Posts tagged: fact

Appeals on Questions of Fact

Of course, appeals on questions of fact are not permitted as the limited right of appeal under s.69 Arbitration Act 1996 is restricted to questions of law.  In this context it is worth noting that questions of foreign law are regarded as questions of fact and hence no appeal lies on disputed findings of foreign law.

In Guangzhou Dockyards v ENE Aegialii [2010] the Court had to consider an arbitration clause that permitted an appeal “on any issue“.  Dockyards, having lost before the tribunal, argued that party autonomy (s.1(b)) and the opening words of s.69 (“Unless otherwise agreed …”) permitted an appeal on questions of fact.

The Court rejected these arguments holding that (a) party autonomy extended to the conduct of the reference and did not operate so as to bestow wide powers on the parties and, if the Court were to interfere, it would amount to an unauthorised intervention (s.1(c)) and (b) the opening words of s.69 qualified appeals on the law only.

Further, the Court commented that if any appeal on the facts was to be permitted it could only be under the inherent jurisdiction of the Court.    The Court ruled that strictly the point did not arise as the parties had not agreed to permit appeals on the facts (express words would be required) but if the parties had made such an agreement it was still “very doubtful” that any jurisdiction existed (per Finelvet v Vinava Shipping [1983]).

This is another example of the Court being pro-arbitration and underlining the finality of an award.  If it is intended to permit appeals on issues of fact express words will be required and, even then, the Court may not permit it.

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