上诉法院判决：仲裁决定排除上诉
ARBITRATION — Agreement — Exclusion of appeal to court — Arbitration award under contract excluding right to appeal to court — Application to court for leave to appeal on point of law — Whether exclusion clause incorporated into contract — Whether jurisdiction of court on a point of law excluded — Whether right to appeal to Court of Appeal from judge’s decision on jurisdiction — Whether exclusion of appeal to court infringing right to fair trial — Arbitration Act 1996, s 69(6) — Human Rights Act 1998, Sch 1, Pt I, art 6
Sumukan Ltd v Commonwealth Secretariat [2007] EWCA Civ 243
CA (Sir Anthony Clarke MR, Waller and Sedley LJJ): 21 March 2007
The Court of Appeal had jurisdiction to hear an appeal from a judge’s decision on the existence of an agreement in an arbitration clause to exclude an appeal to a court on a point of law under s 69 of the Arbitration Act 1996. Such an exclusion agreement did not breach art 6 of the Human Rights Convention.
The Court of Appeal so held, inter alia, dismissing the application of the defendant, the Commonwealth Secretariat, to set aside permission to appeal granted by Rix LJ to the claimant, Sumukan Ltd, against the decision of Colman J on 20 February 2006 that the parties had agreed to exclude a right of appeal to the courts from an arbitration award.
WALLER LJ, giving the judgment of the court, said that it was common ground that in all the subsections in the Arbitration Act 1996 requiring leave from the “court” for the bringing of an appeal to the Court of Appeal, the “court” was the first instance court. Mr Speaight QC for Sumukan argued that a decision that the parties had entered into an exclusion agreement, which precluded the court having jurisdiction to consider whether to grant leave to appeal and thus prevented the actual hearing of an appeal on a point of law, was neither a “decision of the court to grant leave or to refuse leave to appeal” within s 69(6) nor “the decision of the court” from which “no such appeal lies without leave of the court” within s 69(8). It was not a decision under s 69 at all because it was a decision as to whether s 69 was to apply or not. The court preferred Mr Speaight’s submissions. The Court of Appeal did have jurisdiction. There was a distinction between a decision as to whether the parties had agreed to exclude the court and (if they had not) the decision as to whether to grant or refuse permission to appeal. Until the court had decided whether there was an exclusion agreement it did not, in fact, engage on the considerations relevant to whether permission to appeal should be refused or granted. The language of the order made by Colman J accurately reflected the decision of the court declaring the existence of an exclusion agreement. The question whether there was an exclusion agreement was a preliminary question under s 69(1). The Court of Appeal had jurisdiction despite the refusal of permission to appeal by Colman J. The judge held that as a matter of English domestic law by reference to the statute in the arbitration clause the parties had agreed to exclude any appeal to the courts. Such an agreement would not exclude the right to come to the courts under ss 67 and 68, but did exclude the right to appeal on a point of law under s 69. That conclusion was inevitable. Where parties had agreed to arbitration there was nothing unusual in agreeing to limit the right of appeal under s 69. On their ordinary construction the words in s 69(1) “otherwise agreed” required a contractual agreement in writing following s 5 as to what agreed in writing required. It was clear that by a written term of the contract the parties incorporated by reference an exclusion agreement. The impact of art 6 of the Human Rights Convention did not render the clause excluding a right of appeal onerous or unusual. The art 6 rights waived were of a limited nature. To hold that the exclusion agreement was incorporated and the claimant was bound by it would not infringe the claimant’s art 6 rights.
Appearances: Anthony Speaight QC and Kate Livesey (Sumukan Ltd by the Bar Council’s Public Access Rules) for the claimant; Colin Nicholls QC and Tom Poole (Speechly Bircham LLP, Solicitors) for the defendant.
Reported by: Susan Denny, barrister
