裁决异议申请不属于实质性管辖权问题而被驳回 （英国案例）

更新时间：2017-12-07 18:06:53   张振安 临时仲裁ADA 编辑：lianluobu  点击次数：4242次

1. 案件背景

原告 ("Petrotrin"，仲裁中的被申请人)根据《1996仲裁法》第67条寻求撤销的仲裁裁决是由本案被告（“Samsung”，仲裁案中的申请人）根据双方的国内协议（onshore agreement）针对Petrotrin延期行为、违约金及应付金额提起的仲裁而作出。

 

双方一共签署了3份协议，其中一份是有关同一工作的于2006年12月15日被签订的国内协议（onshore agreement）。同时，还有一份离岸协议（offshore agreement，由Petrotrin和Samsung的另一家公司“SECL”签署）以及一份连接两份协议的中间协议（由三方共同签署）。三份协议均为CCR铂重整装置及66kV/12kV分台的采购、建设、安装有关的协议。为了Samsung和SECL税务安排考虑，主要义务拆分在了国内协议和离岸协议项下，中间协议的目的是确保这样拆分协议不会导致Petrotrin遭受不利。

 

Samsung根据国内协议启动了针对Petrotrin的仲裁程序。Petrotrin提起了违约赔偿金的反请求。问题是关于反请求主张的10％最高限额的违约赔偿金是基于国内协议还是中间协议的规定认定为国内协议和离岸协议二者总额的10％最高限额问题。最后，仲裁庭裁定将国内协议金额的10%认定为最高限额。

 

2. 原告提起的仲裁异议是否涉及仲裁庭的实质性管辖权？

 

《1996仲裁法》第67条规定如下：

“裁决异议：实质管辖权。

（1）仲裁程序的当事人可以（在向其他当事人和法庭发出通知后）向法院提出申请—

（a）质疑仲裁庭裁决的实质管辖权；或

（b）裁定由于没有实质管辖权，仲裁庭所做关于实体问题的裁决全部或部分无效。

当事人可能丧失异议权利（见第73条），或者申请权受限于第70（2）和（3）条。

（2）当根据本条法院就有关裁决管辖权申请裁定作出之前，仲裁庭可继续进行仲裁程序并作出进一步裁决。

（3）根据本条提出的关于仲裁庭裁决实质性管辖权的异议申请，法院可裁定—

（a）确认裁决，

（b）更改裁决，或

（c）全部或部分撤销裁决。

《1996仲裁法》第30条和第31条涉及了实质管辖权问题，例如是否存在有效的仲裁协议、仲裁庭组成是否适当，以及根据仲裁协议提交的仲裁事项。

 

本案Petrotrin提出的问题不是实体管辖权问题。该异议不涉及是否存在有效的仲裁协议，仲裁庭是否适当组成。该争议也不是异议所涉及的具体事项，也就是对违约赔偿金提起的反请求属于仲裁庭管辖范围内。

 

因此，对于最高额的适用问题主要是关于合同的解释问题。仲裁庭对这个问题所做的解释不利于Petrotrin，该裁决结果不能因合同解释异议而受到质疑。

 

3、仲裁庭关于违约赔偿金的管辖权是否受限于国内协议的最高额？

 

（1）仲裁庭的审理范围仅基于国内协议项下产生的纠纷，并没有被扩大或修改。在这一基础上，仲裁庭没有考虑产生于其他协议项下索赔的管辖权。

 

因此，对于管辖权：

• 仲裁庭查明其仅是根据国内协议被指定

• 审理范围仅限于国内协议

• 仲裁庭查明不存在任何在离岸协议项下或中间协议项下的其他索赔

• 因此，仲裁庭认为他们的管辖权受限于国内协议

 

（2）对于DIWAN先生代理意见所依据的几个相同当事人之间发生相关的争议避免多个仲裁的一般原则，不应在本案中适用。如上所述，Petrotrin从未在任何时候提起过离岸协议下的索赔。而这是最低要求，特别鉴于SECL是独立于Samsung的主体。

 

4. 结论

 

该根据《1996仲裁法》第67条提起的申请并不是适当的。双方之间的主要问题并不是关于仲裁庭的实质性管辖权。这只是并需要解决的主要是关于争议的解释问题。

 

仲裁庭将对解释的争论转化为将其对违约赔偿金的管辖权受限于国内协议最高额的决定是正确的。这是审理范围和请求的效力。作为事实问题，这也是在离岸协议或中间协议下均不存在索赔的结果。

 【附：英文判决内容】 

Petroleum Company of Trinidad and Tobago Ltd v Samsung Engineering Trinidad Co Ltd [2017] EWHC 3055 (TCC) 

1. INTRODUCTION

 

Pursuant to a Claim Form issued on 21 August 2017, the claimant ("Petrotrin") seeks to set aside and/or vary the Partial Award dated 24 July 2017. That Award was issued in an arbitration brought by the defendant("Samsung") against Petrotrin for an extension of time, damages and sums due pursuant to the Onshore Agreement between the parties. Petrotrin's challenge is brought pursuant to s.67 of the Arbitration Act 1996.

