- Successful serious irregularity challenge for tribunal breaches of general duty in commodities arbitration (PRO v DONPRO)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Arbitration analysis: Mr Justice Bryan in the Commercial Court decided that, in reaching its decision in a Federation of Cocoa Commerce (FCC) Arbitration and Appeal Rules appeal award, the FCC Board of Appeal (Board), inter alia, relied on matters that had not been ‘in play’ before them, which amounted to serious irregularity in breach of sections 68(2)(a) and 33 of the Arbitration Act 1996 (AA 1996) causing substantial injustice to the claimant. In particular, the Board did not give the parties the opportunity to make submissions on (i) whether PBO (respondent and counter-claimant in the arbitration; claimant before the English court) had demonstrated an intention not to perform certain contracts, and whether CODON (a party joined to the arbitration; the third defendant before the English court) was therefore entitled to cancel them; and (ii) the jurisdiction of the Board in relation to certain additional claims. Further, they refused to allow an amendment to a statement of case that contained submissions that would substantially alter the position of the parties. In particular, the amended statement of case challenged the claim on the basis of (i) the time limit for bringing the claim; and (ii) the assignment of certain debts to the claimant. It should be noted that the appeal proceedings were determined by the Board on the papers and without an oral hearing. Written by Andrew Rigden Green, partner, Head of International Arbitration, Greater China at Stephenson Harwood.
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