David Gluck v Chaim Yaakov Endzweig & Anor

This is an appeal against an order of His Honour Judge Keyser KC dated 21 February 2025, setting aside an order of His Honour Judge Pelling KC (made without notice on the papers) which gave permission to enforce an award of a Beth Din (sometimes referred to as Beis Din) Chosen Mishpot (the Jewish Rabbinical Court for civil and financial disputes) of the Union of Orthodox Hebrew Congregations in London pursuant to section 66 of the Arbitration Act 1996 (the Arbitration Act).

The arbitration clause was contained in a share purchase agreement dated June 2019 made between the appellant, Mr David Gluck, who sold a 50 per cent shareholding in Net Pex Ltd (Net Pex) to the respondent Evertop Limited (Evertop). Mr Chaim Yaakov Endzweig was the guarantor of the purchase price which was payable in four instalments.

A dispute arose between the parties about whether reductions in the instalments payable should be made in accordance with schedule 7 of the share purchase agreement. Two arbitrators were appointed pursuant to the arbitration clause in the share purchase agreement and a further agreement was made by the parties, headed “arbitration agreement”, appointing two Rabbis as arbitrators.

There was a sentence in the arbitration agreement recording that “this deed will be valid according to the Arbitration Act …” and a further sentence which recorded that the Beth Din had the authority to “amend and add to and change the Judgement they have given at any time”.

It is apparent that, by giving the power to amend at any time, the parties intended to achieve complete freedom for the Beth Din to do what it considered best, at any time. It is inferred that this was because of the authority of, and respect due, to the Beth Din. The parties also, however, intended to ensure that the arbitration agreement gave rise to enforceable arbitration awards pursuant to the Arbitration Act. There is an obvious tension between the need for finality in arbitrations required by the Arbitration Act, and the desire to permit arbitrators to amend awards as and when they see fit, and this appeal raises the issue of whether the parties’ arbitration agreement is compatible with the Arbitration Act.

Net Pex provides accommodation to care leavers and other vulnerable young people. The parties signed a Share Purchase Agreement (“the SPA”) by which the sum payable for Mr Gluck’s shares was payable in instalments. The SPA included paragraph 22:

“22.

Governing law and jurisdiction

22.1

This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.

22.2

Each party irrevocably agrees that any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims) shall be finally resolved by arbitration by the Beth Din in accordance with the rules and procedures of the Beth Din, and judgment upon the award rendered by the Beth Din may be entered in any court having jurisdiction thereof.”

Schedule 7 to the SPA contained a mechanism by which the purchase price would be reduced if the profits of Net Pex in the first two and a half years after the sale fell below the specified level of £1.58 million per year.

The dispute between the parties arose in late 2019. Mr Endzweig stated that Net Pex had not been as profitable as expected and contended that there should be a reduction in the remaining deferred portions of the purchase price in accordance with the Purchase Price Mechanism.

On 11 December 2019 Mr Gluck and Mr Endzweig signed the arbitration agreement. This provided the arbitration arrangements for the dispute between the parties, and appointed two Rabbis as arbitrators “regarding disputes between us and the claims that each of us has one on the other and all disputes arising from the matter”.

The following were material terms of the arbitration agreement:

“… And we accept not to assert new claims that were not raised at the time of the first hearing … And this deed will be valid according to the Arbitration Act which is valid according to the laws of the Government. … The above-mentioned Beis Din have the authority to issue interim judgements as they see fit, and to amend and add to and change the Judgement they have given, at any time. …. This Arbitration Agreement is valid for an unlimited time. All of this is done in full using an act of acquisition arranged from now in the most beneficial way according to the Jewish Law and according to the laws of the Country … And this deed will not be invalidated, neither with a deficiency nor with an excess, nor with an erasure or blurring, and everything is upheld and valid.”

On 27 July 2020, the parties attended a hearing before one of the Rabbis acting as an arbitrator, sitting alone. There was no formal award made. The Rabbi provided clarification about how the profits of Net Pex were to be calculated for the purpose of the Purchase Price Mechanism in schedule 7. This clarification did not, however, lead to a resolution of the dispute between the parties.