 

The Onshore Agreement was one of three written Agreements signed by Petrotrin on 15 December 2006 relating to the same works. There was also an Offshore Agreement (between Petrotrin and a different Samsung company, SECL) and a Linkage Agreement (signed by all three parties). All three Agreements related to the procurement, construction and commissioning of a CCR Platformer Complex and a new 66kV/12kV Substation at Petrotrin's Pointe-a-Pierre refineryin Trinidad. It appears that the works were only split between the Onshore and the Offshore Agreements because that was tax efficient for Samsung and SECL.The purpose of the Linkage Agreement was to ensure that the splitting of the works in this way did not cause disadvantage to Petrotrin.

 

Samsung commenced the arbitration proceedings against Petrotrin under the Onshore Agreement. Petrotrin counterclaimed for liquidated damages. An issue arose as to whether their counterclaim for liquidated damages was the subjectof a 10% cap based on the value of the Onshore Agreement, or whether the applicable cap was 10% of the total value of the Onshore and the Offshore Agreements, by reference to a provision in the Linkage Agreement. The Arbitral Tribunal decided that the operative cap was 10% of the value of the Onshore Agreement.

 

This finding is said to matter because the Tribunal found that Samsung was liable to Petrotrin for liquidated damages for a delay of 129 days. Applying the lower of the two caps, the Tribunal valued the counterclaim atUS$9,337,009.60. If they had applied the higher cap, the sum awarded to Petrotrin would have been US$11,610, 000. Because of the application of thelower cap, Samsung was the overall winner in the arbitration, in the sum of US$1,115,482.39. If the higher figure for the cap had been taken, Petrotrin would have been the overall winner, in the sum of US$1,157,508.19.

 

I deal with the s.67 challenge in this way. In Section 2, I set outthe relevant terms of the three Agreements. In Section 3, I address the Arbitral Tribunal's Terms of Reference. In Section 4, I set out theparties' pleadings and submissions in the arbitration. In Section 5, Iset out the relevant terms of the Partial Award of 24 July 2017. Then at Section 6, I ask whether the challenge made by the claimant is a matter concerning the Tribunal's "substantive jurisdiction" in accordance with s.67. At Section 7, on the assumption that the s.67 challenge was validly brought, I consider whether the Tribunal's jurisdiction in respect of liquidated damages was limited to the lower cap in the Onshore Agreement. There is a short summary of my conclusions inSection 8. I am very grateful to leading counsel on both sides for their helpful written and oral submissions.

 

2. THE THREE AGREEMENTS

1  The Onshore Agreement

The contracting parties were Petrotrin and Samsung. Amongst the relevant definitions, 'CONTRACT' was defined as "the present instrument"; 'CONTRACT PRICE' was the price defined in Article 6.1 and any adjustments" in accordance with the "CONTRACT"; and 'UNIT OF WORK' was defined as meaning each of the CCR Platformer Complex and the Substation.

 

Article 3.1 of the Onshore Agreement identified the completion date for the CCR Platformer Complex as 5 November 2008, and the completion date for the Substation as 5 April 2008.

 

The relevant term as to liquidated damages was Article 3.6:

"(a) CONTRACTOR acknowledges that a delay in completion of the WORKwill cause damage to COMPANY, the amount of such damage being difficult tocalculate with great precision. Therefore if any UNIT OF WORK has not achievedMECHANICAL COMPLETION on or before the relevant COMPLETION DATES, and may beextended pursuant to Article 3.5 CONTRACTOR shall pay COMPANY liquidateddamages for each full calendar day of delay from 30 calendar days after theCOMPLETION DATE until MECHANICAL COMPLETION in respect of each UNIT OF WORK isactually achieved, in the following per diem amounts: UNIT OF WORK PER DIEMAMOUNT CCR Platformer Complex US$ 90,000
New 66kV/12kV Substation US$15,000

(b) Any such liquidated damages may be recovered by COMPANY against theirrevocable performance bank guarantee provided by CONTRACTOR in accordancewith Article 7.4 hereof or by taking credit against payments otherwise due toCONTRACTOR, or by some other method mutually agreed.
(c) In the event that CONTRACTORdoes not attain the COMPLETION DATE set for each UNIT OF WORK then as theremedy for late completion COMPANY shall recover liquidated damages fromCONTRACTOR at the applicable per diem amounts for each day until completion isattained as evidenced by MECHANICAL COMPLETION for each UNIT OF WORK, up to amaximum liability of ten percent (10%) of the CONTRACT PRICE."

 

Article 33 set out the provisions relating to dispute resolution in thefollowing terms:

33.1 The Parties shall use their best efforts to settleamicably any dispute, controversy or claim arising out of related to theCONTRACT, or the breach, termination or invalidity of the said CONTRACT.
33.2Any dispute, controversy or claim arising out of or related to the CONTRACT, orthe breach, termination or invalidity of the said CONTRACT that cannot besettled amicably between the Parties shall be referred to mediation.
33.3 Themediator shall be appointed and approved by both Parties. The costs ofmediation shall be borne by both Parties equally or as determined by the saidmediator except that each Party will be responsible for its own expenses. Themediator shall determine the structure of the mediation process. Any opinionexpressed by the mediator will be strictly advisory and will not be binding onthe Parties. Any disputes not otherwise settled shall be referred toarbitration.
33.4 Disputes resolved by arbitration shall be binding and eachParty irrevocably waives any right to trial by jury with respect to any suchdispute. Arbitration shall be conducted in New York, USA in accordance with therules of the International Chamber of Commerce."

