the republic of trinidad and tobago in the high court...

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THE REPUBLIC OF TRINIDAD AND TOBAGO

IN THE HIGH COURT OF JUSTICE

CV2012-00046

THE WEST INDIES CRICKET BOARD INC.

Claimant

AND

THE WEST INDIES PLAYERS’ ASSOCIATION

Defendant

JUDGMENT

Before the Honourable Mr. Justice A. des Vignes

Appearances:

Mr. Alvin Fitzpatrick (S.C.) and Mr. Derek Ali for the Claimant

Mr. Douglas Mendes (S.C.) and Mrs Denise T. Haynes for the Defendant

Introduction

1. By Fixed Date Claim Form filed on 4th

January 2012, the West Indies Cricket Board

Inc. (hereinafter referred to as “the WICB”) instituted these proceedings against the

Defendant, the West Indies Players’ Association (hereinafter referred to as “the

WIPA”) seeking, inter alia, orders of this Court to set aside and/or remit the Final

Award of Seenath Jairam, S.C, (hereinafter referred to as "the Arbitrator") dated 7th

December 2011 made pursuant to a Memorandum of Understanding (hereinafter

referred to as “the MOU”) between the WICB and the WIPA.

2. The WICB is responsible for the administration of West Indies cricket throughout the

West Indies and the WIPA is the player representative body of West Indian cricketers.

3. On 25th

January 2012, the WICB filed an Amended Fixed Date Claim supported by an

affidavit of Alana Medford of even date.

4. On 15th

March, 2012, the WIPA filed an affidavit of Dinanath Ramnarine in

opposition.

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5. On 19th

March 2012, I gave directions for the filing of written submissions by the

parties. In pursuance of this Order, the WICB filed written submissions on 16th

April

2012, the WIPA filed written submissions on 8th

May 2012 (with its bundle of

authorities separately filed on 21st June 2012) and the WICB filed reply submissions

on 15th

May 2012.

6. On 15th

November 2012, I heard oral submissions by Counsel for both parties at the

conclusion of which I granted permission to the WIPA to file and serve written

submissions on Article XI, Section 4 (b) of the Collective Bargaining Agreement,

(hereinafter referred to as “the CBA”), with permission to the WICB to file written

submissions in reply. On 7th

January 2013, the WIPA filed its written submissions on

this Article and on 14th

January 2013 the WICB filed its written submissions in reply.

Background

7. By letter dated 28th

January 2010, in accordance with the dispute resolution process as

outlined in the CBA the WIPA issued a notice of dispute to the WICB in relation to

breaches of Article VI (c) and (d) of the MOU. Article VI of the MOU reads as

follows:

(a) Regional Programme of Matches

The WICB will set out, annually, for the period October 1st to

September 30th

, a programme for the regional cricket competitions.

(b) Overseas Programme of Matches

(i) The WIPA acknowledges that the International Cricket Council (the ICC)

has determined a forward programme of international cricket, which

contemplates the WICB sending the West Indies Cricket Team

overseas to play certain matches/series. A copy of the overseas

programme current as at the date of this MOU is set out in Schedule

D.

(ii) The parties acknowledge and agree that the ICC and/or the ICC Member

Countries are entitled to vary the overseas programme during the

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term in accordance with their respective powers. The WICB agrees to

consult with the WIPA in relation to any proposed variations to the

overseas programme.

(iii)The WIPA acknowledges that the WICB is required to comply with the

overseas programme (as amended from time to time) by selecting and

sending teams to participate in the relevant matches/ series.

(iv) The WICB will not agree to increase the number of matches scheduled to

be played under the overseas programme during the term without

reaching prior agreement with WIPA.

(c) Finalisation of Programmes

(i) The WICB and the WIPA will agree on an annual basis, prior to WICB

finalising arrangements relevant to the regional programme and the

overseas programme (including dates, locations, travel and

accommodation arrangements). The WICB will provide the WIPA

with reasonable opportunity to consider the proposed arrangements

prior to adoption.

(ii) The WICB and the Territorial Boards reserve the right to vary the dates

and location of matches played as part of the competitions referred to

in the regional programme but will agree with the WIPA before doing

so.

(iii)The WICB reserves the right to agree to changes in the dates and

locations of matches played as part of the competition referred to in

the overseas programme but the WICB will agree with the WIPA

before doing so.

(iv) The WICB will ensure that it does not agree to changes in the

programmes referred to in Articles VI (a) and VI (b) which fetter the

Players rights under Article VIII.

(d) Minimum Standards

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(i) The WICB and the WIPA agree that there should be minimum standards

pertaining to facilities used by territorial and WICB teams as set out

in Schedule E.

8. Pursuant to Article XI of the CBA, the parties engaged in negotiation and mediation,

which failed to resolve the dispute. As a result, the parties, by letter dated 18th

November 2010, appointed Seenath Jairam S.C. as Arbitrator in the matter.

The WIPA’s claim in the Arbitration proceedings

9. The WIPA claimed that the WICB breached the agreement between the parties. They

averred that the plain and ordinary meaning of Article VI of the MOU suggests that:

1. The WICB must provide the WIPA with reasonable opportunity to consider

proposed arrangements prior to adoption; and

2. On issues identified in Article VI of the MOU, the Respondent cannot proceed

without the agreement of the WIPA.

Particulars of the breach alleged by the WIPA

10. The WIPA alleged that for the period 2009 to 2010, in breach of Article VI (c) (i), the

WICB failed to provide the annual schedule within reasonable time for the WIPA’s

consideration and approval. Additionally, the WICB, without the agreement of the

WIPA, arranged and proceeded to implement the 2009 – 2010 schedule.

11. The WIPA also alleged that on or about 22nd

September 2009, the WICB provided the

WIPA with the proposed schedule for the period October 1st 2009 to September 30

th

2010. This was in contemplation of a meeting to discuss the said schedule. The WIPA

alleged that the proposal did not contain adequate information to allow the WIPA to

properly respond to the proposal. The WICB failed to provide the WIPA with a

reasonable opportunity to consider the proposed arrangements prior to adoption. On

16th

November 2009, the WICB provided the WIPA with a second schedule for the

above mentioned period. Several variations were made to this schedule, which was

eventually finalised by the WICB without the agreement of the WIPA.

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12. With regards to the Regional four day tournament, the WICB unilaterally changed

the format of the tournament. Despite the WIPA’s complaints, the WICB finalised the

tournament without the prior agreement of the WIPA. In breach of Article VI (c) and

(d), the WICB proceeded to implement the varied schedule without agreement of the

WIPA on dates, location, travel and accommodation arrangements and the minimum

standards required by Article VI (c) and (d).

13. With respect to the West Indies under 19 tournament, the WICB breached Article

VI of the MOU because they did not consult the WIPA prior to finalising

arrangements.

14. With regards to the West Indies A team, the WICB did not provide the WIPA with

the opportunity to consider and approve the arrangements and contracts for the team.

The WIPA was therefore unable to negotiate terms and conditions of contract for the

players and the remuneration for the players.

