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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Athletic Union Of Constantinople v National Basketball Association & Ors  EWCA Civ 830 (28 May 2002)
Cite as:  WLR 2863,  EWCA Civ 830,  2 All ER (Comm) 385,  1 WLR 2863,  3 All ER 897
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (COMMERCIAL COURT)
DEPUTY JUDGE MR RICHARD FIELD QC
London WC2A 2LL
Tuesday 28 May 2002
B e f o r e :
LORD JUSTICE ROBERT WALKER
LORD JUSTICE CLARKE
|ATHLETIC UNION OF CONSTANTINOPLE|
|- v -|
|1. THE NATIONAL BASKETBALL ASSOCIATION|
|2. PHOENIX SUNS|
|3. FEDERATION INTERNATIONALE DE BASKETBALL e.V|
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)
appeared on behalf of the Applicants/First and Second Respondents
MR MURRAY SHANKS (Instructed by Farrer & Co, London, WC2A 3LH)
appeared on behalf of the Applicants/Third Respondent
The Respondents did not attend and were not represented.
Crown Copyright ©
LORD PHILLIPS, MR:
(1) an order pursuant to section 67 of the Arbitration Act 1996 ("the Act") setting aside the award, or declaring it of no effect, on the ground that the arbitrator had no jurisdiction; and in the event of the first application not succeeding-
(2) permission to appeal against the award on a point of law pursuant to section 69 of the Act.
The Statutory Provisions
"67. Challenging the award: substantive jurisdiction
(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court-
(a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or
(b) for an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because the tribunal did not have substantive jurisdiction.
A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3).
(2) The arbitral tribunal may continue the arbitral proceedings and make a further award while an application to the court under this section is pending in relation to an award as to jurisdiction.
(3) On an application under this section challenging an award of the arbitral tribunal as to its substantive jurisdiction, the court may by order-
(a) confirm the award
(b) vary the award, or
(c) set aside the award in whole or in part.
(4) The leave of the court is required for any appeal from a decision of the court under this section.
68. Challenging the award: serious irregularity
(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award.
(3) If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award, the court may -
(a) remit the award to the tribunal, in whole or in part, for reconsideration,
(b) set the award aside in whole or in part, or
(c) declare the award to be of no effect, in whole or in part.
The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.
(4) The leave of the court is required for any appeal from a decision of the court under this section.
69. Appeal on point of law
(1) Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings.
An agreement to dispense with reasons for the tribunal's award shall be considered an agreement to exclude the court's jurisdiction under this section.
(2) An appeal shall not be brought under this section except -
(a) with the agreement of all the other parties to the proceedings, or
(b) with the leave of the court.
The right to appeal is also subject to the restrictions in section 70(2) and (3).
(3) Leave to appeal shall be given only if the court is satisfied -
(a) that the determination of the question will substantially affect the rights of one or more of the parties,
(b) that the question is one which the tribunal was asked to determine,
(c) that, on the basis of the findings of fact in the award -
(i) the decision of the tribunal on the question is obviously wrong, or
(ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and
(d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question.
(4) An application for leave to appeal under this section shall identify the question of law to be determined and state the grounds on which it is alleged that leave to appeal should be granted.
(5) The court shall determine an application for leave to appeal under this section without a hearing unless it appears to the court that a hearing is required.
(6) The leave of the court is required for any appeal from a decision of the court under this section to grant or refuse leave to appeal.
(7) On an appeal under this section the court may by order-
(a) confirm the award,
(b) vary the award,
(c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the court's determination, or
(d) set aside the award in whole or in part.
The court shall not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.
(8) The decision of the court on an appeal under this section shall be treated as a judgment of the court for the purposes of a further appeal.
But no such appeal lies without the leave of the court which shall not be given unless the court considers that the question is one of general importance or is one which for some other special reason should be considered by the Court of Appeal." (My emphasis)
Section 105 of the Act provides, insofar as material, the meaning of "the court",
"(1) In this Act 'the court' means the High Court or a county court, subject to the following provisions.
(2) The Lord Chancellor may by order make provision -
(a) allocating proceedings under this Act to the High Court or to county courts; or
(b) specifying proceedings under this Act which may be commenced or taken only in the High Court or in a county court."
(1) The natural construction of the subsection accords to the word "court" the same meaning on each occasion that it is used. On the second occasion that it is used, it manifestly, indeed expressly, means the court which has given the decision under section 67.
(2) It is natural, and in accordance with the established approach to statutory construction, to give the words "the court" the same meaning wherever they appear in sections 67, 68 and 69 unless the context otherwise requires. The context does not otherwise require; on the contrary, it usually requires that "the court" mean the Commercial Court in the present context and universally strongly suggests that "the court" carry that meaning.
(3) Section 105(1) requires that "the court" mean the Commercial Court in the present context.
(4) Sections 67, 68 and 69 demonstrate a consistent legislative policy that no appeal shall be made against the decision of a court without the permission of that court. In this respect, there is no logical reason for distinguishing between the effects of sections 67(4) and 68(4) on the one hand, and the effect of section 69(8) on the other hand.
(5) In reserved judgments, this court has recently unanimously held that, on the true construction of section 69(8), a party who wishes to appeal from the decision of the High Court or the county court on appeal from an arbitration award requires the permission of the High Court or the county court, as the case may be, and that the Court of Appeal has no jurisdiction either to grant permission itself or to review a refusal of the High Court or county court to grant permission: (see Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd  1 QB 308). Much of the reasoning of Waller LJ, who gave the leading judgment in that case, can be applied to section 67(4).
"Your application has been referred to the Deputy Master of Civil Appeals who has asked that I convey his direction to you in this letter.
Please advise this Court whether the effect of the decision in Henry Boot Construction (UK) Ltd v Malmaison Hotel Ltd (which was decided in May 2000) does not preclude you from seeking permission to appeal (?)from the Court of Appeal. Additionally, please separately address the issue of what jurisdiction this Court has to grant permission."
To this letter Thomas Eggar replied on 9 October 2001, in so far as material:
"In response to the queries raised by the Deputy Master of Civil Appeals we have discussed this matter with our counsel.
Looking at the report of Henry Boot Construction v Malmaison Hotel in the Queen's Bench Reports 2001 at page 338 and following, it seems that the case revolved around a S69 application that had been made, and from which decision an appeal was attempted. In this case AEK did make both a S69 and a S67 application to the High Court, but only sought from the judge leave to appeal on the S67 point, and only makes application to the Court of Appeal for leave to appeal on the S67 point. The wording of S69 and S67 is different, for understandable reasons. S69 goes to the 'merits' decision of the arbitrator or arbitral tribunal, whereas S67 in essence goes to the issue as to whether there was a valid arbitration. There is no equivalent of S69(8) in S67. Thus, there is no similar bar as existed in the Henry Boot case."
Order: Application granted. Costs of First and Second Respondents summarily assessed in the sum of £15,528.49 plus VAT. No costs awarded to Third Respondents.