Braes of Doune Wind Farm (Scotland) Ltd v Alfred McAlpine Business Services Ltd
| Jurisdiction | England & Wales |
| Judge | Mr. Justice AKENHEAD |
| Judgment Date | 13 March 2008 |
| Neutral Citation | [2008] EWHC 426 (TCC) |
| Docket Number | Case No: HT 08 07 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 13 March 2008 |
[2008] EWHC 426 (TCC)
IN THE HIGH COURT OF JUSTICE
TECHNOLOGY AND CONSTRUCTION COURT
QUEEN'S BENCH DIVISION
Mr Justice Akenhead
Case No: HT 08 07
David Sears QC and Serena Cheng (instructed by Shepherd and Wedderburn) for the Claimant
Andrew Bartlett QC (instructed by Dundas & Wilson LLP) for the Defendant
Hearing dates: 13 February 2008
Introduction
There are two applications before the Court relating to the First Award of an arbitrator, Mr John Uff CBE QC. This award relates to an EPC (Engineering, Procurement and Construction) Contract dated 4 November 2005 (“the EPC Contract”) between the Claimant (“the Employer”) and the Defendant (“the Contractor”) whereby the Contractor undertook to carry out works in connection with the provision of 36 wind turbine generators (the “WTGs”) at a site some 18 kilometres from Stirling in Scotland. This award deals with the enforceability of the clauses of the EPC Contract which provided for liquidated damages for delay.
The Claimant applies for leave to appeal against this award upon a question of law whilst the Defendant seeks in effect a declaration that this Court has no jurisdiction to entertain such an application and for leave to enforce the award.
I will deal first with the issue of jurisdiction.
Jurisdiction
The issue here arises out of the application of Section 2 of the Arbitration Act 1996:
“(1) The provisions of this Part apply where the seat of the arbitration is in England and Wales or Northern Ireland”.
The seat of the arbitration is identified in Section 3 as being the “juridical seat” of the arbitration “designated by the parties to the arbitration agreement”. If the juridical seat of the arbitration was in Scotland, the English Courts have no jurisdiction to entertain an application for leave to appeal. The Contractor argues that the seat of the arbitration was Scotland whilst the Employer argues that it was England.
There were to be two contractors involved with the project. Whilst Vestas-Celtic Wind Technology Limited was to design, supply, construct and install the 36 WTGs themselves, the Contractor was to design and carry out the bulk of the remaining works such as the foundations for the WTGs, other civil and building works, electrical works connecting the WTGs to the switch room and other connection works. There was an “Interface Agreement” between the Contractor, the Employer and the Wind Turbine Contractor.
The material clauses of the EPC Contract were:
“1.4.1. The Contract shall be governed by and construed in accordance with the laws of England and Wales and, subject to Clause 20.2 [Dispute Resolution], the Parties agree that the courts of England and Wales have exclusive jurisdiction to settle any dispute arising out of or in connection with the Contract.
2. (a) …any dispute or difference between the Parties to this Agreement arising out of or in connection with this Agreement shall be referred to arbitration.
(b) Any reference to arbitration shall be to a single arbitrator…and conducted in accordance with the Construction Industry Model Arbitration Rules February 1998 Edition, subject to this Clause ( Arbitration Procedure)…
(c) This arbitration agreement is subject to English Law and the seat of the arbitration shall be Glasgow, Scotland. Any such reference to arbitration shall be deemed to be a reference to arbitration within the meaning of the Arbitration Act 1996 or any statutory re-enactment.”
The Arbitration Rules, known colloquially as the “CIMAR Rules” provided as follows:
“1.1 These Rules are to be read consistently with the Arbitration Act 1996 (the Act), with common expressions having the same meaning. Appendix 1 contains definitions of terms. Section numbers given in these Rules are references to the Act.
The objective of the Rules is to provide for the fair, impartial, speedy, cost-effective and binding resolution of construction disputes, with each party having a reasonable opportunity to put his case and deal with that of his opponent. The parties and the arbitrator are to do all things necessary to achieve this objective: see Sections 1 (General Principles), 33 (General duty of the tribunal) and 40 (General duty of parties).
The arbitrator has all the powers and is subject to all the duties under the Act except where expressly modified by the Rules.
