"Concerning your initiation of arbitration, our clients do not wish any of the 3 gentlemen you have proposed to sit as sole Arbitrator and accordingly when you have effected an appointment of your clients' arbitrator and given us due notification of the same we shall attend to the appointment of the Respondents' arbitrator within 14 days thereafter in accordance with clause 15...
"We refer to our correspondence...appointing you as arbitrator on behalf of G Roussos Sons SA. You have of course accepted this appointment.
"We should be grateful if, for the avoidance of doubt, you would also accept appointment as arbitrator, again in respect of all disputes arising under the above captioned MOA with Charles M Willie and Co (Shipping) Limited, on behalf of Ocean Laser Shipping Limited."
"We are in receipt of Messrs Holman Fenwick and Willan's telex yesterday in which they purport to extend your appointment to cover any claims by a party identified as Ocean Laser Shipping Limited.
"In May 1992 our opponents [1] sought to appoint Mr Kazantzis as Arbitrator on behalf of Ocean Laser Shipping Limited and we made clear in our letter dated21st May 1992 that neither we nor our clients had any idea as to the identity of Ocean Laser and that there was no agreement to arbitrate with that company.
"Nothing further has been provided by our opponents at all as to Ocean Laser and accordingly our clients' straightforward position is that there is no arbitration agreement with this company and Sellers and so no basis for you and your co-arbitrator to deal with any claim this company may have.
"As you and your co-arbitrator will see, no explanation at all is offered in the Points of claim as to the alleged involvement of Ocean Laser and we can see no basis at all for this party to be included as a Claimant and any Defence served by us will be to the claim of Messrs G Roussos Sons SA only."
"We refer to Swinnerton Ashley-Claydon's letter to you of 8th November relating to the question of the jurisdiction to deal with any claim by Ocean Laser.
"For this reason we appointed Mr Kazantzis as our Clients' Arbitrator both on behalf of G Roussos Sons SA and on behalf of Ocean Laser Shipping Limited. The Points of Claim further provide that the first claimant, i.e. G Roussos Sons SA on its own behalf and/or on behalf of Ocean Laser Shipping Limited as Buyers agreed to purchase the vessel.
"No doubt if Messrs Swinnerton an/or the Tribunal require further clarification of the point, you will let us know."
"The present tribunal (Messrs Newcomb and Kazantzis) has been appointed and has jurisdiction only in respect of disputes between the Claimants and the Respondents named above. If arbitration has been commenced on behalf of Ocean Laser Shipping Limited, the tribunal is not complete in respect of that arbitration. The present pleading is served in respect only of the claim by G Roussos Sons SA and without prejudice to the Respondents' case that the tribunal has no jurisdiction over the claim of Ocean Laser Shipping Limited."
"We are satisfied that the appropriate course would be to allow the amendments as pleaded."
"As explained, our original decision in respect of the application for amendment of Clause 4(a) of the Points of Claim was made before we had completed our comprehensive review of all the papers. When we did so, it seemed to us we ought to exercise our discretion against allowing the amendment.
"Although a plea of misrepresentation was already on the record paragraph 4(a), as presently worded pleads a fresh misrepresentation not previously alleged, which will entail a new factual enquiry.
"It is quite common for arbitrators to reconsider interlocutory decisions. Indeed it is sometimes a cause of complaint that in arbitration procedure interlocutory decisions are not as firm as they are in the Courts. However in some ways we consider this a strength rather than a weakness although this flexibility should not be abused. We hope that you would not consider that we have done so in this case...
"If you wish to press the matter we will of course consider any further representations you may wish to make with a view to persuading the Tribunal to changing its mind yet again..."
"in that at no stage have they served upon the Plaintiffs a notice calling upon them to appoint an arbitrator or to agree such an appointment."
"For the purpose of this Act...an arbitration shall be deemed to be commenced when one party to the arbitration serves on the other party or parties a notice requiring him or them to appoint an arbitrator or to agree to the appointment of an arbitrator, or, where the arbitration agreement provides that the reference shall be to a person named or designated in the agreement, requiring him or them to submit to the person so named or designated."
"Please advise your proposals in order to settle this matter, or name your arbitrators."
"In order to commence the arbitration, there must, I think, be a notice in writing served by one party on the other party. This notice must contain a requirement. It must require the other party to do one or other of two things: either (1) "to appoint an arbitrator" or (2) "to agree to the appointment of an arbitrator.""
"So in any case a simple notice in writing requiring the difference to be submitted to arbitration is deemed to be commencement of the arbitration.
"Apply these considerations to the present case. The charterers' agents on May 31, 1972, presented to the owners' agents a detailed claim for damages demanding immediate payment, and then they said:
"Please advise your proposal in order to settle this matter or name your arbitrators."
