Procedural law can govern seat of arbitration
Generally, a choice of seat dictates the choice of procedural law. The Braes v McAlpine judgment is interesting because it confirms that a choice of procedural law can, equally, dictate a choice of seat. The arbitration clause under discussion stated that the seat of any arbitration was Glasgow, Scotland. It also named the Arbitration Act of England and Wales 1996 as the procedural law. The judge held that, looking at the contract as a whole, the juridical seat of the arbitration was England, and that Scotland had been selected as the location of any hearing.
The judgment also contains interesting comments on the approach which a judge will take to the issue of whether an arbitrator’s decision is “obviously” wrong for the purposes of any appeal.
Braes of Doune Wind Farm (Scotland) Ltd v Alfred McAlpine Business Services Ltd (2008) EWHC 426 (TCC)
13 March 2008
Disclosure required in the interests of justice
The England and Wales Court of Appeal upheld a decision to authorise disclosure of documents generated in an English arbitration in order to assist proceedings in New South Wales and in the British Virgin Islands. The pleadings were disclosed to the defendants in the interests of justice, so that the foreign courts would not be misled. The cases in the various proceedings were raising the same or similar allegations – although the allegations of fraud and conspiracy originally pleaded were not made in the foreign proceedings.
Emmott v Michael Wilson & Partners Ltd (2008) EWCA Civ 184 12 March 2008