Shell Egypt West Manzala GmbH & Anor v Dana Gas Egypt Ltd

An arbitration clause excludes the statutory right to appeal on a question of law under section 69 of the Arbitration Act 1996 only if the contractual wording makes that intention sufficiently clear. Words stating that an award is “final, conclusive and binding” ordinarily describe the award’s traditional effects, including res judicata and issue estoppel. They do not, without more, exclude section 69 rights. The addition of “conclusive” does not alter that conclusion. Permission to appeal was granted because the proposed questions satisfied the statutory criteria.

Shell sought permission under section 69 of the Arbitration Act 1996 to appeal questions of law arising from a UNCITRAL tribunal’s Final Partial Award. Centurion applied for a declaration that the court lacked jurisdiction, relying on clause 14.3 of the Farm-In and LNG Cooperation Agreement, which stated that the majority arbitrators’ decision would be “final, conclusive and binding”.

The tribunal had rejected Shell’s contractual claims, holding that Shell had affirmed the agreement and that it terminated under its contractual provisions. The central issue was whether clause 14.3 clearly excluded the statutory right of appeal.

1. Jurisdiction application dismissed. Section 69(1) of the Arbitration Act 1996 permits an appeal on a question of law unless the parties have agreed otherwise. Such an exclusion agreement requires sufficiently clear wording, although it need not expressly mention section 69. The court accepted the approach in Essex County Council v Premier Recycling Ltd [2006] EWHC 3594.
2. In the context of a standard governing-law and arbitration clause, “final, conclusive and binding” does not clearly convey an agreement to exclude section 69 rights. “Final and binding” traditionally describes an award that binds the parties, finally determines the claim, and creates res judicata and issue estoppel. Section 58(2) confirms that finality and binding effect do not prevent challenges under Part 1 of the Act.
3. The word “conclusive” does not change the result. The three words overlap in describing the ordinary effects of a valid award. They do not, without other contextual indicators, amount to an exclusion of statutory appeal rights. The court rejected the contrary reasoning expressed obiter in Al Hadha Trading Co v Tradigrain SA [2002] 2 Lloyd’s Rep 512, and treated the older authorities relied on by Centurion as arising in materially different statutory contexts.
4. The court agreed with the reasoning in Corner v C and C News Pty Ltd, that similar wording ordinarily restates arbitral finality, res judicata and issue estoppel, subject to judicial supervision, rather than excluding appeal rights.
5. Permission to appeal granted. The proposed appeal raised questions of law and satisfied the relevant criteria under section 69(3)(a), (b), (c)(ii) and (d).

First-instance decision on applications concerning an arbitral award. The tribunal’s Final Partial Award dated 11 March 2009 was the subject of Shell’s proposed section 69 appeal.