was valid to refer disputes under two distinct contracts to arbitration, and if not, whether the respondent had lost the right to object to the tribunal's jurisdiction.
The court set aside the tribunal’s award upholding its own jurisdiction, on the grounds that the LCIA Rules 2014 do not permit a party to commence a single arbitration in respect of disputes under multiple contracts. As a result, the claimant’s Request for Arbitration was invalid. The Court also held (contrary to the tribunal’s award) that the respondent had not lost its right to object to the tribunal’s jurisdiction by failing to raise its jurisdictional challenge until shortly before filing its Statement of Defence.
The case provides a salutary lesson: where a dispute involves multiple contracts, claimants will need to be careful to ensure that any procedural rules governing the arbitration of those disputes permit disputes arising under multiple contracts to be referred to a single arbitration.
The NZIAC and NZDRC 2018 Arbitration Rules (the Rules) allow the initiation of a single arbitration in respect of disputes or differences arising out of or in connection with more than one contract, provided that:











(a) the parties to each contract are the same;
(b) the Arbitration Agreements are compatible; and
(c) the Parties agree to a single Arbitration under these Rules.
In every other case, a claimant will need to initiate multiple arbitrations and then apply to consolidate them, which the Standard Rules allow (not the expedited Rules) where:
(a) the contracts are between the same parties and all the parties have agreed to consolidation; or
(b) all of the claims are made under the same arbitration agreement; or
(c) the claims in the arbitrations are made under more than one arbitration agreement and the arbitrations are between the same parties, the disputes arise out of the same legal relationship or the same transaction or series of transactions, and the Arbitration Agreements are compatible.