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LORD MANCE’S ADVISORY COMMITTEE ON SECTION 69 OF THE ARBITRATION ACT 1996

FIRST INTERIM REPORT

ON THE WORKINGS OF SECTION 69 OF THE 1996 ACT IN REGARD TO MARITIME ARBITRATIONS IN LONDON BEFORE THE COMMERCIAL AND ADMIRALTY COURT

1. This statistical research has been undertaken as part of an exercise requested by Lord Mance in regard to maritime arbitrations in London, with the consent of Mr Justice Andrew Smith for the Commercial Court Users’ Committee.

2. Scope: The new research is taken from three years’ archives stored by the Commercial Court, namely the confidential paper and electronic files holding arbitration applications issued by the Commercial Court during the calendar years 2006, 2007 and 2008 under Section 69 of the 1996 Act, together with the written record of the ensuing proceedings. For completeness, this research includes earlier statistical research undertaken by the DAC (before the 1996 Act) and other statistical research published in England and elsewhere.

3. The results of this research are set out in the Statistical Appendix I below. It may be

convenient briefly to highlight certain aspects and conclusions. (Section 69 is set out in Appendix III below).

4. All Awards: For the three years 2006, 2007 and 2008, the average number of applications to the Commercial Court for leave under Section 69 was 50.33 (36, 58 & 57 respectively). The increase is largely attributable to an increase in the number of applications in relation to maritime awards.

5. Maritime Awards: For the three years 2006, 2007 and 2008, the majority of arbitration applications for leave under Section 69 concern maritime awards (including salvage), with corresponding figures where leave is granted by the Court under Section 69(2)(b) and where the award is subjected to judicial variation, remission or setting aside under Section 69(7), namely, with maritime awards as a percentage of all awards: (i) Applications for leave: 2006: 78%, 2007: 67.2%; and 2008: 72% (ii) Leave granted: 2006: 77.8%, 2007: 69.2%; and 2008: 100% (iii) V/R/SA: 2006: 75%, 2007: 100%; and 2008: 100% In other words, the bulk of the Commercial Court’s work under Section 69 in relation to all awards, at all three stages of Section 69, relates to maritime awards.

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6. LMAA Awards: Of these maritime awards, a substantial majority is made by LMAA

arbitrators under the LMAA Terms. For the three years 2006, 2007 and 2008, these LMAA awards average 75%, 61.5% and 78% respectively of all maritime awards. In other words, the bulk of the Commercial Court’s work in relation to maritime awards, at all three stages of Section 69, relates to LMAA awards.

7. Statistical Significance: Whilst the total number of applications for leave under Section 69 for all awards is significant for the six years 2002-2004 and 2006-2008 (statistics for 2005 are missing), the number of awards successfully challenged under Section 69 is relatively low, averaging only 9.27% annually for 2006, 2007 and 2008 (of which 93% relate to maritime awards).

8. Of the 8 awards successfully challenged in 2006 and 2007, 7 were maritime awards (of which 5 were LMAA awards). Of the 6 awards successfully challenged in 2008, all were maritime awards (of which 5 were LMAA awards). In contrast to maritime awards, the figures for insurance and reinsurance cases are statistically insignificant; and for other categories, still more so.

9. These statistics mark a very significant shift overall from the days of the Special Case under Section 21 of the Arbitration Act 1950 (immediately before its abolition under the Arbitration Act 1979) and, to a lesser extent, from the days of the Special Categories under the 1979 Act (before their abolition under the Arbitration Act 1996). This reduction is mirrored in the number of judgments published in the law reports of awards appealed under Section 69: see Appendix II. However, the historical status of maritime awards, both under the 1950 Act and as a Special Category under the 1979 Act, may partly explain their continued significance in these statistics, together with anectodal suggestions that the Commercial Court may grant leave to appeal under section 69 more easily in a maritime case than in a non-maritime case.

