Sumukan Limited v. The Commonwealth Secretariat

 The case originated from the execution of a commercial agreement concluded by the predecessor of the applicant (Asset Management Shop ltd) and the Commonwealth Secretariat (ComSec). The predecessor of the applicant brought the dispute before the Commonwealth Secretariat Arbitral Tribunal which delivered its award on 25 April 2005. Before the High Court of Justice Queen’s Bench Division Commercial Court, the applicant claimed a permission to appeal the ComSec Arbitral Tribunal Award.

The Court held that it had no jurisdiction to entertain the application.

It firstly stressed that the ComSec is an international organization which enjoys immunity under the 2005 International Organizations Immunity Act. It also noted that ComSec functions include the conclusion of contracts with private parties concerning goods and service for the organization’s Member States.

Secondly, the Court observed that clause 9 of the contract at stake provides that “The Secretariat and the consultant shall endeavour to settle by negotiation and agreement any dispute which arises in connection with this contract. Failing such agreement the dispute shall be referred to the Commonwealth Secretariat Arbitral Tribunal for settlement by arbitration in accordance with its Statute which forms part of this contract and is available on request.” The Statute of the ComsSec Arbitral Tribunal establishes that “The judgment of the Tribunal shall be final and binding on the parties and shall not be subject to appeal. This provision shall constitute an “exclusion agreement” within the meaning of the laws of any country requiring arbitration or as those provisions may be amended or replaced.”

The Court also underlined that its conclusion is not affected by the European Convention on Human Rights and the 1998 Human Rights Act. In particular, the exclusion of a right to appeal the Arbitral Tribunal awards does not entail an undue restriction of the right to a fair trial since such a restriction has been expressly established by the contract agreed and accepted by the applicant.