Noble Denton Middle East Ltd v Noble Denton International Ltd
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BURTON |
| Judgment Date | 07 May 2010 |
| Neutral Citation | [2010] EWHC 2574 (Comm) |
| Docket Number | Case No: 2010 Folio 54 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 07 May 2010 |
[2010] EWHC 2574 (Comm)
Before: Mr Justice Burton
Case No: 2010 Folio 54
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Mr D Kendrick QC And Mr J Khurshid Appeared On Behalf Of The Claimant
Mr M Templeman QC And Mr A Constable Appeared On Behalf Of The Defendant
This has come on before me today by way of an application to set aside my order for the service of an arbitration claim form on the applicant/Defendant's solicitors, rather than making an order for service out of the jurisdiction. That aspect has been corrected by the subsequent obtaining from Steel J ex parte of an order for service out, which I would have granted had I been asked for that. But the costs of setting aside my order and as of now recognising the validity of Steel J's order should be paid by the Claimants, who thereby wasted the costs of the necessary corrective action.
Apart from that aspect, the substantive application before me has been an application by the Defendant to the claim form, based upon its case that there is no arbitration clause or arbitration agreement as between it and the Claimants, and that there is pending in the United States a claim by it and other parties against the Claimants (and other parties) in respect of the matters which the Claimants seek to have arbitrated, namely events in Dubai.
The issue between the Claimants and the Defendant both in the United States and here has become the same, namely that the Claimants assert that there is an arbitration clause and an arbitration agreement and the Defendant asserts that there is not. This is because the Defendant's claim is that the relevant contractual relations relating to the work done in Dubai are based upon a 2003 agreement between different parties, but which they say binds all subsequent transactions between associated members of the relevant two groups, while the Claimants assert that the work done was done under an acknowledgment of order containing conditions which contained an arbitration clause.
The Defendant accepts that there is a good arguable case that there exists an arbitration clause, while the Claimants accept that their case is only arguable and at least at this stage not capable of being disposed of summarily, even if it was appropriate to do so.
The issue before me has been twofold. One, whether, in an application under s18 of the Arbitration Act for appointment of a sole arbitrator in default of agreement, the issue to be resolved is whether there is an arbitration agreement, or simply whether there is a simply a good arguable case for an arbitration agreement. Secondly, what the impact is of the lis alibi pendens, the case going forward in the United States of America which is pending; and, indeed, in relation to which the learned judge has only very recently made an order and a judgment in the southern district of Texas, Houston Division which I have read.
I am entirely satisfied that the authorities make it plain that s18 is simply what might be categorised as a gateway. It is the way in which an arbitrator is appointed and s17 of the Act applies in different circumstances, but to the same effect.
I have been referred to the learned authors of the books on arbitration, both Mustill & Boyd and Arbitration Law by Professor Merkin, and to the Departmental Advisory Committee on Arbitration law. I have looked at and gained considerable assistance from two authorities, in particular the decision of Thomas J in Vale do Rio v Shanghai Bao Steel [2000] 2 Lloyd's Law Rep 1 and The Lapad, a decision of Moore-Bick J [2004] 2 Lloyd's Law Rep at 109. I have also been reminded of s1 of the Arbitration Act and, of course, of s30 of that Act.
It is quite plain that the primary purpose of the statutory regime for arbitration, fulfilling the well understood international approach to arbitration, is that a decision to arbitrate reflects what is often called the “autonomy of the parties” and should only very exceptionally be overridden by the courts....
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