MERCANTILE LIFE AND GENERAL ASSURANCE COMPANY LIMITED & ANOTHER V DILIP M. SHAH 7 3 OTHERS

RATIONALE

The Judge aligned himself to the decision in University of Nairobi v Multiscope Consultancy Engineers Limited in that, once the arbitrator has signed off the Award and notified the parties that it is ready for collection upon payment of fees and expenses, the act of delivery is within the power and control of the parties and that the object of the entire Act would be undermined if a contrary meaning was given to Section 35(5) of the Act. Furthermore, the Judge was of the school of thought that the act of delivery is simply making the signed copy of the Award available for collection to the parties. He was of the view that Section 332B of the Act did not require the Arbitral Tribunal to send a signed copy of the Award to the parties hence the purpose of Section 35(3) of the Act. Regarding the second issue, the Judge was of the strict view that while public policy is a broad, infinite and malleable concept, it is important to first consider the principle that parties who enter into an arbitration agreement expect a level of finality.

CASE RELEVANCE

  • Section 35(3) of the Act provides that an Application for setting aside an arbitral award may NOT be made after 3 months have elapsed from the date on which the party making that Application had received the award.
  • Under Section 17(5) of the Act, the Arbitral Tribunal may rule on a plea on jurisdiction either as a preliminary question or in an arbitral award on merits.
  • When parties agree to have an arbitrator determine a dispute within the arbitration clause, they must take the consequences that the decision may be for or against one of the parties and that not every error committed by the arbitrator becomes a ground upon which the dissatisfied party may apply to set aside the Award.

The court, when called upon to decline enforcement of an arbitral award under Section 37 of the Act, does not exercise appellate jurisdiction as the parties are entitled to reserve the same if they wish

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Categories: 2006, Case Laws
Tags: CaseLaws2006