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England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> T v V & W  EWHC 1492 (Comm) (16 May 2018)
Cite as:  EWHC 1492 (Comm)
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BUSINESS & PROPERTY COURTS
OF ENGLAND & WALES
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|V & W
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
Mr Stephen Hackett (instructed by Griffin Law) for the Defendants
Mr David Brynmor Thomas (instructed by Weightmans LLP) for A
Crown Copyright ©
Mr Justice Males:
"(1) Any party has the right to a hearing before the Arbitral Tribunal on the parties' dispute at any appropriate stage of the arbitration (as decided by the Arbitral Tribunal), unless the parties have agreed in writing upon a documents-only arbitration. For this purpose, a hearing may consist of several part-hearings (as decided by the Arbitral Tribunal).
(2) The Arbitral Tribunal shall organise the conduct of any hearing in advance, in consultation with the parties. The Arbitral Tribunal shall have the fullest authority under the Arbitration Agreement to establish the conduct of a hearing, including its date, form, content, procedure, time-limits and geographical place. As to form, a hearing may take place by video or telephone conference or in person (or a combination of all three). As to content, the Arbitral Tribunal may require the parties to address a list of specific questions or issues arising from the parties' dispute.
(3) The Arbitral Tribunal shall give to the parties reasonable notice in writing of any hearing.
(4) All hearings shall be held in private, unless the parties agree otherwise in writing."
"(1) It is sufficiently arguable that the third defendant (the Arbitrator) despite purporting to proceed to an award pursuant to Section 41(7)(c) of the 1996 Act did not do so but instead continued the substantive conduct of the arbitration by asking for further and final written submissions.
(2) It is further arguable that in so doing the Arbitrator should have had regard to Article 19.1 of the LCIA Rules which gave the parties a right to an oral hearing.
(3) Although the claimant has not specifically identified the substantial injustice he says resulted, it is implicit in his application and argument that he contends that, had he had the opportunity to address the Arbitrator at a hearing, he might have persuaded her not to make the findings of which he complains."
"If a party fails to comply with any other kind of peremptory order [i.e. any kind other than the kinds of order specifically dealt with in earlier subsections], then, without prejudice to section 42 (enforcement by court of tribunal's peremptory orders), the tribunal may do any of the following:
a) direct that the party in default shall not be entitled to rely upon any allegation or material which was the subject matter of the order;
b) draw such adverse inferences from the act of non-compliance as the circumstances justify;
c) proceed to an award on the basis of such materials as have been properly provided to it;
d) make such order as it thinks fit as to the payment of costs of the arbitration incurred in consequence of the non-compliance."
"I am now proposing to proceed under section 41(7) of the Arbitration Act sub-section (c). Under section 41(7)(c) I may proceed to an award on the basis of such materials as have been properly provided to me. I propose therefore that each party may give further written submissions and I will then conduct the arbitration on a documents only basis. Where any matters in the material are unclear to me, I would propose to apply section 22.1 of the LCIA Rules 'Additional Powers'. Under section 22.1 of the LCIA Rules I may upon my own initiative after giving the parties a reasonable opportunity to state their views, decide to … (3) conduct such enquiries as may appear to the Arbitral Tribunal to be necessary or expedient and (5), order any party to make any documents under its control available for inspection. May I have any representations you may have on this proposal/timescale for written submissions by 4.00pm Thursday 6 July 2017."
"Section 41(7) does not give me the power to make an award against a defaulting party dismissing his claim, and [T's] defence/representations will be carefully considered. Section 41(7)(c) empowers me to continue the arbitration on the basis of the documents before me. However, I have explained in my e-mail of 2 July 2017, where anything is unclear I will give the parties additional opportunities to state their views after the 'final' written submissions".
"I have not ruled out a hearing. I draw your attention to clauses 19.2 and 19.3 of the LCIA Rules 2014".
"I am certain that there will be the need for further clarification and perhaps more detailed submissions and a hearing as I have requested".
"(1) The parties are free to agree on the powers of the tribunal in case of a party's failure to do something necessary for the proper and expeditious conduct of the arbitration".
"(2) Unless otherwise agreed by the parties, the following provisions apply".