“any dispute arising out of or in connection with this Contract shall be referred to arbitration in London in accordance with theArbitration Act 1996 …”
“1. WE FIND AND HOLD THAT the Claimants’ challenge to our jurisdiction succeeds. 2. WE THEREFORE GRANT A DECLARATION THAT pursuant tosection 30 of the Arbitration Act 1996 , we do not have jurisdiction to determine the Respondents’ counterclaims under the additional bills of lading.”
“A challenge under s. 67 proceeds by way of a de novo rehearing of the jurisdiction issue(s). The award of the arbitrators has no automatic legal or evidential weight. Nevertheless, and given that the arbitral tribunal has considered the same issues, the Court will examine the award with care and interest. If and to the extent that the reasoning is persuasive, then there is no reason why the Court should not be persuaded by it.”
“At the hearing of28 October 2021 , the parties did not make submissions about how the Tribunal should go about deciding the meaning of paragraphs 113-115 (although of course they made submissions about their own respective interpretations). However, we have in mind the view expressed by Lord Sumption in Sans Souci Ltd v. VRL Services Ltd[2012] UKPC 6 at [13] (which the parties cited in a different context, and which we discuss below). Above all, we are conscious that we must approach the task objectively, rather than by reference to what may have been subjectively intended at the time.”
“The appeal against the award of damages is allowed and the matter is remitted to the Arbitrators to determine the issue of damages only.”
“… the construction of a judicial order, like that of any other legal instrument, is a single coherent process. It depends on what the language of the order would convey, in the circumstances in which the Court made it, so far as these circumstances were before the Court and patent to the parties. … The reasons for making the order which are given by the Court in its judgment are an overt and authoritative statement of the circumstances which it regarded as relevant. They are therefore always admissible to construe the order. In particular, the interpretation of an order may be critically affected by knowing what the Court considered to be the issue which its order was supposed to resolve. … .”
“It is generally unhelpful to look for an ‘ambiguity’, if by that is meant an expression capable of more than one meaning simply as a matter of language. True linguistic ambiguities are comparatively rare. The real issue is whether the meaning of the language is open to question. There are many reasons why it may be open to question, which are not limited to cases of ambiguity.”
“it is admissible to construe an order of remission by reference to the issues in the arbitration”
“We can consider these two claims together, reflecting, as they do, the legal principles set out by Andrew Smith J at first instance in The ‘Bulk Chile’ (supra) at [75]-[78] and [81]-[82] respectively. In that case, the claim for reasonable remuneration was said to depend on whether or not the sub-charterers had requested the owners to complete the voyage (see at [77]); the Judge there ultimately finding that they did. When dealing with quantum meruit, the Judge stated that there could, in principle, be such a claim for services that were freely accepted, but not if the carrier was obliged to provide the carriage anyway, e.g. pursuant to bill of lading contracts with a third party which the alleged beneficiary could not prevent the carrier from performing (see at [82]). The Judge held that the quantum meruit claim failed on this ground.”
“The claims by the shipowners in The ‘Bulk Chile’ (supra) were made upon the sub-charterers after the termination of the time charter with the head charterers, and after the acceptance of instructions given to the owners by the sub-charterers for the continuation of the voyage. The facts in our case are very different. The charter was not terminated and the additional bills remained in force. Furthermore, we have found that the instructions to proceed, ultimately to Tripoli, were not given by or on behalf of the Claimants. The claim for reasonable remuneration must fail on this ground, and the claim for quantum meruit must fail on the same basis as the claim failed against the sub-charterer in The ‘Bulk Chile’ (supra).”
“Even if the claims had any merit, it is difficult to see why they should be covered by the additional bills and the arbitration clause. As we have said, they are ex-contractual and so we have no jurisdiction to determine them in this arbitration.”