2  The Offshore Agreement

 

The contracting parties were Petrotrin and SECL. Article 3.1 of theOffshore Agreement contained precisely the same completion dates as set out inparagraph 7 above. Article 3.6, relating to liquidated damages, was also in thesame terms as the equivalent clause in the Onshore Agreement; so too was theArticle dealing with mediation and arbitration.

 

3  The Linkage Agreement

The relevant terms of the Linkage Agreement provided as follows:

"1. Notwithstanding the dual contract approach to the Contracts, theoperations of both the Onshore Contractor and theOffshore Contractormust be closely integrated for ensuring the success of the Complete Works. Itis understood and agreed that if any aspect of the Complete Works has beenomitted and is not clearly described as a result of the creation of the dualcontract system, the Offshore Contractor shall assume responsibility forthat portion of the Complete Works that is affected.
2. That the dual contractapproach shall not result in any additional cost to PETROTRIN nor resultin any scheduling changes. It is understood and agreed that the cost andschedule for the Complete Works shall be strictly maintained in spite ofimplementation under the Contracts. It is understood and agreed that alladditional responsibilities and liabilities with respect to PETROTRIN,the Offshore Contractor and theOnshore Contractor contained ineither the Offshore Contract or the Onshore Contract shall be construed as ifit were one agreement for the Complete Works instead of dual agreements.
3.That any errors, omissions, negligence, or delays in performance by either the OnshoreContractor or Offshore Contractor shall be mutually attributable andshall not constitute grounds for schedule or price relief under the OnshoreContract or Offshore Contract.
4. The Parties' Rights And Obligations UnderThe Contracts 4.1 That notwithstanding the separation of the OnshoreContract and the Offshore Contract, it is recognized and agreed, for thepurpose of determining the respective obligations and entitlement of PETROTRINand Contractors that, the Onshore Contract and Offshore Contract shall beadministered and interpreted as though they were one and notices received orissued under the Offshore Contract shall be valid under the OnshoreContract.

4.2 Where one or both of the Contractors is required to perform thesame obligations under one or both of the Contracts and the performance of thatobligation by any one Contractor under one Contract is capable of being theperformance of that obligation under the other Contact, then the performance ofthat obligation by that Contractor in accordance with the relevant Contractshall mean that the other Contractor shall not have to perform the sameobligation under the other Contact.

4.3 WherePETROTRIN is required toperform the same obligation under both Contacts and the performance of thatobligation under one Contract is capable of being the performance of thatobligation under the other Contract, then the performance of that obligation byPETROTRIN under one Contract shall mean thatPETROTRIN shall nothave to perform the same obligation under the other Contract.

5. LiquidatedDamages 5.1 Each Contractor shall be liable to pay liquidated damages underArticle 3.6(a) of its respective Contract, provided that, if one of Contractorshas paid liquidated damages in accordance with Article 3.6(a) of its respectiveContract, the other Contractor, notwithstanding Article 3.6(a) of the otherContract, shall not be liable to pay the same liquidated damages in accordancewith Article 3.6(a) of that Contract.

5.2 The maximum liquidated damages undereach Contract and this Agreement shall be an amount equal to ten percent (10%)of the Total Agreement Amount.

5.3 For the purposes of this Clauses 5 and 6,'Total Agreement Amount' shall mean the aggregate of the Contract Price payableunder the Onshore Contract and the Contract Price payable under the OffshoreContract as each may be adjusted from time to time in accordance with the termsof the Contracts.

…
10. The Parties agree that if there is any dispute as tothe interpretation of this Agreement, the Onshore Contract and/or the OffshoreContract, this Agreement shall take precedence over such Contracts.
11. ThisAgreement shall be governed by and construed in accordance with the laws ofEngland and Wales. Any dispute or controversies pertaining to this Agreement orany breach thereof, which cannot be settled by amicable discussion by theParties shall be finally submitted and settled by arbitration in New York, USAin accordance with the Rules of the International Chamber of Commerce."

 

3. THE TERMS OF REFERENCE

In common with all ICC arbitrations, there were agreed Terms of Reference,signed by the parties and the Arbitral Tribunal.^[1] Thiswas produced following Samsung's Request for Arbitration and Petrotrin'sAnswer, and included passages drafted by the parties themselves.

 

The Request for Arbitration is undated. It made it clear that Samsung wasseeking arbitration pursuant to Article 33.4 of the Onshore Agreement(paragraph 3). Paragraph 6 of the Request referred to all three Agreements, andparagraph 7 then expressly stated that the Request for Arbitration was madepursuant to the Onshore Agreement only.

 

Petrotrin's Answer was dated 13 August 2014. Much of it was concerned witha complaint that, contrary to Article 33, mediation had not taken place. Therewas no challenge to or debate about Samsung's Request having being made underthe Onshore Agreement only. Moreover, Petrotrin's counterclaim was described inthe following terms:

 

"If and insofar as the Request is valid (which is denied), theRespondent will counterclaim inter alia for damages for the Claimant's failureto complete the Works by the Completion Date and also damages for anyidentified defects in the Works."
'The Claimant' was of course a referenceto Samsung, who were party to the Onshore Agreement. 'The Completion Date' wasa term defined in the Onshore Agreement. There was no reference to SECL, or tothe Offshore Agreement or to the Linkage Agreement.