15. With respect to the international series, the WIPA alleged that the WICB finalised

the itinerary without the WIPA’s agreement and increased the number of overseas

matches to be played without prior agreement of the WIPA. The WIPA also alleged

that the WICB inserted an additional T20 international into the schedule. The WIPA

was only made aware of this addition via e-mail and as such they were deprived of the

opportunity to negotiate fees due to the players with respect to the additional match.

The WICB also varied the location and venues for the 2010 home series against South

Africa, in default of agreement with the WIPA.

16. With regards to the Caribbean T20 Series 2010, the WICB arranged and

implemented the details regarding dates, location, travel and accommodation in

default of discussion or agreement with the WIPA. The WIPA was deprived of the

opportunity to negotiate fees for the players and was also faced with difficulty

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because they had indicated to the WICB their intention to host T20 Club Champions

during the period July/August 2010.

17. With regards to the ICC T20 World Cup, the WICB did not provide the WIPA with

information pertaining to these games and the WIPA was therefore deprived of the

opportunity to deliberate on the arrangements for these games.

18. The WIPA also alleged that the WICB has failed in ensure that the Minimum Safety

Standards, which were agreed by the WIPA and the WICB, as set out in Schedule E of

the MOU, have been met at all times.

19. As a result of the WICB’s breaches of Article VI (c) and (d) the WIPA alleged that

the WICB has frustrated the intent and purpose of the CBA. The WIPA alleged that,

as a consequence, they have endured both pecuniary and non-pecuniary losses

including inability to fulfil its obligations to its members in negotiating for appropriate

terms and conditions.

20. The WIPA also asserted that the WICB does not have the power to unilaterally

determine the terms and conditions under which the West Indies Cricket Teams play,

but rather they ought to agree same with the WIPA before scheduling.

21. As a result of the breaches alleged in the WIPA’s Point of Claim, the WIPA sought

the following reliefs:

1. Aggravated damages in the sum of USD$ 422,216,.00;

2. A Declaration that the WICB had breached Article VI of the MOU;

3. An Order that the WICB refrain from future breaches of the MOU and the CBA;

4. An account of all the revenue earned by the WICB and details of commercial

arrangements for the additional T20 match in the Home Series against South

Africa in 2010;

5. Costs and interest; and

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6. Such further and or other reliefs the Arbitrator deems fit.

WICB’s Defence in the Arbitration proceedings

22. The WICB submitted that they made several attempts to engage WIPA on the

suitability of venues for the matches for the 2009/2010 schedule. No complaints were

ever made to the WICB by the WIPA on the venues and, as such, the WICB settled

the venues for the matches.

23. With regards to the Regional One Day Tournament, WICB contended that the

schedules for these matches were agreed between the parties after a consultative

process.

24. With regards to the Regional Four Day Tournament, the WICB contended that the

WIPA was informed of the schedule for the tournament but did not act promptly in

responding to the information put forward by the WICB and that the WICB acted in

accordance with the spirit and intent of Article VI (c) of the MOU.

25. With regards to the 2009/2010 under 19 Tournament, WICB contended that the

WIPA knew of the schedule for the tournament and did not raise any issue with it.

26. With regards to the 2009/2010 WI A Team Tours, the WICB contended that the

WIPA was aware that the West Indies would play several matches against Zimbabwe

when the latter team toured the West Indies. The WIPA however made no complaint

about the fixtures.

27. With regards to the 2009/2010 Caribbean Twenty 20 tournament, the WIPA knew

that the tournament was scheduled for October 2010. As at January 28th

2010, no

schedule for this tournament had been drafted.

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28. With regards to the 2009/2010 International Cricket Schedule, the WIPA was made

aware of the schedule by e-mail dated 22nd

September 2009, to which Mr Ramnarine

of the WIPA agreed at a meeting on 12th

October 2009. When the updated schedule

was sent to the WIPA on 16th

November 2009, no complaints were made with regards

to the same.

29. With regards to the ICC T20 World Cup the WICB contended that the schedule for

this tournament is set by the International Cricket Council (ICC) and the WIPA was

well aware of the schedule in advance of the tournament. In addition, they contended

that Article VI of the MOU does not apply to ICC Tournaments.

30. The WICB rejects the WIPA’s contention that the WICB failed to provide the WIPA

with the annual schedule within a reasonable time for its consideration and approval

in breach of Article VI (c) and (d). They denied that the WIPA has suffered any loss

and damage as alleged and further denied that the actions of WICB have prevented the

WIPA from fulfilling its obligations to its membership. They say that the WIPA is not

entitled to any of the reliefs claimed. At paragraph 63 of the WICB’s Points of

Defence, they averred that the schedule of cricket was known to WIPA by its own

admission by way of publication in the press, which was sufficient for WIPA to look

after the interests of its membership. As such they claimed that the WIPA cannot

benefit from its own shortcomings.

The Arbitration Award

31. On 7th

December 2011, the Arbitrator ruled that WICB breached Article VI of the

MOU and ordered that the WICB give a full and complete account of all the revenue

earned by the WICB, including details of all commercial arrangements for the

additional T20 match in the Home Series against South Africa in 2010 as well as

Caribbean T 20 in July 2010. The Arbitrator also made an award that WICB pay

WIPA the following sums:-

(a) US$728,000.00 representing loss of earnings for the Regional 4 Day

Tournament

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(b) A sum equivalent to 40% of the gross receipts after an account is given in the

additional T 20 Match in the Home Series against South Africa in 2010 together

with a sum equivalent to the usual fees paid to players in Caribbean T20

matches.

(c) The sum of US$100,000.00 for loss of sponsorship opportunity.

(d) The sum of US$1916.00 being the cost of mediation

(e) The sum of US$20,000.00 for nominal damages for loss of income for WIPA

T20

(f) The sum of US$114,320.00 for WIPA legal fees to date.

(g) WICB do pay 8/10 of the full costs of the arbitration and to refund WIPA 8/10 of

all fees paid to the Arbitrator for the arbitration and award, inclusive of the costs

of and occasioned by the adjournment.

(h) WICB do pay interest on the sums payable at a rate of 12% per annum from the

date of the award until payment.

The present Claim

32. In the course of oral arguments, an issue was raised by the WIPA regarding the

Court's jurisdiction to determine this case and the WICB pointed to Article XI section

4(b) of the CBA to support the Court's jurisdiction to review errors of law. Counsel

for the WIPA then sought an opportunity to consider the effect of that Article.

Directions were therefore given for both parties to file written submission on this

issue, on which I must first rule.

Effect of Article XI, Section 4(b) of the CBA

33. Article XI, Section 4(b) of the CBA provides that:

“Except on a point of law, the decision of the arbitration tribunal shall be final

and binding upon both parties”

34. In its submissions filed on 7th

January 2013, the WIPA submits that the effect of this

Article is that the arbitrator's award is not binding on the parties on points of law.

