Hashwani v Jivraj

Introduction and outcome

The present claim concerns what the claimant, Mr Sadruddin Hashwani, now admits were arbitration arrangements made in 1990 between him and the defendant, Mr Nurdin Jivraj. Those who have studied the judgment of Lord Clarke of Stone-cum-Ebony JSC in Hashwani v Jivraj [2012] UKSC 40, [2011] 1 WLR 1872, which I refer to below as “Lord Clarke’s judgment”, will have read that on 29 January 1981 Mr Hashwani and Mr Jivraj entered into a joint venture agreement (“the JVA”). Both Mr Hashwani and Mr Jivraj are members of the Ismaili community. The JVA contained in article 8 an arbitration clause (“the JVA arbitration agreement”) which provided that, in the event of a dispute between them which they were unable to resolve, that dispute should be resolved by arbitration before three arbitrators. Article 8 stated that one arbitrator was to be appointed by each party and the third arbitrator was to be the President of the H.H. Aga Khan National Council for the United Kingdom (“the UK Council”) for the time being. Article 8(1) added what I shall refer to as “the JVA qualification requirement”:

All arbitrators shall be respected members of the Ismaili community and holders of high office within the community.

What gave rise to the proceedings before the Supreme Court was that in July 2008 Mr Hashwani purported to appoint Sir Anthony Colman as an arbitrator under article 8 of the JVA (an event which I shall refer to as “the 2008 purported appointment”). The Supreme Court agreed with Mr Jivraj that the appointment was invalid as Sir Anthony did not meet the JVA qualification requirement.

Mr Hashwani advanced a contention that the JVA qualification requirement became void with effect from 2 December 2003 under the Employment Equality (Religion or Belief) Regulations 2003 (“the 2003 Regulations”). His contention was that the JVA qualification requirement constituted an unlawful arrangement to discriminate on grounds of religion when choosing between persons offering personal services. All members of the Supreme Court agreed with the part of Lord Clarke’s judgment which rejected that contention. Lord Clarke’s judgment explained that an arbitrator's role was that of an independent provider of services not in a relationship of subordination with the parties who received his services, and was not one of employment under a contract personally to do work. The result was that, applying relevant legal principles, the 2003 Regulations were not applicable to the selection, engagement or appointment of arbitrators.

The Supreme Court also held unanimously that, even though the 2003 Regulations implemented Council Directive 2000/78/EC in relation to discrimination on grounds of religion or belief, it was not necessary to refer the matter to the Court of Justice of the European Union. The reason why this was not necessary was that in a number of cases the Court of Justice had resolved the relevant issues so that the principles had become acte clair.

A complaint by Mr Hashwani dated 24 November 2011 was lodged with the European Commission in relation to the failure to refer the matter to the Court of Justice. That complaint has yet to be resolved.

In the present proceedings I am concerned with an aspect of the history which paragraph 3 of Lord Clarke’s judgment noted as part of the background. Lord Clarke’s judgment did not refer to it again. By late 1988 Mr Jivraj and Mr Hashwani had agreed to part company. Lord Clarke’s judgment recorded that after some issues between them were resolved the parties then agreed to submit the remaining issues “to arbitration or conciliation” by a single member of the Ismaili community, namely Mr Zaher Ahamed.

Lord Clarke’s judgment gives an overview of Mr Ahamed’s work in a single sentence:

He issued a determination in December 1993, whereafter he had further exchanges with the parties until 1995, when he declared himself defeated.

On 12 March 2013 Mr Hashwani issued the present claim, comprising a claim form and a draft order (“the 2013 claim”). It was accompanied by a witness statement made by Mr Hashwani on 12 March 2013 (“Hashwani 2013”). In that witness statement Mr Hashwani asserts that in 1990 he and Mr Jivraj entered into what he describes as a “Pre-Conditions arbitration agreement”, which was implemented by the appointment of Mr Ahamed as arbitrator under an agreement of 14 July 1990 which he refers to as “the Ahamed arbitration agreement”.

The 2013 claim did not set out the grounds relied upon. Instead it said that “brief details” of the claim were given in Hashwani 2013. This was unsatisfactory. Hashwani 2013 ran to 161 paragraphs. It combined evidence and argument in a way which made it impossible to know what matters were relied upon in support of any particular head of relief. This deficiency was remedied following a case management order in July 2013.

What was apparent, however, from Hashwani 2013 was that Mr Hashwani now takes a stance in which he admits two things which Mr Jivraj had maintained throughout the litigation concerning the 2008 purported appointment. They were both things which, at least until after the Supreme Court gave judgment on 27 July 2011, Mr Hashwani had denied. These two things are that Mr Ahamed acted as an arbitrator, and that his determination of December 1993 constituted an award issued to the parties in London on 17 January 1994. Mr Hashwani goes on to say in Hashwani 2013 that the award thus issued did not identify what figure was payable by whom, and submits that Mr Ahamed failed to make a final award and bring the disputes to a conclusion.

The draft order accompanying the claim form mainly sought relief under the Arbitration Act 1950 (“the 1950 Act”), that being the statute in force in 1990, when the arbitral proceedings before Mr Ahamed were begun. In the draft order Mr Hashwani sought, among other things, an order permitting either party to revoke Mr Ahamed’s authority, an order removing Mr Ahamed as arbitrator, and an order appointing a fresh arbitrator. The court’s power to make the last of these orders is found in s 10(1) of the 1950 Act as amended by s 6(3) of the Arbitration Act 1979.

On 11 July 2013 Mr Jivraj issued an application to strike out Mr Hashwani’s claim. A hearing of a case management conference took place before me the following day. In accordance with directions given at that hearing Mr Hashwani in August 2013 served a statement of the remedies he sought, and for each such remedy the grounds on which it was sought (“the statement of remedies and grounds”). Mr Jivraj in September 2013 served an answer to that statement (“the answer on remedies and grounds”).

Sadly Mr Ahamed died in 2014. On 9 September 2014 Mr Hashwani gave notice to Mr Jivraj to concur in the appointment of an arbitrator to replace Mr Ahamed under s 10(1)(b) of the 1950 Act. Mr Jivraj declined to do so. The result of these events is that Mr Hashwani asks for permission to make a revised claim. In the revised claim he seeks one principal head of relief only. This is that there should be directions for the selection of a person to be appointed by the court to fill the vacancy caused by the death of Mr Ahamed. I grant permission for this revision. As to subsidiary heads of relief, Mr Hashwani maintains a request made in the 2013 claim form for an order that under s 4 and/or s 24(3) of the Arbitration Act 1950, there shall be no stay of any proceedings in the High Court by either party (whether by way of claim or counterclaim) to resolve their disputes relating to their joint venture and/or the dissolution of that joint venture.

On 7 and 8 October 2014 I heard argument on Mr Hashwani’s revised claim and Mr Jivraj’s strike-out application. Mr Michael Brindle QC and Mr Brian Dye appeared on behalf of Mr Hashwani. Mr Rhodri Davies QC appeared on behalf of Mr Jivraj.

On behalf of Mr Hashwani reliance was placed on three witness statements made in the present proceedings, along with a witness statement made in the proceedings concerning the 2008 purported appointment. The primary witness statement in the present proceedings was Hashwani 2013. In addition, on 25 October 2013 a first witness statement (“Zaiwalla 2013”) in the present proceedings was made by Mr Hashwani’s solicitor, Mr Sarosh Zaiwalla. Mr Zaiwalla has from its inception been the senior partner of the firm now known as Zaiwalla & Co LLP. For convenience I shall refer to this firm by using its earlier name, “Zaiwallas”. A further witness statement in the present proceedings, mistakenly described as Mr Zaiwalla’s first witness statement, was made by Mr Zaiwalla on 11 September 2014 (“Zaiwalla 2014”). The witness statement in the proceedings concerning the 2008 purported appointment was made by Mr Zaiwalla on 13 November 2008 (“Zaiwalla 2008”).

On behalf of Mr Jivraj reliance was placed on two witness statements, both made by Mr Jivraj’s solicitor Mr Jonathan Berkson, who is a partner in Bermans LLP (“Bermans”) and was formerly a partner in Hill Dickinson LLP (“Hill Dickinson”). The first of these two statements was made by Mr Berkson in the proceedings concerning the 2008 purported appointment on 2 October 2008 (“Berkson 2008”). The second was made in the present proceedings on 26 September 2013 (“Berkson 2013”).

At the hearing Mr Jivraj relied on five grounds of opposition to Mr Hashwani’s revised claim. Each of these grounds had already been relied on in answer to what had been identified in the statement of remedies and grounds as remedy 3, a proposed order that a replacement arbitrator should be appointed once Mr Ahamed had been removed. They were:

For reasons given in section C below, I conclude that Mr Jivraj’s ground (1) of opposition succeeds. He is right to say that in 2008 Mr Hashwani engaged him in litigation on the footing that the purported 2008 appointment under article 8 of the JVA was valid. Mr Hashwani now seeks to claim that the 1981 agreement had, long before that litigation, been superseded by the Ahamed arbitration agreement. No such claim was advanced in 2008. Indeed there was no mention of any such claim until after the Supreme Court had given judgment in 2011. By bringing these proceedings Mr Hashwani has vexed Mr Jivraj with litigation twice in circumstances which amount to harassment of Mr Jivraj. Because this is an abuse of process I conclude that the present claim must be struck out.

At paragraph 3 of my judgment in Kazakhstan Kagazy Plc v Zhunus [2015] EWHC 996 (Comm) I suggested some universal guiding principles. Suggested principle (5) concerned points which might be taken by a party, but which for good reason were not being taken by that party on a particular occasion. Thus, for example, it may appear unlikely that the point will significantly advance that party’s case, or it may seem likely that the point will require a disproportionate amount of time or resources if it is to be resolved. I suggested that in those circumstances notification should be given that the point will not be relied upon for present purposes, and I added that the notification could be accompanied by an appropriate reservation as to the position in future.

I should stress that there is no guarantee that an express reservation of that kind will entitle the party in question to advance the point later. As explained in section C below, if an attempt is made to raise a point later which could have been raised earlier, and the circumstances are such that raising it later amounts to harassment of the other party, then the court will generally not allow its procedures to be abused in that way. As it seems to me, however, an express notification of the reason why a point is not being taken, accompanied by an appropriate reservation, will put the other side in a position where they can object to the course proposed. If they do not object, then they may find it difficult to justify a later complaint. If they do object, then further consideration can be given to whether or not the point should be advanced. Moreover notification will enable a party to invite the court, if the court thought right to do so, to give case management directions as to when and how any particular issue should be determined. Indeed the court might think it desirable to consider this of its own motion.

As will be seen in section C below, my reasoning on abuse of process does not invoke the suggested principle (5). My reasoning in that section proceeds by reference to the arguments advanced before me and by reference to well known cases concerning what may amount to an abuse. Applying what is said in those cases to my suggested principle (5), I observe that informing the other side of a decision not to take a particular point and the reasons for that decision, and reserving the position for the future, will usually be a desirable course if it is thought that there could be circumstances justifying taking the point at a later stage.

It will be seen below that I have reached the conclusion that each of Mr Jivraj’s grounds of opposition is well-founded. The result is that even if Mr Jivraj’s strike out application (the substance of which corresponds to his first ground of opposition) had not succeeded, Mr Hashwani’s claim would have fallen to be dismissed.

In the remainder of this judgment I set out some of the background before giving reasons for my conclusions. Abbreviations and short forms used in this judgment are set out in Annexes 1A and 1B. For ease of reference I have given some of the more important letters and faxes a descriptive name (e.g. “the January 1994 reflection request letter”) or, where the wording used in the letter or fax captures a key element, a name which quotes that wording (e.g. “the January 1996 ‘cannot get involved’ fax”). A more detailed account of relevant events is set out in the Annex 2 to this judgment. Where emails or documents are cited in this judgment, extracts or descriptions of the source email or document will usually be found in the relevant section of Annex 2. In many of the documents Mr Hashwani is referred to as “Sadrubhai”, Mr Jivraj is referred to as “Nurdinbhai”, and Mr Ahamed is referred to as “Zaherbhai”.

Background

As noted in Lord Clarke’s judgment, the Ismaili community (“the Community”) comprises Shia Imami Ismaili Muslims. It is led by the Aga Khan, whose title is the hereditary title of the Imam of the Community.

Mr Jivraj’s skeleton argument in the present proceedings makes an observation which for convenience I shall refer to as observation [1]. This is, in summary, that:

[1] the Community is “close-knit”, holding as a tenet that disputes between members are best resolved within the Community.

Mr Hashwani’s outline submissions make additional observations which I set out below, numbering them for convenience as [2] to [6]:

[2] there is an ethos of strong encouragement in the Ismaili community for the amicable resolution of disputes arising within the community by mediation, impartial conciliation or arbitration, which is a deeply embedded practice;

[3] appointments of arbitrators made by His Highness Prince Aga Khan have deep authority and credibility in the Ismaili community;

[4] dispute resolution embodies fairness and equity to the parties and respects the religious principles and values of the community, applied within the confines of local law;

[5] the vast majority of disputes are resolved by mediation and conciliation without resort to arbitration;

[6] spiritual allegiance to His Highness Prince Aga Khan (also known as Hazar Imam) is an integral part of the manner in which an Ismaili will/is to conduct his or her daily affairs, whether in a family or commercial context.

I accept all these observations in relation to the Community for the purposes of the present proceedings.

The period up to and including 30 October 1988 is dealt with in section A2/B of Annex 2. During this period, after the JVA had been made in 1981:

The period from 31 October 1988 up to and including 16 July 1990 is dealt with in section A2/C of Annex 2. During this period:

The period from 17 July 1990 up to 17 January 1994 is dealt with in section A2/D of Annex 2. During this period:

On 17 January 1994 Mr Ahamed met Mr Hashwani and Mr Jivraj in London, and issued the December 1993 award. It comprised five numbered paragraphs, a Schedule, and an appendix. The five numbered paragraphs stated:

1.