Further hearings took place before the Beth Din in January and February 2022 and later in September 2023. An award, referred to as a Psak, was made on 15 March 2024 (“the First Award”). This partial award confirmed that Evertop and Mr Endzweig were entitled to a price reduction under schedule 7 and directed that a further hearing be heard to calculate the rate of that reduction which was held in February 2024.

A further award was made on 28 May 2024 (“the Second Award”) by which the Beth Din held that Evertop and Mr Endzweig should pay the reduced sum of £459,228.03 to Mr Gluck.

It was apparent that Mr Endzweig and Evertop’s view that the Second Award was affected by calculation errors. Mrs Endzweig, Mr Endzweig’s wife, had two phone calls with the Beth Din in which she explained what she believed to be the errors with calculations. It seems that one of the errors was that no reduction had been made to take account of corporation tax paid by Mr Endzweig for Net Pex due in respect of a period before Evertop had purchased the shares.

As a result of those phone calls between Mrs Endzweig and the Beth Din, the secretary to the Beth Din communicated with the parties by email dated 6 June 2024 saying: “I was notified by [the] Rabbi … that he is still reviewing some figures that Mrs Endzweig wasn’t clear about. He assured me that it will not take long to clarify. Additionally, please note that the award does not address the issue of overpayment for tax paid on your earnings. This amount shall be withheld until a ruling is given on this point”. It was not clear from the material before the court whether this was the same point as the point about corporation tax in paragraph 14 above, albeit cryptically expressed.

It seems that Mr Gluck had not, before receipt of the email from the arbitrators, been aware of the communications between Mrs Endzweig and the arbitrators. On 20 June 2024, Mr Gluck contacted the Beth Din via email to question why the Beth Din needed more time and why Mr Endzweig and Evertop were not being ordered to “release immediately any amount they owe”. Mr Gluck expressed frustration at being “kept in the dark”. It seems that this communication was made without notice to Mr Endzweig or Evertop.

On 25 June 2024 the Rabbinical Attorney acting on behalf of Mr Gluck wrote to the Beth Din seeking clarification of the reasoning behind the first and second awards. There does not appear to have been a response to that letter. Again this communication seems to have been made without notice to Mr Endzweig or Evertop.

It is apparent that both parties have, either directly or through others, had communications with the arbitrators or the Secretary of the panel without notice to the other side. It was suggested in the evidence that this was an accepted practice of the Beth Din. It is not necessary for this court to comment on that practice in order to determine these proceedings.

On 2 October 2024, Mr Gluck wrote to Mr Endzweig and Evertop seeking the payment of the Second Award. They received a response from Mrs Endzweig on 9 October 2024 which stated that the award was still being reviewed due to “incorrect figure calculations”.

A letter was sent by Gunnercooke LLP on behalf of Mr Gluck on 16 October 2024 stating “We reiterate that the Award is final. It is clear and unambiguous in terms of the award made against you on 28 May 2024, entitling our client, to an immediate payment of £459,228.03”. There was a reply on behalf of Mr Endzweig and Evertop saying “Contrary to as you state, the award has not been finalised, and this can be confirmed by the Beis Din, who I've copied into this email.”

On 21 October 2024, Mr Gluck made a without notice application seeking an order under section 66 of the Arbitration Act for permission to enforce the award and for a judgment to be entered in terms of the award. Although the evidence filed on behalf of Mr Gluck contained the email dated 6 June 2024 referring to the proposed clarification of the figures, there was no reference in the witness statement or application notice to the effect that the award was being reviewed by the Beth Din. The without notice application to enforce the second award was granted by order of HHJ Pelling KC dated 8 November 2024.

HHJ Keyser KC later held that there was a failure to make full and frank disclosure on the ex parte application to enforce the award which had been made to HHJ Pelling KC. HHJ Keyser KC also held that he would not set aside the enforcement order on this ground, and that is not an issue raised by the parties before this court.

