Archive for April, 2012

The West Tankers Ship Sails On: UK Court Holds Arbitral Tribunal Not Constrained By EU Ban on Interference With Judicial Proceedings In Another Member State

Monday, April 30th, 2012

Today Arbitration Commentaries welcomes Nic Fletcher as its newest foreign correspondent. Nic will report for Arbitration Commentaries, from time to time, on UK law and practice developments. He is the Head of International Arbitration in the Litigation and Dispute Resolution team of Berwin Leighton Paisner, resident in the Firm’s London office. Nic is a member of the ICC Task Force on the New York Convention, is the rapporteur for England and Wales of the Institute for Transnational Arbitration, and is on the executive committee of the Foundation for International Arbitration Advocacy. Nic can be reached at, and biographical information can be found on the Berwin Leighton Paisner website (

In today’s post, Nic discusses the latest installment from the UK judiciary in the West Tankers anti-suit injunction saga, a ruling that US readers will regard as distinctly “pro-arbitration” – that an arbitral tribunal sitting in the UK is not prevented by European Law – even if a UK court is so constrained —  either from enjoining a party to the arbitration from pursuing judicial proceedings abroad in breach of the arbitration clause, or from hearing a claim against that party for damages consisting of the costs of defending those foreign judicial proceedings.



The West Tankers saga continues.  Seldom can one case have thrown up so many instalments and provided so many talking points for arbitration practitioners and European law specialists alike.  Two recent English decisions, one of the Court of Appeal and one from the Commercial Court, have added to the complexity and ensured that the saga will continue to rumble on for a while yet.

Readers will recall that the dispute initially arose from a collision between a ship owned by West Tankers and a pier in Sicily owned by Erg Petroli S.p.A., which had chartered the vessel.  Erg sought to recover its losses.  It was insured and its insurers paid Erg up to the policy limits.  In August 2000 Erg referred a claim for its uninsured losses to arbitration in London pursuant to the arbitration clause in the charterparty.  The insurers then commenced court proceedings against West Tankers in Sicily, seeking to recover the sums paid to Erg, in reliance on their rights of subrogation under the Italian Civil Code. 

West Tankers sought and obtained an anti-suit injunction from the Commercial Court in England restraining the insurers from pursuing their claim in Italy, on the basis that the Italian court action was in breach of the arbitration clause.  The insurers objected and appealed directly to the House of Lords.  The House of Lords referred to the European Court of Justice the question of whether the injunction was consistent with EU Council Regulation 44/2001, which lays down rules governing the jurisdiction of courts in EU member states.

In the meantime the arbitration continued, with the insurers declining to participate.  The Tribunal granted declarations that the question of whether the insurers had become transferees of a bare right in delict or whether that right of action was only enforceable in arbitration was itself to be determined by arbitration and that the obligation to arbitrate was an inseparable component of the subject matter of the claim transferred to the insurers by subrogation.  The Tribunal also ordered the insurers to refrain from taking further steps before the Italian courts – a ruling the insurers ignored.

In due course, the Advocate General to the ECJ issued her Opinion, in which she concluded that EU Regulation 44/2001 did preclude the courts of one member state (in this case the United Kingdom) from restraining a person from pursuing proceedings before the courts of another member state, which courts were first seised of the dispute, on the grounds that the court purporting to issue the restraining order considered the foreign judicial proceedings to be in breach of an arbitration agreement.

The Tribunal, which had been considering Erg’s claim for damages as well as West Tankers’ counterclaim, at that point decided that it had to hold over certain matters for decision, pending the final judgment of the ECJ (the Advocate General’s Opinion only being advisory).  The Tribunal did however issue an award declaring that West Tankers was under no liability to Erg in respect of the collision which had set the whole chain of events in motion.  The English Court of Appeal has now confirmed that, notwithstanding that that Award is simply declaratory, judgment may now be enforced in the terms of the Award.

On 10 February 2009, the ECJ handed down its decision, agreeing with the Advocate General (albeit on narrower grounds) and concluding that it was incompatible with Regulation 44/2001 for the Commercial Court to have granted an anti-suit injunction to prevent proceedings before the court in Sicily and that it was for the Italian court to rule on its own jurisdiction.

The House of Lords, having the answer to the question it had referred to the ECJ, therefore discharged the anti-suit injunction, but it confirmed the declarations issued by the Commercial Court that the claims raised in the Italian proceedings arose out of the charterparty and fell to be determined in London arbitration.

