DHL Project & Chartering Ltd v Gemini Ocean Shipping Co Ltd  EWHC 181 (Comm) | ZFZ Postcard Cases
Charterers challenged the arbitral award under s.67 and s.69 of the Arbitration Act 1996.
The s.67 challenge was made on the basis that the arbitrator lacked jurisdiction, because there was no binding contract or arbitration agreement. The charterparty fixture was agreed “on subs”. The “subject” in question concerned the shipper/receiver’s approval. The Court held that this subject gave rise to a condition precedent to the formation of the contract. It followed that, unless and until the subject was lifted by Charterers and the condition precedent satisfied, there could be no binding contract or agreement to arbitrate. The approval of the shipper/receiver or lack thereof was not determinative.
The s.69 challenge was made on the basis that the arbitrator wrongly construed the ‘subject’ as qualified by other contractual terms in an incorporated proforma charterparty. Had the s.67 challenge failed, the s.69 application would have been upheld.