Based on the terms thereof, the parties agreed that questions of law decided by the

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Arbitrator are not final and binding and therefore, the Court is not deprived of

jurisdiction to review errors of law, even if the point of law which was decided

erroneously was expressly referred to the Arbitrator for determination. However, the

Court's jurisdiction to review points of law is still limited to those errors of law which

appear on the face of the award.

35. In support of this submission, the WIPA relied on the Privy Council decision of

Champsey Bhara & Co v Jivraj Balloo Spinning and Weaving Co (J.C.) [1923]

AC 480, 497-498 where it is stated that:

“An error of law on the face of the award means…that you can find in the award

or a document actually incorporated thereto, as for instance a note appended by

the arbitrator stating the reasons for his judgment, some legal proposition which

is the basis of the award and which you can then say is erroneous. It does not

mean that if in a narrative a reference is made to a contention of one party that

opens the door to seeing first what that contention is, and then going to the

contract on which the parties' rights depend to see if that contention is sound.”

36. Accordingly, the WIPA submitted that, on the face of the Award, the Arbitrator did

not devote any time in his ruling to exploring the true meaning of Article VI of the

MOU. After examining the arguments of the parties the Arbitrator stated his award.

As such, the WIPA submitted that the Court cannot speculate the reasoning of the

Arbitrator to determine if there was an error on the face of the award. Therefore, the

Court has no jurisdiction to review the award of the Arbitrator.

37. In its submissions in reply filed on 14th

January 2013, the WICB submitted that this

Article sets out the parties' agreement that the Arbitrator's award shall not be binding

on points of law. Therefore, absent any restrictions on the points of law to be

reviewed, it is the expressed intention of the parties that the award may be set aside

for error of law, whether appearing on the face of the Award or otherwise and

notwithstanding that the error arose in answering a specific question of law referred to

the Arbitrator.

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38. In any event, the WICB relies on its earlier submissions to the effect that "error on the

face of the award" means that the award, or a document actually incorporated therein,

includes some legal proposition which is the basis of the award and is erroneous.

Therefore, it is sufficient to show that the Arbitrator erred in his construction of a

contractual term or terms and that his reasoning and/or findings were based on some

erroneous legal proposition. In their opinion, the Article VI of the MOU is patently

incorporated in the award and, if the Arbitrator must have interpreted Article VI to

reach his conclusions, the Court can consider if his interpretation is correct as a matter

of law and, if it is not, may set it aside.

39. On this issue, I am of the opinion that the wording of Article XI, Section 4(b) of the

CBA is clear and unambiguous. The jurisdiction of the court is limited to reviewing

the Arbitrator’s decision only on points of law. Where a ruling is on a point other than

a point of law, the decision of the Arbitrator is final and cannot be reviewed by the

Court. I am not persuaded that the Court is limited to reviewing errors of law that

arise on the face of the Award. There is nothing in the CBA that limits the Court’s

power to reviewing errors of law on the face of the award. Accordingly, provided that

the issues raised by the WICB concern the Arbitrator’s interpretation of points of law,

this court is sufficiently vested with authority to review the decision of the Arbitrator.

40. In any event, I also accept the submissions of the WICB that Article VI is clearly and

expressly incorporated into the Award and since the Arbitrator must have interpreted

Article VI in order to arrive at his findings, this court is entitled to consider if his

interpretation is correct as a matter of law and, if it is not, the Court may set it aside.

The Reliefs claimed by the WICB

(a) The WICB seeks an order pursuant to the inherent jurisdiction of the Court that the

Award be set aside on the ground of error of law in the construction of Article VI of the

MOU;

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(b) An order pursuant to Section 19 (2) of the Arbitration Act and/or the inherent

jurisdiction of the Court that the Award be set aside for error on the face of the Award

and/or for technical misconduct by reason of the Arbitrator failing to decide all of the

matters which were referred to him;

(c) An order pursuant to Section 19 (2) of the Arbitration Act and/or the inherent

jurisdiction of the Court that the Award be set aside for the technical misconduct of the

Arbitrator in determining the parties' rights not only under the MOU upon which the

Arbitration had proceeded but under other alleged agreements which were not pleaded

and/or in respect of which there was no evidence, alternatively no evidence fairly

adduced;

(d) An order pursuant to Section 19 (2) of the Arbitration Act and/or the inherent

jurisdiction of the Court that the Award be set aside for error on the face of the Award

by reason of the Arbitrator coming to a decision based on findings of fact which were

perverse and/or in respect of which there was no evidence to support such findings;

(e) An order pursuant to the inherent jurisdiction of the Court that the Award be set aside

for an error of law appearing on its face in respect of the award of damages;

Alternatively,

(f) An order pursuant to section 18 of the Arbitration Act and/or the inherent jurisdiction of

the Court that the Award be remitted for the reconsideration by the Arbitrator of

WIPA’s claim and WICB’s defence in accordance with the directions of the Court on

the proper construction of Article VI and for such consequential amendments as might

be necessary;

(g) An order pursuant to section 18 of the Arbitration Act and/or the inherent jurisdiction of

the Court that the Award be remitted for the reconsideration by the Arbitrator of the

WICB’s list of issues submitted to the Arbitrator on June 24, 2011, namely:

(i) Whether the failure of two parties to reach agreement can give rise to an action

for breach of a term of contract that requires agreement;

(ii) Whether an alleged breach of Article VI of the MOU, being a term as described

at (i) above, is actionable be either party;

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(iii) Whether there are any consequences that are contained in either the CBA or

MOU or otherwise that flow from a failure to agree as prescribed by Article VI;

in accordance with the directions of the Court on these issues and for such

consequential amendments as might be necessary.

(h) An order pursuant to section 18 of the Arbitration Act and/or the inherent jurisdiction of

the Court that that the Award be remitted for the reconsideration by the Arbitrator of

WIPA’s claim to be entitled to damages with respect to the Regional 4 Day Schedule for

2010 in accordance with the directions of the Court on WIPA’s entitlement to recover

under such claim and for such consequential amendments as might be necessary;

(i) An order pursuant to section 18 of the Arbitration Act and/or the inherent jurisdiction of


WIPA’s claim to be entitled to:

(i) An account of the revenue earned by WICB in relation to an additional T20

match held in the home series against South Africa in 2010 and the Caribbean

T20 competition held in July 2010;

(ii) The payment of monies out of such revenue.

in accordance with the directions of the Court on WIPA's entitlement to recover

under such claim and such consequential amendments as might be necessary.

(j) An order pursuant to section 18 of the Arbitration Act and/or the inherent jurisdiction of


WIPA’s claim to be entitled to damages in respect of a three year sponsorship contract

in accordance with the directions of the Court on WIPA's entitlement to recover under

such claim and for such consequential amendments as might be necessary;

(k) An order pursuant to section 18 of the Arbitration Act and/or under the inherent

jurisdiction of the Court that the Award be remitted for the reconsideration by the

Arbitrator of WIPA’s claim to be entitled to damages for the loss of its T20 Tournament

in 2010 in accordance with the directions of the Court on WIPA's entitlement to recover

under such claim and for such consequential amendments as might be necessary;

(l) An order pursuant to section 18 of the Arbitration Act and/or the inherent jurisdiction of

the Court that the Award be remitted for the reconsideration by the Arbitrator of his

Award with respect to the costs of the mediation process which preceded the

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Arbitration, the legal fees incurred by WIPA, the cost of the Arbitration and interest in

light of the directions of the Court on the matters set out above and for such

consequential amendments as might be necessary.