By your agreement dated (14 July 1990) you appointed me upon the terms set out in that agreement (the “Agreement”) in connection with certain disputes.

2.

Pursuant to the Agreement I requested both parties to make submissions on all matters outstanding and I have received and considered the written and oral submissions of both parties on the issues referred to in the Schedule and I have determined as set out in the Schedule.

3.

Such determinations take effect only as between me and yourselves. It is for you to effect the implementation of these determinations in a manner consistent with the decisions and in accordance with all applicable legal requirements. In making my decisions, I have not considered any impact (whether in respect of taxation or any other matters) on either of you or any other person of such decisions and you are to recognise that such matters are for each of you to consider and deal with and not me.

4.

The Schedule is a summary only and should not be regarded as an exhaustive statement. If you require any guidance or clarification on the meaning or the consequences of the Schedule, you may make submissions in writing to me. As provided in the agreement my own interpretation of the Schedule and my understanding of its intention will be final and binding on each of you.

5.

This letter and the determinations set out in it are made on the basis of the terms of the Agreement.

I shall refer to the Schedule forming part of the December 1993 award as “the December 1993 schedule”. It comprised 15 numbered paragraphs.

In relation to the Florida litigation the December 1993 schedule said at paragraph 6:

6.

Issues arising from the Florida litigation

I have considered the evidence submitted and the submissions made to me by both parties. I have determined that the commencement and timing of this action was unfortunate. I have determined that Hashwani has no claim against Jivraj on this issue. I have further determined to disallow Jivraj’s claim for apology and damages from Hashwani arising from the same litigation.

Paragraphs 7 and 8 of the December 1993 schedule stated:

7.

Dissolution of the joint venture companies

I have considered the evidence submitted to me and have determined that, as regards the companies within the joint venture (as set out in the attached appendix and all other joint venture companies, if appropriate) whose shares have not been purchased by one or the other of the parties, Jivraj in his capacity as managing director should arrange for:

(i)

all the liabilities of these companies to be paid or compromised out of the assets of the companies;

(ii)

all the statutory and other related obligations of these companies to be met;

(iii)

the remaining surplus assets to be distributed to the shareholders with the intention that all surplus assets, after the payment of liabilities, are distributed immediately to PHPI;

(iv)

these companies to be dissolved, wound up or liquidated as may be appropriate.

8.

Amounts owed to Naseem Investments and amounts owed to Jivraj by Rushlake USA (intercompany indebtedness)

I have determined that these items should be taken into consideration in the Shareholders Funds Calculations and I have agreed that Jivraj be asked to instruct Stoy Hayward to verify the appropriate amounts and to include these in the final Shareholders Funds Calculations.

Paragraph 15 of the December 1993 schedule stated:

15.

Accounts of PHPI and its subsidiaries

(a)

I have determined that the balances of the capital accounts of the parties with PHPI as at 31 December 1992 be equalised and that appropriate payments be made to or by the parties by or to PHPI to equalise such accounts as at 31 December 1992. Equalisation payments to be made by 31 May 1994.

(b)

When calculating the balances on the capital accounts, the exchange rates to be used, and the interest rates to be used, should be on the same basis determined by the previous Arbitration Panel; namely:

Interest rate

Interest is to be credited on the capital accounts of both parties by PHPI for the relevant period at the rate of Prime plus 1% per annum on a simple interest basis, on the same basis as used by Stoy Hayward in the Shareholders’ Funds calculation booklet of October 1989, prepared by them on the instruction of the parties.

Exchange rate

The exchange rates to be used are to be the same as the floating exchange rates used by Stoy Hayward in their interest on Shareholders’ Funds calculations booklet of October 1989 prepared by them on the instructions of the parties.

Timetable

(c)

I have further determined as follows:

(i)

Jivraj to instruct Stoy Hayward to prepare the accounts, incorporating the effect of the above determinations and to distribute the accounts of PHPI and its subsidiaries (including those relating to Rushlake Holdings Ltd) for the years 1985 to 21 December 1992. The Shareholder Funds balance to be prepared in accordance with the guidance in paragraph (15(b)) above. Stoy Hayward to be instructed by Jivraj to prepare the accounts by 28 February 1994.

(ii)

In arriving at the capital account balances interest should be taken into account. Stoy Hayward are to be requested by Jivraj to calculate the amounts by 28 February 1994.

(iii)

Both parties are to give their final comments on the capital account balances and on the final accounts (including Rushlake Holdings Ltd) by 15 March 1994.

(iv)

Stoy Hayward to review and incorporate as appropriate, the comments of the two parties and distribute the accounts by 15 April 1994. Stoy Hayward to incorporate any relevant transactions which have taken place subsequent to 31 December 1992.

(v)

Any review of the Stoy Hayward final accounts and calculations of the Shareholders Funds balances to be carried out by 30 April 1994.

(vi)

Jivraj to instruct Stoy Hayward to prepare final audited accounts for all the companies, including Rushlake Holdings Ltd, for all the years from 1985 to 31 December 1992.

(vii)

Equalisation payments to be made by 31 May 1994. (see paragraph (15(a) above).

(viii)

As stated in paragraph 7 above, Jivraj to arrange for the transfer upwards (ultimately to PHPI) of all the surplus arising upon dissolution or winding up of the companies within the joint venture whose shares have not been purchased by either of the parties and that PHPI’s final net assets, after discharging all its liabilities and obligations, and after allowing for dissolution expenses not exceeding £50,000 to be set aside, should be distributed to or paid by the shareholders (as per the shareholder funds balances paragraph 15(a) and (b) and be reflected in the partnership capital account). Thereafter Jivraj to undertake, as soon as possible, to have PHPI formally dissolved, wound up or liquidated. Any subsequent surplus remaining out of the sum of £50,000 for expenses should be distributed equally and promptly upon PHPI’s dissolution to both parties.

The period from 18 January 1994 to 19 April 1995 inclusive is dealt with in section A2/E of Annex 2. During this period:

The period from 20 April 1995 to 14 August 1995 inclusive is dealt with in section A2/F of Annex 2. During this period:

The period from 15 August 1995 to 19 February 1996 inclusive is dealt with in section A2/G of Annex 2. During this period:

The period from 20 February 1996 to 16 July 1997 inclusive is dealt with in section A2/H of Annex 2. During this period:

The period from 17 July 1997 to 31 August 1999 inclusive is dealt with in section A2/J of Annex 2. During this period:

The period from 1 September 1999 to 23 October 2000 inclusive is dealt with in section A2/K of Annex 2. During this period:

The period from 24 October 2000 to 31 July 2008 inclusive is dealt with in section A2/L of Annex 2. During this period:

The evidence on behalf of Mr Hashwani was that it was in these circumstances that on 31 July 2008 Zaiwallas on behalf of Mr Hashwani wrote to Mr Jivraj, giving notice of the 2008 purported appointment. The letter of 31 July 2008 also stated, among other things:

[3] The Joint Venture dated 29^th January 1981 was operated through Park Hotels & Properties International Limited of Jersey (“PHPI”). Sometime in the course of the Joint Venture it was decided to terminate the Joint Venture which meant that the Joint Venture had to be wound up and a distribution of any surplus arising upon the Joint Venture would have to be made. This requires the settling of the partnership Joint Venture accounts and the making of equalisation payment thereafter to the party entitled to such payment.

[4] Despite several attempts by Conciliators and Mediators at the instance of His Excellency the Aga Khan, the final Joint Venture accounts has remained unsettled and it is high time that these accounts are finally settled. As you would be aware the Joint Venture being in the nature of a partnership, the principal of uberrimae fidae (utmost good faith) applies and the general limitation would not begin to run until the accounts are settled between the partners.

[5] The last attempt to settle these accounts was made at the instance of His Excellency Aga Khan by Mr Zaher Ahamed, a Chartered Accountant in Nairobi, Kenya. Mr Ahamed assumed the role of a Conciliator and met parties separately. He recommended by his letter of 27^th December [1993] a route map for parties to follow in order to settle the Joint Venture account.

[6] Unfortunately, despite attempts by our client for several years to persuade you to follow the route map suggested for this purpose by Mr Ahamed, you have blocked, one way or another, the settlement of the accounts to take place. According to our client if the route map had been followed by you then on an equalisation of the accounting position of the parties in the Joint Venture you had to pay US$1,412,494.

[7] The expectation of Mr Ahamed upon the parties following his route map was that it would result in equalisation payments being made by 31^st May 1994. This unfortunately could not take place because of the obstructive attitude shown by you to finalise the partnership accounts.

[8] The Joint Venture agreement by Article 8 provides for English Arbitration and further provides that the arbitration should take place in London. The act which would govern the arbitration in this case would be the English Arbitration Act 1979 which was in force on the date of signing of the Joint Venture agreement.

…

[11] Our client for the purpose of settling the accounts is prepared to accept the route map set out by Mr Zaher Ahamed in his letter dated 27^th December 1993. Accordingly, our client is of the view that on a settlement of account of the partnership Joint Venture account, he would have been due US$1,412,494 as on 31^st May 1994 which he now claims from you. In addition, our client is due interest compounded at 8% per annum on a three monthly rest basis. Our client therefore anticipates that his total claim against you on a settlement of account by the arbitrators would be in the region of US$4,403,817.

The period from 1 August 2008 to 27 July 2011 inclusive is dealt with in section A2/M of Annex 2. During this period:

The period from 28 July 2011 onwards is dealt with in section A2/N of Annex 2. During this period:

Mr Jivraj’s strike-out application

Mr Jivraj’s strike-out application was brought because he asserted that the instigation by Mr Hashwani of the present claim was an abuse of the process of the court. The principles that Mr Jivraj relied upon were those set out by Lord Bingham in Johnson v Gore Wood [2002] 2 AC 1 at p. 31 when discussing what he described as “Henderson v Henderson abuse of process”:

… Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party.

In Mr Jivraj’s answer on remedies and grounds Mr Jivraj summarised the position in this way:

[Mr Hashwani] has spent 5 years from September 2008 (and continuing) litigating against [Mr Jivraj] on the footing that … the process before Mr Ahamed was not an arbitration and that, in any event, it was all over. This litigation included an appeal to the Court of Appeal and to the Supreme Court. It is an abuse of process for [Mr Hashwani] now to commence a second claim on the footing that Mr Ahamed was, after all, an arbitrator, and that the arbitration before him is still on foot.

Mr Jivraj’s answer on remedies and grounds relied in paragraph 14 on matters which included the following:

[14](a) When [Mr Hashwani] sought to revive his dispute with [Mr Jivraj] in July 2008, he did so by claiming to appoint an arbitrator under the arbitration agreement contained in the … JVA …;

[14](b) [Mr Jivraj] immediately responded, by his solicitors, that there had already been an arbitration before Mr Ahamed and that [Mr Hashwani] could not start a fresh arbitration of the same subject matter … ;

[14](c) [Mr Hashwani] met that objection (through his solicitors) by asserting that Mr Ahamed had not acted as an arbitrator and followed it up by confirming that Mr Ahamed had long since been released by the parties … ;

…

[14](e) It is only after having failed in the Supreme Court on his contention that the arbitration agreement in the … JVA should be re-written so as to remove the requirement for Ismaili arbitrators, that [Mr Hashwani] has chosen to adopt the point which he spurned in 2008, namely that Mr Ahamed was appointed as an arbitrator. Furthermore, [Mr Hashwani] now positively asserts (in his grounds under remedy 5) that the appointment of Mr Ahamed under [the Ahamed] arbitration agreement in 1990 superseded the [JVA] arbitration agreement, so that the subject matter of the previous litigation becomes moot;

…

The factual assertions in subparagraphs [14](a) to (c) and (e) as cited above are all accurate. This can be seen from what is set out in Annex 2 as regards:

Moreover these factual contentions are not in themselves disputed by Mr Hashwani. On their face they give rise to a formidable case of abuse of process. Consideration was given in 2008 to what could be done to take forward what was already a very old claim. A considered decision was taken to make the 2008 purported appointment. Mr Jivraj responded that this was inconsistent with the Ahamed arbitration agreement, but a firm stance was taken in reply that Mr Ahamed had not been an arbitrator. Mr Jivraj issued the October 2008 claim which, while it relied on the qualification requirement, expressly recorded his contention that Mr Ahamed had acted as arbitrator. Mr Hashwani responded not only by repeating his denial that Mr Ahamed acted as arbitrator but also by adding that in any event Mr Ahamed had been released by the parties. These matters of themselves prompt a reaction in which one question immediately follows another. If Mr Hashwani wanted to be able to advance an alternative contention that there was still a live arbitration before Mr Ahamed which the court should help him to get back on track, why did he not say so in the 2008 proceedings? Was it not up to him to raise this in the 2008 proceedings rather than allow all concerned to plough on with litigation which would be pointless if the alternative contention were right?

