In AMR Amin Hamza El Nasharty v J Sainsbury Plc – Lawtel 20.11.07 the Commercial Court applied the recent decision of the House of Lords in Fiona Trust & Holding Corp v Privalov (2007) UKHL 40. You will remember that the decision confirmed the principle of separability of the arbitration agreement, which has statutory force in English law under s.7 of the Arbitration Act 1996.
It also held that, by agreeing to arbitration, parties could waive the requirement implicit in Art.6 of the Human Rights Convention that they had access to a court. However, if there was duress or undue influence or mistake which invalidated the arbitration agreement there would be no waiver of relevant rights under Art.6. The relevant duress had to impeach the validity of the arbitration agreement itself, not just the wider agreement of which it formed a part. It was also held that in this case the Claimant had in any event by his conduct waived his right to contend that the arbitration agreement was voidable on the ground of duress.