In an application for leave to appeal from an order appointing an arbitrator, the Court of Appeal decided that it did not have jurisdiction to grant such leave. It was common ground that the court did not have jurisdiction to grant leave to appeal from orders appointing arbitrators made under section 18 of the Arbitration Act 1996 (Act). However, one of the issues at first instance had been whether the parties had concluded an agreement as to the number of arbitrators for the purposes of section 15 of the Act. This led the applicant to argue that the decision had been made under section 15, rather than section 18, and that leave to appeal could therefore be granted.

Rejecting this argument, the Court of Appeal held that the first instance decision was, in form and in substance, a decision under section 18. The section 15 issues had formed part of the reasons for the judge's decision, but were not threshold issues affecting the applicability of section 18. Furthermore, having regard to the general policy of non-intervention, there was no justification for avoiding the restriction on appeals in section 18.

The decision illustrates that it is the substance of the decision that matters when deciding whether the Court of Appeal can grant leave to appeal. A decision does not cease to be a decision under section 18 merely because the judge is required to take into account other sections of the Act when deciding the application. (For further discussion of when the Court of Appeal can grant leave to appeal in arbitration applications, see Practice note, Arbitration claims: obtaining permission to appeal to the English Court of Appeal.)

Case: Itochu Corporation v Johann M K Blumenthal GmbH & Co KG and another [2012] EWCA Civ 996.