SEA CONTAINERS LTD v ICT PTY LTD [2002] NSWCA 84

SEA CONTAINERS LTD v ICT PTY LTD [2002] NSWCA 84

The arbitrators engaged in misconduct by repeatedly pressing the parties to agree to a cancellation fee and using their position to apply pressure, including refusing to make consent orders unless such agreement was acknowledged. This conduct, coupled with subsequent adversarial actions, would give rise to a reasonable apprehension of bias in a fair minded lay observer, justifying their removal under s44 of the Commercial Arbitration Act 1984 (NSW). The appeal was therefore dismissed.

Parties
Appellant: Sea Containers Ltd; Respondent: ICT Pty Ltd
Jurisdiction
Australia
Judgment Date
18 April 2002
Procedural Posture
Appeal / Judgment of Court of Appeal
Outcome
Appeal dismissed with costs
Legal Topics
Misconduct of Arbitrators, Cancellation/commitment Fees, Apprehended Bias, Removal of Arbitrators
Arbitration Commercial Law Procedural Law Misconduct of Arbitrators Cancellation/commitment Fees Apprehended Bias Removal of Arbitrators

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Parties

Sea Containers Ltd

Appellant

ICT Pty Ltd

Respondent

Procedural Posture

Appeal / Judgment of Court of Appeal

Legal Issues

  1. 1 Whether the conduct of arbitrators in pressing for cancellation fees constituted misconduct under s44 of the Commercial Arbitration Act 1984 (NSW)
  2. 2 Whether such conduct gave rise to a reasonable apprehension of bias warranting removal of the arbitrators

Ratio Decidendi

The arbitrators engaged in misconduct by repeatedly pressing the parties to agree to a cancellation fee and using their position to apply pressure, including refusing to make consent orders unless such agreement was acknowledged. This conduct, coupled with subsequent adversarial actions, would give rise to a reasonable apprehension of bias in a fair minded lay observer, justifying their removal under s44 of the Commercial Arbitration Act 1984 (NSW). The appeal was therefore dismissed.

Court Disposition

Appeal dismissed with costs

Orders

  • Appeal dismissed with costs