The Grounds

41. The WICB challenged the Award on 8 grounds and I propose to analyse the

submissions of the parties under these headings. They are as follows :

I. Construction-- the Arbitrator failed to construe Article VI of the MOU in accordance

with the law or at all;

II. Failure to adjudicate-- The Arbitrator failed to consider or decide all matters referred to

him;

III. Outside the Reference and Jurisdiction-- The Arbitrator made findings and awarded

damages based on matters which did not fall for determination under the reference and

therefore acted without jurisdiction;

IV. Causation-- The Arbitrator erred in law in awarding damages which were not caused by

WICB's alleged breach of Article VI of the MOU;

V. WIPA's standing-- The Arbitrator erred in law by awarding damages to WIPA in respect

of the alleged losses of third parties;

VI. Best Evidence and Substantive Procedural Irregularity-- The Arbitrator erred in law

and/or misconducted the proceedings by failing to apply the best evidence rule and/or

endorsing substantive procedural irregularity giving rise to unfairness;

VII. Speculative Damages Award-- The Arbitrator erred in law in awarding damages which

were entirely speculative;

VIII. "Nominal Damages"-- The Arbitrator erred in law in considering that $10,000 could be

"nominal damages".

However, I propose to commence my analysis with Ground II, Failure to adjudicate.

Analysis of Grounds

II. Failure to adjudicate

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42. In his Award, the Arbitrator referred to the Lists of Issues provided by the parties and

expressly referred to Issues (i), (ii) and (iii) of WICB’s issues at paragraph 1.10.

Thereafter, at paragraph 22, he stated as follows:

"[22] Having heard and duly weighed and considered the Points of Re-

Amended Claim, Points of Defence, Points of Reply, the evidence of the parties

(both written and oral) and their respective submissions and their several

allegations, in my judgment issues (i) to (v) inclusive of WIPA's List of Issues set

out at paragraph [1.10] hereof are answered in the affirmative and issue (iv) of

WICB's List of Issues set out under paragraph [1.10] hereof is also answered in

the affirmative. The answer to issue (v) of WICB's List of Issues is in the

negative. In the circumstances, WICB's Issues (i), (ii) and (iii) are otiose on the

basis , inter alia, that there is no counterclaim by WICB against WIPA and no

evidence on which I can rely to determine these issues. Since a court of law does

not decide academic issues, then I too as Arbitrator must take my guidance

accordingly. I therefore decline to answer these issues in these circumstances. It

is my considered view that both the CBA and MOU and in particular the

provisions relied upon herein create serious and binding obligations between

both parties and they are not to be trifled with since a breach of them may cause

serious (and sometimes irreparable)) damage...."

43. WICB submitted that issues (i), (ii) and (iii) were not otiose or academic since it was

crucial for the Arbitrator to determine whether or not Article VI was enforceable or

void for uncertainty. Accordingly, on the face of the Award, the Arbitrator failed to

decide all the matters referred to him rendering the Award bad and liable to be set

aside or remitted for technical or procedural misconduct.

44. In its written submissions in reply, the WIPA submitted firstly that this Court has no

jurisdiction to consider this issue on the grounds that the Court has no inherent

jurisdiction to set aside the Award. However, having regard to my earlier finding that

this Court has the jurisdiction to review the Award if there is an error of law contained

therein, I also reject this submission.

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45. The WIPA also sought to argue that there was no failure to adjudicate by the

Arbitrator since his Award is evidence of his rejection of the WICB’s contention that

Article VI is void for uncertainty and unenforceable. They also argued that since the

WICB did not put any evidence before the Arbitrator that Article VI is void for

uncertainty, they could not now claim that the Arbitrator's statement that he declined

to answer constitutes misconduct and that the issues raised by the WICB were indeed

academic.

46. However, in his oral submissions before me on 15th

November 2012, Senior Counsel

for the WIPA conceded that he did not understand what the Arbitrator meant when he

referred to the issues as otiose.

47. In my opinion, these issues raised by the WICB ought not to have been regarded by

the Arbitrator as academic or otiose. In fact, the underpinning for these issues is to be

found in its Points of Defence at paragraph 35 where it is made abundantly clear that

the WICB considered that these issues were at the core of the matters to be

determined by the Arbitrator:

"In any event, the WICB contends that there is no action known to law as

"failure to agree". The result therefore is that this complaint is misconceived

and/or without merit and must be struck out. This is a legal submission which the

WICB submits should be determined as a preliminary issue and the appropriate

directions given for its full ventilation."

48. I also do not accept the WIPA's submission that the Arbitrator impliedly adjudicated

on the issues and rejected the WICB's contentions. Such an interpretation would be in

clear conflict with the express language used by the Arbitrator when he expressly

declined to answer these issues. Further, I do not agree that the determination of these

issues required the WICB to make a counterclaim or to adduce evidence. The issue

was squarely raised in the Points of Defence and the determination thereof required

the Arbitrator to construe the meaning of Article VI without regard to the evidence.

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49. Accordingly, I find that the Arbitrator, by declining to determine the issues raised by

the WICB, has misconducted the proceedings.

50. Sections 18 and 19 of the Arbitration Act confer on the Court the power to remit any

matter to the reconsideration of the Arbitrator or to set aside an award.

"18. (1) In all cases of reference to arbitration the Court may from time to

time remit the matters referred, or any of them, to the reconsideration of

the arbitrators or umpire.

(2) Where an award is remitted, the arbitrators or umpire shall, unless

the order otherwise directs, make their award within three months after

the date of the order.

19. (i) Where an arbitrator or umpire has misconducted himself or the

proceedings, the Court may remove him, but before making any such

order the arbitrator or umpire may, if the Court so directs, be given an

opportunity of showing cause against such order.

(2) Where an arbitrator or umpire has misconducted himself or the

proceedings, or an arbitration or award has been improperly procured,

the Court may set the award aside."

51. It is well recognised that the court may remit an Award where there has been

misconduct by the Arbitrator.1 Further, in King v. Thomas McKenna Ltd,

2 Lord

Donaldson of Lymingon M.R. expressed the opinion that the jurisdiction to remit

extended beyond the four traditional grounds to any cases where some aspect of the

dispute had not been considered and adjudicated upon as fully or in a manner which

the parties were entitled to expect and it would be inequitable to allow any award to

take effect without some further consideration by the Arbitrator.

1 Halsbury's Laws of England, (3rd Ed.) Vol. 2 para. 121 2 [1991] 2 QB 480 at 491 (C.A.)

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52. The question whether in any particular case where an Arbitrator has been guilty of

misconduct, the Court will remit the award to his reconsideration or will set it aside

depends on the nature of the misconduct.

