Union Marine Classification Services v Government of the Union of Comoros
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Tomlinson |
| Judgment Date | 12 February 2016 |
| Neutral Citation | [2016] EWCA Civ 239 |
| Date | 12 February 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A3/2015/0899 |
[2016] EWCA Civ 239
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE EDER)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Moore-Bick
Lord Justice Tomlinson
A3/2015/0899
Mr B Dye & Mr L Jacobson (instructed by Zaiwalla & Co LLP) appeared on behalf of the Applicant
Mr R Jacobs QC & Mr J Robb (instructed by Clyde & Co LLP) appeared on behalf of the Respondent
(Approved by the court)
This is a renewed application for permission to appeal following refusal on paper by the single Lord Justice.
The dispute between the parties arises out of the termination by the Government of the Union of Comoros of an agreement which it had entered into with Union Marine Classification Services in February 2007 for, among other things, the creation and administration of an open registry for sea-going vessels. It was a term of the agreement that Union Marine would pay the government 50 per cent of the fees charged on each vessel entered on the register, with a guaranteed minimum of $11,000 a month.
On 17 April 2012, the government terminated the agreement on the grounds that Union Marine had repudiated it. Various breaches were relied on, but the only one which is relevant for present purposes is an alleged failure to pay substantial sums which were said to have become due under it, and which were said to have been paid to other persons or government departments fraudulently and by way of bribes. Union Marine maintain that the termination was wrongful and itself constituted a repudiation of the agreement by the government.
In due course, the dispute was referred to arbitration and on 22 July 2014, the arbitrator published an award in which he held that the government had not been entitled to terminate the agreement and had itself repudiated it. Following publication of that award, both parties applied to the arbitrator to have corrections made. In particular, the government asked the arbitrator to deal with a matter which it said he had failed to determine, namely, a claim to recover a shortfall in payments said to have fallen due before the termination of the agreement, and in that connection for relief by way of an account.
As a result, on 31 August 2014, the arbitrator published what he described as a "Correction and Addition to the Award dated 22 July 2014", in which he held that the government was entitled to an account of the fees charged on vessels entered on the register before the date of termination and of the payments made by Union Marine, and damages in respect of any shortfall in the amount of payments that had been made. In his reasons, the arbitrator frankly admitted that he had overlooked the government's claim for sums due under the agreement which remained outstanding at the date of termination. In publishing his second award, he said that he was doing so under the provisions of section 57 of the Arbitration Act 1996 or paragraph 25 of the LMAA terms, each of which gives the arbitrator power to correct his award.
Union Marine decided to challenge the second award, and on 26 September 2014 it issued an arbitration claim form under section 67 of the Arbitration Act, seeking to have the second award set aside on the grounds that the arbitrator had had no substantive jurisdiction to make it. The central point in issue was whether the arbitrator had become functus officio on the publication of his first award because he had finally dealt with all the matters that had been referred to him. Union Marine said that he had, and that in publishing his second award he had acted without jurisdiction. The government said that he had not and that he was entitled to exercise the jurisdiction given by section 57(3) of the Arbitration Act to make an additional award in respect of any claim that had been presented to him that had not been dealt with in the first award.
The application was heard by Eder J on 25 February 2015. At that hearing, the government argued that the application must fail in any event because section 67 was concerned with the existence of substantive jurisdiction as defined in sections 82(1) and 30(1) of the Arbitration Act 1996. In section 30(1), "substantive jurisdiction" is defined in such a way that it concerns only the questions whether there is a valid arbitration agreement, whether the tribunal is properly constituted, and what matters have been submitted to arbitration in accordance with the agreement. The expression is not, so it was submitted, apt to include acts in excess of jurisdiction on the part of an arbitrator who has been validly appointed.
Eder J accepted that argument and held that a complaint of the kind being made by Union Marine did not fall within the scope of section 67. He dismissed the application on that ground alone. He also refused an application by Union Marine for an extension of time in which to make an alternative application under section 68 of the Act to set aside the award on the ground that the arbitrator had exceeded his powers otherwise than by exceeding his...
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Union Marine Classification Services LLC v The Government of the Union of Comoros and Another
...claim in respect of the Correction, it would have failed. 12 On 12 February 2016, the Court of Appeal ( Moore-Bick and Tomlinson LJJ – [2016] EWCA Civ 239) upheld the decision of Eder J when it refused Union Marine permission to appeal. In paragraph 19 of the judgment of Moore-Bick LJ he s......
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Information Commissioner v Malnick and the Advisory Committee on Business Appointments: [2018] UKUT 72 (AAC): [2018] AACR 29
...in aid of her argument the Court of Appeal’s ruling in Union Marine Classification Services v Government of the Union of Comoros [2016] EWCA Civ 239; [2016] 2 Lloyd’s Rep 193. That case is undoubtedly authority for the proposition that an arbitrator is not functus officio where he had not d......