10. Opt-Out Agreements: Judicial appeals under Section 69 may be excluded by the

parties’ written agreement under Section 69(1); and Section 69 does not apply to questions other than English law. Hence, the two applications for leave in 2006 in regard to LCIA awards under Section 69 were dismissed (both non-maritime); and one application for leave in 2008 was dismissed in regard to an ICC award. (Both the LCIA and ICC Rules contain ‘opt-out agreements’). There is no trace of any award under a standard form contract providing for a non-English law; for example: ad hoc Bermuda form insurance arbitrations in London providing for the application of New York substantive law. (The LMAA Terms do not contain any ‘opt-out agreement’; but see the LMAA SCP and ICP below).

11. Apart from maritime cases, there is no statistical evidence from these files that Section 69, by itself, poses a threat to the finality of non-institutional awards with no ‘opt-out agreements’, e.g. London arbitrations under the UNCITRAL Arbitration Rules or insurance/reinsurance arbitrations under the arbitration rules of ARIAS (UK).

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12. Anecdotal Evidence: There are however anecdotal suggestions that the known restrictions upon judicial review imposed by the requirement for leave under Section 69 inevitably distort statistics because these restrictions discourage any application being made under Section 69 at all. There must be some truth in this suggestion, but equally it is known that the LCIA has recently seen, for the first time, a significant number of maritime arbitrations, suggesting that maritime parties prefer the finality of LCIA awards for maritime disputes (with the LCIA Rules’ exclusion of any judicial review under Section 69)1. It may be useful to check further these different patterns of behaviour by users of London Arbitration.

13. Opt-In Agreements: A right to judicial appeal under Section 69 can be agreed by the

parties under Section 69(2)(a), dispensing with the need for the Court’s leave under Section 69(2)(b), both before and after a dispute has arisen, as recently confirmed in Royal & Sun Alliance v BAE [2008] EWHC 743 (Comm).

14. It is thus possible for an arbitral institution to include in its rules an ‘opt-in agreement’, providing for an automatic right of appeal under Section 69(7), if its users or the disputing parties so wished. There is some statistical evidence that parties do make ad hoc agreements under Section 69(2)(a); but it does not appear from the Commercial Court files that such agreements exist generally in the form of arbitration rules or arbitration clauses in standard forms of contract, rather than one-off arrangements. This practice of “opting-in” was popular with commercial parties in the USA until it was controversially stopped by the US Supreme Court’s recent decision in Hall Street v Mattel (2008). In contrast, it remains effective under the 1996 Act for London Arbitration. (Given the recent decision of the French Cour de cassation in Putrabili v Rena Holding Rev arb 2007.507, it may now be necessary for English parties wishing to preserve any right of appeal under Section 69 but at risk of French jurisdiction, to provide expressly for an opt-in to such judicial appeal in their arbitration agreement, operating as a matter of contract. In the absence of any such consensual opt-in (forming part of the arbitration agreement), the French Court there enforced a London commodity award successfully appealed by the losing party under Section 69 before the English Court but declined to enforce the subsequent award made to contrary effect in conformity with the English Court’s decision on remission, i.e. in favour of the former losing party. It is considered that the French Court would have decided this case differently if the right to judicial appeal had formed part of the parties’ arbitration agreement).

15. LMAA ICP: The Intermediate Claims Procedure of the LMAA (“ICP”), recently

introduced by the LMAA for claims less than US$ 400,000 but more than US$ 50,000, contains a qualified “opt-in” agreement, conditional upon the decision of the LMAA tribunal in its award. Paragraph 14 of the ICP provides: “The parties are deemed to have agreed that there will be a right of appeal to the Courts [i.e. under Section 69] but only where the tribunal certifies in its award that the dispute between the

