Dr. Antino looks at Challenges to an Arbitrators Jurisdiction
This is a matter arising out of an Arbitration where Dr. Philip Antino of dr.antino.apaproperty.com and www.apaproperty.comand https://www.antinoandassociates.com/was acting for the Claimant. The Respondent had instructed Counsel who declined to be identified or participate in this blog.
Whilst Arbitration is a private and confidential process, the following discusses a discreet issue without disclosing the details of the parties or any specific details about the case.
The Respondents single advanced by Counsel appeared to rely on two points: -
1. That there was no Arbitration clause in the terms and conditions/contract that entitled the Arbitrator to hear the dispute;
2. That in the event that there was an Arbitration clause, it was the Claimant not his employer (a Limited company) who had carried out the services on behalf of the Respondent and therefore should be substituted for the Claimant.
In Dr. Antino’s opinion this strategy was without merit and on the undisputable facts was doomed to failure for the following reasons: -
1. The Claimants terms and conditions at section 15 explicitly included a clause that all disputes were to be settled by Arbitration.
2. The Respondents had on receipt of the terms and conditions acknowledged receipt and stated unequivocally “we agree with the terms and conditions.” Therefore, binding themselves to Arbitration.
3. When the claimant approached the CIArb www.ciarb.org requesting that they appoint an independent Arbitrator through their disputes process firstname.lastname@example.org the Claimant had to provide a copy of the T&C to demonstrate that there was a valid arbitration agreement. CIArb were satisfied and therefore appointed an Arbitrator.
4. On invitation from the CIArb, the Arbitrator undertook his due diligence and confirmed the Arbitration agreement was valid and binding.
It is against this background of various independent agreements and checks, that the Respondent’s submission that there was no arbitration clause was bizarre if not reckless.
Those of you familiar with the Arbitration Act will be aware that an Arbitrator has jurisdiction to determine his/her jurisdiction under section 30(1) (a) – (c).
Dr. Antino successfully demonstrated that the section 15 terms and conditions were not only clear on the dispute resolution procedure (ADR) being Arbitration, but that the Respondents had accepted the terms and conditions and were therefore bound by the Arbitration clause.
The Arbitrator found in favour of Dr. Antino in that: -
1. The Arbitrator rejected Respondent’s approach first point on jurisdiction;
2. The Arbitrator ruled that whilst the person employed by the Claimant carried out the services, the contract was between the Claimant’s company and the Respondent; and
3. Interim payments had been made by the Respondents to the Claimant Company which included VAT. Therefore, the Respondent had accepted that the company was the Claimant.
The above narrative is important, if a Respondent is intent on advancing a defence that challenges the decision-makers jurisdiction, (Arbitration/Adjudication etc) they have to provide robust evidence and grounds to be successful. Any party that pins its hopes on limited challenges on jurisdiction and very little else is acting (in my opinion recklessly) as the Respondents found out to their cost. They could have settled the matters for circa £4,600 in the end it cost circa £42,000.