The arbitration Tribunal then proceeded to consider the claims it had held over.  These included claims by West Tankers (a) that the insurers were liable to them in damages for the legal fees reasonably incurred by them in connection with the Italian proceedings and (b) that the insurers were liable to indemnify them in respect of any award made against West Tankers in the Italian proceedings greater than the liability of West Tankers as established in the arbitration.

By a majority of 2:1, the Tribunal concluded on 14 April 2011 that the answer to both those questions was negative.  They considered that the principle of effective judicial protection under European Law was a free-standing right which operated to protect the right of the insurers under Article 5(3) of Regulation 44/2001 to sue a tortfeasor in the courts of the place where the harmful event occurred.  The key question was whether that principle bound the Tribunal in the same way that it would bind an English Court, so as to proscribe its jurisdiction to award damages or an indemnity for a breach of the obligation to arbitrate.  With evident reluctance, the Tribunal concluded that it did and that although Regulation 44/2001 does not apply to arbitration, EU Law would not allow an arbitral tribunal to ‘cross the divide’ and effectively punish a party for pursuing proceedings in Italy which the ECJ had expressly approved.

West Tankers was granted leave to appeal to the Commercial Court on the specific question of whether, by reason of EU Law, the Tribunal was indeed deprived of its jurisdiction to award equitable damages for breach of the obligation to arbitrate.

Mr Justice Flaux considered that the Tribunal had got it wrong – the Tribunal had, he considered, identified the underlying philosophy of the ECJ’s decision to be that the right to bring proceedings in the court first seised under the Regulation should take precedence not only over any proceedings (including proceedings related to arbitration) in another national court, but also over any proceedings before an arbitral tribunal.  That could not be right. Mr. Justice Flaux opined, observing that the Advocate General had expressly recognised in her Opinion that an arbitral tribunal could reach a different decision to that issued by the Italian court, both as to the scope and effectiveness of the agreement to arbitrate and as to the overall merits.  The insurers could not possibly argue therefore that the Advocate General’s philosophy was that the provisions of the Regulation could circumscribe the Tribunal in the jurisdiction it could exercise.  Nor was there any qualitative difference between a decision of a tribunal on the merits which was inconsistent with any approach that the Italian court might adapt and a decision by the Tribunal to grant a declaration that the insurers should indemnify West Tankers in respect of any liability the Italian court might impose upon them.  Even an award of damages for breach of the obligation to arbitrate would follow from inconsistent decisions and not be precluded by the Advocate General’s reasoning.

Nor did the Commercial Court consider that there was anything in the decision of the ECJ that required the Tribunal to decline jurisdiction to grant damages.  The principle of effective judicial protection was simply not engaged in relation to arbitration proceedings, given that the Regulation has no application to arbitration.  The grant of an anti-suit injunction by the courts of a member state is contrary to the mutual trust which member states accord to one another’s legal systems.  Critically, however, there is no such wider principle of European Law which requires a private arbitral tribunal in one member state to repose mutual trust in any system of law other than that of the national court of the seat of the arbitration.  The Tribunal in the present case was required to recognise some principle of mutual trust in respect of the English Commercial Court, as its own supervisory court, but not beyond.

Although this might have the effect of depriving the Italian court of its jurisdiction to consider the validity of the arbitration agreement, there was nothing in the ECJ’s decision to suggest that its reasoning applied to arbitral tribunals, and not just to national courts.  Arbitration falls outside the Regulation and an arbitral tribunal is not bound to give effect to the principle of effective judicial protection.

The court further held that even if it was wrong on the obligation to give effect to the principle of effective judicial protection, an award of damages could still not constitute illegitimate interference.  There was no legitimate distinction between an award of damages and a declaration of non-liability and the Advocate General had recognised the right of an arbitral tribunal to make an inconsistent award on the merits.  Neither the Advocate General nor the ECJ itself contemplated that the Tribunal should decline jurisdiction altogether until the Italian court had ruled.

The Commercial Court is to be applauded for trying to unlock the process and allow further progress to be made in arbitral proceedings which were commenced some 11½ years ago.  It is of course highly likely that the insurers will seek to appeal this decision, perhaps once again leapfrogging over the Court of Appeal to the UK Supreme Court directly, and a further reference of the involved issues of European law to the ECJ cannot be ruled out.