1 Information from the LCIA Registry (April 2009).

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parties involves a question of law of general interest or importance to the trade or industry in question. Any right of appeal is otherwise excluded. For the avoidance of doubt this provision does not apply to any ruling by a tribunal in relation to its own jurisdiction.” This procedure is new; it effectively transfers from the court to the tribunal the decision to grant leave under Section 69(2)(a) but with a much broader gateway; and it may go some way to meeting the demands of certain maritime users (particularly P&I Clubs) for a procedure ensuring that the English Courts can determine, finally and publicly, legal questions of general significance far beyond the immediate interests of the parties to the particular LMAA arbitration. (The LMAA Small Claims Procedure (“SCP”), designed for claims not exceeding US$ 50,000, contains an ‘opt-out agreement’ precluding any appeal under Section 69).

16. Joint Applications: A significant number of applicant parties to the Commercial Court

are making joint applications under both Section 69 and Section 68 of the 1996 Act. The figures for such joint applications are as follows:

2006: 13 out of 36 (36% of all cases) 2007: 12 out of 58 (21% of all cases) 2008: 17 out of 57 (30% of all cases) These figures appear significant. It is not clear from the files whether this is a device to secure an oral hearing of the application for leave under Section 69 notwithstanding Section 69(5) of the 1996 Act; and, if it is, whether it succeeds.

17. Further Research: It would be possible to extent this research into the Commercial

Court’s archives both into 2009 (at the end of this calendar year) and backwards to 2002-2005. (If there has been no activity on an earlier arbitration file since 2002, the paper file has been destroyed by the Commercial Court; and no copy electronic file exists before 2006). Such extended research would require substantial further work in the archives of the Commercial Court2.

18. It may also be useful to locate and study arbitration applications in the Mercantile Courts, the TCC, the Chancery Division and the Queen’s Bench Division, to the extent available. At present, it is understood that these courts have no available statistics on arbitration applications under Section 69. However, it is most unlikely that significant numbers of maritime awards are referred to these courts under Section 69. V.V.Veeder QC Amy Sander

24 May 2009

2 This research for the three years 2006, 2007 and 2008 has taken about 150 hours in all; and accordingly

a further four years’ research would require a significant further period.

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STATISTICAL APPENDIX I

1. The 1950 Act: In 1978, there were about 300 Special Cases set down for hearing in the Commercial Court, under Section 21 of the Arbitration Act 19503.

2. Maritime cases were the majority of these Special Cases, followed by

commodity and insurance/reinsurance Special Cases. The total number of all commercial arbitrations (not awards) in London was then estimated at about 10,000 annually4. There are however no reliable statistics during this period.

3. An exercise has nonetheless been completed on Special Cases reported in

Lloyd’s Law Reports. There were 187 reports of Special Cases over the eleven- year period from 1968 to 1978, of which 96 went to the Court of Appeal and 18 went to the House of Lords. Of these 187 cases, 107 (57%) were maritime awards, 68 (36%) were commodities awards; 1 was an insurance/reinsurance (0.5%) award; and 11 (6%) were other categories.

4. The 1979 Act: In 1990, there were 67 applications to the Commercial Court

for judicial review of awards under Section 1 of the Arbitration Act 1979, of which 39 (58%) were maritime, 20 commodity (30%) and 8 (12%) insurance /reinsurance awards5. In 1990, there were 3,373 appointments of LMAA arbitrators, producing 381 maritime awards6; possibly indicating that about 10% of maritime awards were subject to applications under Section 1.

(Under the 1979 Act, maritime, commodity and insurance/reinsurance disputes were “Special Categories” from which opting-out of judicial review under Section 1 was impermissible).