In these circumstances it is hardly surprising that paragraph 60 of Mr Jivraj’s skeleton argument submitted that the present claim by Mr Hashwani fell squarely within the principles identified by Lord Bingham. In five numbered subparagraphs Mr Jivraj began with some of the points made in the answer on remedies and grounds:

[60](1) Mr Jivraj is plainly being vexed twice in the same matter, namely Mr Hashwani’s attempt to continue what he sees as the unfinished business of the process before Mr Ahamed. Equally the court’s resources are being engaged a second time in the same matter;

[60](2) The claim that Mr Ahamed was an arbitrator and that his arbitration was still alive should plainly have been brought forward in the first proceedings, at the least as an alternative, so that both Mr Jivraj and the court had the opportunity to assess the attempt to invoke the [JVA] arbitration agreement in the light of an alternative application under the [Ahamed] arbitration agreement. Instead, Mr Hashwani created a dispute over the very nature of the [Ahamed arbitration] agreement and thereby forced Mr Jivraj to join issue over the validity of the [JVA arbitration] agreement;

In addition, Mr Jivraj’s skeleton argument went beyond reliance merely on the failure to raise crucial aspects of the present contentions in 2008. The last sentence of subparagraph [60](2), quoted above, said that Mr Hashwani had “created a dispute” over the Ahamed arbitration agreement. In subparagraph [60](3) the skeleton argument added that in 2008 there had been a deliberate tactical decision in this regard:

[60](3) There is an additional element here: … having asked Mr Ahamed to resume duty as an arbitrator in 2008 and been refused, Mr Hashwani then took a deliberate tactical decision to deny that Mr Ahamed had ever been an arbitrator. … Mr Zaiwalla [in Zaiwalla 2008] was not simply giving evidence as to a fact as to which he might, or might not, have been mistaken. He was giving notice of the position which his client adopted in response to the point promptly made on behalf of Mr Jivraj that there could not be a new arbitration because there had already been one. Indeed, it is clear from Mr Zaiwalla’s letter of 31 July 2008 that the point had already been anticipated and the chosen line was that Mr Ahamed had not been an arbitrator. By taking that line, Mr Hashwani forced Mr Jivraj through the stress, cost and expense of three levels of hearing, and disputed costs hearings after that. It is not an acceptable response for Mr Hashwani now to spin on his heel, declare all that to have been a mistake, and start again;

Two further points were made in Mr Jivraj’s skeleton argument:

[60](4) There is a public interest engaged as well: Mr Hashwani occupied a great deal of court time, threatened enormous disruption to the English arbitration world and attracted three interveners in the Supreme Court. He has now declared that the whole proceedings were moot because the arbitration agreement under which he was seeking to make an appointment had been superseded 18 years previously. That is a remarkable state of affairs;

[60](5) In the circumstances, the conclusion that the present application constitutes harassment of Mr Jivraj is unavoidable.

In his oral submissions Mr Brindle QC agreed that the governing principles are those identified by Lord Bingham in Johnson. It was hard, submitted Mr Brindle, to see that Mr Jivraj could satisfy the test inherent in those principles. As the argument proceeded it seemed to me that nine suggested answers to the strike out application were relied on by Mr Brindle.

The first suggested answer was to say that the present claim could not realistically be described as “vexing” to Mr Jivraj. Three allegations were advanced. The first was that it was Mr Jivraj who had failed to do what Mr Ahamed had required. The second was that it was Mr Jivraj’s threat in 2000 which sent matters to sleep. The third was that Mr Ahamed when approached in 2008 had said he was old, tired, ill and no longer wanted to be involved. Accordingly, submitted Mr Brindle, it was perfectly reasonable for Mr Hashwani to seek to resurrect the arbitration agreement in the JVA. This was, it seemed, put forward as a knockout blow. In my view it was fundamentally misconceived. All of these allegations could have been advanced in 2008. For present purposes I will assume that they might have indicated that it was reasonable for Mr Hashwani to have made the 2008 purported appointment. Even assuming these allegations to be true, none of them puts in doubt that the crucial features of the present claim could have been expressly notified, and advanced as an alternative claim, in the 2008 proceedings. Nor does any of them begin to explain why crucial features of the present claim were not even hinted at, let alone advanced, during that period.

The second suggested answer fastened upon Mr Jivraj’s comment that crucial features of the present claim should at least have been raised as an alternative in 2008. The notion that what ought to have been put forward was an alternative case was something, Mr Brindle submitted, which very much weakened Mr Jivraj’s abuse of process contention. This, too, seems to me to be misconceived. It will often be the case that a Henderson v Henderson abuse involves failure in the first proceedings to advance an alternative case. The public interest in finality in litigation is likely to arise just as much in relation to an alternative claim as it is in relation to an additional claim.

The third suggested answer relied on two agreed matters in paragraph 8 of the agreed statement of facts in the Supreme Court (see the entry in Annex 2 for 16 March 2011). The first agreed matter was that there was an issue between Mr Jivraj and Mr Hashwani as to whether Mr Ahamed acted as an arbitrator or as a conciliator. The second agreed matter was that this difference was “not material to the present issues”. In my view neither of these agreed matters assists Mr Hashwani. The first records a stance on the part of Mr Hashwani which he accepts is inconsistent with his current stance. The second is accurate in the sense that neither party suggested that Mr Ahamed’s status affected the issues in the Supreme Court. There is no suggestion that Mr Jivraj at this stage had any inkling that Mr Hashwani might say that the solution to his problems lay in a change of stance to assert that there was an arbitration before Mr Ahamed which remained live and should be progressed with the assistance of the court. In these circumstances neither of these two agreed matters provides a good reason for failing to advance crucial features of the present claim in the 2008 proceedings.

The fourth suggested answer took the form of a rhetorical question: why did it matter to Mr Jivraj or the court whether Mr Hashwani was reserving an argument that Mr Ahamed was an arbitrator? I question the premise. It is not clear to me that Mr Hashwani was reserving anything when he made the 2008 purported appointment and issued the November 2008 claim.

Putting that on one side, the answer to this rhetorical question seems to me to be obvious. Those who litigate have no right to litigate piecemeal. If a party wishes to be able to rely upon additional or alternative claims, then the general rule is that all claims must be brought in the same proceedings. Those who ignore the general rule do so at their peril. At the very least, although this cannot be assumed to be enough, the court must be told about any additional or alternative claims which a party wishes to reserve.

This is an important aspect of active case management under the Civil Procedure Rules 1998. It is an aspect with a long pedigree: Henderson v Henderson was decided in 1843. It has been a statutory requirement since the Judicature Acts of 1873 and 1875 that multiplicity of proceedings must be avoided.

If in 2008 there was a potential assertion (“the replacement arbitrator assertion”) that the Ahamed arbitration was live and could be progressed by appointing a replacement arbitrator, then the court needed to be told about it. The court would then be able to seek submissions on what issues would or might arise between the parties, how best to manage the resolution of those issues, and how best to avoid multiplicity of proceedings. In the light of those submissions the court might well have concluded that issues arising on the replacement arbitrator assertion should be resolved before turning to issues about the validity of the JVA qualification requirement.

The fifth suggested answer was concerned to explain the reasons why Mr Hashwani had maintained in the 2008 litigation that Mr Ahamed was not an arbitrator. Mr Brindle noted that in paragraph 14 of Zaiwalla 2013 Mr Zaiwalla acknowledged that when he “took the view that Mr Ahamed had been a Community conciliator” he had been wrong. Mr Brindle identified features which could have led to a genuine mistake in this regard. The Community did not draw a sharp distinction between the two roles, and Mr Ahamed had behaved more like a conciliator, for example by meeting the parties and by receiving correspondence from one side which was not copied to the other. Mr Ahamed had been acting under provisions which were described as not constituting a formal arbitration, and which enabled him to determine what was “just and equitable”.

Mr Brindle acknowledged that obviously Mr Zaiwalla realised the significance of his assertion that Mr Ahamed was not an arbitrator. He appreciated that such an assertion would be consistent with an entitlement on the part of Mr Hashwani to make the 2008 purported appointment. Mr Brindle submitted that those matters, taken with the reasons mentioned earlier, did not show that Mr Zaiwalla’s stance as to Mr Ahamed’s role was a cynical trick to assist Mr Hashwani in the 2008 proceedings.

In this regard the fifth suggested answer, in my view, misapprehends this aspect of Mr Jivraj’s complaint. The relevant assertion is not an assertion of cynicism on the part of Mr Zaiwalla: it is an assertion that there was a deliberate tactical decision by Mr Hashwani. Mr Brindle urged that the evidence did not make good this latter assertion. I disagree. Relevant evidence relied upon by Mr Hashwani is set out in the passages in Annex 2 which deal with the position in 2008 prior to giving notice of the 2008 purported appointment on 31 July 2008. Paragraph 12 of Zaiwalla 2013 explained that a trip to see Mr Ahamed was organised in order to explain to him that “not much effort would be required from him to produce a valid enforceable final Award.” Paragraphs 21 and 22 of Zaiwalla 2014 explained that the trip did not take place because Mr Ahamed had said he was not prepared to meet Mr Hashwani’s legal team, that for fear of slighting the Aga Khan Mr Hashwani did not consider it appropriate to apply to the court for the removal of Mr Ahamed, and that an alternative approach had to be considered.

It is plain from this evidence, and from paragraph 13 of Zaiwalla 2013, that there was a deliberate decision not to seek such assistance from the court as might be available if the arbitration before Mr Ahamed were still live, but to adopt an “alternative approach of commencing the reference under the … JVA”. It can properly be described as a tactical decision: it was a decision as to what legal remedies Mr Hashwani should seek and how he should go about doing so.

The sixth suggested answer was concerned to deal with Mr Zaiwalla’s statement in paragraph 12 of Zaiwalla 2008 not merely that it was common ground that Mr Ahamed admitted in his letter dated 19 April 1995 that he was “defeated”, but also that it was common ground that after that Mr Ahamed “was released by the parties”. In Zaiwalla 2013 Mr Zaiwalla states at paragraph 12 that Mr Hashwani had informed him that he (Mr Hashwani) never agreed for Mr Ahamed to be released by the parties. Mr Zaiwalla does not say when Mr Hashwani informed him of this. Mr Zaiwalla goes on to note that when his firm was instructed in 2008 the plan was to explain to Mr Ahamed that he could produce a valid enforceable final award. This may suggest that Mr Zaiwalla (despite his use of the word “originally” in paragraph 14 of Zaiwalla 2013) initially in 2008 (although he took a different view, described in paragraph 14 of Zaiwalla 2013, in the period immediately prior to 31 July 2008) considered that there was an arbitration before Mr Ahamed which was still live, and did not understand Mr Ahamed to have been released by the parties. The assertion that there had been a release was made in November 2008, by which time Mr Hashwani had made the tactical decision mentioned above, and had put it into effect by making the 2008 purported appointment.

Mr Brindle accepts that Mr Zaiwalla has given no explanation as to how he came to say, on behalf of Mr Hashwani, that Mr Ahamed was released. Initially in his oral submissions Mr Brindle submitted that Mr Zaiwalla “should have said specifically, I was wrong, it is clear that that was not in fact the case.” When I questioned this, Mr Brindle acknowledged that it may not have been clear that Mr Zaiwalla was wrong in stating that Mr Ahamed was released. What was clear, submitted Mr Brindle, was that Mr Zaiwalla had been wrong to think that this was common ground.

In the absence of evidence I do not make any finding as to what may have led Mr Zaiwalla to say that it was common ground that Mr Ahamed had been released. For present purposes, it suffices to note that Mr Zaiwalla did say this, and that the context for saying it was to make good an assertion (see the second to last sentence of paragraph 12 of Zaiwalla 2008) that:

As things turned, therefore, his [Mr Ahamed’s] ‘route map’ did not resolve the outstanding disputes.

The upshot is that Zaiwalla 2008 evidences a firm decision on the part of Mr Hashwani to maintain emphatically that whatever had taken place before Mr Ahamed offered no avenue of resolving the differences that had arisen between the parties. Mr Zaiwalla has asserted in paragraph 22 of Zaiwalla 2014 that one reason for this was that Mr Hashwani did not want to make an application to the court, which might be seen as a slight to the Aga Khan. In November 2008, by which time Mr Hashwani had nonetheless decided to seek assistance from the court by issuing the claim form in the November 2008 claim, it was thought appropriate both to rely upon a contention that Mr Ahamed had been released and to say that this showed that whatever had taken place before Mr Ahamed did not provide a “route map” resolving the outstanding disputes. While paragraph 12 of Zaiwalla 2013 states that Mr Hashwani has now told Mr Zaiwalla that he never granted a release to Mr Ahamed, there is simply no explanation as to how it came about that paragraph 12 of Zaiwalla 2008 said it was common ground that there had been such a release. Thus nothing in the sixth suggested answer assists Mr Hashwani’s case.

The seventh suggested answer is that it cannot be an abuse of process for Mr Hashwani to acknowledge that what was said in the 2008 proceedings was wrong, and to acknowledge that the evidence shows that Mr Ahamed acted as an arbitrator. Again, as it seems to me, this suggested answer misapprehends the nature of the abuse of process complaint. There is nothing wrong in itself with acknowledging now that when Mr Jivraj said in 2008 that Mr Ahamed had acted as an arbitrator, Mr Jivraj was right. What is wrong on the part of Mr Hashwani is, having failed to take any point on this in 2008, to try to use fresh litigation in 2013 as a way of making a claim that should have been made in 2008. In that regard it seems to me that Mr Jivraj’s skeleton argument was fully entitled to say that it was not acceptable “for Mr Hashwani now to spin on his heel, declare all … to have been a mistake, and start again”. Mr Brindle described that submission as “crocodile tears”, commenting that it was Mr Jivraj’s conduct which had caused costs and expense to Mr Hashwani. However that too, as it seems to me, is not an acceptable response: nothing done by Mr Jivraj caused Mr Hashwani in 2008 to take the course that he did.

The eighth suggested answer was that if there was merit in Mr Hashwani’s present claim, then in the absence of bad faith the court should not allow the claim to be struck out. This suggested answer, however, is incompatible with Lord Bingham’s description of the principles in Johnson. It is not necessary to identify an additional element such as bad faith. It is right that Lord Bingham commented that there will rarely be a finding of abuse unless the new litigation involves what the court regards as unjust harassment. As to that, I have no doubt that the bringing of this claim involves unjust harassment of Mr Jivraj. There was a deliberate tactical decision to deny that Mr Ahamed had been an arbitrator and to assert that whatever had taken place before Mr Ahamed was at an end and could not resolve outstanding disputes. There was no suggestion at that time that there were any circumstances in which Mr Hashwani might go back upon this position. It is plain that from the time that the October 2008 claim was begun by Mr Jivraj through to the decision of the Supreme Court in 2011, as Mr Berkson described at paragraph 63 of Berkson 2013 and as has not been denied in evidence on behalf of Mr Hashwani, that the litigation was conducted on the footing that the Ahamed arbitration agreement had no further role to play. The issuing of the present claim form, seeking to go back on the stance deliberately adopted in 2008, is rightly described as harassment, and is rightly described as unjust.

