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Broda Agro Trade (Cyprus) Limited v Alfred C Toepfer International

Arbitration Law clashes with human rights law


Section 72 of the Arbitration Act, 1996 permits a party alleged to be a party to arbitral proceedings but who "takes no part" in the arbitration to challenge the jurisdiction of the arbitrators by seeking declaratory or injunctive relief in court.

In this appeal, the Court of Appeal held that section 72 meant what it said. The wording was clear. A party who takes any part in the arbitral proceedings whether by challenging the arbitrator's jurisdiction or in relation to the merits can no longer bring proceedings under section 72 of the Act (although, if appropriate, such a party may challenge any award on jurisdiction under section 67 of the Act). Nor, contrary to the Appellant's case did this involve any infringement of the Appellant's right to a fair trial under Article 6 of the ECHR as this was guaranteed under section 67 of the Act.

In so doing, the Court of Appeal upheld the decision of Teare J at first instance ([2010] 1 Lloyd's Rep 533),

Sara Masters acted for the successful Respondent (Toepfer)