On 15 November 2024, the secretary to the Beth Din emailed the parties stating that the review was ongoing and therefore the Second Award was not final and said: “We hereby clarify that we have made it clear to both parties via email on 06/June/2024, and subsequently by phone, that the award is not yet final, consequently the claimant is not entitled to pursue any amount under the Psak at this time.”

On 26 November 2024, the Respondents made an application pursuant to CPR 62.18(10) to set aside the order made by HHJ Pelling KC dated 8 November 2024. This was on the basis that the Second Award was not final as it was being reviewed by the Beth Din, and because Mr Gluck had breached his duty of full and frank disclosure.

On 10 February 2025, the Beth Din issued an amended award (“the Third Award”). The Third Award reduced the sum payable to a total amount of £258,974.85.

On 21 February 2025, following a hearing, HHJ Keyser KC set aside the enforcement of the second award.

On 10 March 2025, Mr Gluck issued an application under section 68 of the Arbitration Act to set aside the Third Award on the basis of serious irregularities We were told at the hearing that this application is due to be heard in April 2026, depending on the decision of this court.

At the hearing before HHJ Keyser KC there were issues as to whether the parties’ agreement that the Beth Din could amend their award “at any time” was within the scope of section 57(1) of the Arbitration Act, and whether the default regime created by section 57(3) to (7) applied. It was common ground before HHJ Keyser KC that if the default rules applied, the original award was final and enforceable when the order giving Mr Gluck permission to enforce the award was made.

HHJ Keyser KC granted the application to set aside the enforcement order. The judge held that the parties had conferred on the tribunal a power to amend its award which was broader than the power envisaged by the default provisions of section 57 and which was not subject to any deadline. The parties were entitled to come to this broader agreement. It was not possible to imply the section 57 time limits into the arbitration agreement because the 28 day default limit provided in section 57 was expressly inconsistent with the expression of “at any time” in the arbitration agreement.

HHJ Keyser KC did not accept that the result of his interpretation of the arbitration agreement was that no award made by the Beth Din would ever be final or enforceable. If the arbitrators had not said that they were reviewing the second award, then it would have been final and enforceable under section 66 of the Act. If repeated requests to review an award were made, the Beth Din “would have ample power to simply declare itself functus officio”. If the Beth Din initiated a review and then delayed excessively in producing a decision, a party could apply to remove the arbitrators under section 24 of the Act.

HHJ Keyser KC also dismissed the argument that the arbitration agreement was too uncertain to be enforceable saying “the Arbitration Agreement dated 11 December 2019 is not itself uncertain. The supposed uncertainty is not in the Agreement but is in the state of affairs obtaining as a result of an unlimited power of alteration. In my view, no question properly arises as to the certainty of the Agreement”.

Mr Gluck appealed against the judgment given by HHJ Keyser KC and raised two grounds of appeal: (1) the Judge erred in concluding that an agreement giving the tribunal a power of correction that was not subject to any time limit at all was within the scope of section 57(1) of the Act; and (2) the Judge erred in holding that an agreement that the tribunal should have a power to alter its award that went beyond a power of correction was within the scope of section 57(1).

Males LJ granted permission to appeal on the papers on 19 June 2025 identifying that it was arguable whether the arbitration agreement was compatible with the statutory scheme of the Arbitration Act 1996.

A respondent’s notice to affirm the decision of HHJ Keyser KC was served on behalf of Mr Endzweig and Evertop. There were three grounds being: (1) although HHJ Keyser KC had correctly held that the parties had agreed a wider power of review than the default powers contained in section 57 of the Arbitration Act, the judge had failed to refer in his judgment to the fact that the powers of review which parties can agree are not limited to "powers of the tribunal to correct an award or make an additional award". This was because the powers referred to in section 57(1) were only a subset of the powers of review which can be agreed. This is apparent from section 58(2) of the Arbitration Act which refers to a party's right to "challenge the award by any available arbitral process of appeal or review or in accordance with the provisions of this Part", and the same terminology was also used in section 70(3) of the Arbitration Act. (2) The Judge correctly held that the absence of a time limit does not mean that there will never be a final award capable of enforcement. Section 58(1) of the Arbitration Act expressly provides that parties are free to agree that awards are not immediately final and binding. The effect of the parties' agreement is that, consistent with section 58(1), an award is not final and binding until the Beth Din has confirmed that it has exhausted its jurisdiction. (3) If the Judge was wrong to hold that the parties' agreement was consistent with the provisions of the Arbitration Act, the parties had impliedly agreed to contract out of the Arbitration Act. Any award is therefore only enforceable at common law and the procedure under section 66 of the Arbitration Act is not available to the Claimant.

