“The Parties shall use all reasonable efforts to settle amicably within 60 days, through negotiations, any dispute arising out of or in connection with this Contract or the breach, termination or invalidity thereof. Any dispute, controversy or claim arising out of or relating to this Contract, or the breach, termination or validity or invalidity thereof shall be finally settled by arbitration before three arbitrators, in accordance with a ‘Procedures for Arbitration’ (attached hereto as Annex 2) which will survive the termination or suspension of this Contract. Any award of the arbitrators shall be final and binding upon the Parties. Either Party may seek execution of the award in any court having jurisdiction over the Party against whom execution is sought.”
“3. NIOC’s application under section 67 of the Act is made in summary on the following grounds: 3.1 The Tribunal did not have substantive jurisdiction (within the meaning in section 30(1)(c) of the Act) to determine the existence and/or amount of CGC’s alleged liability to CNGG under the separate CGC-CNGC GSA between CGC and CNGC which was subject to a different dispute resolution mechanism (arbitration in the UAE) and was governed by a different applicable law (UAE law). 3.2 Accordingly the Tribunal did not have substantive jurisdiction to award substantial damages against NIOC to compensate CGC for its alleged liability to CNGC.” 3.1 The Tribunal did not have substantive jurisdiction (within the meaning in section 30(1)(c) of the Act) to determine the existence and/or amount of CGC’s alleged liability to CNGG under the separate CGC-CNGC GSA between CGC and CNGC which was subject to a different dispute resolution mechanism (arbitration in the UAE) and was governed by a different applicable law (UAE law). 3.2 Accordingly the Tribunal did not have substantive jurisdiction to award substantial damages against NIOC to compensate CGC for its alleged liability to CNGC.”
“The provisions of this Part are founded on the following principles, and shall be construed accordingly – (a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense; (b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest; (c) in matters governed by this Part the court should not intervene except as provided by this Part.” (a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense; (b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest; (c) in matters governed by this Part the court should not intervene except as provided by this Part.”
“(1) The fundamental principle, or policy, is fairness, and justice, in the sense of openness and fair dealing between the parties … (2) There is also a concern to seek to avoid waste of time and expense … (3) The issue as to jurisdiction must normally have been raised at least on some grounds before the arbitrator … (4) In addition, each ground of challenge to jurisdiction or of objection to jurisdiction must have been raised if it is to be raised; by this is meant the irregularity that the party considers renders the whole or the relevant part of the arbitral process invalid … (5) It is wrong to be prescriptive or try to lay down precise limits in the abstract for the meaning of the phrase ‘ground of objection’, but it is usually easy to recognise (or obvious) in particular cases whether a party is attempting to raise a new ground of objection to jurisdiction on an appeal … (6) The ‘grounds of objection’ should not be examined closely as if a pleading, but broadly, or adopting a broad approach. The fact that different and broader arguments are raised or new evidence is put forward does not mean that there is a new ground … (7) This is not to suggest a relaxed approach, especially bearing in mind sub-para. (1) above. The substance of each ground of objection relied upon should have been communicated to the other party (and the arbitral tribunal). (8) It would be unfair if a party took part in arbitration yet kept an objection up his sleeve and only attempted to deploy it later … (9) It is not enough that the party mention an issue; the issue must be properly put to the arbitral tribunal as denying jurisdiction.”
