Court of Appeal
Published October 31, 2007
Bandwidth Shipping Corporation v Intaari
Before Lord Justice Waller, Lord Justice Gage and Lord Justice Lawrence Collins
Judgment October 17, 2007

If an arbitrator appreciated that a party had missed a point then fairness required him to raise it so that the party could deal with it. But with no such appreciation, it was not unfair to leave it to counsel, particularly highly experienced counsel, to take such points as he wished.

The Court of Appeal so stated when dismissing the appeal of Bandwidth Shipping Corporation, of Libe-ria, owners of the vessel Magdalena Olendorrf, against the refusal by Mr Justice Christopher Clarke ([2006] EWHC 2532 (Comm)) of their application under section 68 of the Arbitration Act 1996 to have an arbitration award in favour of Intaari, of Russia, charterers, remitted to the arbitrators on the ground of unfairness.

Mr Timothy Young, QC and Mr Michael Collett for Bandwidth; Mr Luke Parsons, QC and Mr Christopher Smith for Intaari.

LORD JUSTICE WALLER said that the authorities summarised in ABB AG v Hochtief Airport GmbH ([2006] 2 Lloyd’s Rep 1) had rightly indicated that an application under section 68 to set aside an award or its remission faced a high hurdle. It would be a retrograde step to allow appeals on fact or law from the decision of arbitrators to come in by the side door of an application under section 33 and section 68.

The Vimeira ([1984] 2 Lloyd’s Rep 66) supported the view that if an arbitrator appreciated that a party had missed a point then fairness required him to raise it so that the party could deal with it. But where there was no such appreciation, it was not unfair to leave it to counsel, particularly highly experienced counsel who showed a detailed knowledge of the case, to take such points as he wished.

Lord Justice Gage and Lord Justice Lawrence Collins agreed. Solicitors:

MFB Solicitors, Moorgate; Ince & Co, Hamburg.

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