3 David Bird Esq, Commercial Court Registry, cited in the 1993 DAC Statistical Appendix (infra fn 5), fn. 22. The

figure before the major abuses of the Special Case (from about 1973 onwards) was “between 20 to 30 per annum”: Mustill & Boyd, Commercial Arbitration, (1982) p. 406, fn 18. 4 Mustill & Boyd, ibid. This figure is not based on any reliable statistics. It also seems high for commercial

arbitrations, even allowing for large numbers of commodity and maritime arbitrations at that time, when compared to equivalent figures published by overseas arbitration institutions, themselves subject to possible exaggeration: see Table 1 “Arbitration Cases in Selected Arbitration Institutions from 1992 to 2004” in Mistelis, “International Arbitration – Corporate Attitudes and Practices – 12 Perceptions Tested: Myths, Data and Analysis Research Report” 2004 (sic) 15 Amer Rev Int Arb 525, 527. The current figure for London commercial arbitrations must be much less than 10,000 annually, given (inter alia) the smaller number of maritime arbitrations: the IFSL Research Paper of September 2008 estimates only 1,369 commercial arbitrations in London for 2007 (excluding small claims arbitrations). Again, these estimates are not based on any reliable statistics. 5 The Statistical Appendix to the 1993 DAC Report on the Special Categories under the Arbitration Act 1979

[1993] 9 Arb Int 405, 411. 6 DAC Statistical Appendix (supra).

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5. The 1996 Act: For the ten-year period 1998-2007,Woolhouse noted 94

reported cases under Section 69 of the Arbitration Act 1996: 54% of applications for leave were granted by the Court, 13% were brought by the parties’ agreement and leave was refused by the Court in the remaining 33%7. (In 2002, the Commercial Court ceased to be the sole ‘gateway’ for arbitration applications under the 1996 Act; and it is therefore possible that figures from 2002 onwards do not include all maritime, insurance/reinsurance or other relevant applications to other courts, particularly the Mercantile Courts outside London).

6. Schedule A: The statistical survey of all Commercial Court arbitration

applications made under Section 69 from 2002 to 2008 for error of English law under Section 69 is set out in Schedule A below.

7. LMAA: As already noted above, the maritime cases for 2006, 2007 and 2008

appear to be mostly LMAA awards, subject to LMAA Terms:

2006: (A) Of the 28 maritime applications for leave, 21 were LMAA awards (75% of all maritime applications), with 6 not LMAA and 1 unclear because the file is missing; (B) of these 21 LMAA applications, leave was granted in 7 cases (100%); and (C) of these 7 LMAA awards, 3 awards were set aside, varied or remitted. 2007: (A) Of the 39 maritime applications, 24 were LMAA awards (61.5%), with 14 not LMAA and 1 unclear because the file is likewise missing; (B) of these 24 LMAA applications, leave was granted in 5 cases (56%); and (C) of these 5 LMAA awards, 2 awards were set aside, varied or remitted.

2008: (A) Of the 41 maritime applications, 32 were LMAA awards (78%), with 24 not LMAA and 1 unclear; (B) of these 32 LMAA applications, leave was granted in 13 cases (41%); and (C) of these 13 LMAA awards, 5 awards were set aside, varied or remitted. (These figures may be slightly inaccurate: it is sometimes difficult to identify from the file whether LMAA arbitrators are conducting the arbitration on LMAA Terms).

8. ‘Settlements’: In all categories, the settlement of applications under Section

69 is a factor, both before and after leave is granted by the Commercial Court. For example, as regards the eight insurance/reinsurance cases in 2007, two cases were settled before the application for leave was decided and two cases were settled after leave was granted but before the resulting appeal

7 Woolhouse, “The English Act’s 10

th Anniversary”, (2007) Global Arbitration Review 2.

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was heard. (The files do not disclose whether these settlements were compromises, abandonments or withdrawals by the applicant). In 2008, 6 of the 57 applications for leave were eventually ‘settled’ prior to the Court determining the application.