“87. Neither party suggested that the issue of jurisdiction in relation to what were, at that time, Owners’ third and fourth potential counterclaims – reasonable remuneration and quantum meruit – raised any additional questions as regards jurisdiction. Both parties dealt with those claims separately from the main claims (i.e., demurrage and damages for detention), but they did so because it was not obvious that either claim was even properly arguable; not because either party contended that these claims were special or different in terms of the applicability of the agreement to arbitrate. 88. In relation to demurrage and damages for detention, it was not necessary for Owners to spell out at length why there might be such claims, and they did not trouble themselves to do so. In relation to the claim for reasonable remuneration (in particular) and the claim for quantum meruit, Owners evidently sensed that it was incumbent on them to spend time explaining why these claims might exist at all, and they spent several paragraphs doing so, in each case citing the relevant passages from The Bulk Chile. However, they said nothing additional about jurisdiction, in the context of these claims. There was a bare assertion in paragraph 72(4) that ‘The claims for reasonable remuneration fall within the ambit of the arbitration agreement but are not liabilities under the contracts of carriage contained in or evidenced by the bills of lading…’, but there was no expansion on this, no explanation of why they must arise out of or be connected with the Second Switch Bill of Lading (or even a reference to the wording or the arbitration agreement) and no reference to any authority (e.g. Fiona Trust). Rather, it seemed to be taken for granted that, if the Bank was bound by the agreement to arbitrate – whether as original party or as statutory assignee – then the claims would be within the ambit of that agreement: despite the acknowledged fact that they were not ‘under’ the Second Switch Bill of Lading.”
“In its reply submissions of9 June 2017 , the Bank naturally devoted much space to its case that it was neither an original party nor a statutory assignee – thus answering the Owners’ case as to its two routes home on jurisdiction. When the Bank then turned to the claims for reasonable remuneration/quantum meruit, the Bank was no doubt struck by the effort that the Owners had put into suggesting that these claims had potential merit, and deduced that the Owners felt vulnerable on this. The Bank therefore responded, demonstrating that the claims were baseless. On jurisdiction in relation to these claims, the Bank said this: (1) As regards the claim for reasonable remuneration, at paragraph 16(c)(iii) the Bank first said: ‘… in any event [i.e., even if the claim had merit], this argument does not make [the Bank] a party to the arbitration clause in the Additional B/Ls …’. Thus, the Bank considered jurisdiction, for the purposes of this claim, solely in terms of whether the Bank was party to the agreement to arbitrate. This clearly referred to the Owners’ arguments that the Bank was party to it, either as an originally party or as a statutory assignee. (2) That sentence in the Bank’s submissions then continued: ‘… nor does it assist [the Owners] on their argument on jurisdiction under these bills.’ The Owners’ only argument on jurisdiction was their case that the Bank was either an original party or a statutory assignee. The Bank was saying, therefore, that the bolting-on of an additional claim for reasonable remuneration did not make that case any stronger. (3) As regards the claim for quantum meruit, at paragraph 16(d)(ii) the Bank said that this claim ‘does not even begin to explain how this assists [the Owners’] case on jurisdiction under the arbitration agreement in the Bills of Lading.’ Once again, the submission was that the addition of this claim did not strengthen the Owners’ case, viz. the case that the Bank was either an original party or a statutory assignee.”
“90. In short, even in the context of the claims for reasonable remuneration/quantum meruit, the Bank’s submissions analysed jurisdiction in terms of whether or not it was party to the agreement to arbitrate (i.e. as an original party or a statutory assignee), rather than on the ambit of the agreement to arbitrate (i.e. the meaning of ‘arising out of or in connection with’). 91. Accordingly, the Tribunal was principally asked to determine whether the Bank was either an original party to the Additional Bills of Lading/Second Switch Bill of Lading, or was a statutory assignee. In relation to the claims for reasonable remuneration and quantum meruit, the Tribunal was further asked to determine whether those claims could have any merit. However, the Tribunal was not asked by either party to determine whether, if (i) the Bank was party to the agreement to arbitrate and (ii) those claims arose, they were or were not claims ‘arising out of or in connection with’ the Second Switch Bill of Lading. 92. In these circumstances, most of the First Award is devoted to the Owners’ two arguments on jurisdiction, i.e., whether the Bank was either an original party or a statutory assignee. When the First Award then turns to the claims for reasonable remuneration/quantum meruit, it first addresses their merits, in paragraphs 113 and 114. It was then necessary also to give a conclusion as to jurisdiction in relation to those claims, but in circumstances where both parties were agreed that jurisdiction for these claims depended on the same arguments as the Owners’ two main claims (demurrage and damages for detention), it was inevitable that the conclusion would be the same.”
