The Effect Of Delay In Appointing An Arbitrator Or Umpire

(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