Regulation 44/2001 is currently the subject of discussion as to whether and how it should be amended.  There is concern in some quarters that the arbitration exception is being emasculated.  It is understood that the current state of play is that the UK and France would like to see the Regulation amended so that it is clear that the task of regulating the conduct of the arbitration and of assessing whether the dispute falls within the ambit of the arbitration clause is a matter solely for the national courts of the seat of the arbitration (a proposal advanced by the Heidelberg study commissioned by the European Commission in September 2007).  In the present case, this would have meant the Commercial Court deciding whether the dispute was properly referable to arbitration, and the ‘Italian torpedo’ exemplified by the commencement of proceedings in Sicily would be a thing of the past.  Other EU Member States have expressed different views.  These range from the position that the Regulation should be left as it is in this regard, for fear that changes would cause more problems than they solve and would increase rather than reduce the number of parallel proceedings, to the suggestion that the arbitration exception should be removed from the Regulation entirely.  If no change is made, however, the present uncertainty will continue.  The Tribunal in the West Tankers arbitration will be free to issue an award of damages, with the potential that that will conflict with a decision of the Court in Sicily, if and when that is finally forthcoming.  The English Commercial Court, as things stand, would give leave to enforce such an award as a judgment.

Given the present state of the law, if a party is seriously concerned that its opponent will seek to commence proceedings in another EU jurisdiction in breach of an arbitration clause, one solution would be to commence immediate proceedings in the national courts at the seat of the arbitration, seeking a declaration as to the arbitrability of the dispute.  That court would be first seised, giving it primacy under Regulation 44/2001 and preventing the ‘torpedo’ from exploding elsewhere.

Third Circuit Ruling Shows Vitality of Commercial Class Arbitration After Stolt-Nielsen

Monday, April 9th, 2012

That class arbitration in a commercial context remains viable after, and perhaps despite, the Supreme Court’s 2010 decision in Stolt-Nielsen S.A. v. Animalfeeds Int’l, Inc. (130 S.Ct. 1758), was demonstrated again last week in a decision of the US Third Circuit Court of Appeals. The Third Circuit affirmed a district court ruling that denied vacatur of an arbitrator’s award permitting class arbitration between the Oxford managed care network and a class of doctors on whose behalf the Claimant brought the case under his individual reimbursement contract with Oxford. (Sutter v. Oxford Health Plans LLC, 2012 WL 1088887. (3d Cir. April 3, 2012)). Both the district court and the Third Circuit rejected Oxford’s position that Stolt-Nielsen required the conclusion that the arbitrator had exceeded his powers by allowing class arbitration.

The Oxford dispute resolution clause stated:

“No civil action concerning any dispute arising under this Agreement shall be instituted before any court, and any and all such disputes shall be submitted to final and binding arbitration in New Jersey, pursuant to the Rules of the American Arbitration Association with one arbitrator.”

The arbitrator construed this clause as authorizing class actions, in a procedural order in 2003 later incorporated in a clause construction award. The arbitrator considered that the class action the Claimant had commenced in New Jersey Superior Court was “a civil action concerning” a dispute arising under the Agreement. He then reasoned that whereas the clause stated that  “any and all such disputes”  should go to arbitration, the parties evidently intended to arbitrate any action which, but for the arbitration clause, could be commenced in court. This necessarily included a class actios.

This construction of the clause was not inevitable, and was perhaps not even the one most logically derived from the text. The prohibition on court proceedings could have been read as broader than the submission to arbitration. The clause does not unambiguously send to arbitration that which it forbids in court: i.e. “any civil action concerning any dispute arising under this Agreement.” The signatory doctor was required to arbitrate only “such disputes,” not “such civil actions.”

The arbitrator might have found that a dispute between Oxford and another physician who signed a similar contract does not “aris[e] under this Agreement,” but under another agreement. But that interpretation would have imposed a class action waiver, and under the canon of construction that a waiver should be set forth in explicit terms, it was quit. justifiable to reject that interpretation — at least if the text could plausibly support another. And indeed such a broader interpretation was possible, as “this Agreement,” did not necessarily mean only the agreement between Oxford and this particular doctor, but could plausibly embrace the identical reimbursement agreements between Oxford and hundreds or thousands of other doctors.

For the Third Circuit panel, the case fell comfortably within settled FAA jurisprudence that an arbitrator acts within his or her powers when the award purports to construe the contract, even if the arbitrator’s construction is at the outer limits of plausibility. Stolt-Nielsen was seen by the Court as neither changing this doctrine nor requiring the rejection of class arbitration in this case.