“94. First, the Award stated that, even if the claims had merits, ‘… it is difficult to see why they should be covered by the additional bills and the arbitration clause’. This was because it had already been decided that the Bank was not party to the Additional Bills, or to the agreement to arbitrate that they contained. 95. Next, the Award stated: ‘… they are ex-contractual and so we have no jurisdiction to determine them’. At the hearing on28 October 2021 , both parties agreed that this sentence contains an obvious typographical error: it should have read ‘extra-contractual’, with ‘extra’ having the meaning of ‘outside’. This was certainly a finding that these claims against the Bank were outside the agreement to arbitrate but, this has to be read in the context of our earlier finding that the Bank was not a party to or otherwise bound by that agreement. 96. In oral submissions, Mr Collett QC argued vigorously that paragraph 115 ‘must be’ an additional point on jurisdiction, which was specific to the claims for reasonable remuneration/quantum meruit and did not arise in respect of the other claims; his point being that the Tribunal therefore must have meant that they were not claims ‘arising out of or in connection with’ the Second Switch Bill of Lading. The fundamental problems with his arguments were (i) that neither party had suggested that there was any such new point in respect of these claims and (ii) that the Tribunal had not been asked to decide whether they were or were not claims ‘arising out of or in connection with’ the Second Switch Bill of Lading. 97. Indeed, if the Tribunal had purported to decide that whether or not they were claims ‘arising out of or in connection with’ the Second Switch Bill of Lading, despite not having been asked to do so, it would have been quite acting quite wrongly. To do so would have been a procedural error susceptible to challenge undersection 68 of the Arbitration Act 1996 . Still straining to be as objective as possible, the Tribunal does not see why paragraph 115 ‘must be’ read in a way that means that the Tribunal was acting improperly. The normal, objective presumption would be the opposite.”
“Our conclusion on issue (1) therefore is that paragraphs 113 and 114 addressed the merits of the claims for reasonable remuneration/quantum meruit. The meaning of paragraph 115 was that, even if the claims had merit, they were outside the arbitration agreement because the Bank was not a party to that agreement. Paragraph 115 was not a decision, either way, as to whether those claims were within the ambit of the agreement to arbitrate in terms of their ‘arising out of or in connection with’ the Second Switch Bill of Lading, that being a question which was not raised by either party and which the Tribunal was not asked to address.”
“In the alternative, the Respondents [Sea Master] argued that, even if the Claimants [Arab Bank] had not been party to the switch bills, it did not follow that they were not bound by the arbitration clause. In this context, the Respondents submitted that the Claimants were holders of the bills and so, event if not an original party to the contract of carriage, all rights of suit had been transferred to and vested in them as if they had been a party to the contract. The Respondents submitted that the Claimants had become a statutory assignee of the contractual rights by virtue of section 2 (1) of COGSA.”
“The Respondents [Sea Master] referred to the switch of the bills of lading on 7 November and submitted that the Claimants [Arab Bank] were party to the new bills as shippers and so were bound by them and thus subject to the arbitration clause. Even if the Claimants had endorsed and delivered the bills to a third party, this did not affect the Claimants’ rights and liabilities as an original party to the contract of carriage. The Respondents referred to sections 2(5) and 3(3) of COGSA.”
“The Respondents [Sea Master] turned to the possibility that the Claimants [Arab Bank] might contend that, having transferred the bills to third parties, they had divested themselves of liabilities under the bills (The ‘Berge Sisar’ (supra)). The Respondents said that they had four answers as set out below: (1) The principle did not apply contracts of carriage to which the Claimants were the original party (as was the case with the switch bills.) (2) If the Claimants were transferees who transferred the bills to third parties, thereby divesting themselves of any liability, the Claimants would remain subject to the arbitration agreement, which was severable and would survive the COGSA statutory assignments (Russell on Arbitration at paragraph 2-009). (3) The Respondents had relied upon the conduct of the Claimants and had sent the vessel to Oran and then to Tripoli: they had kept the cargo on board until a party had been prepared to take delivery. The Claimants were therefore estopped from asserting that they (both in respect of the liabilities and the arbitration clause).”
“(4) The claims for reasonable remuneration fell within the scope of the arbitration clause, but were not liabilities under the contracts of carriage evidenced by the bills. Accordingly, any transfer of the bills did not have the effect of divesting the Claimants of their liabilities for those claims or of the obligation to comply with the arbitration clause.”
“69. The Respondents [Sea Master] summarised their case: the Claimants [Arab Bank] impliedly or expressly requested, by its communications and conduct, that the First Respondents carry the soya bean meal to Algeria and then Tripoli and keep the cargo on board until there was someone willing and able to take delivery. The First Respondents’ compliance with that request gave rise to a right to reasonable remuneration, namely the demurrage incurred and additional expenses. The Respondents relied upon The “Bulk Chile” [2012] 2 Lloyd’s Rep. 594 at [75] – [78], upheld in the Court of Appeal [2013] 2 Lloyd’s Rep. 38 at [331]. 70. In the alternative, the Respondents submitted that they were entitled to demurrage and the other expenses under a quantum merit (The “Bulk Chile” (supra)).”