A ninth and final suggested answer was advanced by Mr Brindle in reply. This was that it would have been open to Mr Jivraj in the October 2008 claim to have asserted that the 2008 purported appointment was invalid because the JVA arbitration agreement had been superseded by the Ahamed arbitration agreement. In his submissions in rejoinder Mr Davies explained Mr Jivraj’s stance. This was that the arbitration agreement in the JVA still existed, but that any arbitration begun under it would have no jurisdiction to deal with things that had been decided pursuant to the Ahamed arbitration agreement. Mr Davies acknowledged that, to that extent, Mr Jivraj could in theory have asked the court to determine this point against Mr Hashwani in the October 2008 claim. In practical terms, however, he submitted that it would not have been realistic. It would have involved a complicated and disputed factual investigation as to what Mr Ahamed had been doing.

Mr Davies’s submissions to my mind provide a persuasive response to this late point taken by Mr Brindle. Moreover, it seems to me that Mr Davies does not need to go this far. Whether or not Mr Jivraj could have or should have tried to persuade the court in 2008 that what had been done under the Ahamed arbitration agreement was a bar to the 2008 purported appointment is neither here nor there. Mr Jivraj’s stance had been fully explained in Berkson 2008. The decision by Mr Jivraj in 2008 to “park” issues as to the extent to which the Ahamed arbitration agreement superseded the JVA simply has no bearing on the question whether it is unjust harassment on the part of Mr Hashwani to seek in 2013 to take a course of action which he had decided against in 2008, which he had made no mention of in 2008, and which, if right, would render the entire litigation during the period 2008 to 2011 pointless.

For all the above reasons I conclude that the first ground of opposition advanced by Mr Jivraj is right, and accordingly that Mr Jivraj’s strike out application succeeds. I add that Mr Jivraj’s answer on remedies and grounds took a further point in support of his abuse of process contentions. This was that Mr Hashwani is not only carrying on his present claim on the basis that Mr Ahamed was an arbitrator, but is also “campaigning in Europe” for a reversal of the Supreme Court’s decision on the JVA qualification requirement, even though the relevance of that decision depends on Mr Ahamed not having been an arbitrator. In that regard it may be noted that Mr Hashwani expressly said in paragraph 128 of Hashwani 2013 that, as far as the Supreme Court decision was concerned, the 2008 proceedings were not finished. I find it difficult to understand how Mr Hashwani can, consistently with the present claim, maintain such a stance. However this aspect of the matter was not developed in Mr Jivraj’s skeleton argument or in oral submissions, and accordingly I have not taken account of it in reaching my decision.

This conclusion necessarily entails that Mr Hashwani is not entitled to the principal remedy sought in the revised claim. Accordingly other objections to that remedy are discussed in section D below to some extent, and in sections E to G below considerably, more shortly than would otherwise have been the case.

Has the arbitration ended?

Four of the remedies identified in the statement of remedies and grounds pre-supposed that there was a continuing arbitration before Mr Ahamed. They included remedy 3, the appointment by the court of an arbitrator to replace Mr Ahamed. In relation to all four such remedies, Mr Jivraj’s answer on remedies and grounds identified a threshold point that the arbitration before Mr Ahamed had long since come to an end, and that accordingly there was no extant arbitration in respect of which the court could grant relief. At paragraph 7 the answer on remedies and grounds identified a primary case that the arbitration before Mr Ahamed came to an end on the issue of his award on 17 January 1994. If that primary case were wrong then Mr Jivraj relied on fall-back contentions. It is convenient to deal with the primary case in two stages: first, by reference to what was said and done by Mr Ahamed during the period up to and including issue of the December 1993 award on 17 January 1994, and second, by reference to submissions about what was said subsequently by Mr Ahamed. I shall combine the second stage with consideration of the fall-back contentions.

As to the fallback contentions, Mr Davies acknowledged that more difficult arguments arose if his primary contention were wrong. In particular, he recognised that his task was made more difficult by the decision of the House of Lords in Bremer Vulcan v South India Shipping [1991] AC 909. This decision places an important restriction on the rights of those who wish to say that there has been a repudiatory breach of an arbitration agreement. In principle, where inactivity amounts to a repudiatory breach of an arbitration agreement the innocent party may elect to treat that agreement as at an end. However the House of Lords held by a majority that since the parties were equally under an obligation to keep the arbitral procedure moving, both were under an obligation to apply to the arbitrator to prevent inordinate delay. The consequence was that the innocent party, in the absence of any such application to the arbitrator, was not entitled to rely on the repudiatory breach as giving rise to a right to treat the arbitration agreement as at an end.

Mr Davies nevertheless submitted, and Mr Brindle acknowledged, that if both parties released the arbitrator then the arbitration would come to an end, and that more generally the arbitration might come to an end in either of two ways identified by Lord Brandon in Paal Wilson & Co. A/S v Partenreederei Hannah Blumenthal (The “Hannah Blumenthal”) [1983] 1 Lloyds Rep 103 at pages 114 to 115:

The concept of the implied abandonment of a contract as a result of the conduct of the parties to it is well-established in law: see Chitty on Contracts 23^rd ed., vol. 1, par. 1231, and cases there cited. Where A seeks to prove that he and B have abandoned a contract in this way, there are two ways in which A can put his case. The first way is by showing that the conduct of each party, as evinced to the other party and acted on by him, leads necessarily to the inference of an implied agreement between them to abandon the contract. The second method is by showing that the conduct of B, as evinced towards A, has been such as to lead A reasonably to believe that B has abandoned the contract, even though it has not in fact been B’s intention to do so, and that A has significantly altered his position in reliance on that belief. The first method involves actual abandonment by both A and B. The second method involves the creation by B of a situation in which he is estopped from asserting, as against A, that he, B, has not abandoned the contract: Pearl Mill Co. Ltd. v Ivy Tannery Co. Ltd., [1919] 1 K.B. 78.

Mr Jivraj’s skeleton argument set out relevant principles. So far as the position under the 1950 Act is concerned, what was said can be summarised in this way:

Subject only to a submission in reply about the need to interpret an award objectively, these principles were not contested by Mr Brindle. He stressed numbered paragraph 4 in the December 1993 award. This clarified that while Mr Ahamed’s determinations were in the December 1993 schedule, that Schedule was a summary only and should not be regarded as an exhaustive statement. If the parties required guidance or clarification on the meaning or consequences of the Schedule, they were permitted to make submissions in writing to Mr Ahamed. Mr Ahamed concluded paragraph 4 by asserting that under the Ahamed arbitration agreement his own interpretation of the Schedule and his understanding of its intention would be final and binding on the parties.

Turning to the December 1993 schedule, Mr Brindle drew attention to paragraph 7. This concerned joint venture companies whose shares had not been purchased by one or other of the parties. Paragraph 7(iv) directed that Mr Jivraj should arrange for such companies to be dissolved, wound up, or liquidated as might be appropriate. Mr Brindle noted that this had not happened.

Mr Brindle also referred to paragraph 15 of the December 1993 schedule. Paragraph 15(a) recorded that Mr Ahamed had determined that balances of the capital accounts of the parties with PHPI as at 31 December 1992 be equalised, with payments to be made by 31 May 1994. Mr Brindle submitted that this was “not a complete determination”. The justification given by Mr Brindle for this submission was that paragraph 15 set out a complicated procedure in subparagraphs (b) and (c). In particular, subparagraph (c)(viii), referring back to paragraph 7, required Mr Jivraj to arrange for “transfer upwards” of surplus assets of companies falling within that paragraph, for distribution by PHPI of balances to shareholders, including those contemplated in paragraph 15(a), and for PHPI to be formally dissolved, wound up or liquidated at a cost not exceeding £50,000.

In his oral submissions Mr Davies began by noting what Hashwani 2013 had observed about an aspect of Mr Ahamed’s January 1994 reflection request letter. This aspect concerned a matter dealt with in Mr Ahamed’s November 1993 alternatives letter. What had happened was that tax advantages had been identified if, instead of a sale and purchase of the shares of operating companies in North America as contemplated in the bid process that had taken place before the panel, there were to be what I shall call a “higher corporate tier acquisition”. Under a higher corporate tier acquisition Mr Hashwani or a company under his control would acquire the entire issued share capital of Jivji BV, the joint venture company which had owned, and on this hypothesis would continue to own, the relevant operating companies. The alternatives identified by Mr Ahamed were that there could be direct negotiations for Mr Hashwani to acquire Jivji BV, or that each party could bid for Jivji BV in the same manner as had been done with other assets, or that Jivji BV could be wound up. Mr Ahamed had asked the parties to let him know by 30 November 1993 how they wished to proceed. It was the correspondence which ensued which led to Mr Ahamed writing the January 1994 reflection request letter. As observed by Mr Hashwani in Hashwani 2013, in that letter Mr Ahamed had told the parties that the main issue was: how was the overall interest of the parties best served?

What I have called paragraphs [6] and [7] concluded the January 1994 reflection request letter. They included:

[6] I would request both of you to reflect further on this issue…

[7] In the meantime, I have no reason to delay the finalisation and publication of the award. And I intend to do so on January 17 1994. …

It was clear from this, submitted Mr Davies, that Mr Ahamed thought that by issuing the December 1993 award he would have done his job. After examining later correspondence, Mr Davies returned to the position when the December 1993 award was issued on 17 January 1994. He submitted that if Mr Hashwani had wanted to challenge the award as incomplete or unenforceable, that challenge should have been brought promptly after 17 January 1994. The legal position was that once an arbitrator issued an award, making it clear that the award was believed to constitute a conclusion of the arbitrator’s duties, then that was a “final award”: the arbitration was at an end and the arbitrator had no further role. In response to a question from me, Mr Davies confirmed that the arbitrator’s role came to an end effectively on the arbitrator’s say so. Thus the submission was in effect that once an arbitrator issued an award saying that this decided the issues in dispute, it was only if a party took prompt action to seek relief from the court that the arbitrator could have any further role. It could not be right, submitted Mr Davies, that Mr Ahamed had retained the power to add to his award. In these circumstances there could be no question of the court now appointing an arbitrator.

In reply Mr Brindle repeated his reliance upon paragraph 4 of the December 1993 award, the language of which he described as “more consistent with an interim award”, and with what was said in paragraph 15(c) of the December 1993 schedule. In that regard Mr Brindle drew attention not merely to subparagraph (viii), but also to subparagraph (iii), which provided for both parties to give “final comments on the capital account balances and on the final accounts … by 15 March 1994.” These passages, submitted Mr Brindle, looked like “an interim award at best.” By “interim award” I understood Mr Brindle to be referring to an award of the kind contemplated in s 14 of the 1950 Act. It is an award which decides only one or some of the issues in the case. The modern terminology is to refer to such an award as a “partial award”: see, for example, Lorand Shipping Ltd v Daroff Trading BV [2014] EWHC 3521 (Comm). However, as the present case is largely concerned with the 1950 Act, I shall continue to use the expression “interim award”.

Turning to the question of how the court should go about determining whether an award was one which constituted a conclusion of the arbitrator’s duties, Mr Brindle did not accept that this was simply a question of “the arbitrator’s say so”. The court, submitted Mr Brindle, should look at that matter objectively.

I accept Mr Brindle’s submission that my task must be to look at the matter objectively. I start by taking the December 1993 award, including the December 1993 schedule, as a whole, and putting on one side any consideration of correspondence before or after 27 December 1993. It seems to me that Mr Brindle’s submissions make insufficient allowance for what was said very clearly in numbered paragraphs 2 and 3 of the December 1993 award:

2.

Pursuant to the Agreement I requested both parties to make submissions on all matters outstanding and I have received and considered the written and oral submissions of both parties on the issues referred to in the Schedule and I have determined as set out in the Schedule.

3.

Such determinations take effect only as between me and yourselves. It is for you to effect the implementation of these determinations in a manner consistent with the decisions and in accordance with all applicable legal requirements. In making my decisions, I have not considered any impact (whether in respect of taxation or any other matters) on either of you or any other person of such decisions and you are to recognise that such matters are for each of you to consider and deal with and not me.

Numbered paragraph 2 seems to me on its face to be making it clear that the determinations in the Schedule are Mr Ahamed’s determinations on all matters he considers outstanding. It seems to me that Mr Davies is right also to draw attention to numbered paragraph 3. This draws a clear distinction between the determinations in the Schedule on the one hand and implementation of those determinations on the other. Reading paragraphs 2 and 3 objectively, it seems to me to be plain that Mr Ahamed was saying both that he was entitled to decide the issues in dispute by telling the parties what to do, and that in the Schedule he had done this.

Thus in paragraph 7 of the Schedule Mr Ahamed set out what Mr Jivraj had to do in relation to joint venture companies whose shares had not been purchased by one or other of the parties. As to the assertion in paragraph 38 of Hashwani 2013 (see section B2.2 above) the award both here and elsewhere adopted an approach under which it was not for Mr Ahamed to resolve the structure by which Mr Hashwani acquired Mr Jivraj’s interests. Consistently with that approach, as it seems to me, the December 1993 award did not grant Mr Jivraj the relief sought in his claim for specific indemnities (the claim described as IV.1 in section B2.2 above). In paragraph 15 Mr Ahamed set out a procedure for the parties to follow which would, among other things, determine the financial effects of what happened under paragraph 7. Under this procedure computations, in part dependent upon what happened under paragraph 7, were to be performed by Stoy Hayward in a manner which would ensure that equalisation payments could be made by 31 May 1994.