Both Ms Binney and Mr Randall made written and oral submissions in support of their respective cases and I am grateful to them for their helpful submissions. By way of short summary, Ms Binney on behalf of Mr Gluck submitted that the overarching point was that HHJ Keyser KC’s construction would allow amendments to the award at any time, meaning that enforcement would be impossible. Ms Binney submitted that could not be the intention of the parties disclosed in the agreements, as they wanted an arbitration under the Arbitration Act which would lead to an enforceable award. Ms Binney submitted that there were three main options in relation to the term of the arbitration agreement purporting to permit endless amendments. First it could be treated as if it were not part of the arbitration agreement because it did not come within section 57(1) of the Arbitration Act, meaning that the default provisions in section 57 applied. Secondly it could be construed as consistent with the Arbitration Act by applying the limits within section 57. Thirdly the term could be treated as repugnant to the arbitration agreement and ignored. The judge’s interpretation of the arbitration agreement was wrong.

Mr Randall on behalf of Mr Endzweig and Evertop submitted that the parties could agree a clause which was wider than that contemplated in section 57(1) and which gave a wide power of review, which was not subject to time limits. The parties had done so, and the court should respect that agreement and party autonomy. The parties were free to agree what they wanted, subject only to mandatory provisions of the Arbitration Act and illegality. If, however, on a proper analysis the parties had created an arbitration agreement which was not compatible with the Arbitration Act then any awards made by the Beth Din would be enforceable as a contract. The Beth Din had power to add to a judgment, and retained jurisdiction to determine issues raised under section 47 of the Arbitration Act. Finality would come when the Beth Din had resolved all of the disputes before it and had told the parties that fact. The courts should trust the arbitral tribunal to deal sensibly with all the matters before it.

It was apparent, following the conclusion of the submissions at the hearing, that the following matters are in issue: (1) whether it is possible to interpret the arbitration agreement to give effect to its provisions both that the agreement would amount to an enforceable arbitration agreement, and that the arbitrators could amend, add to and change any award that they have made at any time, either as a matter of interpretation or having regard to section 57 of the Arbitration Act; (2) if not whether any part of the arbitration agreement is repugnant to the agreement as a whole, so that effect could be given to the remaining parts of the arbitration agreement; and (3) whether HHJ Keyser KC was wrong to set aside the order made by HHJ Pelling KC.

Section 1 of the Arbitration Act reflects the fact that arbitration is a form of alternative dispute resolution which requires finality and fairness. This appears from subsections (a), (b) and (c):

“(a)

the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;

(b)the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;

(c)

in matters governed by this Part the court should not intervene except as provided by this Part.”

The autonomy provided to parties in arbitrations is limited by section 4(1) of the Arbitration Act in the sense that there are mandatory provisions listed in Schedule 1 of the Act which have effect notwithstanding any agreement to the contrary. Section 4(2) provides that the other provisions of this Part (the “non-mandatory provisions”) allow the parties to make their own arrangements by agreement but provide rules which apply in the absence of such agreement, so that the non-mandatory provisions operate as a form of fall-back position in the event that no agreement is made. Section 24 provides that parties to arbitral proceedings may apply to remove arbitrators who have failed “to use all reasonable despatch in conducting the proceedings or making an award, and that substantial injustice has been or will be caused to the applicant”.

Section 57, which is headed correction of award or additional award, is a non-mandatory provision. It provides:

“(1)

The parties are free to agree on the powers of the tribunal to correct an award or make an additional award.

(2)

If or to the extent there is no such agreement, the following provisions apply.