“As a matter of general approach, the courts strive to uphold arbitration awards. They do not approach them with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults in awards and with the objective of upsetting or frustrating the process of arbitration. Far from it. The approach is to read an arbitration award in a reasonable and commercial way, expecting, as is usually the case, that there will be no substantial fault that can be found with it.”
“Thus, paragraph 1 declared that the Tribunal had jurisdiction over all counterclaims in the arbitration that were within the rubric ‘arising out of or in connection with’ the Second Switch Bill of Lading. The effect of paragraph 2 was to set aside the dispositive part of the Award in relation to those counterclaims – i.e., ‘the Counterclaims’, as defined – but not any other counterclaims (which would include counterclaims under other Additional Bills of Lading). However, neither the Judgment nor the Order sought in terms to decide which counterclaims were ‘Counterclaims’ within the paragraph 1 definition.”
“It follows that, taking the terms of Popplewell J’s Order at face value, and applying the test of ‘arising out of or in connection with’ with the assistance of the authorities that we have cited, we would conclude that the effect of paragraph 1 of the Order of30 July 2018 was to declare that the Tribunal has jurisdiction over the counterclaims for reasonable remuneration/quantum meruit.”
“The Judge’s reference to ‘the limitations that Mr Collett has identified’ must have been a reference to the definition of ‘the Counterclaims’ in paragraph 1 of Mr Collett QC’s draft order, and the saving for counterclaims ‘other than the Counterclaims’ in paragraph 2.”
“(5) However, it is important to note that, prior to saying this, the Judge had not heard submissions in relation to those limitations. This is apparent not only from the earlier pages of the transcript but also from his question to Mr Karia QC on page 11 of the transcript at lines 14-15, where he asked: ‘Subject to that, [Mr Karia], is there any point on the form of wording that Mr Collett has put forward?’ He thereby invited Mr Karia QC to say if he wanted to contend for the wording of the Order to be different from that proposed by Mr Collett. He did not invite Mr Karia QC to say whether or not he agreed with Mr Collett QC’s reasons for proposing that wording or his analysis of its meaning. (6) The only concerns that Mr Karia QC ventilated related to the counterclaims under other Additional Bills of Lading. These concerns were assuaged when it was pointed out to him that they were carved out, by paragraph 2. In the course of that discussion, there was the following exchange between Mr Collett QC and the Judge, on page 12 of the transcript at lines 4-9: “MR JUSTICE POPPLEWELL: I do not see the problem with paragraph 2 in the form that Mr Collett has drafted. MR COLLETT: My Lord, there is further advantage in my way of putting it, that there are two jurisdictional aspects which were not challenged. MR JUSTICE POPPLEWELL: Yes, the quantum meruit. MR COLLETT: Yes, my Lord.”
“MR JUSTICE POPPLEWELL: I do not see the problem with paragraph 2 in the form that Mr Collett has drafted. MR COLLETT: My Lord, there is further advantage in my way of putting it, that there are two jurisdictional aspects which were not challenged. MR JUSTICE POPPLEWELL: Yes, the quantum meruit. MR COLLETT: Yes, my Lord.”
“It is apparent from these exchanges (i) that Mr Collett QC told the Judge both in writing and orally that the Tribunal’s decision as regards the claims for reasonable remuneration/quantum meruit had not been challenged by the section 67 proceedings and (ii) that the Judge had picked up on these statements and proceeded on the basis that they were correct.”