53. At this stage of my consideration of the grounds of challenge raised by the WICB,

however, I propose to reserve my decision as to whether to remit the award or to set it

aside on the ground of the misconduct of the Arbitrator to the conclusion of my

judgment.

I. Construction

WICB's submissions

54. The WICB submitted that on the face of the Award the Arbitrator failed to apply the

relevant principles of contractual interpretation to the MOU and so he committed an

error of law, thereby justifying the setting aside of his Award.

55. In construing Article VI, the Arbitrator should have construed the whole Article

objectively to come up with a workable meaning which is internally consistent. In so

doing, he should have referred only to the matrix of facts that existed at the time that

the MOU was entered into and not by reference to any evidence of what was said or

done after it was made.

56. Further, the Arbitrator ignored the difficulties and the absurdity that would result from

a literal interpretation of the Article. In his Award, the Arbitrator demonstrated that he

considered that the WICB was under an obligation to obtain the WIPA's agreement to

the programme and the relevant arrangements. However, to impose such an obligation

upon the WICB would effectively transfer control of West Indies cricket scheduling

from the WICB to the WIPA which could not be right. The Arbitrator's interpretation

was an example of a "conclusion that flouts business common sense" and ascribed to

the parties "an intention that they plainly could not have had."

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57. The background matrix of facts, as set out is Article VI (a) and (b), included that the

WICB was responsible for scheduling annually, for the period October 1st to

September 30th

, a programme for the regional cricket competitions and the ICC was

responsible for scheduling the forward programme for international cricket.

58. Article VI (c)(i) provides that "the WICB and the WIPA will agree on an annual basis

prior to the WICB finalising arrangements relevant to the regional programme and

the overseas programme (including dates, location, travel and accommodation

arrangements. The WICB will provide the WIPA with reasonable opportunity to

consider the proposed arrangements prior to adoption." Pursuant to this clause, the

WIPA is entitled to make reasonable suggestions or take reasonable objections in

relation to the proposed arrangements which the WICB should consider in good faith.

In default of agreement, the WICB must be entitled to continue to arrange and

administer the programmes where the WIPA fails to raise reasonable objections.

Where reasonable objections are raised and discussions are ongoing thereon, that

should not delay the finalisation and implementation of the rest of the proposed

arrangements and the programme. An iterative process is essential to the operation of

this arrangement and must have been contemplated by the parties.

59. Accordingly, the WICB cannot be expected to propose, consult and agree all

arrangements for all matches by 1st

October or 3 to 6 months ahead of that date,

especially when the Article imposed no timetable on such agreement to agree or on

the WICB to provide the proposed arrangements. The Arbitrator, in finding that "the

process must commence six months before the end of the contract year on September

30 of each year but in any event no later than three months before September 30 in

each year", failed to distinguish between programmes and arrangements, implied

much into the contract that did not exist, ignored what was stated in the contract,

overlooked the true meaning of Article VI and ignored the iterative process involved

in the development of the programmes and arrangements. The terms implied by the

Arbitrator were patently arbitrary, unnecessary, unworkable and without any basis in

law.

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60. With respect to Article VI (c)(ii), this clause expressly reserved to the WICB and the

Territorial Boards "the right to vary the dated and location of matches played as part

of the competitions referred to in the regional programme but will agree with the

WIPA before doing so." It could not have been the intention of the parties that the

right conferred upon the WICB and the Territorial Boards would be negated by the

requirement that the prior agreement of the WIPA must be obtained since this would

confer a veto power upon the WIPA. When one takes into account the background

matrix of facts, a reasonable interpretation of the clause would be that the WICB

should be able to make reasonable and appropriate variations, potentially at very short

notice. The WICB should consult the WIPA on the proposed variations and the WIPA

should not unreasonably withhold its consent to the proposed variations. The WIPA

would be entitled to raise reasonable objections which the WICB should consider in

good faith and the parties should seek to agree upon the variations. In default of

agreement, the WICB must be entitled to continue to arrange and administer the

programmes, including making variations to the programme and arrangements so as to

ensure that West Indies cricket continues and does not suffer.

61. In respect of Article VI (c)(iii), this clause provides that "the WICB reserves the right

to agree to changes in the dates and locations of matches played as part of the

competitions referred to in the overseas programme but the WICB will agree with the

WIPA before doing so." The WICB submitted that if the ICC seeks to vary the dates

and locations of matches under the overseas programme, the WICB must be entitled

to apply those variations without the WIPA exercising a veto in respect thereof. An

interpretation which gives the WIPA the right to veto the variations of dates and

locations proposed by the ICC under the overseas programme would flout common

sense.

62. Accordingly, the WICB submitted that the Arbitrator should have construed the

words, "will agree" as used in that Article as an unenforceable agreement to agree or

as meaning “will strive to agree" or "will confer with". The Parties shall seek to agree

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and the WICB should consider reasonable objections put forward by the WIPA.

However, the WIPA cannot exercise a veto over the matters set out in Article VI (c)

and the WICB must be entitled to proceed in default of agreement.

WIPA's Submissions

63. In its written submissions filed on the 8th

May 2012, the WIPA submitted that where

the question referred for arbitration is a question of construction, which is generally a

question law, the decision of the Arbitrator cannot be set aside because the Court

would have come to a different conclusion.3 Unless the Arbitrator proceeded illegally,

for example by deciding on evidence which was inadmissible or on principles of

construction which the law does not countenance, mere dissent from the Arbitrator's

conclusion on construction is not enough to set aside the award.4

64. Further, the WIPA submitted that where the question of construction was specifically

referred to the Arbitrator (as opposed to arising in applying the facts to the terms of

the contract), the Court may not interfere with the Arbitrator's decision.5

65. However, in its written submissions filed on the 7th

January 2013, the WIPA accepted

that, having regard to Article XI, section 4 (b) of the Collective Bargaining

Agreement, where the parties have expressly agreed that questions of law decided by

the Arbitrator are not final and binding, the Court is not deprived of jurisdiction to

review errors of law which appear on the face of the award, even if the point of law

which was decided erroneously was expressly referred to the Arbitrator for

determination.

66. Having regard to my earlier finding that Article XI, section 4 (b) of the Collective

Bargaining Agreement confers on the Court the jurisdiction to review errors of law, I

3 King v. Thomas McKenna Ltd [1990] 2 Q.B. 480 at 491 4 Halsbury's (ibid) at para. 127; Kelantan Government v. Duff Development Co. [1923] A.C. 395; National Insurance Property Development Co. Ltd v. NH International (Caribbean) Ltd, (CV 2008-4881 and 4998) 5 F. Absolom Ltd v. Great Western London Garden Village Society [1933] A.C. 592 at 598,602.

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am of the opinion that this Court is entitled to review the Award to determine whether

the Arbitrator committed an error of law in his construction of Article VI of the MOU.