Sections of the Act which need to be read with the Rules are printed in the text. Other Sections referred to in the text are printed in Appendix II.
These rules apply where:
(a) a single arbitrator is to be appointed, and
(b) the seat of the arbitration is in England and Wales or Northern Ireland.
These rules do not exclude the powers of the Court in respect of arbitral proceedings, nor any agreement between the parties concerning those powers.
The arbitrator has the power set out in Section 30
The arbitrator has the powers set out in Section 37…
The arbitrator has the powers set out in Section 38(4) to (6)…”
In Appendix I the “Act” was defined to mean the Arbitration Act 1996.
One must seek to construe the EPC Contract having regard to all its material terms. It is only if there is some irreconcilable ambiguity that one will have to have regard to other principles.
I do bear in mind that, in the absence of clear wording, the parties are unlikely to have wished to exclude this or the Scottish Courts' powers of control and intervention. I was told by the parties in argument that the Scottish Courts' powers of control and intervention would be, at the very least, seriously circumscribed by the parties' agreement in terms as set out in Paragraph 6 above. Mr Bartlett QC indicated to me that the Scottish Courts' powers of intervention might well be limited to cases involving such extreme circumstances as the dishonest procurement of an award.
It is of course always possible for parties to a wholly English arbitration to exclude the right of appeal from an arbitrator's award on questions of law. There are however mandatory provisions of Part 1 of the Arbitration Act (set out in Schedule 1 to the Act) which one can not exclude such as challenges to an award on the grounds of lack of jurisdiction and serious irregularity (Sections 67 and 68). It would be odd, at least, if the parties had consciously agreed that no court should have the right of intervention if for instance there was a material serious irregularity, falling short of any criminal behaviour.
There are a number of different laws which can at least potentially relate to an arbitration:
(a) There is the substantive or proper law of the contract which governs the law by which the parties' substantive rights are to be determined.
(b) There is the law to which the parties have agreed that the arbitration agreement is to be subject.
(c) The curial law relates to the place in which the arbitration is held.
(d) There may be a yet further law which covers the reference to arbitration itself.
Of course, all these applicable laws may be the same as or different to each other.
Lord Justice Kerr in Naviera Amazonica Peruana SA v Compania Internacionale De Seguros Del Peru [1988] 1 Lloyds Rep 116 said this at page 119:
“B.English law does not recognise the concept of a “delocalised” arbitration… or of “arbitral procedures in the transnational firmament unconnected with any municipal system of law” ( Bank Mellat v Helleniki Techniki SA [1984] QB 291 at p. 301 (Court of Appeal). Accordingly, every arbitration must have a “seat” or locus arbitri or forum which subjects its procedural rules to the municipal law there in force…
C…Where the parties have failed to choose the law governing the arbitration proceedings, those proceedings must be considered, at any rate prima facie, as being governed by the law of the country in which the arbitration is held, on the ground that it is the country most closely connected with the proceedings…
See Dicey & Morris…and the references to the approval of this classic statement by the House of Lords in Whitworth Street Estates v James Miller…Or, to quote the words of Mr. Justice Mustill in the Black Clawson case…at p. 453 where he characterised law (3) as “the law of the place where the reference is conducted: the lex fori”. Although Mr. Milligan contested this, I cannot see any reason for doubting that the converse is equally true. Prima facie, i.e. in the absence of some express and clear provision to the contrary, it must follow that an agreement that the curial or procedural law of an arbitration is to be the law of X has the consequence that X is also to be the “seat” of the arbitration. The lex fori is then the law of X, and accordingly X is the agreed forum of the arbitration. A further consequence is then that the courts which are competent to control or assist the arbitration are the Courts exercising jurisdiction at X…
E. There is equally no reason in theory which precludes parties to agree that an arbitration shall be held at a place or in country X but subject to the procedural laws of Y…
F. Finally…it seems clear that the submissions advanced below confused the legal “seat” etc. of an arbitration with the geographically convenient place or places for holding hearings…”
It is not uncommon at least in this current century and some considerable time before for the parties to agree that arbitrations can be physically conducted in one country but be subject to the procedural control of the laws of another country. However, cases such as in Naviera Amazonica reveal the English courts' reluctance to accept that the parties can agree to a binding or enforceable arbitration taking place in a procedural limbo and not...
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