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MARINE | ARBITRATION In association with Quadrant Chambers
Second bites at s.69(3): Around the course again Simon Rainey, QC Quadrant Chambers, welcomes a recent robust rejection of an attempt to re-open cases under the Arbitration Act 1996 which would have rendered the s.69 process more time-consuming and costly thus defeating the original aim of the act The English statutory regime for appeals against arbitration awards on questions of law under s.69 of the Arbitration Act 1996, as is well known, applies a two stage process: (i) the application of permission to appeal and, (ii), if permission is granted the appeal itself. Section 69(3) sets out the matters on which the court is required to be satisfied as pre-conditions for granting permission to appeal. Where a party unsuccessfully resists permission on the basis that some or all of the requirements are not met, can it nevertheless reargue the point or points all over again on the appeal proper? And where one of those matters is: was the question of law “one which the tribunal was asked to determine” (section 69(3)(b)), is the position different? How does the Court identify “the question” when granting permission? The Commercial Court gave important guidance on these issues in CVLC Three Carrier Corp v Arab Maritime Petroleum Transport Company [2021] EWHC 551 (Comm), in allowing an appeal under section 69 on an important guarantee issue.
HIGHLY UNUSUAL The welcome (and very firmly expressed) answer from the Court is that there must “highly unusual” circumstances before it will ever be permissible to ask the Court to revisit the The Marine Insurer Americas Edition | June 2021
component parts of the section 69(3) decision giving permission to appeal. That goes for the identification of the question of law (69(3)(b)), as much as for any other component.
HOW THE ISSUE AROSE The claimant CVLC sought permission to appeal against an arbitration award on a question of law arising from the award. The defendant AMPTC opposed permission on various grounds including a submission that the tribunal had not been asked to decide the relevant question and therefore that the threshold requirements of s.69(3)(b) of the Arbitration Act were not met. The issue as to the question of law came up in the context of an urgent application by AMPTC, as guarantor, for a declaration to prevent CVLC from maintaining an arrest of AMPTC’s vessel in support of a claim by CVLC for breach of the guarantee. AMPTC argued that it was an implied term of the guarantee that beyond the issuance of the guarantee itself, CVLC impliedly promised that it would seek no other security in any circumstances. The arbitrator found that there was a term as alleged. AMPTC had sought to bolster the term by relying (a) on the wording of the guarantee and (b) various factual matters. The arbitrator declined to make
