Zwiebel & Anor v Konig

Permission to appeal an order enforcing an arbitral award should be confined to a ground with a real prospect of success. Where the proposed appeal turns on construction of the award, permission may be granted if it is reasonably arguable that one paragraph renders another uncertain and affects enforceability. Issues which obscure the genuinely arguable point should not be included. Granting permission determines the scope of the proposed appeal; it does not decide whether the award is ultimately valid or enforceable.

This was a renewed application for permission to appeal an order made by Burton J on 4 February 2009. The order refused to set aside Field J’s order of 27 November 2008, which had permitted enforcement as a judgment under section 66 of the Arbitration Act 1996 of a Beth Din award.

The applicants argued that paragraph B of the award created uncertainty about paragraph A. They contended that no effective clarification had been provided by the tribunal. The central question was whether that construction issue had a real prospect of success and justified permission to appeal.

Application granted on one issue only.

1. The applicants accepted that paragraph A of the award, standing alone, would have been valid and enforceable. Burton J had considered paragraph A clear, but had relied on an alleged clarification in concluding that paragraph B did not make the award uncertain.
2. The only clarification actually identified was the tribunal’s fax of 3 November 2008, which amended the description of the parties. It did not explain the relationship between paragraphs A and B or state how the tribunal intended the award to operate.
3. It was reasonably arguable that paragraph B cast sufficient doubt on paragraph A to make the award invalid or unenforceable. The construction argument therefore had a real prospect of success.
4. The wider issues raised during the lengthy arbitration obscured the single arguable issue. Permission was accordingly limited to the construction of the award, including the effect of paragraph B and the 3 November fax.
5. The court did not determine the merits of that construction issue. It also noted that the applicants had raised possible serious irregularities under section 68 of the Arbitration Act 1996, but had made no application under that provision.

• Court of Appeal (Civil Division): renewed application for permission granted on the construction issue only.
• Queen’s Bench Division, Commercial Court: Burton J refused to set aside Field J’s enforcement order and refused permission to appeal.
• Court of Appeal (Civil Division): Jacob LJ refused permission on paper.
• Queen’s Bench Division, Commercial Court: Field J permitted enforcement of the Beth Din award as a judgment under section 66 of the Arbitration Act 1996.