The procedure allowed the parties to make “final comments” on various aspects of Stoy Hayward’s computations. Those comments were, however, to be made to Stoy Hayward and not to Mr Ahamed. The carrying out of this procedure was, in my view, plainly seen by Mr Ahamed as part of what Mr Ahamed characterised in his award as a non-arbitral process of “implementation of these determinations in a manner consistent with the decisions and in accordance with all applicable legal requirements.”

It is in this context that numbered paragraph 4 of the December 1993 award falls to be construed. Just as the December 1993 schedule does not in my view look like an interim award, similarly numbered paragraph 4 does not appear to me to be couched in terms of the kind one would expect in an interim award. It does not say that there will be a further award dealing with specific matters omitted from the December 1993 schedule. Nor does it identify such specific matters. It is true that it describes the Schedule as “a summary only” and says that it is not exhaustive. What is meant by this, however, is then explained. The explanation is that under the Ahamed arbitration agreement Mr Ahamed believes he can permit the parties to seek “guidance or clarification on the meaning or the consequences of the Schedule”, and that “my own interpretation of the Schedule and my understanding of its intention will be final and binding on each of you.” When read in the context of what has been said in numbered paragraphs 2 and 3, numbered paragraph 4 does not in my view undercut the clear intention shown in those earlier paragraphs that the Schedule should constitute fulfilment of Mr Ahamed’s task. What numbered paragraph 4 shows is a belief by Mr Ahamed that, having done what was asked of him, he could allow one or other party to come back to him and seek “guidance or clarification.” That belief was mistaken, but it does not detract from my conclusion that when viewed objectively the December 1993 award was saying that Mr Ahamed had done what was asked of him.

Having reached that conclusion by examining the December 1993 award in isolation, I add that my conclusion is reinforced by an examination of what happened prior to issue of the award on 17 January 1994, and in particular of what was said by Mr Ahamed in the November 1993 alternatives letter and the January 1994 reflection request letter. It is plain from these documents that Mr Ahamed regarded it as up to the parties to work out what to do as regards Mr Hashwani’s request that there should be a higher corporate tier acquisition. On this, Mr Ahamed, while making observations in both letters on various aspects, plainly regarded the matter as something for the parties to decide. Moreover he plainly regarded it as something which he should not allow to hold up the completion of his task. The way in which he achieved this was to set out in paragraphs 7 and 15 of the December 1993 schedule what should happen by reference to whether or not shares in joint venture companies had been purchased by one or other of the parties. Thus the Schedule assumed that by the time paragraphs 7 and 15 came to be implemented it would be clear one way or the other whether a higher corporate tier acquisition had taken place.

There was a suggestion on behalf of Mr Hashwani that the January 1994 reflection request letter involved consideration by Mr Ahamed of a claim by Mr Jivraj and its rejection. In my view this mischaracterises the January 1994 reflection request letter. As indicated earlier, the letter is concerned with the proposal for a higher corporate tier acquisition. Mr Ahamed had already said in the November 1993 alternatives letter that it was up to the parties to tell him, as regards that proposal, how they would wish to proceed. The passages now relied upon by Mr Hashwani are in paragraph [2] of the January 1994 reflection request letter: see section B2.3 above. The point made by Mr Ahamed was that the parties understood the implications of the transactions and the manner in which they had been structured, and had submitted their bids after making an evaluation of all the circumstances and conditions. This led Mr Ahamed to comment that he saw no warrant for an assertion (“the possible different bid assertion”) made by Mr Jivraj that had he known of the possibility of a higher corporate tier acquisition his bid price could well have been different. The comment does not in my view indicate that Mr Ahamed regarded this assertion as constituting a claim in the arbitration. Mr Ahamed’s comment, and the remainder of the January 1994 reflection request letter, are consistent with what was said in the November 1993 alternatives letter: it was for the parties to decide how they wished to proceed in relation to Mr Hashwani’s request to acquire the entire issued share capital of Jivji BV.

I note also that paragraph [3] of the January 1994 reflection request letter contemplated that the time when Jivji NV and Jivji BV would “qualify to be dissolved, wound up or liquidated” would be upon “completion of the arbitration and in due course…”. This, too, seems to me to be consistent with my analysis of the December 1993 award.

I stress that the analysis above comprises my objective assessment of what Mr Ahamed was saying in the December 1993 award by reference to the evidence before me concerning the period up to and including 17 January 1994. I have identified that in one respect Mr Ahamed misunderstood the law. This was his mistaken belief that he could allow one or other party to come back to him and seek “guidance or clarification”. I express no view as to whether Mr Ahamed misunderstood any other aspect of the law governing the arbitration. If either party thought that Mr Ahamed had erred in law, then sections 21 and 22 of the 1950 Act provided avenues for invoking the assistance of the court. If no such avenue were successfully invoked, then in the event of a failure by a party to implement the award the other party could seek to enforce the award, by action at common law or by an application under section 26 of the 1950 Act. In either case enforcement proceedings might be met by a defence under s 7 of the Limitation Act 1980 if they were begun more than six years after the date when the defaulting party was in breach of his obligations under the award.

The next aspect that I must consider concerns what happened after issue on 17 January 1994 of the December 1993 award. I do so, first, in order to see if there is anything which suggests that my objective analysis of the December 1993 award is incorrect. For this purpose I assume, without deciding, that regard can be had to later evidence in determining the true effect of the issue by Mr Ahamed of the December 1993 award. Second, I consider whether, even if I were wrong to think that the arbitration ended on 17 January 1994, later events would entitle Mr Jivraj to say that the arbitration came to an end for reasons advanced in his fallback positions.

I begin with the period up to, and shortly after, the occasion in 1995 when, as mentioned in Lord Clarke’s judgment, Mr Ahamed declared himself defeated. It is convenient to consider this period by reference to passages from relevant correspondence as set out in Annex 2. Accordingly, I make observations below by reference to those passages and adopting the short form descriptions used in Annex 2 for relevant letters and faxes:

On the assumption that regard can be had to later evidence, the correspondence up to and including the April 1995 defeat letter appears to me to be substantially consistent with my analysis of the December 1993 award. As noted above, during this period Mr Ahamed repeatedly stressed the distinction between the determinations made in the December 1993 award and the implementation of those determinations. He sent deeds of release and awaited their execution. No further substantive determination by him was contemplated in this regard. He referred to accounts in connection with the arbitration being sent to the parties. There is no evidence whether they were in fact sent or paid, but it is clear that no further substantive determination by him was contemplated in this regard. The timing request may indicate a belief by him that he needed to know the proposed timing of the transfer of the Jivji companies, so that the arbitration could be formally concluded. Again no further substantive determination by him was contemplated in this regard. Finally, the April 1995 defeat letter indicates a belief by him that his mandate required him to report if his work had failed to resolve the dispute. It may be that Zaiwallas were right to say in their letter of 4 September 2008 (see Annex 2, section A2/M) that Mr Ahamed was referring to a requirement “under the Community custom to report from time to time to the religious head of the Community”. I do not need to examine this, however, as it seems to me clear that whatever the precise nature of the report, the April 1995 defeat letter does not suggest that Mr Ahamed was contemplating any further substantive determination by him.

Paragraph 12 of Zaiwalla 2008 contained an unequivocal statement that after Mr Ahamed’s April 1995 defeat letter Mr Ahamed was released by the parties. Mr Jivraj’s first fallback position is that if the arbitration was still live at the time of the April 1995 defeat letter, Mr Jivraj is entitled to rely, as part of the evidence from which I should draw conclusions as to what in fact happened, upon this unequivocal statement.

Mr Jivraj’s skeleton argument said that it was for Mr Hashwani to prove that there remained an extant arbitration. Even if that were so, if I am required to form a conclusion on the basis of the evidence before me, then I would hold on the basis of that material that it is probable that neither party expressly released Mr Ahamed. It seems clear that Mr Ahamed sent each side a deed of release. However neither side has put in evidence any executed deed of release. Nor has either side put in evidence any contemporary reference to the deed of release having been executed. In these circumstances, although it is unsatisfactory that there is no explanation of how it was that Mr Zaiwalla came to say in paragraph 12 of Zaiwalla 2008 that there had been a release, the positive statement by Mr Hashwani in Hashwani 2013 that he did not release Mr Ahamed, along with the contemporary features described above, would in my view make it more likely than not that no deed of release was in fact executed.

There is a separate point in this regard as to whether, consistently with what was said in Zaiwalla 2008, Mr Hashwani can now be heard to assert that there was no release. I deal with this point in section D3.8 below.

What happened immediately after the April 1995 defeat letter is not described in the evidence. Nearly seven weeks later, on 7 June 1995, the parties entered into the June 1995 MoA.

As noted in section A2/F of Annex 2, while the June MoA brought about a transfer to Mr Hashwani of Jivji NV, including its subsidiary Jivji BV, it made no express reference to the position as regards NI Canada or Rushlake USA. I add that as regards all matters, claims and disputes arising out of the June 1995 MoA the parties irrevocably submitted to a non-exclusive jurisdiction of the English courts. This provision might be thought to be inconsistent with any contention that disputes about the effect of the June 1995 MoA could fall within the Ahamed arbitration. This, however, is not a point taken by Mr Jivraj and accordingly I say no more about it.

The next relevant event described in the evidence is the production of the July 1995 BDO draft report. This draft, which had been prepared on the instructions of Mr Jivraj in purported fulfilment of what was required of him under the December 1993 schedule, dealt with balances of shareholders’ funds. As described in section A2/F of Annex 2, paragraphs 13 and 14 of the July 1995 BDO draft report stated that at 31 December 1993 the balance due from Mr Jivraj was $31,871,144 while that due from Mr Hashwani was $29,139,104. If the July 1995 BDO draft report had stopped there, it would follow that Mr Jivraj would need to make a payment of $1,366,020 in order to equalise the balances.

However, the July 1995 BDO draft report did not stop there. As described in Annex 2, it included a section on taxation which referred to liabilities incurred by Jivji BV as a result of “disposal… of its interests” in relevant operating companies. In that regard the July 1995 BDO draft report maintained that Jivji BV had disposed of NI Canada and Rushlake USA, thereby giving rise to relevant tax liabilities. It computed that, because the responsibility for discharging such tax liabilities lay with Mr Hashwani, as purchaser of Jivji BV’s interests in the operating companies, the balance of shareholders’ funds due from Mr Hashwani was increased so as to become $33,691,823. The result would be that instead of Mr Jivraj having to make an equalisation payment, it would be Mr Hashwani who would have to do so.

As to the correspondence which ensued in the period up to and including January 1998:

Taken as a whole, what was said and done by Mr Ahamed during the period from 1 June 1995 to 31 January 1998 is consistent with my analysis of the December 1993 award. He was giving assistance to the parties in their implementation of what he regarded as a completed award. On one occasion only did Mr Ahamed say anything inconsistent with my analysis of that award. This was what amounted to a conditional order in the October 1995 ‘you must convince me’ letter. When the inconsistency was pointed out to him, however, what followed was that in the October 1995 ‘should make ... payment now’ letter, and in subsequent correspondence, Mr Ahamed backtracked from this position. The proposal that there should be an indemnity was a proposal which might, if successful, have led Mr Jivraj to make a payment which Mr Hashwani said would achieve implementation of the award and Mr Jivraj claimed was not required in order to implement the award. Mr Ahamed’s response in the October 1996 proposed indemnity letter was that this was “an implementation matter”, and in effect that he did not propose to get involved. In the event he did get involved to the extent that he was prepared to write a letter “on behalf of the arbitration” to Mr Aaronson. His willingness to do this was not, in my view, inconsistent with my analysis of the December 1993 award. As with the April 1995 defeat letter, he took the view that while implementation was for the parties, he would not have resolved the dispute until the parties had implemented it. Thus he was giving assistance in that regard, but he made his offer of assistance conditional. Mr Hashwani was not willing to meet those conditions.

The second of the fallback positions identified by Mr Jivraj was that if the arbitration was still on foot then the parties abandoned what was left of it through their correspondence from 1994 to 1997. It is convenient in this regard to extend the period to the end of January 1998. Mr Brindle submitted that the correspondence did not show abandonment. The correspondence, he submitted, showed that Mr Ahamed was making “further orders” during this period. He submitted that nothing in the correspondence indicated actual abandonment by the parties.

Mr Davies contended that a conclusion that the arbitration was still live was deeply implausible. As regards the period now under discussion, Mr Jivraj’s skeleton argument noted that by the time of Mr Ahamed’s last involvement in July 1997, Mr Jivraj had stated, in response to Mr Hashwani’s express desire to go to court, that he could not stop Mr Hashwani commencing litigation. It also noted that Mr Hashwani, in turn, had expressed the view in the June 1997 ‘arbitration has become a joke’ letter that the arbitration had become “a joke”. It was asserted on behalf of Mr Jivraj that by mid 1997 at the latest Mr Ahamed’s limited further involvement had ceased, Mr Hashwani was talking about going to court and had said that the arbitration was a joke and Mr Jivraj had said that he could not stop Mr Hashwani going to court. All of this, in combination, meant that the arbitration was effectively over by mid-1997 at the latest.

Mr Brindle in reply submitted that abandonment could not be spelt out of silence. He stressed that Mr Jivraj had sent lengthy letters to Mr Ahamed, and that Mr Ahamed had referred to the role of the arbitrator and of the arbitration.

