Sumukan Ltd v The Commonwealth Secretariat

Sumukan Ltd v The Commonwealth Secretariat

The Court of Appeal has jurisdiction to consider an appeal on the existence of an exclusion agreement under section 69(1) of the Arbitration Act 1996, as this is a preliminary question not covered by the restriction in section 69(6). The exclusion agreement was properly incorporated by reference and is not an onerous or unusual term requiring special notice. Its incorporation does not infringe Article 6 ECHR rights, as the waiver was voluntary, and parties retain access to the court for serious irregularity or lack of jurisdiction.

Parties
Appellant: Sumukan Ltd; Respondent: The Commonwealth Secretariat
Jurisdiction
England and Wales
Judgment Date
21 March 2007
Procedural Posture
Civil Appeal (arbitration) / Appeal From Queen's Bench Division, Commercial Court to Court of Appeal
Outcome
Appeal dismissed
Legal Topics
Exclusion Agreements, Jurisdiction of Court of Appeal, Incorporation by Reference, Waiver of Article 6 ECHR Rights
Arbitration Contract Law Human Rights Exclusion Agreements Jurisdiction of Court of Appeal Incorporation by Reference Waiver of Article 6 ECHR Rights

Case Brief

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Parties

Sumukan Ltd

Appellant

The Commonwealth Secretariat

Respondent

Procedural Posture

Civil Appeal (arbitration) / Appeal From Queen's Bench Division, Commercial Court to Court of Appeal

Legal Issues

  1. 1 Whether the Court of Appeal has jurisdiction to hear an appeal where the lower court refused permission based on an exclusion agreement under section 69 of the Arbitration Act 1996
  2. 2 Whether an exclusion agreement was incorporated into the contract as a matter of English domestic law
  3. 3 Whether the exclusion agreement infringes Article 6 of the European Convention on Human Rights

Ratio Decidendi

The Court of Appeal has jurisdiction to consider an appeal on the existence of an exclusion agreement under section 69(1) of the Arbitration Act 1996, as this is a preliminary question not covered by the restriction in section 69(6). The exclusion agreement was properly incorporated by reference and is not an onerous or unusual term requiring special notice. Its incorporation does not infringe Article 6 ECHR rights, as the waiver was voluntary, and parties retain access to the court for serious irregularity or lack of jurisdiction.

Court Disposition

Appeal dismissed

Orders

  • Permission granted by Rix LJ to appeal on the Human Rights point is not set aside; the Court of Appeal has jurisdiction.
  • The appeal on the merits is dismissed; the exclusion agreement is valid and binding.