Athletic Union of Constantinople v National Basketball Association
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROBERT WALKER,LORD JUSTICE CLARKE |
| Judgment Date | 28 May 2002 |
| Neutral Citation | [2002] EWCA Civ 830 |
| Docket Number | A3/201/2084/A 2084/B |
| Court | Court of Appeal (Civil Division) |
| Date | 28 May 2002 |
[2002] EWCA Civ 830
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (COMMERCIAL COURT) DEPUTY JUDGE MR RICHARD FIELD QC
The Master of the Rolls
(Lord Phillips)
Lord Justice Robert Walker
Lord Justice Clarke
A3/201/2084/A 2084/B
MR RICHARD SPEARMAN QC (Instructed by Messrs Theodore Goddard & Co, London) 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.
LORD PHILLIPS, MR:
Introduction
The three applicants, The National Basketball Association ("NBA"), Phoenix Suns ("Phoenix") and Federation International de Basketball eV ("FIBA"), are respondents to an appeal, which the Athletic Union of Constantinople ("AEK") has obtained permission to bring against a judgment of Mr Richard Field QC, sitting in the Commercial Court as a Deputy Judge of the Queen's Bench Division delivered on the 7 August, [2002] Lloyd's Rep Vol 1 305. Permission to appeal was granted by Rix LJ on 22 November 2001 in response to a paper application.
The applicants apply to strike out AEK's appellant's notice and to set aside the grant of permission to appeal. They do so pursuant to CPR 52.9, which gives the court powers to take such action where permission to appeal has been given in the absence of the respondents, but provides that the court will only exercise those powers in exceptional circumstances.
The first ground advanced by the applicants undoubtedly constitutes exceptional circumstances. It is that this court has no jurisdiction to hear the appeal that Rix LJ has given permission to bring. I propose to consider that ground first. AEK are not represented at this hearing. On 22 May 2002 Master Venne ordered that Messrs Thomas Eggar Church Adams be removed from the record as acting on their behalf.
Background
On 2 October 2000 Mr Ian Patrick Travers handed down what purported to be an arbitral award in relation to an arbitration between NBA and Phoenix on the one hand and AEK on the other. The arbitration was initiated under an agreement in writing dated 14 March 1997 between NBA and FIBA. NBA is the American Association of Professional Basketball Players and FIBA is the international association. The agreement provided an umbrella under which clubs' members of either association could take part in arbitrations to resolve disputes as to the employment of professional basketball players and, no doubt, other matters.
The agreement made provision that FIBA and NBA could take part in the arbitrations and would be bound by the consequences, but on this occasion FIBA did not choose to take part in the arbitration. When the matter came before the Commercial Court, in the circumstances which I shall describe, they intervened, as being interested in upholding the award made by Mr Travers. They have appeared before us on the same basis.
The subject matter of the arbitration related to the services of a professional basketball player called Mr Tsakelidis. Phoenix wished to engage him to play for them, but AEK contended that he was already contracted to them. As I understand it, the issue was whether this contention was well founded.
The details of the dispute are not material. I should record, however, that, while AEK took part in the arbitration proceedings, they challenged the jurisdiction of Mr Travers. Mr Travers ruled that he had substantive jurisdiction over AEK and he proceeded to make an award in favour of Phoenix and NBA. AEK then applied to the Commercial Court seeking the following relief:
(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 Deputy Judge dismissed the first application and refused permission to appeal to the Court of Appeal against his decision. He also refused permission to appeal to the Commercial Court on a point of law under section 69.
The Issue
AEK have not sought to challenge the refusal of leave under section 69. Their application for permission to appeal is only in relation to the Deputy Judge's decision under section 67. The applicants contend that no appeal lay either against the section 67 decision or against the section 69 decision. They submit that the provision of each section required permission to be given by the Deputy Judge as a precondition to any right to appeal to the Court of Appeal.
The Statutory Provisions
Sections 67, 68 and 69 of the Act make provision for different circumstances in which an award can be challenged before the court. The relevant provisions of each section are as follows:
"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...
To continue reading
Request your trial
-
Edith Jane King V. Procurator Fiscal, Dunoon
...Firstly, under reference to Sweet v Parsley [1970] AC 132, R v K (Age of Consent: Reasonable Belief) [2001] UKHL 41, [2002] 1 AC 462, [2002] 3 All ER 897, [2002] 1 Cr App R 13, H v Griffiths [2009] HCJAC 15, 2009 SCCR 312 and Gordon, The Criminal Law of Scotland, 3rd Edition, Vol. 1, at par......
-
CGU International Insurance Plc v AstraZeneca Insurance Company Ltd
...Ltd v. Malmaison Hotel (Manchester) Ltd [2001] QB 388 and Athletic Union of Constantinople v. National Basketball Association (No 2) [2002] EWCA Civ 830, [2002] 1 WLR 2863. 5 In this case we are concerned with section 69(8) which deals with the situation where what is in consideration is a......
-
The Czech Republic v Diag Human SE
...to “the court” is a reference to the first instance court which determines the challenge to the award ( Athletic Union of Constantinople v National Basketball Association (No. 2) [2002] EWCA Civ 830, [2002] 1 WLR 2863; NIOC v Crescent at [37]). Section 105 provides that “the court” in rel......
-
Sumukan Ltd v Commonwealth Secretariat
...Section 69 was so held by the Court of Appeal in Henry Boot Construction v Malmaison Hotel [2001] QB 388. In Athletic Union of Constantinople v National Basketball Association [2002] 1 WLR 2863 the Court of Appeal followed the Henry Boot decision and held that wherever the expression “the C......