In Stolt-Nielsen the parties had stipulated that the arbitration clause was “silent” concerning class actions, i.e. that they had made no agreement about class actions. That stipulation, the Supreme Court reasoned, precluded any arbitral finding that the parties intended to permit class arbitration, and left the arbitrators only one way to find that class arbitration was permitted — by resort to the law applicable to the arbitration clause. The Supreme Court held that whereas the arbitrators did not apply such law, but relied instead on other arbitral awards that found class arbitration appropriate when the clause did not preclude class arbitration, the tribunal exceeded its powers.

The Third Circuit was unpersuaded by Oxford’s arguments that Stolt-Nielsen prohibited class arbitration in this case.

The arbitrator having purported to interpret the langauge of the arbitration clause to discern the parties’ intent, and having had before him no stipulation of “silence” about class arbitration, Stolt-Nielsen was inapposite. The arbitrator’s ascertainment of the  parties’ intent based on the words of the clause was procedurally proper, and so the merits of that interpretive exercise were not open to review on a motion to vacate the award based on FAA Section 10(a)(4) for having exceeded the powers conferred on the tribunal by the parties.

The Oxford case should add vitality to the view that Stolt-Nielsen did not signal the end of all class arbitration in commercial cases, especially those that involve neither consumers nor employees. Oxford reminds us that Stolt-Nielsen was fundamentally a case about contract interpretation, and not a policy polemic against class arbitration from the conservative wing of the US Supreme Court. Oxford also reminds us that Stolt-Nielsen will frequently not control the outcome of a contested class arbitration clause construction dispute before an arbitral tribunal, as claimants will avoid making the type of stipulation, concerning the “silence” of the clause,  that in Stolt-Nielsen foreclosed further analysis of the text as a source of the intent of the parties.

Indeed, as more decisions like Oxford emerge from the federal courts of appeals, the class arbitration analytical roadmap for arbitrators should become well-understood. A tribunal not constrained by any explicit class action waiver nor by a Stolt-Nielsen type stipulation regarding the “silence” of the clause, will parse the text and syntax of the clause, in the context of the parties’ overall contract, as a first step to ascertaining their intent. If ambiguity exists, resort may be had to parol evidence.

And if the clause, so construed, permits conflicting inferences about intent, resort may be had to the governing law concerning principles of interpretation, burdens of proof, etc. 







British Columbia Court of Appeal Rules in Favor of Expeditiousness and Finality of Arbitration

Wednesday, April 4th, 2012


With this post, Arbitration Commentaries begins a new initiative to bring its readers reports on noteworthy arbitration law and practice developments in important jurisdictions outside the United States. In this commentary, Barry Leon, Chair of the International Arbitration Practice Group at Perley, Robertson, Hill & McDougall LLP in Ottawa, Canada ( ), and John Siwiec, an associate in that Group, report on a significant recent case from the British Columbia Court of Appeal on the importance of arbitration being expeditious and providing finality — an important appellate court policy pronouncement at a time when users of arbitration, arbitral institutions and arbitration practitioners are focused on the importance of controlling the cost and reducing the length of arbitration. Barry Leon and John Siwiec may be reached via the e mail links found on the Perley, Robertson website (linked above).



Recently, a unanimous British Columbia Court of Appeal upheld a lower court decision precluding a party from appealing a domestic arbitral award where the appeal would be based on an argument inconsistent with one it advanced before its arbitral tribunal. In doing so, the Court stated that the arbitration process is meant to be expeditious and provide finality.


In VIH Aviation Group Ltd. v. CHC Helicopter LLC, 2012 BCCA 125, the B.C. Court of Appeal held that:


Where parties have chosen arbitration as the method of resolving disputes under a contract, they are expected to present their cases fully before the arbitration panel. Allowing a party to change its position on appeal can be subversive of the arbitration process.[1]


In seeking leave to appeal the arbitral award, VIH Aviation Group Ltd. and Cougar Helicopters Inc. (“Cougar”) changed its position on the method that should be used to interpret the parties’ contract. The B.C. Court of Appeal upheld the lower court’s denial of leave to appeal on discretionary grounds under B.C.’s Commercial Arbitration Act, RSBC 1996, c 55 (“CAA”).


