Subsequently, the charterers argued that section 41 intended to resolve all disputes relating to the charter parties. If claims or disputes that could not be said to arise “under” the charter part are not covered by the clause, there would be uncertainty as to the jurisdiction and jurisdiction, and the wording of section 41 (a) (a) (a) (1) emphasized this, so that if “a dispute arises from the Charter” , it could be refereed. The Court of Appeal stated: “For our part, we believe that it is now time to draw some kind of line and make a fresh start at least for cases that arise in an international business context.” He added: “If businessmen wanted to exclude (for example) disputes over the validity of a contract, it would be relatively easy to say. It is now up to the courts to find out what Fiona`s arbitration is doing for the decision. It is quite possible that the invitation of the adjudicator to leave would invite him to a binding decision, since the challenge can easily be a “linked” dispute, but cannot be legally distinguished from “dependent”. The argument that Fiona Trust is not applicable to the construction decision is justified. Lord Hoffman`s anti-fragmentation hypothesis is based on the consensual nature of the arbitration. However, the legal obligation to confer jurisdiction on the parties` agreement to entrust jurisdiction to an adjur seriously undermines the proposition that the assessment is consensual. “Mr. Justice Steyn stated that the issue of fraud or initial illegality could be referred to arbitration. He did not characterize the clear principle that, if the validity of the compromise clause itself is challenged, the issue cannot be decided by the arbitrator. His reference to a direct impeachment proceeding, I understand, was to distinguish an attack on the clause other than by the logical thesis that the clause falls within the included contract. If it is said that the contract was induced by fraud, it is quite clear that if it were, the creation of the independent arbitration clause was also induced by fraud. That is why I would like to discuss the Supreme Court`s findings on this issue, but before I did, I felt it would be useful to look at some of the previous jurisprudence in this area.
In Bresco at , Lord Briggs, Keating on Construction Contracts (10th edition) “seems to be insinuating itself towards the recognition of Fiona Trust`s strength.” That`s an understatement. After referring to Lord Hoffman`s acceptance in Fiona Trust, Keating notes in [18-077] that in the decision “although all disputes may be definitively decided in a court or arbitration proceeding, the same principle applies to dealing with a wide range of disputes in the decision.” It can, however, lead to fewer legal disputes on this issue. This should be useful for parties who have entered into transaction agreements, but then they find that disputes over the importance of these agreements are ongoing. I guess we could see more of these types of litigation over the next 12 months for the same reasons I said on my blog in 2009: Lonsdale argued that the awardee was not competent because as a result of the liquidation process, all claims and cross-rights of the contract no longer existed and were replaced by a single right to the rest. Lonsdale stated that this was not a contract right, but a claim in connection with Bresco`s insolvency and, therefore, any dispute over the balance claim is also an equal dispute of insolvency and not within the framework of the contract.