(3)

The tribunal may on its own initiative or on the application of a party—

(a)

correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity in the award, or

(b)

make an additional award in respect of any claim (including a claim for interest or costs) which was presented to the tribunal but was not dealt with in the award.

These powers shall not be exercised without first affording the other parties a reasonable opportunity to make representations to the tribunal.

(4)

Any application for the exercise of those powers must be made within 28 days of the date of the award or such longer period as the parties may agree.

(5)

Any correction of an award shall be made within 28 days of the date the application was received by the tribunal or, where the correction is made by the tribunal on its own initiative, within 28 days of the date of the award or, in either case, such longer period as the parties may agree.

(6)

Any additional award shall be made within 56 days of the date of the original award or such longer period as the parties may agree.

(7)

Any correction of an award shall form part of the award.”

Section 58 sets out the effect of an award:

“(1)

Unless otherwise agreed by the parties, an award made by the tribunal pursuant to an arbitration agreement is final and binding both on the parties and on any persons claiming through or under them.

(2)

This does not affect the right of a person to challenge the award by any available arbitral process of appeal or review or in accordance with the provisions of this Part.”

Sections 67 and 68 govern challenges to the award on the basis that the arbitral tribunal did not have substantive jurisdiction to determine the dispute between the parties and on the ground of serious irregularity affecting the tribunal (which includes failure by the tribunal to deal with all the issues that were put to it). Section 69 deals with appeals on points of law, unless the parties have otherwise agreed that there should be no such appeals. Section 70(3) requires any such application or appeal to be brought within 28 days of the award, but section 70(2) of the Arbitration Act 1996 requires exhaustion of any available recourse under “any available arbitral process of appeal or review” and under section 57 for correction of award or additional award, before an application or appeal can be brought under any of sections 67, 68 and 69.

I accept that, as Mr Randall pointed out, the principled approach of a court to an arbitration agreement should be to uphold and respect, where possible, party autonomy. This was the second general principle identified at paragraph 19 of the Departmental Advisory Committee Report on the Arbitration Bill, February 1996 (the DAC report), which principle was given effect in section 1(b) of the Arbitration Act. This ties in with the other general principles set out in sections 1(a) and 1(c) that courts should not intervene in arbitrations, except where provided in the law, and the object of arbitration is to obtain the fair resolution of disputes by an impartial panel without unnecessary delay or expense. These general principles are consistent with the approach to arbitration promoted by the United Nations Commission on International Trade Law (UNCITRAL) and its model law on international commercial arbitration. This court should attempt to give effect to the whole of the parties’ agreement set out in the arbitration agreement, so that their dispute can be effectively resolved by arbitration in the manner in which they have chosen.

That part of the arbitration agreement which provides “And this deed will be valid according to the Arbitration Act …” is consistent with paragraph 22.2 of the SPA which refers disputes or claims arising out of or in connection with the SPA or its subject matter or formation to be “finally resolved by arbitration by the Beth Din in accordance with the rules and procedures of the Beth Din, and judgment upon the award rendered by the Beth Din may be entered in any court having jurisdiction thereof”. This is because both paragraph 22 of the SPA and that part of the arbitration agreement show that the intention of the parties was to create a valid arbitration under the Arbitration Act.

That then leads to the next important part of the arbitration agreement which purports to give the Beth Din “authority … to amend and add to and change the judgement that they have given, at any time …”. I will refer to this as the “unlimited amendment clause”. We were not provided with any evidence about whether the unlimited amendment clause, or any other part of the arbitration agreement, was standard wording in arbitration agreements provided by the Beth Din.

There is also the final part of the arbitration agreement which provides that the agreement “will not be invalidated, neither with a deficiency nor with an excess, nor with an erasure or blurring, and everything is upheld and valid”. This part of the arbitration agreement shows the intention to create a valid agreement, which is an arbitration agreement, and to ensure that, so far as possible, all parts of the agreement, including the unlimited amendment clause, are given effect.