 

The Terms of Reference were drafted by the Tribunal and then amended bythe parties before being signed off. They expressly identified the relevantarbitration agreement between the parties as being the one in Article 33 of theOnshore Agreement. No other arbitration agreement was identified.

 

In the section of the Terms of Reference summarising the various claimsand the relief sought (paragraphs 13-16), the Terms of Reference stated that"the dispute the subject of this arbitration has arisen under a contract…(the Onshore Agreement)…" (paragraph 13). At paragraph 14, the Terms said:"The following summaries of the claims of the Parties, and of the reliefsought by each Party, are not intended to be exhaustive but are intended tosatisfy the requirements of Article 23(1) of the ICC Rules and are subject toArticle 23(4). The parties' respective cases will be set out in appropriatedetail in such pleadings or memorials as may be provided for by agreement ofthe parties or by order of the Arbitral Tribunal."

The Terms of Reference went on to summarise Samsung's claim in thearbitration (paragraph 15) and Petrotrin's response (paragraph 16). At the endof that paragraph, in a passage added by Petrotrin, the Terms of Referencestated:

"In so far as may be relevant [Petrotrin] reserves the right tocontend that it is entitled to rely upon the provisions of the LinkageAgreement made between the Claimant, the Respondent and [SECL] on 15 December2006 and/or the Offshore Agreement made between the Respondent and [SECL] on 15December 2006."
No other information was given as to what this reservationof position might go to, or how or why either of the other Agreements might berelevant.

 

4. THE PARTIES' PLEADINGS

Samsung's Statement of Case set out its claim for an extension of time anddamages by reference to the Onshore Agreement only. Petrotrin's Statement ofCase and Counterclaim defended that claim and brought a counterclaim forliquidated damages. Again, there was no reference in that pleading to eitherthe Offshore Agreement or the Linkage Agreement. On the contrary, paragraph15.1 of the counterclaim referred to "a cap at 10% of the ContractPrice". The Contract Price was a defined term in the Onshore Agreement. Itwas not a term set out in the Linkage Agreement, which instead referred to"the Total Agreement Amount".

 

Samsung's Reply and Defence to Counterclaim ("RADTCC") expresslyset out the operation of the cap on liquidated damages by reference to the valueof the Onshore Contract. In Petrotrin's Reply to Defence to Counterclaim("RTDTCC"), at paragraph 94, Petrotrin asserted that it was"untenable" for Samsung to assert that the claim for liquidateddamages was capped at 10% of the Onshore Agreement Contract Price, allegingthat that was "incorrect and obviously so in light of the express wordingof the Linkage Agreement at Article 5.2". There was no suggestion of anyclaim under the Linkage Agreement, and there is no reference at all to the OffshoreAgreement. I return to this important pleading at various paragraphs below.

 

5. THE PARTIAL AWARD

The relevant part of the Partial Award with which this application isconcerned is section 18. That sets out the cap at Article 3.6(c) of the OnshoreAgreement. At paragraph 18.6, the Partial Award refers to Petrotrin's argumentthat the cap was at a higher amount, "being 10% of the aggregate pricepayable under both the Onshore and the Offshore Contracts." The PartialAward at paragraphs 18.7-18.10 then records some of the Articles of the LinkageAgreement, set out above, on which the claimant relied.

 

Paragraphs 18.11 and 18.12 of the Partial Award set out the parties'respective cases on the cap. For reasons which will become apparent below, itis appropriate to set out those summaries in full:

 

"The Claimant's case on the cap 18.11 The Claimant deals withthis issue in its Reply and Defence to Counterclaim at paragraphs 188-192, inSection 13 of its Closing Submissions, and in Section 13 of its ResponsiveClosing Submissions. It argues that the provisions of Article 5.2-5.3 of theLinkage Agreement can be effective only where a claim is made for liquidateddamages and is referred to arbitration in respect of both Contracts, betweenthe parties to both Contracts, and under the Linkage Agreement between theparties to the Linkage Agreement. However the present dispute and thisarbitration arise only under the provisions of the Onshore Agreement, andconcern only the parties to the Onshore Agreement. The provisions of theOnshore Agreement apply exclusively. Hence, the limit on the liquidated damagesis defined in Article 3.6(c) of the Onshore Contract, and is 10% of theContract Price of that Onshore Agreement. Petrotrin construes Article 5.2 ofthe Linkage Agreement in a manner which contradicts the provisions of both theOnshore and Offshore Contracts instead of in a manner which is consistent withthem. The Respondent's case on the cap 18.12 Petrotrin deals with thecap on liquidated damages In its Counterclaim at paragraph 15.1, in its Replyto Defence to Counterclaim at paragraph 94, and in its Closing Submissions atSection 13. It says that, given the way in which the agreements were set up, itshould not be a matter of surprise that there is a contradiction to be resolvedby reliance on Article 10 of the Linkage Agreement. It characterizes theClaimant's argument as relying only on a jurisdictional point, namely, that thematter referred to arbitration by the Claimant is purportedly brought pursuantto the Onshore Contract alone. However, Petrotrin has validly brought itscounterclaim under all three agreements: Onshore, Offshore and Linkage: seeparagraph 16 of the Terms of Reference, paragraph 2.1 of the Respondent'sStatement of Case and Counterclaim and paragraph 94 of the Reply to the Defenceto Counterclaim. Moreover, even if Petrotrin were jurisdictionally confined toa counterclaim under the Onshore Contract, Articles 2 and 3 of the LinkageAgreement require the Tribunal to treat the Onshore and Offshore Contracts as asingle contract, and the Linkage Agreement at Article 5.2 overrides and amendsthe cap. As to practicalities, the Respondent observes that the On and OffshoreContracts both have the same Mechanical Completion date and in reality thecounterclaim spans both the On and Offshore Contracts in that the work whichwas late was carried out under both Contracts."