“(1) That Iranian law looks to the words of the arbitration agreement itself. ‘This is because the words of the arbitration agreement are paramount in conveying the mutual intention and consent of the parties thereto to submit their disputes (as defined in the relevant arbitration agreement) to arbitration.’ (paragraph 22) ‘[A]n arbitration agreement, like any other contract, is only subject to interpretation under the relevant principles of applicable law where there is an ambiguity in the text of the agreement. If there is no ambiguity, the text is strictly interpreted.’ (paragraph 29) (2) That Iranian law applies a restrictive approach in interpreting the scope of arbitration provisions, whereby ‘there is a presumption that jurisdiction is only conferred on to arbitrators to resolve those specific claims, disputes or controversies that the parties have expressly agreed and articulated in the arbitration agreement to be within the competence of the arbitrators.’ (paragraph 23) (3) Iranian law does not recognise an equivalent of what may be called the Fiona Trust presumption that arbitration clauses are to be interpreted widely such that any dispute arising out of the relationship between the parties should be decided by the same tribunal and that distinctions in the wording of arbitration clauses should not normally result in significant differences in scope. (paragraph 32)”
“(1) As has been set out above, the question is whether there is a realistic prospect that the court, itself construing the words of the arbitration provision in the light of the relevant principles of construction, will hold that it did not extend to the claim in issue. (2) The words of the clause refer to arbitration ‘any dispute, controversy or claim arising out of or relating to this Contract, or the breach, termination or validity or invalidity thereof’. Without adopting any ‘pro-arbitration’ construction, or a ‘Fiona Trust’ presumption, and indeed taking a literalistic approach to them, the words used are wide. In particular the words ‘relating to’ are wide, and the category of disputes, controversies or claims which may at least ‘relate to’ [the contract] or to its breach is broad. (3) The proper interpretation of an arbitration clause must necessarily be considered ‘at the time that the … agreement is made’, and be ‘forward looking’. That is how it was put in BNP Paribas v Trattamento at [56]-[57]). There is no reason for considering that Iranian law, if it is relevant in this regard, is to any different effect, given that Dr Mokarrami states that the starting point of the enquiry as to the scope of the clause is the words used because they convey ‘the mutual intention and consent of the parties’. What is accordingly involved here is to ask whether the clause, in referring to arbitration all claims arising out of or relating to [the contract] or its breach, extended to a claim which might in the future be brought by one of the parties to [the contract] for damages which that party alleged that it had sustained by reason of its liability to a third party as a direct result of the other contracting party’s breach of contract. I do not consider that there is a realistic prospect of that question being answered in the negative.”
“… when the draftsman wished to limit the right of appeal he said so. In section after section in Part I, restrictions similar to the restriction in section 12(6) are set out expressly. In some sections, such as section 32, the restriction on appeals is even more tightly framed. This style of drafting points strongly to the conclusion that where a section is silent about an appeal from a decision of the court, no restriction was intended. …”
“9. … Here there is no doubt that Morison J had jurisdiction either to accede to the application or to refuse it. Whichever way the decision went, it was still a decision under section 68 of the Act and a refusal of permission to appeal was likewise a decision under the section. It cannot, therefore, be challenged by way of appeal even if the decision is wrong or, even, obviously wrong. The fact that waiver (or indeed estoppel) can be said to operate as a defence to a prima facie entitlement is, in our view, nothing to the point. A decision to refuse relief (for whatever reason) is still a decision under section 68 just as much as a decision to grant relief would have been if the decision had gone the other way.”
“15. … One must bear in mind that there are many sections in which the right to appeal to the Court of Appeal is circumscribed by the necessity to obtain leave from ‘the court’ at first instance. This was important to those drafting the 1996 Act. It was the intention of those drafting the 1996 Act to limit appeals to the Court of Appeal to avoid the delay and expense that such appeals can cause. Indeed the wording of the original Bill was altered to make the position absolutely clear [see paragraph 27 of the Supplement to the DAC Report]. Furthermore the philosophy is reflected in section 1(a) of the 1996 Act which provides that ‘the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay and expense.’ [our underlining]. …”
“30. Ultimately the following factors have persuaded us that the Court of Appeal does have jurisdiction. First, although there might be a temptation (in the interest of speed and saving expense) to construe any part of the language of the 1996 Act in a way that renders all decisions under the various sections where permission of the court is required as final, if the first instance court so rules, there is a distinction between those cases where the court is assisting or overseeing the arbitration process and the cases where the question is whether the jurisdiction of the court has been excluded. …”
