UK: The Effect Of Delay In Appointing An Arbitrator Or Umpire

Last Updated: 21 July 1997
(First published in In House Lawyer, October 1996)

The CA has recently held that the court's discretion to appoint an arbitrator under s10(1) of the Arbitration Act 1950 is completely unfettered.

In Frota Oceanica Brasileira SA and Another v (Steamship Mutual Underwriting Association) (Bermuda) Ltd (The Frotanorte), (The Times, 13 August 1996), it held that inordinate and inexcusable delay in applying for such an appointment, even in the absence of prejudice, was a proper ground for refusing to exercise their discretion in that party's favour.

The delay in this case was extraordinary. The dispute stemmed from a collision between the Frotanorte and another vessel off Puerto Rico on 21 August 1978. The case was an appeal by the plaintiffs Frota Oceanica Brasileira SA and Instituto de Reseguros against the decision of Longmore J in the Commercial Court where, having upheld their disputed contention that there was a binding arbitration agreement in existence between them and the defendant P & I Club, (Steamship Underwriting Association)(Bermuda) Ltd (the Club), he dismissed their application pursuant to s10 of the Arbitration Act 1950 to appoint an arbitrator to resolve the dispute. Longmore J declined to exercise his discretion to make an appointment on the ground that the 'awe inspiring' delay had been so inordinate and inexcusable that, even in the absence of prejudice, it would be wrong to allow the arbitration to proceed. He based his decision specifically on the delay between November 1991 and October 1994 against the background of earlier extended periods of delays. A party who thought so little of his rights that he took no steps to enforce them for nearly three years after the expiry of the last extension of time and for five years after he is aware of his opponent's contention that his cause of action is time barred, deserved no sympathy.

The underlying statutory framework is contained in s10 (1) Arbitration Act 1950 which provides:

'10. Power of court in certain cases to appoint an arbitrator or umpire

(1) In any of the following cases -

(a) Where an arbitration agreement provides that the reference shall be to a single arbitrator, and all the parties do not, after differences have arisen, concur in the appointment of an arbitrator;
(b) If an appointed arbitrator refuses to act, or is incapable of acting, or dies, and the arbitration agreement does not show that it was intended that the vacancy should not be supplied and the parties do not supply the vacancy;
(c) Where the parties or two arbitrators are required or are at liberty to appoint an umpire or third arbitrator and do not appoint him;
(d) Where an appointed umpire or third arbitrator refuses to act, or is incapable of acting, or dies and the arbitration agreement does not show that it was intended that the vacancy should not be supplied and the parties or arbitrators do not supply the vacancy; any party may serve the other parties or the arbitrators, as the case may be, with a written notice to appoint, or, as the case may be concur in appointing an arbitrator, umpire or third arbitrator, and if the appointment is not made within seven days after the service of the notice, the High Court or a judge thereof may, on application by the party who gave the notice, appoint an arbitrator, umpire or third arbitrator who shall have the like powers to act in the reference and make an award as if he had been appointed by consent of all parties.'

In the CA, Hirst LJ rejected the argument that the Club's lack of urgency furnished an excuse. A more fundamental question was whether inordinate and inexcusable delay in the absence of prejudice was a proper ground for refusing to exercise a s10 discretion. The appellants argued that the Judge at first instance had erred because the Court should extend to s10(1) well established principles in cases of striking out for want of prosecution laid down by Allen v Sir Alfred McAlpine and Birkett v James. Hirst LJ disagreed. The leading case on s10 was Bjornstad v Ouse Shipping which clearly demonstrated that the court's discretion was completely unfettered. Moreover, there was nothing in the wording of s10 to suggest the discretion was anything other than completely unfettered. There was no obligation to read into it the requirement of proof of prejudice stipulated in the striking out cases which had attracted strong judicial criticism.

In his judgement Longmore J was correct in holding that the absence of prejudice was not fatal to the exercise of the s10 discretion against an applicant who had been guilty of inordinate and inexcusable delay. In the exercise of his discretion he took all the relevant factors into account, including, of course the absence of prejudice, and Hirst LJ could see no good reason to interfere with his decision.

Nourse LJ concurred with Hirst LJ and went on to say:
'in every case there must come a time when the court can properly refuse to grant it not because its dignity has been affronted nor in order to punish the applicant, but simply because it is wrong to grant a remedy to someone who has for so long neglected his right to seek it. The power to refuse relief in such circumstances is one which every court in the land would wish to preserve'.

S18(3) of the new Arbitration Act 1996 repeats the position under s10(1)(a) of the 1950 Act and provides that if the appointment procedure fails and the parties have not agreed a default procedure, an application to court may be made under s18(2). The powers open to the court are set out in 18(3) but the Act does not specify how the court's discretion is to be exercised. It is thought that the courts would still take the robust approach that the CA has followed in this case.

This note is intended to provide general information about some recent and anticipated developments which may be of interest. It is not intended to be comprehensive nor to provide any specific legal advice and should not be acted or relied upon as doing so. Professional advice appropriate to the specific situation should always be obtained.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions