- Retrospective nullity of contract did not affect jurisdiction and AA 1996, s 67 challenge out of time (Exportadora de Sal SA v Corretaje Maritimo)
- What are the practical implications of this decision?
- What was the background?
- What did the court decide?
- Case details
Arbitration analysis: Andrew Baker J in the Commercial Court dismissed a challenge to the jurisdiction of a sole arbitrator in an ad hoc shipbuilding arbitration brought under section 67 of the Arbitration Act 1996 (AA 1996). The application to set aside the award was based on a regulatory decision, made after the commencement of the arbitration, which was alleged to have deprived the Mexican state controlled respondent in the arbitration of the power to enter into the underlying contract in the first place. The contract was subject to English law and questions as to the discharge of the contract fell to be determined under English law. The court found that the Mexican law doctrine invoked, which recognised that a valid agreement had been concluded prior to the administrative act nullifying it, was not a doctrine concerning capacity to contract. The respondent’s AA 1996, s 67 challenge failed in any event, by operation of AA 1996, s 73(1), having been brought too late. The decision is also of interest to practitioners for the judge’s remarks about the use and contents of witness statements in support of applications under AA 1996.
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