 

The Tribunal's decision on the cap was set out at paragraphs 18.13-18.18of the Partial Award in the following terms:

 

"The Tribunal's decision on the cap

18.13 The Tribunal's understanding of the Claimant'sposition differs from the Respondent's submission. The Tribunal understands theClaimant to rely on both a construction argument and a jurisdictionargument.
18.14 As regards jurisdiction, while it is right to say that inparagraph 16 of the Terms of Reference the Respondent reserved the right tocontend that it was entitled to rely upon provisions of the Linkage Agreement,in paragraph 17 of the Terms of Reference the relevant Arbitration Agreementwas identified as being contained in Article 33 of the Onshore Agreement. Thisreflects paragraph 3 of the Request for Arbitration which states: Althoughthere is a network of inert-related [sic, means 'inter related'] agreementswhich have a bearing on the disputes which the Claimant required to be referredto arbitration under the International Chamber of Commerce (ICC) Rules forArbitration, 2012 edition, this Request for Arbitration is made pursuant toArticle 33.4 of the On-shore Agreement … … 18.15 Moreover, paragraph 2.1of the Respondent's Statement of Case and Counterclaim and paragraph 94 of theReply to the Defence to Counterclaim do not show that Petrotrin has brought itscounterclaim under any agreement other than the Onshore Agreement.
18.16 In theTribunal's view it is plain that its jurisdiction in the present arbitrationarises from Article 33.4 of the Onshore Agreement, and is limited thereby.Accordingly it is the provisions of the Onshore Agreement that govern theposition.
18.17 As regards the question of construction, we accept theClaimant's submission that a construction which interprets the three agreementsas consistent with one another is to be preferred to a construction whichregards them as being in conflict. The conflict relied on by the Respondent,which the Respondent resolves by reliance on the precedence of the LinkageAgreement over the other two Contracts, only arises from reading clause 5.2 ofthe Linkage Agreement in the way that the Respondent proposes. Clause 5.2 doesnot in our view require to be read as being in conflict with clause 3.6(c) ofthe Onshore Agreement; it can be read as a long-stop limit for the aggregate ofliquidated damages under all three agreements, which sits above the lower capapplicable under a single agreement. We acknowledge the Respondent's argumentthat as a matter of practicality it could never apply, but, even if that wereso, this would not change our view, since there is nothing unusual inprovisions being inserted in contracts out of an abundance of caution.
18.18Accordingly, we determine that the cap on liquidated damages is 10% of theContract Price under the Onshore Contract."

 

6. IS THIS A CHALLENGE CONCERNINGTHE TRIBUNAL'S "SUBSTANTIVE JURISDICTION"?

Section 67 of the Arbitration Act 1996 ("the 1996 Act")is in the following terms:

"67. - Challenging the award: substantive jurisdiction.
(1) A partyto arbitral proceedings may (upon notice to the other parties and to thetribunal) apply to the court—

(a) challenging any award of the arbitraltribunal as to its substantive jurisdiction; or


(b) for an order declaring anaward made by the tribunal on the merits to be of no effect, in whole or inpart, because the tribunal did not have substantive jurisdiction.


A party maylose the right to object (see section 73) and the right to apply is subject tothe restrictions in section 70(2) and (3).

(2) The arbitral tribunal maycontinue the arbitral proceedings and make a further award while an applicationto the court under this section is pending in relation to an award as tojurisdiction.

(3) On an application under this section challenging an award ofthe arbitral tribunal as to its substantive jurisdiction, the court may byorder—

(a) confirm the award,


(b) vary the award, or


(c) set aside theaward in whole or in part.


(4) The leave of the court is required for anyappeal from a decision of the court under this section."

 

This follows on from sections 30 and 31 of the 1996 Act which areconcerned with matters of substantive jurisdiction, such as whether there is avalid arbitration agreement, whether the tribunal is properly constituted, andwhat matters have been submitted to arbitration in accordance with thearbitration agreement.

 

I am not persuaded that the issue now raised by Petrotrin is a matter ofsubstantive jurisdiction. The point raised by this challenge does not go towhether there is a valid arbitration agreement or whether the Arbitral Tribunalwas properly constituted. Nor is there any dispute that the particular matterwith which this challenge is concerned, namely the counterclaim for liquidateddamages, was properly submitted to arbitration and fell within the Tribunal'sjurisdiction.

 

All that happened was that the Tribunal found that the relevant cap onliquidated damages was 10% of the Contract Price of the Onshore Agreement, andnot 10% of the Total Agreement Amount. They did so on the basis of a mixture ofconstruction points, findings of fact, and a consideration of one argumentabout their jurisdiction. The dispute as to which cap was the appropriate onewas agreed by both parties to be in issue before the Tribunal and the Tribunaldealt with it accordingly. Neither party can therefore complain that theTribunal dealt with it. Petrotrin may complain about the Tribunal's answer tothe question, but that is an entirely different matter.