Legislative Framework

The CAA applies to domestic arbitration and is to be distinguished from B.C.’s International Commercial Arbitration Act, RSBC 1996, c 233 (“ICAA”), which incorporates the 1985 UNCITRAL Model Law on International Commercial Arbitration (“Model Law”).


One of the distinguishing features of the CAA compared to the ICAA is that arbitral awards can be appealed to B.C.’s Supreme Court (the trial level court) on questions of law. In contrast, the only recourse against an arbitral award under the ICAA is the prescribed grounds in Model Law Articles 34 and 36, which do not include errors of law.


At the center of the B.C. Court of Appeal’s ruling was the extent of the B.C. Supreme Court’s discretionary power in granting or refusing leave to appeal from an arbitral award under the CAA. Section 31(2) of the CAA states:


In an application for leave … the court may grant leave if it determines that

(a)  the importance of the result of the arbitration to the parties justifies the intervention of the court and the determination of the point of law may prevent a miscarriage of justice,

(b) the point of law is of importance to some class or body of persons of which the applicant is a member, or

(c)  the point of law is of general or public importance.

[emphasis added]


The applicant must demonstrate that the appeal will be on a question of law.


The Dispute

The dispute arose out of a joint venture agreement between Cougar and CHC Helicopter International Inc. (“CHC International”) under which the two companies would provide helicopter services to offshore oilfields in Newfoundland. At the time the agreement was made, CHC International directly owned substantial assets that would be used in the helicopter operations. However, following a restructuring, Cougar asserted its right to terminate the agreement alleging that CHC International had transferred substantially all of its assets.


CHC International’s corporate successor, CHC Helicopter LLC, referred the matter to arbitration seated in Vancouver under the CAA. The arbitral tribunal held that Cougar’s purported termination was invalid and that the joint venture agreement remained in force.


The Parties’ Positions in the Arbitration

The main issue in the arbitration was whether CHC International’s restructuring triggered the termination clause in the joint venture agreement that provided a party the option to terminate the agreement in the event the other party “sold or transferred all or substantially all of its assets”.


The parties differed in their interpretation of “all or substantially all” in the clause although they agreed that the words required a purposive interpretive approach, which included both a quantitative and qualitative analysis of the corporate restructuring. The parties differed on the qualitative effects of the restructuring.


The tribunal found in favour of CHC Helicopter LLC, finding that the restructuring was not qualitatively significant.


Leave to Appeal

In seeking leave to appeal the arbitral award before the B.C. Supreme Court, Cougar’s main assertion was that the tribunal erred in law in failing to interpret the termination clause in the joint venture agreement in accordance with its plain and ordinary meaning – that CHC International’s restructuring led to a “transfer of all or substantially all of the assets” within the plain and ordinary meaning of the words – as opposed to interpreting it using a purposive approach.


The judge accepted that Cougar’s proposed appeal raised an issue of law, and cited B.C case law for the proposition that a failure to apply proper principles of interpretation to the construction of a contract is an error of law. He also found that the criteria for granting leave under Section 31(2)(a) of the CAA, noted above, were met.


Although the statutory criteria had been satisfied, the judge declined to exercise his discretion in favour of granting leave. The judge’s primary motivating factor in refusing leave was that Cougar’s proposed argument on appeal would be inconsistent with the argument it advanced in the arbitration.


Cougar appealed the trial judge’s refusal of leave to appeal to the B.C. Court of Appeal. Cougar contended that its position regarding the interpretation of the joint venture agreement was not inconsistent but a refinement of its previous position.


Potential Subversion of Goals of Arbitration as Ground for Refusing Leave to Appeal

The B.C. Court of Appeal agreed with the judge of first instance that Cougar’s proposed argument on appeal conflicted with its argument before the arbitral tribunal. The Court then considered whether the trial judge erred in treating the change of position as a proper basis on which to refuse leave to appeal.


After reviewing the goals of arbitration, the Court of Appeal found that the trial judge did not err and held that “allowing a party to change positions too readily on an arbitration appeal risks subverting the goals of the arbitration process, which is designed to be expeditious and provide finality.” (VIH Aviation Group Ltd. v. CHC Helicopter LLC, 2012 BCCA 125, at para. 48.)



The affirmation by the B.C. Court of Appeal of the importance of arbitration being expeditious and providing finality is a welcome appellate court policy pronouncement at a time when users of arbitration, arbitral institutions and arbitration practitioners are focused on the importance of controlling the cost and reducing the length of arbitration.