“32. There are two points with which we should deal. First the distinction between a decision as to whether the restrictions in section 70(2) and (3) to which by virtue of section 69(2) the right to appeal under section 69 ‘is also subject’, and a decision as to whether the parties have ‘otherwise agreed’ under section 69(1), is a fine one. But the decisions which have to be taken as to whether 28 days has expired from the date of the award (section 70(3)) and in that context whether an extension of time should be granted under section 79, or whether the applicant has exhausted other avenues (section 70(2)) are procedural points not going to jurisdiction in the fundamental sense. For that reason, the wording of section 69(2) brings the questions that arise on section 70(2) and (3) within the compass of the process of deciding whether permission to appeal should be given, in the same way as subsections (2) of section 67 and 68 bring decisions on section 73 and section 70(2) and (3) within the compass of the decision making process under those sections. …”
“17. It is common ground that where s.18(5) of the 1996 Act applies, the reference to ‘the court’ means the court at first instance, so that if leave is refused by the Judge, the Court of Appeal cannot itself grant leave to appeal: Henry Boot Ltd v Malmaison Hotel Ltd[2001] QB 388 . The policy of thus restricting appeals, found in s.18 and a variety of other sections in the Act, is deliberate. It reflects the underlying general principles, as to party autonomy and protection of the parties from unnecessary delay and expense, enshrined in s.1(a) and s.1(b) of the Act … 18. To these ends, court intervention in the arbitral process is broadly restricted to that which is necessary either to support the arbitral process or in the public interest (for example, a challenge to an award on the ground of serious irregularity under s.68 of the 1996 Act). Curtailing appeals to the Court of Appeal serves to avoid the delay and expense to which such appeals can give rise: see Sumukan Ltd v Commonwealth Secretariat[2007] EWCA Civ 243 , [2007] Bus LR 1075, at [15]. 19. Accordingly, the question for us was whether s.18(5) applied, a question which in turn hinged on whether the decision of Andrew Smith J was a ‘decision ….under this section’ (i.e. s.18). 20. At first blush, it plainly was. As already recorded, the respondents’ application was for an order under s.18(3)(d); for its part, Itochu sought directions under s.18(3)(a). In the event, the order was made, in terms, under s.18(3)(d). If this first impression is well-founded, then it inevitably follows that we have no jurisdiction to entertain the appeal. …”
“28. Pulling the threads together: (1) For my part, I see no reason to depart from my initial view. The judge’s decision was, in form and in substance, a decision ‘under’ s.18, caught by the restriction on appeal provided by s.18(5). (2) No question of principle arose in relation to s.15. The sole question was whether, on its true construction, the arbitration clause came within s.15(3). Whatever view the judge took on that question, he had thereafter to take a decision under s.18(3). As already underlined, both parties invoked s.18(3). (3) It is impossible therefore for Itochu to gain support from Cetelem (supra). On any view, the judge had jurisdiction to make a decision under s.18(3). For essentially the same reasons, Sumukan (supra) likewise does not assist Itochu; all roads led to a decision on the merits under s.18(3). There was here no anterior or preliminary question which might preclude the court from taking a decision one way or the other under s.18(3). This was instead a decision by the High Court, supportive of the arbitral process and curing a failure of the appointment procedure. (4) As established by this court’s decision in ASM Shipping (supra), it is neither here nor there that in coming to his decision the judge based himself upon or had regard to s.15(3). The judge’s decision was made under s.18, even if his reasons (necessarily) encompassed s.15. It is the decision which is the key to the applicability of s.18(5). (5) Having regard to the policy of the Act (see above), there can be no justification for straining to avoid the operation of the restriction on appeals contained in s.18(5).” (1) For my part, I see no reason to depart from my initial view. The judge’s decision was, in form and in substance, a decision ‘under’ s.18, caught by the restriction on appeal provided by s.18(5). (2) No question of principle arose in relation to s.15. The sole question was whether, on its true construction, the arbitration clause came within s.15(3). Whatever view the judge took on that question, he had thereafter to take a decision under s.18(3). As already underlined, both parties invoked s.18(3). (3) It is impossible therefore for Itochu to gain support from Cetelem (supra). On any view, the judge had jurisdiction to make a decision under s.18(3). For essentially the same reasons, Sumukan (supra) likewise does not assist Itochu; all roads led to a decision on the merits under s.18(3). There was here no anterior or preliminary question which might preclude the court from taking a decision one way or the other under s.18(3). This was instead a decision by the High Court, supportive of the arbitral process and curing a failure of the appointment procedure. (4) As established by this court’s decision in ASM Shipping (supra), it is neither here nor there that in coming to his decision the judge based himself upon or had regard to s.15(3). The judge’s decision was made under s.18, even if his reasons (necessarily) encompassed s.15. It is the decision which is the key to the applicability of s.18(5). (5) Having regard to the policy of the Act (see above), there can be no justification for straining to avoid the operation of the restriction on appeals contained in s.18(5).”
