In Itochu Corporation v Johann MK Blumenthal GMBH [2012] EWCA Civ 996 the Court of Appeal refused to grant permission to appeal an order granted by Mr Justice Andrew Smith that a sole arbitrator be appointed in an arbitration between the applicants, Itochu Corporation (Itochu) and the respondents, Johann MK Blumenthal GMBH (Johann).

Before Andrew Smith J, Johann had argued that, in the absence of an agreement between the parties, the default position set out in section 15(3) of the Arbitration Act 1996 (the Act) should apply, and the court should exercise its powers under section 18 of the Act to make a direction that a sole arbitrator should be appointed. Itochu argued that section 15(3) did not apply, and that the court should use its powers under section 18 of the Act to appoint a panel of three arbitrators. Andrew Smith J held that section 15(3) did indeed apply and accordingly made an order under section 18 that a sole arbitrator be appointed. In a separate hearing, he refused Itochu permission to appeal his decision. Itochu nonetheless applied for permission to appeal to the Court of Appeal

.The Court of Appeal held that pursuant to section 18(5) of the Act (which provides that leave of the first instance court is required in order to appeal decisions made under section 18), it did not have jurisdiction to give leave to appeal in circumstances where the first instance judge had already refused leave. This was on the basis that the judge's original decision had plainly been made under section 18 of the Act, albeit that his reasoning necessarily made reference to the requirements of section 15. In any event, the Court of Appeal stated that Andrew Smith J's decision was plainly correct and that a single arbitrator should have been appointed.

This case highlights the consistent approach of the English courts in seeking to minimise appeals arising from arbitrations under the Act.