China Jiangxi Corporation For International Economic and Technical Corporation v Cotton Development Organisation (CAD ARB 11 of 2015)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
CADER has jurisdiction under s.11(4) of the Arbitration and Conciliation Act to appoint an adjudicator where the parties' agreed procedure for joint appointment has failed. The respondent's 148-day delay in responding to the applicant's proposal and its prior position that no arbitration agreement existed constituted failure of the consent process, triggering CADER's statutory power to make a compulsory appointment. Application granted.
Outcome
CADER to appoint adjudicator; matter to proceed to adjudication
Facts
The parties executed a contract on 12 June 2014 containing dispute resolution clauses requiring joint appointment of an adjudicator. The contract provided that if the parties failed to jointly appoint, CADER could appoint upon request. On 13 January 2015, the applicant issued notice proposing adjudication or arbitration. The respondent did not respond until 10 June 2015, 148 days later, when it requested CVs of nominees. The respondent contended that CADER lacked jurisdiction to appoint an adjudicator at the initial stage, arguing that the contract required joint appointment first and that CADER's power arose only upon resignation, death, or agreed non-functioning of a jointly appointed adjudicator. The applicant applied to CADER for appointment of an adjudicator under s.11(4) of the Arbitration and Conciliation Act.
Issues
- Whether CADER has jurisdiction to appoint an adjudicator where the contract requires the parties to jointly appoint the adjudicator in the first instance.
- Whether the respondent's failure to respond promptly to the applicant's proposal for adjudication constitutes a failure of the agreed party procedure triggering CADER's statutory power of appointment under s.11(4) of the Arbitration and Conciliation Act.
Orders
- Application granted.
- CADER to appoint an adjudicator pursuant to s.11(4) of the Arbitration and Conciliation Act.
- Adjudicator to be listed in supplementary ruling.
- No order as to costs.
Rules and key headnotes
Legislation cited (2)
- Arbitration and Conciliation Act Cap.4 s.2(1)(e)
- Arbitration and Conciliation Act Cap.4 s.11(4)
Cases cited (1)
- Board Of Governors, John Paul S.S. Chelekura v Kheny Technical Services Ltd (CAD ARB 22 of 2012)
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.