67. With respect to the power of the Court to remit the award to the Arbitrator, the WIPA

submitted that the only applicable ground for remission is that the Arbitrator

misconducted himself. They also sought to distinguish the decision of GKN Centrax

Gears Ltd v. Matbro Ltd6 relied upon by the WICB and submitted that the

contention that the Court may remit under section 18 of the Arbitration Act where

justice cannot otherwise be done is not applicable on the facts of this case.

68. Without prejudice to those submissions, the WIPA submitted that the Arbitrator's

interpretation of Article VI was correct. They submitted that the WICB's argument

that the WICB was authorised to unilaterally determine programmes and is only

required to discuss and agree arrangements with the WIPA was misconceived.

According to their interpretation, the combination of Article VI (a) and (c) (i) required

the WICB to reach agreement with the WIPA on matters such as dates, locations,

travel, and accommodation prior to the finalisation of the programme. With respect to

the finalisation of the overseas programme, Article VI (b) (ii) requires the WICB to

consult with the WIPA in relation to any proposed variations to the overseas

programme and Article VI (b) (iv) prohibits the WICB from agreeing to increase the

number of matches scheduled to be played under the overseas programme during the

term without reaching prior agreement with the WIPA. This limitation is extended in

Article VI (c) (iii) which requires the WICB to agree with the WIPA before changing

the dates and locations of matches played in the overseas programme.

69. Accordingly, the WIPA disagreed with the submissions of the WICB that Article VI is

unworkable and that the WIPA could hold a tour to ransom by withholding

agreement. They submitted that such clauses were quite common in a modern system

of collective bargaining and Article VI must be subject to an implied term that the

6 [1976] 2 Lloyd's Rep. 555

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parties will not withhold their agreement to the other side's proposals without

reasonable cause.

70. The Arbitrator made findings of fact that:

(i) The WICB failed to publish the annual schedule of matches with details

of the proposed arrangements within a reasonable time for the WIPA's

consideration of approval;

(ii) The WICB varied the annual schedule without the WIPA's agreement;

(iii)The WICB finalised the details and arrangements for tournaments and

matches on the annual schedule without obtaining the WIPA's

agreement;

(iv) The WICB made arrangements for the regional and WICB teams which

fell below the agreed minimum standards and without the WIPA's

agreement.

71. All these findings of fact have not been challenged by the WICB and they amounted

to clear breaches of Article VI (c) and (d).

The Law

72. There is no dispute that the relevant principles of contractual interpretation as

summarised by Lord Hoffman in Investors Compensation Scheme Ltd v. West

Bromwich Building Society 7 and in Mannai Investment Co. Ltd v. Eagle Star

Life Assurance Co. Ltd8 were cited by the Arbitrator in his Award.

73. In Investors Compensation Scheme Ltd. v. West Bromwich Building Society,

Lord Hoffman stated as follows:

"The principles may be summarised as follows:

1) Interpretation is the ascertainment of the meaning which the document

would convey to a reasonable person having all the background

7 (1998) 1 All ER 98 at p. 114 8 [1997] AC 749 at 775

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knowledge which would reasonably have been available to the parties in

the situation in which they were at the time of the contract.

2) The background was famously referred to by Lord Wilberforce as the

'matrix of fact', but this phrase is, if anything, an understated description

of what the background may include. Subject to the requirement that it

should have been reasonably available to the parties and to the exception

to be mentioned next, it includes absolutely anything which would have

affected the way in which the language of the documents would have

been understood by a reasonable man.

3) The law excludes from the admissible background the previous

negotiation of the parties and their declarations of subjective intent. They

are admissible only in an action for rectification. The law makes this

distinction for reasons of practical policy and, in this respect only, legal

interpretation differs from the way we would interpret utterances in

ordinary life. The boundaries of this exception are in some respects

unclear. But this is not the occasion on which to explore them.

4) The meaning which a document (or any other utterance) would convey to

a reasonable man is not the same thing as the meaning of its words. The

meaning of words is a matter of dictionaries and grammars, the meaning

of the document is what the parties using those words against the

relevant background would reasonably have been understood to mean.

The background may not merely enable the reasonable man to choose

between the possible meanings of words which are ambiguous but even

(as occasionally happens in ordinary life) to conclude that the parties

must, for whatever reason, have used the wrong words or syntax (see

Mannai Investment Co. Ltd v. Eagles Star Life Assurance Co Ltd [1997]

3 All ER 352.

5) The 'rule' that words should be given their 'natural and ordinary

meaning' reflects the common sense proposition that we do not easily

accept that people have made linguistic mistakes, particularly in formal

documents. On the other hand, if one would nevertheless conclude from

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the background that something must have gone wrong with the language,

the law does not require judges to attribute to the parties an intention

which plainly they could not have had. Lord Diplock made this point

more vigorously when he said in Antaios Cia Naviera SA v. Salen

Rederierna AB, The Antaios [1984] 3 All ER 229 at 233 ....:

'....if detailed semantic and syntactical analysis of words in a

commercial contract is going to lead to a conclusion that flouts

business common sense, it must be made to yield to business

common sense'"

74. In Mannai Investment Co. Ltd v. Eagle Star Life Assurance Co. Ltd, Lord

Hoffman also said:

"....It is of course true that the law is not concerned with the speaker's subjective

intentions. But the notion that the law's concern is therefore with 'the meaning of

his words' conceals an important ambiguity. The ambiguity lies in a failure to

distinguish between the meanings of words and the question of what would be

understood as the meaning of a person who uses words. The meaning of words,

as they would appear in a dictionary and the effect of their syntactical

arrangement, as it would appears in a grammar, is part of the material which we

use to understand a speaker's utterance. But it is only a part; another part is our

knowledge of the background against which the utterance was made. It is that

background which enables us, not only to choose the intended meaning when a

word has more than one dictionary meaning but also, in the ways I have

explained, to understand a speaker's meaning, often without ambiguity when he

has used the wrong words."

75. In the context of this matter, there are several important points that must be

emphasised at the outset:

a) According to the affidavit of Alana Medford, the MOU is dated 1st

October 2006 and therefore that is the relevant date that needs to be

considered in interpreting Article VI thereof;.

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b) The interpretation of Article VI requires the Court to ascertain the

meaning which the document would convey to a reasonable person

having all the background knowledge that would reasonably have been

available to the parties in the situation in which they were at the time of

the contract;

c) The subjective intent of the parties prior to the finalisation of the MOU is

not admissible;

d) A literal interpretation of the words used by the parties in the document is

not determinative of the meaning of the document. The meaning of the

document is what the parties using those words against the relevant

background matrix of facts would reasonably have understood the words

to mean.

