Shell Egypt West Manzala GmbH & Others v Dana Gas Egypt Ltd [2009] EWHC 2097 (Comm)  

Centurion argued that the parties had agreed to exclude the jurisdiction of the court under section 69 of the 1996 Arbitration Act to consider appeals from an arbitration award. The contract stated that:

“… and the decision of the majority of the arbitrators...shall be  nal, conclusive and binding on the parties, and the judgment upon such decision may be entered in any court of a country having jurisdiction...”

Centurion argued that the combination of words “final, conclusive and binding” showed that the parties had agreed in unequivocal terms that there should be no ability to appeal against the award. The plain intent and meaning of that wording was that any award should be final and binding on the parties, and conclude all matters in issue between them without further argument.

Mrs Justice Gloster asked what those words would mean to “a reasonable person having all the background knowledge which would reasonably have been available to the parties.” Here the relevant background included the fact that the expression “final and binding”, in the context of arbitration, has a traditional meaning as expressed by Mr Justice Ramsey in the case of Essex County Council v Premier Recycling:

“...I conclude that the use of the words ‘ nal and binding’, in terms of reference of the arbitration are of themselves insuffcient to amount to an exclusion of appeal. Such a phrase is just as appropriate, in my judgment, to mean final and binding subject to the provisions of the Arbitration Act 1996.”  

The addition of the word “conclusive” was insufficient by itself to demonstrate that the parties specifically intended to forgo their right of appeal. To amount to an agreement to exclude those rights, su" ciently clear and express wording was necessary.