As it seems to me, during the period now under consideration I am not concerned with silence. The crucial features are, in my view, that Mr Hashwani becomes increasingly exasperated with the arbitration, to the point where he repeatedly says that it is his intention to adopt alternative courses, either by going to the Community leadership or by taking proceedings in court. The response to this from Mr Jivraj is acquiescence. In his October 1996 ‘I cannot stop you’ fax, in particular, his stance is that he cannot prevent Mr Hashwani from going to court. He thus indicated that he was content for Mr Hashwani to abandon the arbitration if indeed it was still in existence. It is clear from what would prove to be Mr Ahamed’s last letter that he was looking for cooperation from the parties in order to identify a way in which he would be able to report that the disputes between them had been resolved: see the descriptions in Annex 2 of both the July 1997 arbitration reference letter and the preceding November 1996 facilitation fax. The response from Mr Hashwani in his July 1997 top priority fax insisted on things which Mr Jivraj opposed and which Mr Ahamed had now firmly made clear he would not do. In particular, “irrespective of any unresolved issues” the “top priority” was an immediate order for a payment to be made by Mr Jivraj. Far from showing any willingness to give the confirmations which Mr Ahamed had requested in the July 1997 arbitration reference letter, Mr Hashwani ignored them and made it plain that he would not proceed in the manner that Mr Ahamed had proposed. Mr Ahamed did not reply to Mr Hashwani’s July 1997 top priority fax. The inference is that he saw no point in doing so.

It was plain from Mr Hashwani’s January 1998 deadline letter that there would, indeed, have been no point in doing so. That letter, in paragraph [3] insisted on one or other of two courses of action. The first, by seeking that Mr Ahamed obtain “guidance” from the Aga Khan as to what he (Mr Ahamed) should order, was fundamentally incompatible with the Ahamed arbitration agreement: it would involve Mr Ahamed giving up his independent role as arbitrator. The second, obtaining permission from the Aga Khan to allow Mr Hashwani to take the matter to a court of law, was also obviously incompatible with the continuation of the Ahamed arbitration agreement.

Moreover, the deadline in paragraph [4] was absolutely clear. If Mr Ahamed did not reply by 15 January 1998, then Mr Hashwani would approach the Aga Khan directly and request intervention to settle the matter. This was tantamount to saying that if there was no reply by 15 January the arbitration should be treated as at an end. In these circumstances, the failure by Mr Ahamed to do anything in response to the deadline was a statement on his part that he, like Mr Hashwani, would treat the arbitration as at an end.

To the extent that Mr Jivraj was aware of the July 1997 top priority fax, or the January 1998 deadline letter, his failure to respond gives rise to similar inferences. If he was not aware of them, then what had been said in earlier correspondence gives rise to clear inferences that Mr Hashwani and Mr Ahamed had abandoned the arbitration, and that Mr Jivraj was content with this. I conclude, accordingly, that the conduct of each of Mr Hashwani, Mr Jivraj and Mr Ahamed, as evinced to the other and acted on by that other, amounted to an implied agreement to abandon the Ahamed arbitration agreement.

In these circumstances I hold that Mr Jivraj’s second fallback position succeeds. If, contrary to my view, the arbitration continued after 17 January 1994, what took place between the parties in the three years which followed resulted in an agreement between Mr Ahamed, Mr Hashwani and Mr Jivraj to abandon the arbitration.

It is common ground that during this period nothing happened in relation to the arbitration. Relevant events can be summarised:

None of the matters described in the preceding paragraph is inconsistent with my analysis of the December 1993 award.

The third of Mr Jivraj’s fallback positions was that even if the arbitration remained on foot after 17 January 1994, the parties abandoned what was left of it “through total inactivity in the arbitration from 1997 to 2008”. In argument the parties relied upon essentially the same points as were made on the second fallback position. The difference in relation to the period now under consideration is that during this period there was no correspondence between the parties and the arbitrator. Thus there was complete inactivity as regards the arbitration. Mr Brindle stresses the difficulty of showing that abandonment can be spelt out of silence, but in relation to the present period there was not silence. There was correspondence between the parties as set out above. It seems to me that the clear inference from that correspondence, together with the complete inactivity as regards the arbitration, was that both sides agreed that there was nothing further to be done in the arbitration. The evidence lodged on behalf of Mr Hashwani makes it clear that, in so far as he envisaged any avenue of relief during this period, it was an avenue which involved recourse to the Community leadership, rather than anything further being done by Mr Ahamed. In these circumstances if, contrary to the view I have expressed in relation to the second fallback position there had been no abandonment agreement earlier, then I consider that the conduct of the parties during the period now under consideration can, together with their earlier conduct, properly be regarded as showing an implied contract of abandonment.

As to January 2008 onwards:

In oral submissions Mr Brindle placed reliance upon the evidence as establishing that, when approached in 2008, Mr Ahamed had not said that he had fulfilled his task as arbitrator. I do not consider that the evidence makes good Mr Brindle’s contention. The only first hand account of what was said by Mr Ahamed is that given by Mr Zaiwalla. He summarises certain of the things that Mr Ahamed said. His statements do not purport to be a complete account of everything that was said by Mr Ahamed. Even if I were willing to assume that Mr Ahamed did not say in 2008 that he had fulfilled his task, a failure by Mr Ahamed to say this in 2008 seems to me to be far too slender a basis upon which to draw any conclusion as to what Mr Ahamed had sought to convey in the December 1993 award, or as to whether the arbitration had ended in some other way.

The fourth of Mr Jivraj’s fallback positions was that even if the arbitration under the Ahamed arbitration agreement remained on foot after 17 January 1994, Mr Hashwani committed a repudiatory breach of that agreement by seeking to start proceedings under the JVA arbitration agreement, and that Mr Jivraj accepted that repudiation “by entering into the argument over the terms and validity” of the JVA arbitration agreement. Mr Brindle gave two answers. First, he said that there was no repudiation, for Mr Hashwani was not purporting to do anything in relation to the Ahamed arbitration agreement. Second, there was no acceptance of any such repudiation. What Mr Jivraj said throughout the 2008 litigation was that the proceedings before Mr Ahamed were at an end. Mr Davies acknowledged that there was an element of artificiality, but this was inevitable when the analysis was being conducted on the supposition that the arbitration before Mr Ahamed had continued after 17 January 1994.

I agree that there is inevitably a degree of artificiality about an exercise of this kind. On the question whether there was a repudiation, it seems to me that I am entitled to take account of the acceptance by Mr Hashwani, in what he said in relation to remedy 5 in his statement of remedies and grounds, that the assertions he now makes involve a contention that the JVA arbitration agreement was superseded with regard to the present dispute by the Ahamed arbitration agreement. I would therefore be willing to hold that by actively relying upon the JVA arbitration agreement Mr Hashwani was repudiating the Ahamed arbitration agreement. That repudiation, however, was as to the nature of the Ahamed arbitration agreement: Mr Hashwani’s contention was that Mr Ahamed was no more than a conciliator.

In the circumstances of the present case, I am not persuaded that I can go behind the avowed basis of the repudiation. It does not seem to me to involve a conditional repudiation to the effect that if the Ahamed arbitration agreement were indeed properly characterised as an arbitration agreement, then it had come to an end. Still less does it seem to me to be possible to identify an acceptance by Mr Jivraj of any such conditional repudiation: in so far as Mr Hashwani by his conduct was repudiating the Ahamed arbitration agreement, Mr Jivraj’s stance was that Mr Hashwani was wrong to repudiate that agreement. Mr Jivraj undoubtedly entered into the litigation, but I do not consider that his conduct in that regard can be characterised as a positive response of any kind to anything that Mr Hashwani had said about the Ahamed arbitration agreement. Accordingly if Mr Jivraj’s earlier fallback positions have failed then I do not think that this fourth fallback position will assist him.

The fifth of Mr Jivraj’s fallback positions was that the conduct of each party in the 2008 litigation, as evinced to the other party and acted on by him, led necessarily to the inference of an implied agreement between them to abandon the contract. The considerations which arise in this regard are essentially similar to those arising on the third fallback position. If the third fallback position has failed, then I do not consider that the fifth fallback position will assist Mr Jivraj.

The sixth of Mr Jivraj’s fallback positions relies on an estoppel. For this purpose it asserts that what happened in the course of the 2008 litigation proceeded upon a basis that Mr Ahamed had been released, or at least that for whatever reason there remained no extant arbitration before Mr Ahamed.

Mr Brindle submitted that Mr Jivraj’s contentions about estoppel relied on silence and inaction, and thus lacked the unequivocal character necessary for an estoppel. I do not agree. As noted earlier, the evidence of Mr Berkson in paragraph 63 of Berkson 2013 is that the 2008 litigation proceeded throughout on the premise that there were only two possible forums for the resolution of the claim which Mr Hashwani wished to make. Neither of them involved “some sort of rejuvenation of an arbitration before Mr Ahamed”. This seems to me to be plainly right and Mr Hashwani does not contend otherwise. That premise to the 2008 litigation does not appear to me to be in any way equivocal. Mr Berkson states at paragraph 62 of Berkson 2013 that if Mr Hashwani had made clear that he wished to keep open the possibility that Mr Ahamed had been an arbitrator, then Mr Jivraj would have taken that aspect forward. In my view it is not simply Mr Jivraj who would have wished to take that aspect forward. As observed by Mr Berkson, the court would have taken an active interest from the perspective of case management. It is too late now, in my view, for Mr Hashwani to go back on the premise which underlay his stance in the 2008 litigation. Accordingly I conclude that Mr Jivraj’s sixth fallback position succeeds.

For the reasons given above I conclude that Mr Jivraj’s primary contention is right: the arbitration came to an end with the issue of the December 1993 award. Even if that were wrong, however, the arbitration came to an end in early 1998 for the reasons given in relation to Mr Jivraj’s second fallback position, alternatively no later than the end of 2007 for the reasons given in relation to Mr Jivraj’s third fallback position, alternatively no later than 27 July 2011, for the reasons given in relation to Mr Jivraj’s sixth fallback position.

Delay on the part of Mr Hashwani

The relief sought by Mr Hashawni is discretionary. Mr Brindle did not contest that in general in matters concerning arbitration, including an application under section 10(1)(b) of the 1950 Act, the court’s approach will be that any application to the court for relief must be made promptly. Nor did he suggest that, in so far as delay would be relevant, Mr Hashwani is in any better position because the application is now founded on the death of Mr Ahamed, It was thus not in dispute that, to the extent that delay was relevant, Mr Jivraj could rely upon delay in seeking to invoke the court’s power to remove and replace Mr Ahamed prior to his death.

Submissions on this aspect on behalf of Mr Hashwani began by identifying particular reasons why that general stance could not be relied upon by Mr Jivraj in the present case. Two features were identified, each of which was, in effect, said to amount to a knockout blow against any complaint about delay. If those suggested knockout blows were to fail, then Mr Hashwani relied upon an analysis of successive periods of delay. In relation to each such period, it was submitted that there were particular reasons why it would be inappropriate for the court to regard the delay in question as justifying a refusal to grant relief.

I begin with the two suggested knockout blows. Both involved the undisputed fact that PHPI has not, thus far, been dissolved, wound up or liquidated.

The first suggested knockout blow asserts that under the December 1993 award it was for Mr Jivraj in his capacity as managing director to arrange for dissolution, winding up or liquidation as may be appropriate. His “contumacious” refusal to do this and to make a capital equalisation payment to Mr Hashwani was what gave rise to these proceedings. He should not, submitted Mr Brindle, be allowed to rely upon delays that resulted from his own wrong. As to that, if it were clear that any particular period of delay were caused by wrongdoing on the part of Mr Jivraj, then I would have considerable sympathy with the proposition that the delay could be excused. But I am less sympathetic to a general proposition that the court should work on the basis that Mr Hashwani’s claims about the equalisation payment are right, that Mr Jivraj has no excuse for failing to make those payments and has no excuse for failing to arrange for joint venture companies to be dissolved, wound up or liquidated, and that these matters of themselves should debar Mr Jivraj from relying upon delay. The evidence as to what happened in relation to the proposed higher corporate tier acquisition suggests, to put it at its lowest, that there was good reason to doubt whether this attempt at tax avoidance could survive challenge, especially if Mr Ahamed were right when he said that the sales which had taken place were sales of the operating companies as contemplated by the panel. The evidence in Berkson 2008 was that the tax authorities retained the ability to challenge Mr Hashwani’s version of what occurred. Even if a stage were reached where it was clear that there would be no such challenge, it does not seem unreasonable on the face of it for Mr Jivraj to complain that the amount paid by Mr Hashwani was an amount computed as the price for a purchase of the operating companies which would carry with it an obligation on the part of the purchaser to meet the associated tax liability. I noted in section D2 above what was said by Mr Ahamed in the January 1994 reflection request letter about this, and that it did not appear to me to constitute a ruling on any particular claim by Mr Jivraj at that stage. If it had constituted such a ruling, it seems to me that Mr Jivraj might well have had good grounds to challenge it.

In these circumstances I am not persuaded that I should proceed on the footing that Mr Jivraj’s failure to do what Mr Hashwani wishes him to do gives rise to this suggested knockout blow. I do not consider that Mr Hashwani has shown any such fault, whether in terms of failure to act in accordance with directions of Mr Ahamed or in accordance with the ethos of Ismaili conciliation and arbitration as summarised in the observations at section B1 above, as would entitle the court to take the course proposed by Mr Hashwani in this regard.

The second suggested knockout blow was that PHPI could not stay in existence forever, undissolved. Accordingly, there had to be a reckoning and final accounts, delay or no delay. The unstated premise seems to be that assistance by this court in order to allow the Ahamed arbitration to continue is necessary so as to bring the joint venture to an end. Any such premise appears to me to be unsound. PHPI is a Jersey limited liability company. The courts of Jersey can be expected to have the power to make appropriate orders in relation to the company, whether by way of winding up or otherwise. Mr Hashwani and Mr Jivraj are both equal shareholders in PHPI, and thus Mr Hashwani can be expected to have the necessary standing to bring the matter before the relevant court in Jersey.