 

Looked at in the round, therefore, I find it impossible to say that theTribunal's decision about the applicable cap was a matter that went to theirsubstantive jurisdiction. The fact that the claimant made (or intimated that itmight make) applications under section 57 of the 1996 Act (correcting an error)and section 68 (serious irregularity) in connection with the dispute about theappropriate cap only confirms my view that Petrotrin's essential complaint isabout the result, and it has been uncomfortably shoehorned into ajurisdictional challenge when, on a proper analysis, it is no such thing.

 

Another way of approaching the question as to whether the debate about theapplicable cap is a matter of substantive jurisdiction is to look at how thepoint was dealt with in the arbitration itself. At paragraph 18.17 of thePartial Award, the Tribunal found that the lower cap applied on the basis ofthe true construction of the Onshore Agreement and the Linkage Agreement. TheTribunal found, contrary to Petrotrin's submissions, that they had nofreestanding right to claim under Article 5.2 of the Linkage Agreement. Ofcourse, the Tribunal's rejection of Petrotrin's case as a matter ofconstruction is a finding which cannot be interfered with on this application.That, therefore, is the end of the challenge.

 

What is more, Mr Acton Davis demonstrated to my satisfaction that thequestion of which cap was applicable was always regarded, by both parties, asprimarily a point of construction. This can be seen from the following:

 

4   (a) Paragraphs 188-190 of Samsung's RADTCC set out its case as to why,as a matter of construction, the cap was limited to 10% of the Contract Priceas defined in the Onshore Agreement.
(b) In Petrotrin's RTDTCC, they summarisedthis argument as Samsung averring that the cap was 10% of the Onshore ContractPrice "and not 10% of the combined Onshore and Offshore Contract Pricewhich is termed as the "Total Agreement Amount' under Article 5 of theLinkage Agreement". Although that is not in fact what Samsung had said (itmade no mention of either of the other two Agreements), it is clear thatPetrotrin saw this as a question of construction. Indeed, they expressly callit "a matter of contractual interpretation".
(c) Petrotrin thensought to make good their case on construction at paragraphs 19.1.2 and 94 ofthe RTDTCC, which said that Samsung's reliance on the lower cap "isincorrect and obviously so in light of the express wording of the LinkageAgreement at Article 5.2". Again it was Petrotrin who expressly identifiedthis issue as one of contract interpretation. 
(d) In the arbitration itself,Petrotrin's written opening at paragraphs 2.2.6 and 6.1 again confirmed thatthis was a matter of construction. That was repeated during Petrotrin's oralopening (see pages 760-761 and 763 of the transcript). In constantlyreiterating that this was a question of contract interpretation, leadingcounsel then instructed by Petrotrin was only echoing what Mr Acton Davis (whoappeared for Samsung then and now) also said to the Tribunal in his oralopening (see page 717 of the transcript). 
(e) In the claimant's writtenclosing in the arbitration, paragraphs 13.4 and 13.16 repeat the constructionargument.

 

Accordingly, I find that the question of which cap was applicable was (andwas treated by the parties as) primarily a question of construction. TheTribunal decided that question of construction against Petrotrin. That resultcannot be impeached by this challenge.

 

Mr Diwan made two attempts to get round this difficulty. First, he saidthat paragraph 18.17 of the Partial Award (the paragraph that deals withconstruction) was linked to, or could somehow only be read together with, theearlier finding on jurisdiction. I disagree. There is nothing in paragraph18.17 that makes that connection; indeed, it is quite clear that the Tribunalwas dealing separately with the arguments of construction and jurisdiction.That is clear from paragraph 18.13 of the Partial Award. I agree with Mr ActonDavis that a feature of Petrotrin's application under s.67 has been to elideconstruction and jurisdiction in precisely the same way as they did in the arbitration,which attracted the Tribunal's comment at paragraph 18.13 of the Partial Award.

 

Secondly, in his reply, Mr Diwan suggested that, even if paragraph 18.17was right, it did not necessarily preclude Petrotrin from making a claim forthe Total Agreement Amount. But that is a different point which ignores how theconstruction argument was put by Petrotrin during the arbitration. Petrotrinargued that, as a matter of construction, the cap was not the lower of the twopotential caps. The Tribunal rejected that submission. What the claimant mighthypothetically have done about any other claims they might have had under othercontracts is irrelevant to that question of construction.

 

Although it follows from the foregoing that I reject the s.67 applicationon the basis that it is not a substantive challenge to the Tribunal'sjurisdiction, it is appropriate for me to go on and deal with thejurisdictional issue, in case I am wrong and the application does raise a properchallenge to the Tribunal's substantive jurisdiction.

 

7. WAS THE TRIBUNAL'SJURISDICTION IN RESPECT OF LIQUIDATED DAMAGES LIMITED TO THE CAP IN THE ONSHOREAGREEMENT?

 

Summary

 

For a variety of reasons, set out below, I am in no doubt that theTribunal's jurisdiction in respect of liquidated damages was limited to the capin the Onshore Agreement. I should note at the outset that the first and onlytime that the jurisdiction point was raised at all by Petrotrin in thearbitration was at paragraph 13.15 of their written closing submissions, andeven there they persisted in calling it a "matter of construction".