"Mr. Rokison says that that request is equivocal. It gives the shipowners an alternative. It does not amount to an unequivocal request for arbitration. So it cannot be deemed to be the commencement of the arbitration. That seems to me too legalistic an approach. In a commercial dispute, a letter requesting an arbitration should not be construed too strictly. The writer should not be impaled on a time bar because he writes in polite and courteous terms, or because he leaves open the possibility of settlement by agreement. Suppose the charters had written to the owners:
"Unless you are prepared to settle the matter amicably, we must ask you to agree to an arbitrator."
"Likewise with the letter in this case, it can and should be construed as a request for the difference to be submitted to arbitration - with a saving that the request will be withdrawn if a settlement can be reached. That is sufficient to commence the arbitration."
"The section I think clearly envisages that a party who wishes to commence arbitration will, when there are to be arbitrators on both sides, call upon his opponent "to appoint an arbitrator," and when the reference is to a single arbitrator will call upon him "to agree to the appointment of an arbitrator." However, if he adopts the wrong course, that would not in my judgment make his requisition a nullity, or prevent arbitration commencing. It would be no more than an irregularity capable of being remedied."
"It is to be observed that this is a deeming provision designed to ascertain for the purposes of theLimitation Act 1939 the point of time at which an arbitration is to be regarded as having commenced. It does not exclude other direct means of establishing the commencement of an arbitration. If a general principle is to be extracted from section 27(3) it seems to me that where a dispute arises which is within the scope of a pre-existing agreement to submit disputes to arbitration, then an arbitration is commenced when one party gives notice to the other party intimating that he proposes to invoke the arbitration agreement and requiring that other party to take some step towards setting an arbitration in train. By analogy with the procedure prescribed insection 27(4) of the Act of 1939, such a notice must be in writing and served in accordance with the rules there set out. The commencement of the arbitration would coincide with the service of the notice upon the other party.
"The giving of such notice is a matter inter partes and is a procedural and not a decisive step. Accordingly, its form and terms do not call for an excessively strict scrutiny. If, in substance, a party communicates (i) an intention to resort to arbitration and (ii) a requirement that the other party should do something on his part in that regard, this will in general suffice to define the commencement of the arbitration or, for the purposes of article III, r.6, of the Hague Rules, the date when "suit is brought."
"Applying these principles to the present case, I would hold that the letter of May 31, 1972, addressed to the shipowners was sufficient to mark the commencement of the arbitration. I read that letter as declaring that arbitration is to be resorted to..."
"In view of the attitude taken by charterers in their calculation of lay-time, owners will be putting the matter to arbitration. We will be advising you concerning details of the arbitrator appointed in due course."
"We therefore require you to appoint your arbitrator."
"By this letter the dispute between our respective companies is referred to the arbitration of three arbitrators in London pursuant to the provisions of clause 17.8 of the contract of affreightment such arbitration to be conducted in accordance with the rules of the London arbitrators."
"Sections 27(3) of the Act of 1939 and 34(3) of the Act of 1980 spell out what is to be done to commence an arbitration and thereby to stop limitation running...Further, although the correct construction of a statutory provision may be affected by its context, if a statutory provision provides for a notice requiring something, it is ordinarily to be expected that the notice must do so expressly.
"There is, I think, a contrast between the UNCITRAL Model Law and the English statutes, which shows a difference in approach between them. English law has taken the approach that something more must be done than to request that the matter be referred to arbitration. A step must be taken towards getting the arbitration under way, a step towards the appointment of the tribunal...
"I can see factors of policy that point the other way. Thus many commercial men would think that an arbitration is commenced by giving notice of arbitration, and that this should be sufficient for the purposes of the Hague Rules. Many, many arbitrations are held in England involving foreign parties. When the possibility of arbitration arises they may or may not have English solicitors to advise them. They are otherwise unlikely to be familiar with the provisions of the English law as to limitation. There is nothing sophisticated about the implication made by Lord Denning M.R. in the Nea Agrex case [1976] Q.B. 933. Provided the notice makes plain that the arbitration is to commence at the date of the notice, it is plain that the respondent is required to do what the arbitration agreement provides, namely to appoint his arbitrator. However, these are reasons for framing the statutory provisions in another way, rather than for reading them in another way. English law, has it seems to me, taken the policy decision that, to stop time running, the notice must take a step further than a requirement to arbitrate."
"Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent."
"It is important to bear in mind that each of the forms of notice contemplated by section 34(3) is concerned with the appointment of an arbitrator by the defendant. A notice by the claimant that he himself has appointed an arbitrator is not a sufficient compliance with the statute, and still less is a mere notice of claim. The latter might, depending on the terms of the contract, be sufficient to prevent the claim from becoming barred by a contractual limitation clause, but it would not be relevant to a statutory time limit."
