C. Procedural issues in raising a challenge based on article V(1)(d) [ToC ]
|Applicable NYC Provisions||V(1)(d)|
55. The same result has been reached in cases where the party opposing enforcement has alleged that the arbitral procedure was irregular, but at the same time chose not to participate in the proceedings. In a 1995 decision, a Singapore court held in a case where a party chose deliberately not to participate in an arbitration, that it had waived its rights to criticize the way in which the arbitration proceeding had been conducted.78 Similarly, an English court decided that “in view of the fact that the sellers chose to take no part in the proceedings, it is impossible […] to submit that any failure to comply with the agreement of the parties as to venue had any prejudicial effect as far as [the party] is concerned.”79 A German court has also considered that the participation of a party in an arbitration without raising any objection may be construed as an implicit agreement with the procedural rules applied by the tribunal.80
78. Hainan Machinery Import and Export Corporation v. Donald & McArthy Pte Ltd, High Court, Singapore, 29 September 1995, 1056 of 1994, XXII Y.B. COM. ARB. 771 (1997);
79. Tongyuan International Trading Group v. Uni-Clam Limited, High Court of Justice, England and Wales, 19 January 2001, 2000 Folio No 1143;
80. Manufacturer v. Supplier, in liquidation, Oberlandesgericht [OLG] Munich, Germany, 15 March 2006, 34 Sch 06/05.