9. Comparative Appellate Statistics: Strictly comparative figures in regard to

Section 69 are not available from kindred jurisdictions in Europe, given that these jurisdictions do not generally permit any appeal on the merits from an award on a question of law by a tribunal in an international commercial arbitration. However, taking into account all challenges to awards in such following jurisdictions (i.e. equivalent under the 1996 Act to including all applications under Sections, 67, 68 and 69):

Sweden: The Swedish courts received 13 applications under the Swedish Arbitration Act 1999 during the five-year period from 1999 to 2003, leading to 1 award being set aside. A more recent survey for the six-year period from 2002 to 2007 records that 114 applications were made to the Swedish Court of Appeal), i.e. an annual average of 20 applications8. France: The Cour d’appel de Paris received 114 applications during the twelve-year period from 1981 to 1992, leading to 18 awards being set aside. Switzerland: 63 applications were made to the Swiss Federal Tribunal during the sixteen-year period from 1987 to 2004, leading to 3 awards being set aside. These figures appear to produce significantly lower annual averages than all applications to the Commercial Court annually under Sections 67, 68 and 69 of the 1996 Act9, although no reliable statistics exist as to the total number of arbitrations taking place in each of these foreign jurisdictions.

10. Law Reports: The 94 arbitration applications to the Commercial Court under

Section 69 made in 2006, 2007 and 2008 led to 29 reported judgments: 9 cases for 2006 (with two in the Court of Appeal & 1 in the House of Lords) and 10 cases for each of 2007 and 2008 (with, as yet, no appellate judgments): see Appendix II below.

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Bagner, IAC “Table Talk” (06.06.2008) 12, p. 14. 9 Veeder, On Reforming the English Arbitration Act 1996?”, Commercial Law: Perspectives and Practice, (ed

Lowry & Mistelis; 2006), p. 257.

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SCHEDULE A

A: Applications B: Leave Granted C: Award SA/V/R D: LMAA

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2002: 77 12 - 432 (2030) 2003: 40 07 - 405 (2445) 2004: 47 08 - 408 (2746) 2005: - - - 440 (2864)

2006: 36 09 04 361 (2500)

(M: 28 = 78%) (M: 07 = 77%) (M: 03= 75%) (RI: 01 = 03%) (RI: 01 = 11%)) (RI: 00 = 00%) (I: 00 = 00%)

2007: 58 13 04 344 (2559)

(M: 39 = 67%) (M: 09 = 69%) (M: 04 = 100%) (RI: 01 = 2%) (RI: 01=8%) (RI: 00 = 00%) (I: 07 = 13%) (I: 02= 15%) (I: 00 = 00%)

2008 57 14 06 453(3766)

(M: 41 = 72%) (M:14 =100%) (M:06 =100%) (RI: 04 = 5.3 %) (I: 03 = 5.2%)

Column A lists the numbers of all arbitration applications to the Commercial Court under Section 69 of the 1996 Act, including applications by the parties’ agreement under Section 69(2)(a) of the 1996 Act. Column B lists the numbers of those applications where the Commercial Court granted leave under Section 69(2)(b) of the 1996 Act. Column C lists the numbers of awards where the Commercial Court set aside, varied or remitted an award under Section 69(7) of the 1996 Act. Column D lists all LMAA awards and (in brackets) appointments, including SCP (but not ICP, having only been introduced in 2009). It should be noted that the number of LMAA appointments does not signify the total number of LMAA arbitrations or awards (being appointments to two or three member tribunals, as well as sole arbitrator tribunals). There are no reliable statistics for all commodity, insurance and reinsurance arbitrations and awards in London.

2006-2008: As regards 2006, 2007 and 2008, the first figures in brackets signify maritime cases (“M”) as a percentage of the relevant totals in Columns A, B & C and the second figures signify likewise insurance and reinsurance cases (“I/RI”) 2002-2005: The full figures for 2002 to 2005 are not currently available: only those listed below under Columns A, B & D of Schedule A

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LMAA Statistics, obtained from the LMAA Hon Sec (13.10.2008 & 18.05.2009).