"This case probably represents the limit of the Court's indulgence: see Surrendra Overseas Ltd v. Government of Sri Lanka ...Both cases leave open the question whether 'I require this dispute to be referred to arbitration' is sufficient."
"(2) The question is not how the landlord understood the notices. The construction of the notices must be approached objectively. The issue is how a reasonable recipient would have understood the notices. And in considering this question the notices must be construed taking into account the relevant objective contextual scene...
"(3) It is important not to lose sight of the purpose of a notice under the break clause. It serves one purpose only: to inform the landlord that the tenant has decided to determine the lease in accordance with the right reserved. That purpose must be relevant to the construction and validity of the notice. Prima facie one would expect that if a notice unambiguously conveys a decision to determine a court may nowadays ignore immaterial errors which would not have misled a reasonable recipient...
" the Delta case, at p.454E-G, per Slade L.J. and adopted by Stocker L.J. and Bingham L.J...."
"Our clients have no contract and consequently there is no agreement to arbitrate with Ocean Laser..."
"It was a notification to the Sellers, through their solicitors, of the appointment of Mr Kazantzis as arbitrator on behalf of Ocean Laser. As such, it was by implication a notice requiring them to appoint an arbitrator for themselves."
"If one of the parties fails to appoint an Arbitrator...for two weeks after the other party having appointed his Arbitrator has sent the party making default notice...to make the appointment"
"The service of the notice and the intervention in the arbitration provide as effective and satisfactory a method of carrying on the proceedings as that which is provided in relation to litigation by O.15, r.7(2) of the Rules of the Supreme Court."
"As regards the subsequent costs of the arbitration, the intervention of the assignee clearly is a submission to the jurisdiction of the arbitrators and therefore, in addition to confirming the capacity of the arbitrators to make an award in favour of or against the assignee on the substantive claim, includes the acceptance that the arbitrators shall have in relation to the assignee the discretion to award costs conferred bys.18 of the Arbitration Act 1950 . This is not to say that there has been some novation."
"I consider that there is no authority which precludes me from holding that the assignee is entitled to enforce the assignor's rights in the pending arbitration or which shows that the arbitrators do not have a jurisdiction and the duty, if the assignee is otherwise entitled to succeed on the merits, to make an award in favour of the assignee. In my judgment, the application of principle to this factual situation demonstrates that, absent some special factor (and none is alleged in this case), the assignee is entitled to an award from the shipowners if he, the assignee, can prove his case on the merits including his case on title to sue. His claim is not time barred. He is entitled under the Law of Property Act to exercise all the legal remedies of the assignor. The remedy by way of arbitration having been invoked by the assignor in time, the assignee can enforce that remedy. It is the same remedy not a new or different remedy."
"It was assumed by Mr Justice Hobhouse, correctly, that the assignor would remain liable for costs already incurred in the arbitration, and that the effect of the assignment, therefore, was only to add an additional party potentially liable for those costs. Not surprisingly he held that there were no practical difficulties on the facts of that case. But in the present case, the assignor has ceased to exist. So if the plaintiff sellers had been successful, they would have had to look to the defendants alone for their costs. Nor is it clear to me what would have happened if the plaintiffs had had a counterclaim in the arbitration...There would be scope for great injustice if an insolvent assignor could assign away the benefit of a claim in arbitration to an associated company, while remaining solely liable for the burden of the respondent's counterclaim. This had led me to question whether mere submission is enough. Because of the nature of arbitration, as a consensual method of settling disputes, it may that the consent of the arbitrator, and the other party to the arbitration, is required. If this is the correct analysis, then the only exception might be where the foreign law creates a universal successor, as in National Bank of Greece v. Metliss , [1958] A.C. 509. But that argument was not fully developed before us, and must therefore await another occasion."
"In an extreme case it is conceivable that an arbitrator's failure to observe the principles of natural justice in the making of interlocutory rulings may lead either to the revocation of the mandate of the arbitrators under s.23(2), but it follows from the decision in Bremer Vulcan Schiffbrau und Machinenfabrik v. South India Shipping Corpn. Ltd. [1981] 1 Lloyd's Rep. 253; [1981] A.C. 909 that the Court has no inherent jurisdiction to correct procedural errors, even if they can be categorised as misconduct, during the course of the reference, and that the statutory scheme of the Arbitration Acts does not authorize such corrective measures. The remedies are therefore revocation of the authority of the arbitrator in the exceptional cases where that might be appropriate, or resisting enforcement of the award.