76. In my opinion, having cited the relevant principles of construction, the Arbitrator

failed to apply these principles to the construction of Article VI and committed an

error of law in the following respects:

(i) The Arbitrator took into account evidence of what transpired after the

date of the MOU in his construction of the Article;

(ii) The Arbitrator failed to place sufficient emphasis on the fact that by the

express terms of the Article the WICB was responsible for the

programme for regional cricket competitions and the ICC was

responsible for the forward programme of international cricket and that

the WIPA was to be given a reasonable opportunity to consider the

proposed arrangements before they were adopted. Those facts formed

an important part of the background matrix of facts which should have

informed his construction of the Article;

(iii) The Arbitrator rejected the WICB's submission that all that was required

was that the WIPA be given a reasonable opportunity to consider the

arrangements prior to adoption on the grounds that "the freedom to

contract must be respected and the parties have chosen to use

mandatory language to the effect that they 'will agree' on an annual

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basis prior to WICB finalising arrangements." In so doing, the

Arbitrator demonstrated that he was adopting a literal interpretation of

the words "will agree" used by the parties instead of seeking to ascertain

the meaning which the document would convey to a reasonable man

having all the background knowledge that would have been available to

the parties in the situation in which they were at the time of the creation

of MOU.

(iv) By adopting this literal construction of the Article, the Arbitrator failed to

appreciate and/or disregarded the full implications upon the regional

programme and the overseas programme. For example, although by

Article VI (b)(ii) the parties acknowledged and agreed that the ICC and

ICC member countries were entitled to vary the overseas programme

during the Term, by sub-clause (b)(iv) the WICB could not agree to an

increase the number of matches scheduled to be played under the

overseas programme "without reaching prior agreement with WIPA".

Such a construction would effectively undermine the acknowledged

responsibility and power vested in the ICC to determine and vary the

overseas programme and confer upon the WIPA what has been

described as a "veto power" in respect of the finalisation of the overseas

programme of matches. By way of further example, by sub-clause (c)

(ii), the WICB and the Territorial Board reserved the right to vary the

date and location of matches played as part of the regional programme

set by the WICB but any such variation could not be effected until the

WIPA's prior agreement was secured. To my mind, such an

interpretation of Article VI flouts business common sense and must

yield to business common sense;

(v) The Arbitrator's finding that "the process must commence six months

before the end of the contract year on September 30 of each year but in

any event no later than three months before September 30 in each year"

ignored the terms of the Article that did not impose any such timetable.

In so doing, he sought to impose obligations on the WICB that were not

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contemplated by the parties at the time of entering into the MOU. He

also ignored the iterative process involved in the development of a

programme by the WICB and the finalisation of arrangements between

the WICB and the WIPA over the period of a year in the case of the

regional programme. Further, he failed to draw a distinction between

programmes and arrangements as expressed in the Article. Accordingly,

his finding flouted business common sense.

77. It was argued by the WICB that the provisions of Article VI of the MOU are

unenforceable and void for uncertainty. This court disagrees with that submission and

instead chooses to adopt the most reasonable construction of the provisions in dispute

that can be deduced from the provision of the Article VI of the MOU when read as a

whole, in the context of the factual matrix. In the circumstances, I accept the

alternative submissions made on behalf of the WICB that the meaning to be given to

Article VI should be as follows:

(i) Pursuant to sub-clause (b), in the event that the ICC and/or the ICC

member countries seek to vary the overseas programme, including

increasing the number of matches scheduled to be played under the

overseas programme during the Term, the WICB will consult with the

WIPA in relation to any such proposed variations and give them a

reasonable opportunity to consider and make reasonable suggestions or

take reasonable objections in relation thereto before acceptance by the

WICB and the implementation of such proposed variations. In default of

agreement within a reasonable time, the WICB shall be entitled to agree

to such variations;

(ii) Pursuant to sub-clause (c) (i), the WIPA is entitled to make reasonable

suggestions or take reasonable objections to the proposed arrangements

which the WICB should consider in good faith. In default of agreement

within a reasonable period of time, the WICB shall be entitled to

proceed to make arrangements relevant to the regional programme and

the overseas programme. Where reasonable objections have been raised

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by the WIPA and discussions are ongoing thereon, the WICB shall be

entitled to finalise and implement the programme and any arrangements

in relation thereto in respect of which there are no pending objections;

(iii) Pursuant to sub-clause (c)(ii), the WICB and the Territorial Boards will

provide the WIPA with a reasonable opportunity to consider the

proposed variations and to make reasonable suggestions or take

reasonable objections in relation thereto, which the WICB should

consider in good faith. The WIPA should not unreasonably withhold its

consent to the proposed variations and the parties shall seek in good

faith to agree upon the variations. In default of agreement within a

reasonable time, the WICB and the Territorial Boards shall be entitled

to make arrangements and administer the programme, including making

variations in the dates and locations of matches;

(iv) Pursuant to sub-clause (c) (iii), in the event that the ICC and/or the ICC

member countries seek to change the dates and locations of matches

played as part of the overseas programme during the Term, the WICB

will consult with the WIPA in relation to any such proposed variations

and give them a reasonable opportunity to consider and make

reasonable suggestions or take reasonable objections in relation thereto

which the WICB should consider in good faith. The WIPA should not

unreasonably withhold its consent to the proposed variations and the

parties shall seek in good faith to agree upon the variations. In default of

agreement within a reasonable time, the WICB shall be entitled to agree

to such changes.

III. Outside the Reference and Jurisdiction

WICB's submissions

78. The WICB submitted that the Notice of Dispute issued by the WIPA pursuant to

Article XI of the Collective Bargaining Agreement referenced only the failure of the

WICB to agree to the annual scheduling of matches for the international and regional

series of 2009/2010 allegedly in breach of Article VI of the MOU. However,

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notwithstanding the terms of the Notice of Dispute, the Arbitrator made the following

awards in favour of the WIPA:

(i) the sum of US$728,000.00 representing loss of earnings for the

Regional Four Day Tournament based on an alleged understanding

arising out of the WICB's proposal dated 18th

September 2009;

(ii) a sum equivalent to 40% of the gross receipts taken by the WICB in

relation to the additional T20 match played against South Africa;

(iii) a sum equivalent to the "usual fees" for those players who played in

the Caribbean T20 matches based on a portion of the WICB's gross

receipts for those matches.

79. The WICB complained that these awards were made outwith the arbitration for the

following reasons:

a) The WIPA's Notice of Dispute, its pleadings and its List of Issues made no plea

of an agreement with the WICB for 14 matches to be played while only 7

matches were played. Further, in his Award, the Arbitrator did not set out the

basis on which he found that such an alleged agreement existed;

b) The WIPA's Notice of Dispute, its pleadings and its List of Issues made no plea

of any agreement that the players who played an addition T20 match against

South Africa and who played in the Caribbean T20 matches would be paid a

portion of the WICB's gross receipts for those matches.

c) The WIPA admitted in its Re-Amended Points of Claim that the question of

players' fees and entitlements was a matter to be negotiated and that no

negotiations had taken place.

d) Accordingly, there was no basis on which the Arbitrator could have decided that

the parties had made any such agreements to justify his awards.

80. Accordingly, the WICB submitted that the awards are bad and must be set aside since

they are based on decisions which did not properly fall for determination under the

reference and which are irreconcilable with the Arbitrator's recitation of the Parties'

cases and the Lists of Issues.