When I raised these points with Mr Brindle his first answer was that he doubted whether Mr Jivraj would submit to the jurisdiction of the Jersey court. However on well recognised principles of private international law the Jersey court would have jurisdiction over the status of a Jersey company. It is difficult to see how a decision by Mr Jivraj not to participate in court proceedings in Jersey over the status of PHPI could prevent the Jersey court from hearing and determining a claim by Mr Hashwani concerning that status. Mr Brindle’s second answer was that the potential Jersey jurisdiction was no reason not to carry on with the arbitration agreement. This answer, however, misses the point. The ability to take proceedings in Jersey over the status of PHPI has the consequence that there can be no need to strive artificially to resuscitate the arbitration solely in order to resolve what should happen in future in relation to PHPI.

This second suggested knockout blow is, accordingly, without foundation.

I turn to particular periods which are alleged to constitute delay. In relation to particular periods when Mr Jivraj complains about delay, it seems to me that I must make an assumption (“the extant arbitration assumption”) that the arbitration before Mr Ahamed was still extant during that period. Indeed if it were not extant then Mr Hashwani’s principal claim fails for that reason and questions of delay simply would not arise.

Section E3.2 examines the position between 17 January 1994 and mid 2000, and section E3.3 below examines the position from mid 2000 onwards. In section E3.4 below I deal with general contentions to the effect that it was the conduct of Mr Jivraj and Mr Ahamed which caused delay. In section E3.5 I discuss considerations of fairness in relation to delay.

As regards the position from 17 January 1994 to mid 2000, it is convenient first to deal with the period between 17 January 1994 and the end of January 1998. Mr Hashwani’s outline submissions urged that during this period Mr Ahamed “in fact continued to make determinations”. For the reasons given in section D3.1 to D3.3 above, I would not accept that Mr Ahamed was making “determinations” during this period. Nevertheless, in relation to Mr Jivraj’s complaints about delay, I am proceeding upon the extant arbitration assumption, with the hypothetical consequence that Mr Ahamed still had power to make what I shall call an “implementation award”: an award as to what was required in order to implement the December 1993 award. Mr Ahamed’s December 1994 factual position and responsibility letter had made it clear that he thought that he had no such power. Upon receipt of that letter Mr Hashwani, on the extant arbitration assumption, could have sought a ruling from the court that Mr Ahamed had power to make an implementation award. However, during the period prior to receipt of the April 1995 defeat letter Mr Hashwani appears to have thought that “clarification” by Mr Ahamed might make it unnecessary to try to persuade Mr Ahamed that he had power to issue an implementation award. Accordingly I would not criticise Mr Hashwani for delay during this period.

The next period identified in the outline submissions was from mid-1995 to mid-2000. As to the position in mid-1995, continuing to proceed on the extant arbitration assumption, while Mr Ahamed had expressed himself to be “defeated”, no more than four months had elapsed before Mr Hashwani sent the August 1995 disengagement letter. During that period the parties had entered into the June 1995 MoA. It was legitimate for Mr Hashwani to defer returning to Mr Ahamed until it was clear that the conclusion of the June 1995 MoA would not lead to a change in Mr Jivraj’s stance. Accordingly, I do not consider that a justifiable complaint of delay can be made in relation to the period prior to Mr Hashwani’s August 1995 disengagement letter. For these reasons I do not accept the contention in paragraph 12(a) of Mr Jivraj’s answer that any application for relief in respect of Mr Ahamed’s conduct of the arbitration should have been made by 1995, at the very latest.

Turning to the period from 1995 to mid-1997, Mr Ahamed had responded to Mr Hashwani’s August 1995 disengagement letter, and engaged in correspondence which, in the October 1995 ‘you must convince me’ letter, indicated a willingness to go back on his November 1994 stance of inability to make an implementation award.

By mid-1997, however, the position appears to me to have become markedly different. Mr Ahamed had returned to his November 1994 stance, Mr Hashwani had described the arbitration as “a joke”, had repeatedly requested that the Community give him a free hand to proceed in the courts, and in his July 1997 top priority fax had made it clear that he insisted upon an order by Mr Ahamed “immediately” – an insistence which failed to produce any response from Mr Ahamed.

Mr Brindle denied that there had been any delay at all prior to the correspondence in 2000. During that period, he submitted, the position was that Mr Hashwani had complained about Mr Jivraj’s behaviour, that Mr Ahamed had had “various reactions”, and that while Mr Hashwani was pressing Mr Ahamed, Mr Jivraj was dragging his heels. It was hopeless, submitted Mr Brindle, to say that there was inordinate and inexcusable delay during that period.

I do not accept Mr Brindle’s characterisation of what happened during the period 1997 to 2000. Mr Jivraj had adopted a stance which, right or wrong, was clear. In addition to a firm insistence that nothing was owing from him to Mr Hashwani, and indeed that it was Mr Hashwani who owed him money, it involved two additional elements. Both of these additional elements pointed clearly to the court as the necessary and appropriate forum if Mr Hashwani were to achieve what he wanted.

The first element of Mr Jivraj’s stance was that Mr Ahamed in his role as arbitrator had said he would not get involved in implementation, and accordingly had no arbitral power to issue an implementation award. As to this element, by mid-1997, it was apparent that even if the extant arbitration assumption were correct Mr Ahamed did not believe this to be the case and accordingly had no intention of issuing an implementation award.

The second element in Mr Jivraj’s stance was that if Mr Hashwani wished to commence litigation, Mr Jivraj could not stop him from doing so. As to this element, I have no doubt that Mr Hashwani felt strongly that the issues between the parties should be resolved within the Community. Nonetheless, however, he had recognised in his December 1995 freedom request letter that if the Community resolution that he sought could not be obtained then he would have to pursue other alternatives. For the reasons given above, by mid-1997 it was clear that Mr Jivraj would not do what Mr Hashwani wanted, that Mr Ahamed would not do what Mr Hashwani wanted, and that the only way that Mr Hashwani could obtain a coercive order for what he wanted would be by litigation.

In these circumstances I consider that the court, if its assistance had been sought in 2000 or thereafter, would have concluded that delay continuing up to the end of 1999 was inordinate and inexcusable, and was too great to permit the grant of relief. Mr Hashwani would, by the end of 1999, have known for more than 2 years that neither Mr Jivraj nor Mr Ahamed would do what he wanted. He would thus, by the end of 1999, have had more than 2 years in which to try to obtain within the Community a solution that was acceptable to him.

I acknowledge that seeking assistance from the court would run counter to observations [1], [2] and [6] in section B1 above. Strict adherence to the principles underlying those observations might be thought to preclude litigation at any stage, at least without the permission of the Aga Khan. If, however, Mr Hashwani were to reach the view that despite what is set out in all the observations in section B1 above, he nevertheless wished to bite the bullet and seek the assistance of the court, then established principle required him not to delay. It was and is an elementary principle that those seeking the court’s assistance in arbitration claims must act promptly.

Mr Zaiwalla has said in paragraph 32 of Zaiwalla 2014 that Islamic religious principles expect every member of the Community to honour his debt, and do not recognise any period of limitation. Thus if the only remedy sought by Mr Hashwani had been a Community remedy, he might not have needed to worry greatly about delay. However if Mr Hashwani were to seek assistance from the court, then the elementary principle identified above would require a very different approach. Mr Hashwani does not suggest that he was under any misapprehension in this regard.

Accordingly, on the material before me, I conclude that if there were to be a decision to bite the bullet, then it ought to have been taken within at most a few months of the unanswered July 1997 top priority fax. By the end of 1999 Mr Hashwani’s delay can only, on the material before me, be regarded as inordinate and inexcusable.

In the light of my conclusion in section E3.2 above, I can deal with later periods more briefly. If a court were persuaded that delay into 2000 should not bar relief, Mr Hashwani contends that delay after 2000, and throughout the period of military government in Pakistan, can be excused as having been caused by GSC’s October 2000 ‘you will have no objection’ letter. I do not consider this to be the case. The material before me includes a generalised description by Mr Hashwani of his concerns. It also includes the body of the letter dated 5 June 2001 from Mr Hashwani to Dr Sachedina, referring to Mr Jivraj having “resorted to blackmail”. But Mr Hashwani has given no such explanation as would enable the court to know precisely what he feared would be disclosed to the military government. Nor has he given any such explanation as could enable the court to form a view as to the reasonableness of a decision to defer seeking assistance from the court under section 10 of the 1950 Act – if indeed that particular course was the subject of specific consideration by Mr Hashwani. Among other things, the April 2002 closure of investigations letter suggests that Mr Hashwani had little to fear from the military government. Mr Brindle sought to explain it away orally, but he had no evidential basis for doing so. A copy had been attached to an email sent by Zaiwallas to Mr Nanji on 19 October 2011, but the email gives no explanation of the circumstances in which the April 2002 closure of investigations letter came to be written.

Even if delay could be excused until the military government in Pakistan came to an end, it could not in my view conceivably be excused once the decision was taken to issue the November 2008 claim. At that point Mr Hashwani had decided to seek the assistance of the court. I have concluded in section C above that it is an abuse of process for Mr Hashwani to bring the present proceedings now, without having during the period from November 2008 onwards informed the court that if the Ahamed arbitration were still live he would wish to seek relief under section 10 of the 1950 Act. Even if the claim were not struck out for abuse of process, the fact remains that Mr Hashwani could have brought these proceedings in November 2008. Mr Brindle submitted that there was no delay because other, different, proceedings were being fought. I cannot accept this: there was plainly a delay, and the fact that other proceedings were being fought provides no satisfactory excuse for that delay.

Finally, in relation to the successive periods of delay, I turn to the correspondence between the parties following the assertion on 5 October 2011 by Zaiwallas that the Ahamed arbitration was not complete. On 19 October 2011 Zaiwallas stated to Hill Dickinson that Mr Hashwani would wait for a period of two weeks to receive and consider a Community response before making his application to the court. Far from waiting just two weeks, Mr Hashwani waited nearly a year and a half until the present proceedings were issued on 13 March 2013. This was despite clear advice from Mr Nanji on 23 May 2012 that, if legal proceedings might be prejudiced by delay, Mr Hashwani should not wait for further guidance form the Aga Khan. That advice was repeated on 4 August 2012. It should not have been necessary to repeat it.

Mr Brindle did not deal with this aspect in his opening oral submissions. In reply he made assertions that it was right for Mr Hashwani to seek to involve the Community at this stage, and that Mr Jivraj had “gone along with it”. Neither of these assertions is well founded in relation to the period immediately following the Supreme Court’s judgment. By the time now under review Mr Hashwani had long since bitten the bullet: he had decided to litigate in 2008. If he wanted to be able to invoke the court’s assistance in the new way that was asserted on his behalf, and if he were “right” in thinking that he should first go back to the Community, Zaiwallas’ letter of 19 October 2011 envisaged no more than a fortnight’s delay for this purpose. The letter implicitly recognised that no more than a short delay could be justified if, as threatened in the letter, there were to be an application to the court. Waiting for more than a year could on no view be “right”.

As to Mr Jivraj having “gone along with it”, the short answer is that there is no evidence of him doing so. There is nothing in the evidence to suggest that Mr Jivraj was content for Mr Hashwani to delay for more than a year before bringing the present claim. Nor is there anything in the evidence which might have entitled Mr Hashwani to think that Mr Jivraj was content for there to be such a delay. Indeed there is nothing in the evidence to suggest that Mr Hashwani himself thought that Mr Jivraj was content for there to be more than a year’s delay.

Moreover, no explanation whatever has been provided for the failure to commence these proceedings immediately after receipt of Mr Nanji’s email of 23 May 2012. This failure alone would fully entitle the court to refuse relief on grounds of delay. Thus if all earlier periods of delay were excusable I would nevertheless have held that the delay during this final period should lead me to refuse relief. For the reasons I have given, however, any claim to relief would have been refused on grounds of delay at a much earlier stage.

I add that as regards all these periods Mr Brindle, in addition to the specific contentions mentioned earlier, advanced a series of general contentions to the effect that it was the conduct of Mr Jivraj and Mr Ahamed which caused delay. I cannot accept these contentions. Mr Hashwani is an astute businessman who has had access to expert legal advice throughout the relevant periods. At each stage he knew what Mr Jivraj was saying and he knew what Mr Ahamed was saying. If he wanted to bite the bullet and seek the court’s help, then he could do so. I note in this regard that what was being said and done, or not said and not done, by Mr Jivraj and Mr Ahamed did not of itself prevent Mr Hashwani bringing these proceedings in March 2013. He had his case ready: it was that the court should decide the correctness of certain aspects of what was said and done, or not said and not done, and the court should appoint a replacement arbitrator to determine the correctness of other aspects. In my view Mr Hashwani could reasonably be expected to have had the same case ready at the earlier stages I have identified above.

In my consideration of delay above I have rejected attempts by Mr Hashwani to blame Mr Jivraj and Mr Ahamed for the delay in bringing the present claim, but have not otherwise examined submissions by each party as to the impact on him of a discretionary decision to allow the claim to proceed or to bar it from proceeding. That is because it seems to me that a court dealing with the matter if a claim had been brought at the end of 1999 or subsequently, and this court dealing with the matter now, is entitled to proceed on the footing that the delay that I have described above is inherently inimical to justice. In my view Mr Hashwani has provided no satisfactory answer to the simple point made in paragraph 86 of Berkson 2013:

… stale claims are an unfair burden and Mr Jivraj, like anybody else, should not be vexed with a claim which is at least 17 years old.

If that is not enough, then as regards Mr Jivraj I deal separately in section G below with the question whether there are specific reasons why it would be unfair to him to allow the arbitration, which on this footing is to be regarded as extant, to continue despite the delay.

