In Shell Egypt West Manzala GmbH and anor v Dana Gas Egypt Ltd [2009] EWHC 2097 (Comm), Gloster J considered the effect of a provision in an arbitration clause stating that the arbitral tribunal's award "shall be final, conclusive and binding on the parties...". The defendant argued that this provision excluded any rights of appeal that would otherwise arise under section 69 of the Arbitration Act 1996. Gloster J held that the court's jurisdiction under section 69 had not been excluded, and went on to grant permission to appeal against the award.

Reviewing English and Commonwealth authorities, she concluded that clear words were required to exclude rights of appeal, and, further, that the words "final and binding" alone were insufficiently clear to do so. Agreeing with the conclusion of Ramsey J in Essex County Council v Premier Recycling Ltd [2006] EWHC 3594 (discussed in Legal update, Appeal under section 69 Arbitration Act 1996 not excluded by "final and binding" award), she held that those words simply conveyed that the award was res judicata between the parties. Furthermore, the addition of the word "conclusive" did not have the effect of excluding rights of appeal - rather, it simply reflected the fact that an award prevented parties from reopening issues of law or fact which were decided by the award.

Gloster J's judgment affirms that, while it is not necessary to refer expressly to section 69, clear words are required to exclude rights of appeal. As mentioned in the judgment, both the LCIA Rules (Rule 26, under which parties are deemed to "waive irrevocably their right to any form of appeal, review or recourse to any state court or other judicial authority") and the ICC Rules (Article 28.6, under which parties are deemed to have "waived their right to any form of recourse") include sufficiently clear exclusions of rights of appeal. Parties should ensure that any ad-hoc exclusion of rights of appeal are similarly clearly worded. Although each arbitration clause will be construed in its own factual matrix, use of the "final, conclusive and binding" formula is unlikely, of itself, to be sufficiently clear to achieve an exclusion.

PLC Construction have posted a blog entry by James Levy at Lewis Silkin on this decision which has been made available to subscribers of PLC Dispute Resolution and PLC Arbitration.