"This is not a lacuna in our law. In the interests of expedition and finality of arbitration proceedings, it is of the first importance that judicial intrusion in the arbitral process should be kept to a minimum. A judicial power to correct during the course of the reference procedural rulings of an arbitrator which are within his jurisdiction is unknown in advanced arbitration systems, as is clear from the valuable Year Books published by the International Council of Commercial Arbitration, and the creation of such a power by judicial precedent in this case would constitute a most serious reproach to the ability of our system of arbitration to serve the needs of users of the arbitral process."
"Issue estoppel applies to arbitration as it does to litigation. The parties having chosen the tribunal to determine the disputes between them as to their legal rights and duties are bound by the determination by that tribunal of any issue which is relevant to the decision of any dispute referred to that tribunal. An arbitrator to-day has power to make an interim award determining particular issues separately from other issues in the arbitration. It is, I understand, conceded by Mr. Goff, on behalf of the owners, that if the arbitrator does so, his interim award creates an issue estoppel as respects the issue determined by the interim award...
"Once his final award is made, whether or not stated in the form of a special case, the arbitrator himself becomes functus officio as respects all the issues between the parties unless his jurisdiction is revived by the Court's exercise of its power to remit the award to him for his reconsideration. But this is merely the way in which the principle nemo debet bis vexari pro una et eadem causa affects the arbitrator's functions. He has decided the questions of fact as to which he is the exclusive tribunal;; he has determined their legal consequences subject only to correction by the High Court on the stated questions of law. The parties cannot re-open the same matters again before him. Where his award is an interim award stated in the form of a special case, it determines the particular issue or issues to which it relates in alternative ways dependent upon the answer of the High Court to the question of law stated in the special case. It creates an issue estoppel or issue estoppels between the parties and the arbitrator is functus officio as respects the issues to which his interim award relates."
"...if one party brings an action against another for a particular cause and judgment is given upon it, there is a strict rule of law that he cannot bring another action against the same party for the same cause...But within one cause of action there may be several issues raised which are necessary for the determination of the whole case..."
"The argument in relation to the first contention was that the judgment of the Dutch Court of Appeal was procedural in nature, in that it consisted only of a decision that a Dutch court had no jurisdiction to entertain and adjudicate upon the appellants' claim, and did not pronounce in any way on the question whether the claim itself, or any substantive issue in it, if it were to be entertained and adjudicated on, would succeed or fail. In my opinion, this argument is based on a misconception with regard to the meaning of the expression "on the merits" as used in the context of the doctrine of issue estoppel. Looking at the matter negatively a decision on procedure alone is not a decision on the merits. Looking at the matter positively a decision on the merits is a decision which establishes certain facts as proved or not in dispute; states what are the relevant principles of law applicable to such facts; and expresses a conclusion with regard to the effect of applying those principles to the factual situation concerned. If the expression "on the merits" is interpreted in this way, as I am clearly of the opinion that it should be, there can be no doubt whatever that the decision of the Dutch Court of Appeal in the present was a decision on the merits for the purposes of the application of the doctrine of issue estoppel. In my view, therefore, the argument for the appellants on this point is misconceived and should be rejected."
"What was done by the justices when the transfer was applied for was in no sense a decision, or a judgment of the Court, upon which an estoppel could be founded; to hold otherwise would involve an enormous extension of the doctrine of estoppel. The statute...does not say that they are to refuse the application, if one of the grounds of objection is made out; to have said so would have been to take away their discretion altogether."
"Like the Judge and the Court of Appeal, I am of the opinion that this decision was properly made the subject of an award. It is enough for me to say (subject to any right of appeal) it conclusively determined that the arbitration was at an end and so finally disposed of the relevant matters which had been submitted to arbitration; such a determination is properly the subject matter of an award, carrying with it the usual consequences which flow from an award - in particular, it renders the arbitrator functus officio and prevents the unsuccessful claimant from rearbitrating or litigating the identical claim in the future (see generally Mustill and Boyd on Commercial Arbitration , 2nd ed., pp 404-405 and 409-413, and cases there cited). It is, in my opinion, unnecessary in the present case to attempt an exhaustive definition of the precise nature of an arbitration award, because I am in no doubt that in the present case the arbitrator's decision was properly made the subject matter of an award. Indeed, as Lord Justice Leggatt pointed out in the Court of Appeal, it would be unrealistic to hold otherwise.
"Although the parties, and the arbitrator, have approached this application as being made under s.2 of the 1979 Act, it may be that they should have regarded the arbitrator's order for inspection as an interim award..."
"For the purposes of the said section four hundred and ninety-six, as amended by this section, an arbitration shall be deemed to be commenced when one party to the arbitration agreement serves on the other party or parties a notice requiring him or them to appoint or concur in appointing an arbitrator..."