“…this is problematic. (1) While Mr Collett QC was right to say in his skeleton argument that the Claim Form said that the counterclaims were for demurrage and for damages for detention, Mr Russell QC pointed out to us that this was in a part of the Claim Form that merely sought to summarise the Owners’ counterclaims in the arbitration, and did so inaccurately: while the Owners’ counterclaims had originally been limited to demurrage and damages for detention, they were not so limited following the Owners’ submissions of26 May 2017 . From that time onwards, the Owners’ counterclaims in the arbitration included the claims for reasonable remuneration/quantum meruit. (2) Moreover, we agree with Mr Russell QC that, in any case, the critical part of the Claim Form, in terms of identifying what the section 67 challenge sought to do, is not the part that summarised the Owners’ counterclaims – that being, essentially, narrative. Rather, the critical part of the Claim Form is the part that set out the order that Inc was seeking. That read as follows: ‘[Inc]… seeks an order setting aside the Award and/or varying it to declare that the Tribunal does have jurisdiction over the counterclaims asserted by [Inc].’ (3) The phrase used here, ‘the counterclaims asserted by [Inc]’, is significant because, as we have now pointed out several times, it is common ground before us that the counterclaims asserted by Owners in fact included the counterclaims for reasonable remuneration/quantum meruit; and that is what we would have found in any event. (4) In short, Mr Collett QC’s statement to Popplewell J that the Owners’ section 67 challenge appears to have been based on a partial reading of the Claim Form. The part that Mr Collett QC relied on was incorrect, whereas the part that he did not refer to can only be read against him. (5) Further, in so far as Mr Collett QC’s statement to Popplewell J was based on the erroneous summary of the Owners’ counterclaims in the Claim Form, it was founded on a text that is contrary to the common ground on this point at the hearing of28 October 2021 . This makes it difficult for us to accept, for the purposes of this Fifth Award. Where both parties have invited us to proceed on a particular factual basis, that is what we should do (quite apart from our view that it is a correct factual basis).”
“The Tribunal having stated at para. 115 of the reasons for the Award … that it had no jurisdiction over such claims on the grounds that they were ‘ex-contractual’.”
“This question therefore is really about the significance of judicial remarks that are made by the Judge in the course of hearing, but which are comments, rather than a decision. Approaching this as a matter of principle, it seems to us important to distinguish between two different situations. (1) Sometimes, in the course of a hearing such as the consequentials hearing on30 July 2018 , the Judge has to decide an issue. The issue emerges from Counsels’ submissions as a point in dispute, the Judge receives submissions from each of them and he decides it. In such a case, what the Judge says in the course of explaining his decision on the issue is legally significant. It can be taken as his considered opinion, which constitutes a judicial conclusion. He is speaking (as it were) ex cathedra. As between the parties, what he says gives rise to an issue estoppel, within the principles that we have outlined above under the heading of issue (3). It may also bind arbitrators such as this Tribunal for other reasons: in so far as the Judge’s decision resolves a question of law, it is a precedent that we are obliged to follow. (2) However, it sometimes happens that Counsel say things in a hearing such as the consequentials hearing that are not questioned, either by the Judge or by opposing Counsel. In so far as the Judge repeats unquestioningly what he has been told, his words do not represent his own opinion or conclusion, considered or otherwise. They do not represent a judicial decision. The Judge is not speaking ex cathedra and there can be no issue estoppel or binding precedent. (3) We would add that, where a point arises on the wording of the Order, but the Judge is not required to make a decision, this will often be because a consensus has emerged between the parties and/or their Counsel, prior to or during the consequentials hearing; in which case, a party wishing to rely on the relevant exchanges can do so via estoppel by convention, subject to satisfying the requirements of that doctrine.”
“The fact that the Judge unquestioningly accepted something said by Counsel does not seem to us, by itself, to affect the proper interpretation of the Order. We consider that we should interpret the Order by reference to the true factual position. The true factual position is that Mr Collett QC’s draft wording, as adopted in the Order, did affect the claims for reasonable remuneration/quantum meruit. As we have concluded under the heading of issue (4): (1) They were ‘counterclaims in the arbitration’, as is common ground. (2) They were claims ‘arising out of or in connection with’ the Second Switch Bills of Lading, as we have decided afresh, having first decided that this had not been decided by paragraph 115 of the First Award and that there is no issue estoppel.”
“160. Applying these principles in the context of the materials that we have already reviewed, the fundamental problem for the Owners is that nothing crossed the line from the Bank. Mr Collett QC made it clear at the consequentials hearing that Owners’ understanding of the Order was that it did not affect the Tribunal’s conclusion in the First Award that it had no jurisdiction in respect of the claims for reasonable remuneration/quantum meruit. However, Mr Karia QC said nothing that should have conveyed to the Owners that the Bank shared this understanding. Following paragraph 16 of his skeleton argument, at the hearing itself Mr Karia QC said nothing at all that had any bearing on the claims for reasonable remuneration/quantum meruit and whether the Order being made did or did not affect them. 161. In submissions to us, Mr Collett QC suggested that, even though Mr Karia QC did not say expressly that he agreed with Mr Collett QC that there was no section 67 challenge in respect of the claims for reasonable remuneration/quantum meruit, the Owners were nevertheless entitled to understand that he shared their understanding. We do not accept this, and in any event that could not amount to a communication that crossed the line or that gave rise to some element of responsibility for that Owners’ having that understanding and relying on it.”
