Unilateral option clauses provide for disputes to be referred to arbitration, but give one party the exclusive right to elect to refer a dispute to litigation before the courts; the clauses also provide for disputes to be referred to a court, but give one party the exclusive right to elect to refer the dispute to arbitration instead. Parties should exercise caution when considering whether to include unilateral option clauses in their agreements.
The Court of Appeal recently considered for the first time the question of an expert's duty to avoid a conflict of interest. The court's decision, while not deciding the point finally, means that it is unlikely that a court will now recognise such a duty as a matter of law. The issue is a matter of contract. The judgment contains a useful analysis of when conflicts can arise in related cases and the circumstances in which a large organisation offering expert or litigation support services may find itself conflicted.
The Supreme Court recently unanimously upheld a Court of Appeal decision to dismiss an application to remove an arbitrator on the grounds of apparent bias. The Supreme Court confirmed the Court of Appeal's decision that arbitrators are under a duty to disclose appointments in references concerning the same or overlapping subject matter with a common party, although the Supreme Court's reasoning differed.
The High Court recently granted an extension of time to bring challenges to arbitral awards made under the Arbitration Act. The applications were striking as it had been several years since the awards were made. While the extension granted by the court was exceptional, so too were the circumstances of the case. Here, the integrity of both the arbitration system and the court were threatened and this public policy concern outweighed the principle of finality.
The Supreme Court has clarified definitively the principles for ascertaining the law governing an arbitration agreement. In contrast to the Court of Appeal's earlier decision in the same case, the Supreme Court held that where the law governing an arbitration agreement is not expressly specified, a choice of main contract law (whether express or implied) will generally also apply to an arbitration agreement which forms part of that contract.