There was reference in the submissions before us to section 58(1) of the Arbitration Act which provides that “unless otherwise agreed by the parties, an award made by the tribunal pursuant to an arbitration agreement is final and binding …”. The phrase “unless otherwise agreed by the parties” does not entitle the parties to agree that an award should never become “final and binding”. This part of section 58(1) and (2) seems aimed at permitting, in accordance with party autonomy, parties to agree to be bound by institutional rules requiring awards by arbitral tribunals to be reviewed by arbitral courts of the institution, see generally Teare J K v S [2015] EWHC 1945. An example referred to in the submissions was article 34 of the Arbitration Rules of the International Chamber of Commerce (ICC) which provide for awards to be submitted in draft form to the International Court of Arbitration of the ICC for approval. It is not necessary for the purposes of this appeal to determine whether “arbitral process of appeal or review” is limited to a review by a third party such as an arbitration court of an arbitral institution because it is common ground that, whatever process of appeal or review was undertaken, it had to give rise to a final and binding award.

The conclusion that “unless otherwise agreed by the parties” does not justify preventing an award ever becoming final, accords with the conclusion reached in IS Prime Ltd v TF Global Markets (UK) Ltd [2020] EWHC 3375 (Comm), [2021] Bus. L.R. 493. That concerned an application for a stay of proceedings where there was what was said to be a “non-binding” arbitration agreement. I agree with Andrew Baker J where he said at paragraph 56 that the parties cannot “agree that the product of their consensual process will not resolve their dispute and will neither be nor ever become binding upon them and yet their agreement still be an arbitration agreement”. As was identified as early as the second edition of Mustill & Boyd, an arbitration agreement must contemplate that the tribunal will make a decision which is binding on the parties.

This means that the arbitration agreement cannot, properly interpreted, mean that the arbitrators are free to change their awards at any time. This is because if they were free to change their awards at any time, there would never be a point in time when the parties could apply to enforce the award, because it might be changed. It is therefore necessary to determine whether it is possible to construe the unlimited amendment clause in some way so that a final award can be made.

I do not accept that HHJ Keyser KC’s attempt to deal with this difficulty and the unlimited amendment clause, by saying that the arbitrators could declare themselves functus officio, is a sufficient answer to the problem. This is because although the arbitrators could declare themselves functus officio, the unlimited amendment clause would mean that the arbitrators could amend and change the decision to declare themselves functus officio. This is also the answer to the suggestion in paragraph 47 of the Respondent’s Skeleton Argument that any award of the Beth Din should be treated as a draft award until such time as the Beth Din declared that it was final and binding. This is because the Beth Din could, pursuant to the terms of the unlimited amendment clause, decide to review an award that it had declared was final and binding. It is the width of the unlimited amendment clause that creates the problems.

Another possible solution is to interpret the word “judgement” (meaning award) in the unlimited amendment clause to mean that “interim judgements only” could be amended, added to and changed at any time. This picks up the wording of the earlier part of the sentence preceding the unlimited amendment clause, which referred to “interim judgements”. The difficulty with this interpretation is that that part of the sentence specifically refers to “interim judgements” whereas the word “judgement” is contained in the unlimited amendment clause, suggesting different meanings. In my judgment the unlimited amendment clause is not restricted only to interim awards.

The parties addressed whether the default powers in section 57 might provide an answer. Section 57 of the Arbitration Act is a non-mandatory section of the Arbitration Act and section 57(1) appears, consistently with party autonomy, to be drafted in wide terms to permit the parties to agree on the powers of the tribunal to correct an award or make an additional award. This, however, is subject to the implied requirement that the award becomes, at some stage, final. Assuming therefore that the unlimited amendment clause comes within the definition of section 57(1) as an agreement “on the powers of the tribunal to correct an award or make an additional award”, the difficulty remains that there is no time at which the award becomes final.