As regards Mr Hashwani, I do not consider that a bar on grounds of delay would result in unfairness to him. So far as court proceedings are concerned, it was up to him, and he must have known that it was up to him, to decide whether to bite the bullet and if so when to do so. As explained above, at each relevant stage Mr Hashwani could reasonably be expected to have sought the court’s assistance in much the same way as he eventually did when commencing the present proceedings. He cannot, in my view, now complain that it is unfair to deprive him of remedies which, if he were to seek them at all, he so plainly could and should have invoked so long ago.

For the reasons given in sections E2 and E3 above I conclude that, if Mr Hashwani had brought proceedings in 2000, this court would have refused relief on grounds of delay alone. I also conclude that the court would have reached the same conclusion if the 2013 claim had been brought in the intervening period. Had it been necessary, I would accordingly in the present case have refused relief for that reason.

An intention that a vacancy is not to be supplied?

Mr Hashwani’s outline submissions acknowledged that the principal relief that he seeks can only be obtained if, in the words of s 10(1)(b) of the 1950 Act:

… the arbitration agreement does not show that it was intended that the vacancy should not be supplied …

Mr Jivraj’s skeleton argument identified six features of the Ahamed arbitration agreement which showed that it was personal to him and thus that it was intended that a vacancy should not be supplied. These six features were:

(1)

The parties agreed not to refer their disputes to any other person or body and to act within the context of the Jamat;

(2)

The arbitration was not to be a formal arbitration;

(3)

Mr Ahamed was to decide on the basis of what he considered to be just and equitable;

(4)

Mr Ahamed was not obliged to give reasons;

(5)

Appeals were excluded;

(6)

Mr Ahamed was entitled not to pass to one party all materials received from the other.

In his oral submissions Mr Brindle did not contest that each of these six features is present in the Ahamed arbitration agreement. His contention was that, while it was right that the agreement conferred wide powers upon Mr Ahamed, by signing the Pre-Conditions both Mr Hashwani and Mr Jivraj had agreed that whoever was appointed under the Pre-Conditions would have those powers.

Mr Davies in answer made two points. The first was that the Pre-Conditions did not constitute an enforceable agreement. The second was that Mr Brindle’s submissions failed to recognise that the arbitration agreement constituting Mr Ahamed as arbitrator was not the Pre-Conditions: it was the Ahamed arbitration agreement.

In reply Mr Brindle urged that while the heading to the Pre-Conditions was not particularly promising, the remainder of the document was sufficiently like an arbitration agreement to be binding.

To my mind there can be no doubt that the remarkably wide powers conferred on Mr Ahamed were such as to show that the parties placed their trust in his personal qualities. Mr Brindle in his oral submissions did not confront this. Instead he sought to use the Pre-Conditions as an escape route, in effect saying that the parties by the Pre-Conditions showed a willingness to place their trust in anyone selected by the Aga Khan. In that regard, however, Mr Davies’s second point provides a complete answer. Mr Ahamed was not appointed under the Pre-Conditions. If he had been, then Mr Brindle’s arguments might have had more force: he would be able to urge not only that the Pre-Conditions constituted an arbitration agreement between the parties, but also that the Pre-Conditions did not identify any named individual, leaving the identity of the individual to the Community.

But that is not what happened. I do not need to decide whether the Pre-Conditions constituted an arbitration agreement. Even if they did, the appointment of Mr Ahamed was not under that agreement. The role of the Pre-Conditions became historic. They had served their purpose, and were overtaken, when the Ahamed arbitration agreement was made. Mr Ahamed was appointed under that tailor-made agreement, an agreement to which he himself was a party and which was made by him with Mr Hashwani and Mr Jivraj, they being the investors who appointed him. The undisputed features of the Ahamed arbitration agreement were plainly such as to show that the parties placed their trust in his personal qualities. In these circumstances I conclude that Mr Davies is right to say that the Ahamed arbitration agreement shows an intention that a vacancy is not to be supplied by the court.

I add that what was said in Mr Hashwani’s outline submissions as to the identity of a replacement arbitrator underscores the difficulties in the suggestion that the court could fill the vacancy. It was said, first, that any one of three “eminent retired judges … would be an excellent choice”. Alternatively it was proposed that the court should, as set out in Mr Hashwani’s draft order, direct the parties to make submissions as to selection. In that event Mr Hashwani would be amenable to a direction that the parties ask ICAB to propose suitable candidates for the Court to select. Finally it was said that if Mr Jivraj objected to any arbitrator appointed having a right not to give reasons for his decisions, Mr Hashwani would be “perfectly amenable to consider agreeing to waive this term”. However as regards all these alternatives Mr Jivraj is entitled, in my view, to say that he did not agree to any of these alternatives, and for good measure that the third is no more than an expression of willingness to negotiate. Once Mr Hashwani and Mr Jivraj both agreed that Mr Ahamed should be the arbitrator and that he should have the very wide powers given to him in the Ahamed arbitration agreement, the trust placed in his personal qualities was plainly so great that an appointment by the court would run counter to the essential nature of the agreement. The background to Mr Ahamed’s appointment was a process set out in the Pre-Conditions, but there was nothing in the Pre-Conditions which amounted to an agreement to go through that process again. Still less was there anything in the Pre-Conditions which amounted to an agreement to go through that process with variations of the kind suggested in Mr Hashwani’s outline submissions.

Ability now to resolve disputes fairly?

Mr Jivraj’s answer on remedy and grounds said at paragraph 23(b) that there was no clear starting point for a re-opening of the arbitration. Paragraph 23(b) noted that Mr Ahamed exercised his power not to give reasons for many of his determinations, and submitted that thus there was no explained basis from which to pick the matter up. It added that if anything were to be re-opened, Mr Jivraj would wish to re-visit the basis of the bids for certain of the joint venture assets and issues would arise over the joint venture accounts.

This was amplified in paragraph 84 of Berkson 2013:

84.

A fair investigation of these matters could not now be undertaken. I have pointed out above that definitive signed copies of even key documents such as the Pre Conditions and Mr Ahamed’s appointment do not appear to be available. Mr Jivraj has not, as yet, instigated any search for contemporary documents, but it is almost certain that, given the passage of time, documents will be missing and faxes will have faded to illegibility. The files of the professional advisers engaged on both sides are almost bound to have been destroyed. As for memories, Mr Jivraj is still sharp, although largely retired, at 80 years old, but his recollection of events 20 and more years ago has faded over the years. In addition, while some of those involved, including Naushad Jivraj, remain active, several of Mr Jivraj’s professional advisers from that time have died or retired. It is not realistic to think that a fair investigation of these matters could now be carried out and nor would it be proportionate to a claim for US$1.3m to try.

As noted earlier, Mr Hashwani’s outline submissions asserted that the Ahamed arbitration needed to remain in existence because PHPI was still in existence, and that Mr Jivraj could not complain when it was he who should have wound up PHPI. For the reasons given in section E above, these assertions cannot be sustained. Just as they provide no answer to Mr Jivraj’s complaints about delay, in my view they provide no answer to Mr Jivraj’s complaints about unfairness.

Additional points appear to be made in Mr Hashwani’s outline submissions:

These additional points, however, to my mind all unjustifiably assume that no real difficulty will confront either Mr Jivraj or a replacement arbitrator in relation to two broad tasks which would lie ahead if the Ahamed arbitration were resuscitated. The first would involve establishing precisely what events took place during the relevant period. I have noted in section A2/C of Annex 2 aspects of Mr Hashwani’s own account of payments to Mr Jivraj which are inconsistent with the evidence he has produced in relation to NI Canada. Manuscript annotations identify various figures, but why those figures were adopted is not explained. No evidence has been produced, and no detailed account appears in the material before me, as to what was paid in relation to Rushlake USA and how this was arrived at. In the material before me the position concerning what actually happened in relation to both Canada and the USA is obscure. The second would involve establishing whether and if so how the December 1993 award can be implemented in a way which takes account of those events. Both parties agreed that the capital accounts must be equalised: there was and is no dispute in that regard. Neither in the December 1993 award nor in the subsequent correspondence, however, is there a detailed analysis of the other issues and arguments that would have a bearing on the two broad tasks described above.

As regards Mr Jivraj’s complaints about unfairness, Mr Brindle initially asserted that Mr Jivraj’s skeleton argument had not adopted paragraph 23(b) of the answer on remedies and grounds. In fact, however, the skeleton argument, in a section entitled “A fair trial is no longer practicable” had expressly said that the point was fully developed in Berkson 2013.

Mr Brindle then went on, as to the first part of what was said in paragraph 83 of Berkson 2013, to rely upon five points made in paragraph 61 of Mr Hashwani’s outline submissions:

61.1

The question of what disputes remain yet to be dealt with is a matter for the arbitrator, not for the Court. It would be for the arbitrator to decide what claims could be made.

61.2

So far as Mr Ahamed had already made an Award and determinations, the parties are bound by them, and by virtue of the terms of both the Pre Conditions Agreement and the Ahamed arbitration agreement, bound to carry them out.

61.3

Mr Ahamed would not be able to raise his clause 4 (c) adjustment claim, because it would be a new claim – new claims were ruled out by Mr Ahamed and precluded by clause 3 of both the Pre Conditions Agreement and of the Ahamed arbitration agreement – and was not on Mr Ahamed’s List of Issues to be dealt with.

61.4

In any event, Mr Ahamed himself rejected the claim when Mr Jivraj put it forward in 1995 … . In 1995, Mr Ahamed also rejected Mr Jivraj’s other tax point that there was some potential tax liability that needed to be taken into account in computing the capital account equalization payment … .

61.5

As Mr Zaiwalla points out … Mr Jivraj dots around from time to time in his correspondence or submissions as to which tax point he is running, and changing claims from time to time, but each of the two of Mr Jivraj’s tax related claims are equally unmeritorious.

Mr Davies’s submission in answer was that these points trespassed into the substance of what would need to be decided if the extant arbitration assumption were right. I accept that submission for the reasons given below.

There is one element in what is said in paragraph 61.1 that I can agree with. If, proceeding on the basis of the extant arbitration assumption, the court were to appoint an arbitrator to replace Mr Ahamed, then it would be for the arbitrator in the first instance to consider what disputes remain to be dealt with.

The remaining points in paragraphs 61.1 to 61.5 appear to involve alternative contentions either that Mr Ahamed has ruled out such arguments as Mr Jivraj might wish to raise, or that I can dismiss them as groundless. As to the latter, I am far from persuaded that Mr Jivraj’s contentions would be groundless. As to the former, I have already indicated above that I reject any assumption that no real difficulty will confront either Mr Jivraj or a replacement arbitrator in establishing precisely what events took place during the relevant period, and whether and if so how the December 1993 award can be implemented in a way which takes account of those events. It seems to me strongly arguable that Mr Ahamed constructed the December 1993 award in a way which would enable him not to say anything about such steps as Mr Hashwani might take to avoid tax, that Mr Jivraj’s complaints have evolved as a response to the way in which Mr Hashwani’s case has been put at various times, and that in correspondence after the December 1993 award Mr Ahamed made no such determination as would preclude Mr Jivraj from answering Mr Hashwani’s subsequent contentions.

Accordingly if it had been necessary to do so I would have rejected Mr Hashwani’s principal claim because it would not be fair, just, practicable or proportionate to resuscitate the Ahamed arbitration.

The position if no appointment is made

Mr Hashwani’s statement of remedies and grounds identified heads of alternative relief in the event that his principal claim failed. How they could be sought in the present proceedings was unclear: see, for example, paragraph [5A] of Mr Hashwani’s statement of remedies and grounds, quoted at section B4.9 above.

Mr Hashwani’s outline submissions clarified that only one of these heads was pursued:

71.

If the Court does not make the appointment, the question is: how is the joint venture to be terminated, the capital account settled and the PHPI to be wound up? It would be extremely unfortunate if this litigation did not dispose holistically with this issue.

72.

Both parties are agreed that the ad hoc agreements superseded and replaced the clause 8 arrangements so far as the parties’ disputes concerning termination issues are concerned.

73.

For these reasons, Mr Hashwani submits that, if the Court does not fill the vacancy in the ad hoc arbitration, the parties have no obligation to arbitrate under clause 8 of the joint venture agreement (in relation to which Mr Hashwani has in any event not been able to find an arbitrator meeting the Ismaili qualification in that clause who is willing to act and Mr Jivraj himself has failed and refused to supply any names.)

74.

It would be extremely unfortunate for this litigation not to decide what courses are open to bring the matter to a conclusion and for Mr Hashwani to commence proceedings against Mr Jivraj under the joint venture agreement in England, only to be met with an application for a stay on the grounds that the matters are to be referred to arbitration.

75.

Unless therefore the position is agreed by Mr Jivraj (Mr Jivraj makes some traction in this direction at Bundle 2 page 584 para 17 but does not go the whole way), the Court is invited to determine that, upon it deciding not to fill the vacancy left by Mr Ahamed’s unfortunate death, it is open to Mr Hashwani to bring proceedings in Court to bring the matter to conclusion, subject, of course, to any defences that may available to Mr Jivraj (for example, which is denied, Limitation), but that no stay under the Arbitration Act would be available. The Court is asked so to declare.

I raised with Mr Brindle concerns on my part as to what these paragraphs proposed. Those concerns were that I am dealing only with the present arbitration claim. I am not dealing with future litigation which may or may not take place in this or some other court.

Mr Brindle’s reply was simply that “nothing further will emerge from the woodwork”. This does not seem to me to meet my concerns. I have neither the jurisdiction nor the practical ability to rule as to what would be the position in future litigation. I add that if “new” refers to things which have not been dealt with in evidence in the present arbitration claim, I am far from convinced that nothing new would emerge if there were to be future litigation.

For the reasons given above I dismiss Mr Hashwani’s arbitration claim in the present proceedings.