“We consider it very unlikely that Owners would have referred the claims for reasonable remuneration/quantum meruit back to us, if they had understood that the effect of the Order was that the claims were within our jurisdiction. If these claims are within our jurisdiction, then while paragraph 115 of the First Award is no longer significant, paragraphs 113 and 114 are. Neither party has suggested that paragraphs 113 and 114 are displaced by the Order. On the contrary, it gives them new effect, because they now constitute final findings on the merits, made by a Tribunal with jurisdiction to decide the merits. They accordingly give rise to an issue estoppel within the principles that we have set out under the heading of issue (3). The parties would be bound by the findings on the merits in paragraphs 113 and 114 of the First Award, and we would be precluded from making any different findings.”
“The Award should contain a declaration that any and all claims by Sea Master Special Maritime Enterprise, Sea Master Shipping Inc and/or Mega Shipping Line Corp against Arab Bank and/or Freiha arising out of or in connection with the Bills of Lading and/ or the Voyage carrying the Cargo are dismissed, including but not limited to claims for freight, damages, demurrage, damages for detention and/or reasonable remuneration or a quantum meruit.”
“… For our part we consider that the time has now come for a line of some sort to be drawn and a fresh start made at any rate for cases arising in an international commercial context. Ordinary businessmen would be surprised at the nice distinctions drawn in the cases and the time taken up by argument in debating whether a particular case falls within one set of words or another very similar set of words. If businessmen go to the trouble of agreeing that their disputes be heard in the courts of a particular country or by a tribunal of their choice they do not expect (at any rate when they are making the contract in the first place) that time and expense will be taken in lengthy argument about the nature of particular causes of action and whether any particular cause of action comes within the meaning of the particular phrase they have chosen in their arbitration clause. If any businessman did want to exclude disputes about the validity of a contract, it would be comparatively simple to say so.”
“One of the reasons given in the cases for a liberal construction of an arbitration clause is the presumption in favour of one-stop arbitration. It is not to be expected that any commercial man would knowingly create a system which required that the court should first decide whether the contract should be rectified or avoided or rescinded (as the case might be) and then, if the contract is held to be valid, required the arbitrator to resolve the issues that have arisen. This is indeed a powerful reason for a liberal construction.”
“In approaching the question of construction, it is therefore necessary to inquire into the purpose of the arbitration clause. As to this, I think there can be no doubt. The parties have entered into a relationship, an agreement or what is alleged to be an agreement or what appears on its face to be an agreement, which may give rise to disputes. They want those disputes decided by a tribunal which they have chosen, commonly on the grounds of such matters as its neutrality, expertise and privacy, the availability of legal services at the seat of the arbitration and the unobtrusive efficiency of its supervisory law. Particularly in the case of international contracts, they want a quick and efficient adjudication and do not want to take the risks of delay and, in too many cases, partiality, in proceedings before a national jurisdiction.”
“If one accepts that this is the purpose of an arbitration clause, its construction must be influenced by whether the parties, as rational businessmen, were likely to have intended that only some of the questions arising out of their relationship were to be submitted to arbitration and others were to be decided by national courts. Could they have intended that the question of whether the contract was repudiated should be decided by arbitration but the question of whether it was induced by misrepresentation should be decided by a court? If, as appears to be generally accepted, there is no rational basis upon which businessmen would be likely to wish to have questions of the validity or enforceability of the contract decided by one tribunal and questions about its performance decided by another, one would need to find very clear language before deciding that they must have had such an intention. … .”
“In my opinion the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal. The clause should be construed in accordance with this presumption unless the language makes it clear that certain questions were intended to be excluded from the arbitrator’s jurisdiction. As Longmore LJ remarked, at para 17: ‘if any businessman did want to exclude disputes about the validity of a contract, it would be comparatively easy to say so.’”
“Taking a broad and common sense approach to construing the clause, as I am enjoined in Fiona Trust to do, a tort claim may be said to arise ‘in connection with’ the charter not only where there are parallel claims in tort and contract (as, for example, for breach of a duty of care) but also where the claim arises solely in tort but is in a meaningful sense causatively connected with the relationship created by the charter and the rights and obligations arising therefrom.”
“If the Mustill J test is in fact stricter than is now appropriate (as considered by Patricia Robertson QC), that makes this case a clear one”
“The reality is that there is a complete factual overlap between the claims for reasonable remuneration/quantum meruit and the claims for demurrage and damages for detention. They all relate to the same periods and locations and the factual evidence would emerge from all the same sources and witnesses.”