It is necessary to consider the effect of section 57(4). This is because section 57(2) provides that “if or to the extent that there is no agreement, the following provisions apply”. Although there was an agreement about the powers of the Beth Din to amend, add to and change the award, no time limit was provided in the unlimited amendment clause because it said that the amendment could be made “at any time”, meaning that there was no agreement about time. Mr Randall’s submissions on the operation of section 57 were premised on the basis that the unlimited power of amendment did not prevent the Beth Din from rendering a final and binding arbitration award which, for the reasons I have already given, I do not accept. The default provisions in section 57(4) provide that the parties must make an application for the exercise of powers to correct an award or make an additional award “within 28 days of the date of the award”. I note that Mrs Endzweig (assuming that she had authority to make the request on behalf of Evertop and Mr Endzweig) did ask for the award to be corrected within 28 days. Section 57(5) then gives the tribunal 28 days to make the amendment “or such longer period as the parties may agree”. The longer period in section 57(5), however, cannot be indefinite for the reasons already given above in relation to section 58(1), but that is the effect of the phrase “at any time” in the unlimited amendment clause. Therefore these default provisions do not assist to validate the unlimited amendment clause.

This means that, in my judgment, the default provisions in section 57 are not able to render the unlimited amendment clause in the arbitration agreement enforceable, by saving it from the fundamental vice that any award made by the Beth Din can always be amended, added to, and changed by the Beth Din, whenever it chooses so to do.

It was common ground that the law about inconsistent or repugnant clauses was accurately set out in paragraph 16-086 of Chitty on Contracts, Volume I, 36^th edition in the following passage, namely that “Where the different parts of an instrument are inconsistent, effect must be given to that part which is calculated to carry into effect the purpose of the contract as gathered from the instrument as a whole and the available background, and that part which would defeat it must be rejected”.

In my judgment it is the unlimited amendment clause which is repugnant to the basis of the agreement between the parties. The agreement between the parties was to have an arbitration agreement (as provided for in the SPA) so that disputes could be “finally resolved by arbitration by the Beth Din …”. This means that, notwithstanding the provision at the end of the arbitration agreement requiring that “everything is upheld” the unlimited amendment clause is repugnant to the arbitration agreement because it prevents finality, and prevents the Beth Din from making an enforceable award. The unlimited amendment clause cannot be given effect to in a valid arbitration agreement because it is inconsistent with or repugnant to the need for a final and binding award. I do not accept that the agreement could exist as a contract which was outside the Arbitration Act. This is because the parties had made it plain in the SPA and the arbitration agreement that they wanted the arbitration agreement to give rise to an enforceable award pursuant to the Arbitration Act.

This conclusion means that the parties would have available to them the default provisions in section 57 of the Arbitration Act for corrections and amendments to the award. It was common ground that if the default provisions in section 57 applied, there had not been compliance with the default time limits for correction or additions to the award.

This, however, means that a part of the arbitration agreement, namely the unlimited amendment clause providing that the Beth Din have the authority “to amend and add to change the Judgement they have given, at any time” which the parties had agreed, is not being given effect in the courts. As noted in paragraph 5 above, it seems that the unlimited amendment clause provision was intended to achieve freedom for the Beth Din to do what it considered best, at any time, and I inferred that this was because of the authority of, and respect due, to the Beth Din. The fact, however, that the unlimited amendment provision cannot be given effect to by the courts because it prevents a final and enforceable award does not mean that, as between the parties and the Beth Din, the clause may not have some, non-justiciable, claim on the consciences of the parties.

In these circumstances in my judgment HHJ Keyser KC was wrong to set aside the order made by HHJ Pelling KC. This was because HHJ Keyser KC was relying on the power of the Beth Din to “amend and add to and change the Judgement they have given, at any time” to alter the second award and make the third award. For the reasons already given this power meant that there could not be an enforceable arbitration award, and it was therefore repugnant to and inconsistent with the arbitration agreement. This meant that Evertop and Mr Endzweig could only challenge the award by using the default powers in section 57. It was common ground that these provisions had not been effectively used, and there was no amendment to the second award made by the Beth Din within the time limited by section 57. This means that the second award was enforceable on its terms. This meant that the second award was valid and enforcement of the second award as ordered by HHJ Pelling KC should not have been set aside.

For the detailed reasons set out above I would allow the appeal, and restore the order made by HHJ Pelling KC.

I agree.

I also agree.