“39. Citation of those cases provoked a debate between counsel and the court as to where the line was to be drawn between decisions which would be caught by the limitation on the right of appeal in the relevant section of the 1996 Act and decisions which would not. Lord Justice Males posited the example of a case management decision about how a section 68 application should be dealt with. As I said at the time, that would seem to be an example of something which is part of the process of reaching a decision under section 68, so would be caught by the limitation on the right of appeal. Sir Geoffrey Vos MR suggested to Lord Pannick that a consequential decision on a section 68 application, for example as to costs, would also be caught by the limitation. 40. Lord Pannick made it clear that he was not inviting this court to lay down any general principles applicable in every case, but only to determine that this court had jurisdiction to hear the appeal from the publication judgment. I agree that it is not necessary for present purposes to determine the more difficult question whether case management decisions either side of the substantive decision under, say, section 67 or 68, for example as to how a hearing is to be conducted or as to costs, would be caught by the limitation in sub-section (4) of each section. Whilst such case management decisions may be said to be part of the process of reaching the substantive decision, the question whether the substantive decision should be published is a distinct question separate from the decision itself. In the present case, the judge’s decision that the merits judgment and the publication judgment should be published was an application of common law principles as set out in the decision of this court in City of Moscow [Department of Economics, Policy & Development of the City of Moscow v Bankers Trust Co[2004] EWCA Civ 314 ,[2005] QB 207 ]. It was not a decision of the court under sections 24, 67 or 68 and was, therefore, not caught by the limitation on the right of appeal. In those circumstances, I am satisfied that this court has jurisdiction to hear this appeal undersection 16 of the Senior Courts Act 1981 and that the restriction in section 18(1)(g) of that Act is not applicable.”
“Thirdly, we have made any appeal from a decision of the court under this Clause subject to the leave of that court. It seems to us that there should be this limitation, and that in the absence of some important question of principle, leave should not generally be granted. We take the same view in respect of the other cases in the Bill where we propose that an appeal requires leave of the court.”
“The position is, we suggest, similar to that which does from time to time arise in practice, where in order to resolve a dispute between A and B an arbitrator has to decide an issue arising under a contract between B and C. There is nothing inarbitrable about such an issue, and the arbitrator commits no impropriety by deciding it, although his award will have no effect at all on C. Nor does he exceed his jurisdiction in doing so, for he is not purporting to act as arbitrator in relation to the contract between B and C, in relation to which he was not appointed, but instead he is deciding under the contract between A and B an issue which, albeit involving C, does properly arise under that contract.”
“62. I am unable to accept the claimants’ argument. As the tribunal observed: ‘there is nothing conceptually difficult about a court or tribunal making a determination that a debt is due under another contract in order to determine whether relief should be granted under the contract before it – this is frequently the case, for instance, under contracts of guarantee’. The tribunal needed to determine whether Burley was liable under the SHA in order to determine whether Unitech was liable under the keepwell agreement, and so they had both the jurisdiction and the duty to do so. It was a question that needed to be determined in order to resolve a ‘dispute arising out of or in connection with the provisions of [the] Keepwell Agreement’, that dispute was referred to it and the question was within the tribunal’s substantive jurisdiction.”
“45, Nothing I have said is intended to apply where the arbitration agreement is in a contract with third parties. The courts sometimes have to determine in a dispute between A and B what rights and obligations exist under a contract between C and D, or between C and A or B, and will do so irrespective of any arbitration agreement in that contract. Different considerations apply in such cases because of the lack of identity of parties.”
“16.1 First, the Iranian courts are assumed to have general default jurisdiction to determine disputes and claims between parties, whereas an arbitration tribunal has exceptional jurisdiction limited only to the specific matters agreed by the parties’ common intent to be referable for arbitration; and 16.2 Second, arbitration agreements are treated as personal in nature and cannot be assumed to extend to non-parties, for example so as to allow a tribunal to assume jurisdiction over matters involving a third party under a different contract, even where there may be some connection or relationship.”
“22. As regards interpreting the scope of the Arbitration Agreement, the starting point under Iranian law is the words of the arbitration agreement itself. This is because the words of the arbitration agreement are paramount in conveying the mutual intention and consent of the parties thereto to submit their disputes (as defined in the relevant arbitration agreement) to arbitration. 23. Iranian law has a restrictive approach to interpreting the scope of arbitration agreements. The rationale for this approach is that arbitration derogates from the default jurisdiction of the Iranian courts. Accordingly, under Iranian law, there is a presumption that jurisdiction is only conferred on to arbitrators to resolve those specific claims, disputes or controversies that the parties have expressly agreed and articulated in the arbitration agreement to be within the competence of the arbitrators. It follows that if there is any reasonable doubt as to whether a particular dispute or claim or controversy comes within the scope of the arbitration agreement in question, it is generally determined against the tribunal having such jurisdiction.”
“29. The scope of an arbitration agreement can in principle be subject to interpretation, as the examples given immediately above demonstrate. However, an arbitration agreement, like any other contract, is only subject to interpretation under the relevant principles of the applicable law where there is an ambiguity in the text of the agreement. If there is no ambiguity, the text is strictly interpreted. …”