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APPENDIX II

2006 - REPORTED CASES UNDER SECTION 69

Folio No

Court Name of Case Citation

308 Com Court Arduina Holdings v Celtic Resources (Holdings) Plc

[2006] EWHC 3155

342 Com Court Econet Satellite Services Ltd v Vee Networks Ltd

[2006] EWHC 1664 (Comm) *2006+ 2 Lloyd’s Rep 423

496 Com Court STX Pan Ocean Co Ltd v Ugland Bulk Transport As (‘The Livanita’)

[2007] EWHC 1317 (Comm) *2008+ 1 Lloyd’s Rep 86

568 Court of Appeal

AIC Ltd v Marine Pilot Ltd (The ‘Archimidis’)

[2008] EWCA Civ 175 *2008+ 1 Lloyd’s Rep 597

570 House of Lords

Transfield Shipping Inc v Mercator Shipping Inc

[2008] UKHL 48 2008] 2 Lloyd's Rep 275

723 Com Court Independent Petroleum Group Ltd v Seacarriers Count Pte Ltd

[2006] EWHC 3222 (Comm) *2008+ 1 Lloyd’s Rep 72

859 Com Court GlaxoSmithkline Ltd v Department of Health

[2007] EWHC 1470 (Comm)

914 Com Court HBC Hamburg Bulk Carriers GmbH & Co KG v Tangshan Haixing Shipping Co Ltd (The ‘Fu Ninh Hai’)

[2006] EWHC 3250 (Comm) [2007] 2 Lloyd’s Rep 223

1389 Court of Appeal CTI Group Inc v Transclear S.A [2008] EWCA Civ 856 [2008] Lloyd's Rep Plus 75

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Veeder, supra, 14 at para. 14.30ff.

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2007 - REPORTED CASES UNDER SECTION 69

Folio No

Court Name of Case Citation

473 Com Court Sanhe Hope Full Grain Oil Foods Production Co Ltd v Toepfer International Asia Pte Ltd

[2007] EWHC 2784 (Comm) *2008+ 1 Lloyd’s Rep 458

1052 Com Court Cereal Investments Company (CIC) SA v ED&F Man Sugar Ltd

[2007] EWHC 2843 (Comm) *2008+ 1 Lloyd’s Rep 355

1074 Com Court Gulf Agri Trade v Aston Agro Industrial AG [2008] EWHC 1252 (Comm) *2008+ 2 Lloyd’s Rep 376

1112 Com Court Gulf Import & Export Co v Bunge SA [2007] EWHC 2667 (Comm) *2008+ 1 Lloyd’s Rep 316

1213 Com Court Temple Legal Protection Limited v QBE Insurance (Europe) Limited

[2008] EWHC 483 (Comm) [2008] Lloyd's Rep IR 643

1297 Com Court PT Berlian Laju Tanker TBK v Nuse Shipping Ltd {The ‘Aktor’)

[2008] EWHC 1330 (Comm) *2008+ 2 Lloyd’s Rep 246

1322 Com Court Golden President Shipping Corporation v Bocimar NV (The ‘Channel Alliance’)

[2008] EWHC 130 (Comm) *2008+ 1 Lloyd’s Rep 428

1374 Com Court Royal & Sun Alliance Insurance Plc v BAE Systems (Operations) Ltd and Others

[2008] EWHC 743 (Comm) *2008+ 1 Lloyd’s Rep 712

1425 Com Court Stocznia Gdynia SA v Gearbulk Holdings Ltd

[2008] EWHC 944 (Comm) **2008+ 2 Lloyd’s Rep 202

1605 Com Court Mediterranean Salvage & Towage Limited v Seamar Trading & Commerce Inc

[2008] EWHC 1875 (Comm) [2008] Lloyd's Rep. Plus 80

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2008 - REPORTED CASES UNDER SECTION 69

Folio No

Court Name of case Citation

122 Admiralty Court

Voutakos v Tsavliris Salvage (International) Ltd (The ‘Voutakos’)