[1] VIH Aviation Group Ltd. v. CHC Helicopter LLC, 2012 BCCA 125, at para. 10.

Failure to Address Currency Conversion During Arbitration Haunts Award Creditor in U.S. Confirmation Case

Wednesday, April 4th, 2012

Exchanges rates and interest rates are interesting, and important, especially in high-value cases.

So one might suppose that a (nominally) Nigerian company involved in a high-stakes London-based arbitration against the Government of Nigeria, and anticipating that it might seek recognition and enforcement of the award elsewhere than in Nigeria, would have given attention during the arbitration to (i) the proper currency of the award, (ii) the convertibility of the award currency into the currency of the enforcing jurisdiction upon entry of judgment confirming the award, (iii) the relevant reference date for currency conversion and (iv) the applicability of the interest rate utilized in the award to the calculation of post-award/pre-judgment interest.

But that did not occur in the arbitration underlying the latest in a series of decisions from a federal district court in Washington concerning US enforcement of the award. (Continental Transfert Technique Ltd. v. Government of Nigeria, 2012 WL 1005203 (D.D.C. Mar. 27, 2012)).

It appears Claimant did not consider the difficulty in having a US judgment awarding Nigerian currency — equivalent to US $250 million at the award-date exchange rate — until after the US judgment had been entered. Claimant’s problem touched off a dispute over the power of the federal court to provide a solution, either as a clerical correction or substantive amendment of the judgment.


The award creditor who has obtained a confirming US judgment may discover only in its dealings with the execution authorities — the US Marshal’s office in the district where assets may be found —   that the Marshal is unwilling or unable to execute the judgment except in the strictest compliance with its terms. The Marshal’s Office is not in the business of making calculations, conversions, or interpretations.  Further, when one arrives at the Marshal’s office with a judgment confirming an arbitral award, the award itself is quite useless. The Marshal is interested only in what the Judgment provides.

In this case the Claimant, presumably upon discovering that the Marshal would not convert Nigerian currency to dollars and select an exchange rate, asked the Court to rectify the matter as correction of a “clerical error” in the Judgment. The Court denied this relief, ruling that at least the reference date for conversion, if not convertibility itself, was a matter of substantive rights not yet adjudicated,  and any change in the Judgment would therefore need to meet the stiffer legal standard for substantively amending it as opposed to clerically correcting it. The Court left open whether amendment could be possible an invited another round of briefs.

One approach used by arbitral tribunals in addressing the conversion issue is to secure to the creditor the amount in the creditor’s national currency that it would have had if the debtor had fully performed its commercial obligation. (See H. Smit, Substance and Procedure in International Arbitration, 65 Tul. L. Rev. 1309 (1991), republished at One might also suppose that tribunals, extending this practice, would sometimes give their award in a currency in which the debtor ordinarily holds its cash reserves, even if not its own national currency.

In all events there are potentially arbitrable issues of fact regarding the timing of currency conversion, and the creditor who fails to present the issue to the arbitral tribunal bears risk that an enforcing court will only convert the currency as of the date of the judgment confirming the award. (See, in this regard, a brief discussion of exchange rate issues in an article by Noel Matthews, James Nicholson, and Alexandre Riviere of FTI Consulting, titled “Calculating Pre-Judgment Interest,” in Global Arbitration Review’s The European & Middle Eastern Arbitration Review 2012. The authors observe: [F]luctuations in exchange rates may mean that it may make a significant difference to the final sum claimed whether the damages are translated into hard currency at the date of breach, at the then-prevailing exchange rate, at the date of the hearing or award, or periodically as lost cash flows would have been realized.  The determination of which method is appropriate may require a tribunal to take a position on whether the claimant would have translated its losses into hard currency at an earlier or later date.”)

The award creditor in Continental v Nigeria also did not obtain a clear ruling from the arbitral tribunal on the rate applicable to post-award, pre-judgment interest. The stakes are significant, as the tribunal gave pre-award interest at 18 percent, and there have been nearly four years of post-award proceedings in the UK and US courts with more to come.  In the latest decision, the federal court in Washington rejects the notion that its judgment might be “clerically corrected” to apply the pre-award interest rate to the post-award, pre-judgment period.

Arbitration counsel are wise to specify in their submissions to the tribunal that the desired rate of pre-award interest should apply up to the date the award is satisfied. If so stated, a judgment confirming the award, in order to carry out its terms, should provide for pre-judgment interest at the pre-award rate specified by the tribunal.