14 February 2007

Arbitration: Sumukan Ltd v Commonwealth Secretariat

This was a website dispute but somewhat bigger than the sort of dispute that I find myself instructed to resolve. The client was the government of Namibia and the consultant was commissioned by the Commonwealth Secretariat to develop was an online group purchasing scheme to help manufacturers in sourcing the materials they needed. Because the Commonwealth Secretariat was an intergovernmental agency immune from suit the contract provided for disputes to be determined by arbitration before the Commonwealth Secretariat Arbitral Tribunal.

In April 2003 the consultant brought proceedings against the Secretariat before the tribunal which included the issue of who owned the website. After a 3 day hearing the tribunal decided that the site belonged to the Secretariat. The consultant appealed and after one application on the substantive law failed on the ground that the court's jurisdiction was excluded by the tribunal's constitution, it applied to set aside the award on grounds of lack of substantive jurisdiction and serious irregularity. The jurisdiciton issue turned on the appointment of the tribunal chairman and the irregularity issue on the fact that the Secretariat who was party to the dispute appointed its chair.

Giving judgment in Sumukan Ltd v Commonwealth Secretariat [2007] EWHC 188 (Comm) (14 Feb 2007) Lord Justice Toulson dismissed the application on the ground that there was no real irregularity or risk of bias.

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