[2008] EWHC 1581 (Admlty) [2008] 2 Lloyd's Rep 516

200 Com Court Tag Wealth Management v West [2008] EWHC 1466 (Comm) [2008] 2 Lloyd's Rep 699

347 Com Court CMA CGM SA v Hyundai Mipo Dockyard Co Ltd

[2008] EWHC 2791 (Comm) [2009] 1 Lloyd's Rep. 213

363/ 388

Com Court Seagate Shipping Ltd v Glencore International AG; Glencore International AG v Swissmarine Services SA (The ‘Silver Constellation’)

[2008] EWHC 1904 (Comm) [2009] 1 All ER (Comm) 148 [2008] 2 Lloyd's Rep. 440

375 Com Court Van der Giessen-De-Noord Shipbuilding Division BV v Imtech Marine and Offshore BV

[2008] EWHC 2904 (Comm) [2009] 1 Lloyd's Rep. 273

742/ 749

Com Court TS Lines Ltd v Delphis NV Delphis NV v Ulrike F Kai Freese GmbH & Co. KG

[2009] EWHC 678 (Comm) (2009) 766 LMLN 3

525 Com Court Lansat Shipping Co v Glencore Grain BV [2009] EWHC 551 (Comm) [2009] All ER (D) 247 (Mar)

551 Com Court Bulk & Metal Transport (UK) LLP v Voc Bulk Ultra Handymax Pool LLC

[2009] EWHC 288 (Comm) [2009] All ER (D) 226 (Feb) [2009] Lloyd's Rep. Plus 31

1094 Com Court Michael Wilson and Partners Ltd v Emmott

[2008] EWHC 2684 (Comm) [2009] 1 Lloyd's Rep 162

1152 Com Court ASM Shipping Ltd of India v TTMI Ltd of England (The’ Amer Energy’)

[2009] 1 Lloyd's Rep. 293

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APPENDIX III

Section 69 of the Arbitration Act 1996

“69 Appeal on point of law

(1) Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to

the other parties and to the tribunal) appeal to the court on a question of law arising out of

an award made in the proceedings. An agreement to dispense with reasons for the tribunal’s

award shall be considered an agreement to exclude the court’s jurisdiction.

(2) An appeal shall not be brought under this section except – (a) with the agreement of all the

other parties to the proceedings, or (b) with the leave of the court. The right to appeal is also

subject to the restrictions in section 70(2) and (3) [i.e. the exhaustion of the arbitral process

and meeting the 28-day time-limit].

(3) Leave to appeal shall be given only if the court is satisfied – (a) that the determination of the

question will substantially affect the rights of one or more of the parties, (b) that the

question is one which the tribunal was asked to determine, (c) that, on the basis of the

findings in the award – (i) the decision of the tribunal on the question is obviously wrong, or

(ii) the question is one of general public importance and the decision of the tribunal is at

least open to serious doubt, and (d) that, despite the agreement of the parties to resolve the

matter by arbitration, it is just and proper in all the circumstances for the court to determine

the question.

(4) An application for leave to appeal under this section shall identify the question of law to be

determined and state the grounds on which it is alleged that leave to appeal should be

granted.

(5) The court shall determine an application for leave to appeal under this section without a

hearing unless it appears to the court that a hearing is required.

(6) The leave of the court is required for any appeal from a decision of the court under this

section to grant or refuse leave to appeal.

(7) On appeal under this section the court may by order – (a) confirm the award, (b) vary the

award, (c) remit the award to the tribunal, in whole or in part, for reconsideration in the

light of the court’s determination, or (d) set aside the award in whole or in part.

(8) The decision of the court on an appeal under this section shall be treated as a judgment of

the court for the purposes of any appeal. But no such appeal lies without the leave of the

court which shall not be given unless the court considers that the question is one of general

importance or is one which for some other special reason should be considered by the Court

of Appeal.”