Losing the right to arbitrate

The question in Downing v Al Tameer Establishment [2002] EWCA Civ 721, [2002] All ER (D) 342 (May), was whether or not the issuing of court proceedings amounted to an acceptance by the claimant of a repudiatory breach by the defendant of the arbitration agreement.

In Downing, the claimant alleged that there was an underlying contract between the claimant and the defendant, which contained an arbitration agreement. A dispute arose between the parties under the underlying contract. The claimant, on a number of occasions, attempted to invoke the arbitration procedure set out in the arbitration agreement. That procedure required the parties to agree to the appointment of the individual arbitrators that would make up the tribunal. In response the defendant asserted, and continued to assert throughout, that he was not a party to the underlying contract—and, by implication, the arbitration agreement contained within that underlying contract.

After much correspondence, the claimant accepted the defendant’s repudiatory breach of the underlying