 

The Terms of Reference

 

I have set out the Terms of Reference in paragraphs 12-17 above, whichwere agreed by both parties and the Arbitral Tribunal. They make clear that thedisputes in this case arose under the Onshore Agreement only, and no otherAgreement. Although paragraph 14 of the Terms of Reference indicated that theclaims of the parties were summarised in the Terms of Reference, and were notintended to be exhaustive, it may be an open question as to whether thejurisdiction of the Tribunal was intended to be extended in any significant wayby further pleadings. However, it is Petrotrin's case that it was, and forpresent purposes I am prepared to assume that, as a matter of construction ofthe Terms of Reference, that submission is right. The next question is whetherjurisdiction was so extended.

 

Petrotrin's counterclaim at paragraph 15.1 (paragraph 18 above) was, onany view, a counterclaim brought under the Onshore Agreement only. The onlypleaded reference to the party responsible for the delay was to"Samsung", the defendant in these proceedings and the party to theOnshore Agreement. There was no reference to SECL, the party to the OffshoreAgreement. The reference to the "Contract Price" is also a referenceto the Onshore Agreement; if it had been a reference to the larger of the twocaps it would have been to "the Total Agreement Amount", as definedin the Linkage Agreement.

 

Mr Ali's witness statement makes that last point graphically, by referringto the 10% of the Contract Price and then asking himself, rather forlornly,"(under the Linkage Agreement?)" The answer to Mr Ali's question wasplainly No; 'the Contract Price' is not a phrase used in the Linkage Agreement.Unsurprisingly, therefore, Mr Diwan accepted in the course of his submissionsthat the original counterclaim was made only under the Onshore Agreement.However, he said that Petrotrin's RTDTCC fundamentally changed the nature ofthe counterclaim because of its reference to Article 5.2.

I reject that submission. As I have indicated at paragraph 19 above, allthe RTDTCC did was to argue, as a matter of construction, that the liquidateddamages were capped at 10% of the Total Agreement Amount. The pleading did notsuggest that this was anything other than a point of construction. There was noindication that this argument went to, let alone extended, the Tribunal'sjurisdiction. It was not suggested that the Terms of Reference needed to beamended or even clarified. Most important of all, it was not suggested thatPetrotrin's counterclaim arose under anything other than the Onshore Agreement.

 

Accordingly, I find that the Tribunal's Terms of Reference, which werebased on the disputes arising under the Onshore Agreement only, did not varyand were not subsequently extended. Neither party sought to amend or extendthose Terms of Reference, either expressly or by implication. On that basis,the Tribunal had no jurisdiction to consider any claims arising under any otherAgreement.

 

The Absence of Any Other Claims

 

The Tribunal found at paragraph 18.15 of the Partial Award that thepleadings "do not show that Petrotrin has brought its counterclaim underany agreement other than the Onshore Agreement." That is a finding offact. It cannot be reviewed on this s.67 application.

 

But in any event, I confirm that this finding of fact was palpablycorrect. It was common ground that there had never been at any time a claimunder the Offshore Agreement. I have found at paragraphs 29(b) and (c) abovethat the references to the Linkage Agreement in the RTDTCC were expresslydesigned to assist Petrotrin's argument as to construction. They did not amountto the making of a separate claim under the Linkage Agreement.

 

What is more, confirmation of this can be found in the RTDTCC itself. Atparagraph 14 of that pleading, when dealing with the Linkage Agreement, theclaimant said:

"The effects of clause 4.1 inter alia for thepurposes of Article 10 of the ICC rules of arbitration, is that in the eventof Petrotrin having to issue a Request for Arbitration against SECL, all ofthe claims in that arbitration will be made under the same arbitrationagreement as the instant arbitration. Further and in the alternative if (it isdenied) the claims in the arbitrations are made under more than one arbitrationagreement, the arbitrations are between the same parties, the disputes in thearbitrations arise in connection with the same legal relationship and the arbitrationagreements compatible. Such arbitrations will be consolidated." (Emphasissupplied)

 

That passage is important for two reasons. First, it makes plain thatPetrotrin had not issued a Request for Arbitration against SECL: what is setout are the consequences if that ever happened. It never did. Secondly,the paragraph demonstrates that, in Petrotrin's view, there would have beenfew, if any, practical difficulties if a Request for Arbitration had been madeunder the Offshore Agreement and the claims against Samsung and SECL were dealtwith together. I agree with that. I cannot speculate as to why this course wasnot taken.

 

Accordingly, as to jurisdiction:

a) the Tribunal found (correctly) that they had beenappointed under the Onshore Agreement only; 
b) the Tribunal's Terms ofReference referred to the Onshore Agreement only; 
c) the Tribunal found(correctly) that there had been no other claims under either the OffshoreAgreement or the Linkage Agreement; and 
d) accordingly, the Tribunal found(correctly) that their jurisdiction was limited to the cap in the OnshoreAgreement. 

It might be thought that, with respect, this was hardly asurprising result.

