Brockton Capital Llp v Atlantic-Pacific Capital Inc

Brockton Capital Llp v Atlantic-Pacific Capital Inc

The tribunal breached s.33(1)(a) Arbitration Act 1996 by deciding that paragraph 2(g)(ii) was an unenforceable penalty without giving Brockton notice or an opportunity to address the issue, causing substantial injustice. The tribunal was entitled to conclude Brockton had notice and opportunity regarding 2(g)(i), but not 2(g)(ii).

Parties
Claimant/applicant: Brockton Capital LLP; Defendant/respondent: Atlantic-Pacific Capital, Inc.
Jurisdiction
England and Wales
Judgment Date
07 May 2014
Procedural Posture
Arbitration Claim / Judgment on Application to Set Aside Arbitral Awards Under S.68 Arbitration Act 1996
Outcome
Partial Final Award set aside in part and remitted to the existing tribunal; Final Award to be addressed consequentially.
Legal Topics
Serious Irregularity Under S.68 Arbitration Act 1996, Penalty Clauses Under New York Law, Procedural Fairness in Arbitration, Remission of Arbitral Award
Arbitration Contract Law Serious Irregularity Under S.68 Arbitration Act 1996 Penalty Clauses Under New York Law Procedural Fairness in Arbitration Remission of Arbitral Award

Case Brief

Summary, issues, holding and outcome

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Parties

Brockton Capital LLP

Claimant/applicant

Atlantic-Pacific Capital, Inc.

Defendant/respondent

Procedural Posture

Arbitration Claim / Judgment on Application to Set Aside Arbitral Awards Under S.68 Arbitration Act 1996

Legal Issues

  1. 1 Whether the arbitral tribunal breached s.33(1)(a) Arbitration Act 1996 by deciding an issue without giving Brockton a fair opportunity to address it
  2. 2 Whether the tribunal's finding that paragraph 2(g)(ii) was an unenforceable penalty was made without notice to Brockton
  3. 3 Whether the tribunal ignored relevant evidence in its construction of the Tripartite Agreement

Ratio Decidendi

The tribunal breached s.33(1)(a) Arbitration Act 1996 by deciding that paragraph 2(g)(ii) was an unenforceable penalty without giving Brockton notice or an opportunity to address the issue, causing substantial injustice. The tribunal was entitled to conclude Brockton had notice and opportunity regarding 2(g)(i), but not 2(g)(ii).

Court Disposition

Partial Final Award set aside in part and remitted to the existing tribunal; Final Award to be addressed consequentially.

Orders

  • Remission to the existing tribunal on terms to be determined after further submissions from counsel.