 

The Construction of Article 33

 

A part of Mr Diwan's submissions relied on the general principles relatingto the desirability of avoiding multiple arbitrations between the same partieson related disputes^[2]. He relied on thesummary of those principles by Sue Carr J in C v D1 and Others [2015] EWHC 2126 (Comm) at paragraph104:

 

"104. Drawing this line of authorities together, thefollowing relevant principles can be derived: 
a) the exercise of determiningwhether a dispute falls within an arbitration clause is one of interpretationrequiring a careful and commercially-minded construction. It is a question ofdetermining objectively the intention of the parties as revealed by theagreement or agreements;

b) in construing an arbitration clause, a broad andpurposive construction should be followed;

c) in general, parties to anarbitration agreement do not intend that disputes under that agreement shouldbe determined by different tribunals ("the Fiona Trust presumption"). This presumption may applywhere there are multiple related agreements between the parties. If there areinconsistent arbitration agreements, it may be necessary to identify where thecentre of gravity lies and which agreement lies at the commercial centre of thetransaction (or is closer to the claim), or under which series of agreementsthe dispute essentially arises. It is the arbitration agreement in thatagreement that will cover all issues. Fragmentation may of course occur if, onits true construction, the clear wording and inherent scheme leads to thatconclusion;

d) the Fiona Trustpresumption may not apply where there are two or more agreements with separateand distinct arbitration clauses addressing parallel but different aspects ofthe overall continuing relationship between the parties. A dispute rising underone contract would not be intended to be caught by an arbitration clause inanother contract. But I do not accept C's broader submission that the FionaTrust presumption does not apply where the overall contractual arrangements betweentwo parties contain two or more differently expressed choices of jurisdictionin respect of different agreements. The position is more subtle, as a properreading of AmTrust reveals;and

e) where there is an agreement subsequently entered into by the partiesfor the purpose of terminating the commercial relationship created by anearlier agreement, the Fiona Trustpresumption may apply with particular potency."

 

In similar vein, there are the transactional set-off cases, such as Norscot Rig Management PVT Ltd v Essar OilfieldsServices Ltd [2010] EWHC 195 (Comm), where Burton J heldthat, if there was a sufficient connection between a claim under an earliercontract and a dispute under a later one for the former to amount to a defenceof transaction set-off, then it was likely, if not inevitable, that it was caughtby an arbitration clause covering disputes "relating to" thecontract. But, on the face of it, that principle does require the same parties;ordinarily, A cannot set off as a defence to a claim made by B under atransaction between A and B, a claim which A has against C under a completelydifferent transaction.

 

In most of these cases, the essential argument is whether the Tribunalcould consider a claim or cross-claim which arose under a different (butpotentially related) commercial agreement to that under which the originalarbitration had commenced. The usual answer to that question is in theaffirmative. Accordingly, as Mr Acton Davis acknowledged, if (for example)Petrotrin had issued a Request for Arbitration against SECL under the OffshoreAgreement and/or sought to have two arbitrations consolidated, in an attempt totrigger the larger cap on liquidated damages identified in the LinkageAgreement, it might have been difficult to say that they were not entitled todo so.

 

But that simply did not happen. In contrast to the reported cases, wherethe issue was whether or not two claims or cross-claims between the same twoparties under two different contracts could be dealt with in the samearbitration proceedings, that situation never arose here. As noted above,Petrotrin never at any time indicated a possible claim under the OffshoreAgreement. In my view, that was the least that was required, particularly giventhat (unlike the reported cases) SECL was a separate company to Samsung. Therebeing no such claim (or any intimation of a claim) as a matter of fact, thequestion of whether, theoretically, the arbitration clause in the OnshoreAgreement would have been wide enough to cover both claims is redundant.

 

In essence, Petrotrin's case now is that, notwithstanding the Terms ofReference and its repeated references to the Onshore Agreement as the onlybasis of the claim and cross-claim; notwithstanding the absence of any claim orintimated claim for liquidated damages under either of the other Agreements;and notwithstanding the fact that Samsung and SECL were separate companies, thefact that the Linkage Agreement had been referred to generally in the fourthand final pleading, coupled with the FionaTrust principles, was enough to give the Tribunal the necessaryjurisdiction to reach a decision on the cap that was outside the OnshoreAgreement. For the reasons that I have given, I reject that case. There is noauthority which comes close to supporting such a submission.

 

I make one final point. Throughout Mr Diwan's submissions, there werecomplaints that some of the points raised by Samsung were new, and were raisednow in contravention of s.73 of the 1996 Act (the loss of the right to object).I reject that submission unequivocally: the points taken were either the sameas or a refinement of the arguments made by Samsung in the arbitration. Anyconfusion has arisen from Petrotrin's failure to take the so-calledjurisdictional point in the arbitration until well beyond the eleventh hour;their decision to run a completely new case at the hearing before me, coupledwith their reluctance to allow Samsung a proper opportunity to respond to it;and the fact that, as set out in Section 6 above, this was not achallenge to substantive jurisdiction at all.

 

8. CONCLUSIONS

 

For the reasons set out in Section 6 above, I do not consider thatthis application properly arises under s.67 of the Arbitration Act 1996. Theprimary issue between the parties was not one relating to the Tribunal'ssubstantive jurisdiction. It was and remains primarily a dispute ofconstruction. In those circumstances, the s.67 application must fail.

 

If I am wrong about that, for the reasons set out in Section 7above, I conclude that the Tribunal was right to decide that, in thealternative to the construction argument, its jurisdiction in respect ofliquidated damages was limited to the cap in the Onshore Contract. That was theeffect of their Terms of Reference and the pleadings; and that was theconsequence of there being – as a matter of fact - no claim or intimated claimunder either the Offshore Agreement or the Linkage Agreement.

 

Accordingly, this application is refused. I will dealwith all consequential matters at the handing down of this Judgment.