81. Further, the Arbitrator's decision that the WICB render an account to the WIPA of all

revenue earned by the WICB in relation to the additional T20 match against South

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Africa and the Caribbean T20 matches played in July 2010 should also be set aside for

the following reasons:

(i) the order for the WICB to render an account was intended to facilitate his

awards recited above;

(ii) an order for an account is not a contractual remedy, save in the most

exceptional circumstances. It is a remedy to hold a fiduciary to account

and the WICB is not a fiduciary and the WIPA made no such claim in its

Notice of Dispute.

WIPA's submissions

82. The WIPA submitted that in its Amended Points of Claim it pleaded that "it was

agreed that the fees for the Regional 4 day matches would be US$1,300.00 per match

per player on the understanding that the format of the games would consist of 14

matches." Similarly, it pleaded that the WICB and the WIPA "agreed that the

Regional 4 day Format would consist of 14 rounds of games" but the WICB

unilaterally reduced this amount to 7. Further, it pleaded that upon the commencement

of an additional T20 international against South Africa the players became entitled to

"a share of all revenue earned by WICB for that additional game" and that in the past

the players were entitled to between 35-55% of gross receipts.

83. It was also submitted that there is no requirement that the WIPA detail particulars of

damages suffered in its Notice of Dispute. Since the Notice of Dispute identified a

breach of Article VI as the issue, the damages which flow from that breach is a matter

for determination by the Arbitrator.

84. In respect of the submission that an order for account is not a contractual remedy, the

WIPA submitted that the Arbitrator's finding was one of mixed fact and law. The

Arbitrator's findings of fact cannot be disturbed unless they are not supported by

evidence and since, on the face of the Award, there was no erroneous legal

proposition, the award cannot be set aside on the basis of the Arbitrator's finding of

law.

85. Further, in respect of the order for account of profits, this issue was pleaded and was

discussed during the course of the arbitration.

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Decision

86. In his Award, the Arbitrator recited in some detail the respective submissions of the

WICB and the WIPA on the following issues:

(i) whether the matters to be determined in the arbitration were confined to

matters arising before the issue of the Notice of Dispute dated 28th

January 2010 or could include events which postdate it;

(ii) Whether the Arbitrator had the power to order the WICB to provide an

account of the revenue earned for the additional T20 match against

South Africa;

(iii)Whether the Arbitrator could make an award in respect of the WIPA's

claim for loss of earnings by unidentified players in the Regional 4 Day

matches based on the evidence of Mr. Ramnarine only.

87. Unfortunately, however, the Arbitrator failed to expressly rule on these submissions

but proceeded to make certain awards which imply that he accepted the WIPA's

submissions and rejected those made by the WICB.

88. In my opinion, the Arbitrator committed an error of law in making the awards recited

at paragraph 23 (v) (b) of his Award for the following reasons:

(i) The origin of the complaint by the WIPA is the Notice of Dispute dated

28th

January 2010. This was issued pursuant to Article XI of the

Collective Bargaining Agreement. This Article provides at Section 1 (b)

that: "The party wishing to complain shall serve the other party with

notice in writing that a dispute or grievance has arise and shall in the

said notice state the precise nature of the dispute or grievance ("the

complaint"). The Notice of dispute referred to "the failure to agree to the

annual scheduling of matches for the international and regional series of

2009/2010 and those matters relating specifically thereto as follows:

venues;

accommodation;

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dates;

travel"

(ii) Thereafter, by letter dated 18th

November 2010 the parties sought the

services of the Arbitrator. This letter informed the Arbitrator that "A

dispute has arisen between the parties in relation to Article VI of the

MOU, pursuant to a Notice of Dispute dated January 28, 2010, filed by

WIPA. In accordance with the dispute resolution process contained in

Article XI of the CBA, the parties held good faith negotiations in

February 2010 and mediation on July 29, 2010. The parties have now

agreed to submit the matter to the final stage of the dispute resolution

process, which is arbitration."

(iii)It is clear from the Notice of Dispute and the letter of reference to the

Arbitrator that the dispute was confined to the matters raised therein and

did not include any claim for consequential damages or an account of

revenue earned by the WICB. At the arbitration, the issue of WIPA's

entitlement to seek the remedies of damages and accounts was actively

resisted by the WICB. In support of its contention that matters to be

determined at arbitration were not confined to the Notice of Dispute, the

WIPA sought to draw an analogy with industrial disputes which are

referred to the Industrial Court for determination. They also argued that

the matters in contention were as set out in their Amended Points of

Claim and that no injustice would be caused to the WICB since they

were fully aware of the case to be answered. Further, they submitted that

the breaches complained of were prospective in nature and the

consequences of the breach naturally come to fruition in a period after

the complaint has arisen. Finally, they referred to the principle of

judicial economy and submitted that if the Arbitrator were to find in

favour of the WIPA but was foreclosed from proceeding to deal with the

consequences arising naturally from that breach, then a separate action

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would be put in train. Therefore, it was in the interest of justice that the

instant arbitration deal with all relevant matters. As I said before, the

Arbitrator did not rule on these submissions but proceeded to make his

awards.

(iv) In my opinion, these arguments advanced by the WIPA are without

merit. If a Union complains to the Minister of Labour that a trade

dispute has arisen, that is the matter upon which the parties embark on

conciliation before the Minister. If the matter is not resolved at

conciliation, the Minister issues a certificate of unresolved dispute and

refers the trade dispute to the Industrial Court. When the Industrial

Court gives directions for the filing of Evidence and Arguments, the

parties are restricted to addressing the matters complained of in the

Union's report of a trade dispute. Further, the fact that the WIPA

included in their Amended Points of Claim certain facts that postdate the

Notice of Dispute does not mean that they were entitled so to do and

that no injustice would be caused to the WICB if such matters were

considered and formed the basis for the Arbitrator's decision. Whatever

may have happened after the Notice of Dispute that may have been in

breach of the MOU could have formed the basis of a separate complaint

but could not be incorporated into the complaint herein by simply

referring to those facts in the Amended Points of Claim. It is clear from

the Defence put forward by the WICB and from the Award that the

WICB vigorously challenged the inclusion of such facts in the

arbitration. The argument based on judicial economy also cannot be

justified since the jurisdiction of the Arbitrator cannot be enlarged

simply on the basis that it would save one party time and money.

(v) The Arbitrator was also not entitled to order the WICB to pay for loss of

earnings arising out of the reduced schedule for the Regional 4 day

tournament since this was not covered by the terms of the dispute

referred to arbitration. In addition, since it is not in dispute that only Mr.

Ramnarine gave evidence on behalf of the WIPA at the arbitration and

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that he did not produce any proof of the names of the players who

sustained loss of earnings as a result of the reduced schedule of matches,

the Arbitrator was not entitled to make such an Award in favour of the

WIPA;

(vi) The Arbitrator was also not entitled to order the WICB to pay a sum

equivalent to 40% of the gross receipts taken in relation to the additional

T20 match played against South Africa and to pay the "usual fees" for

those players who played in the Caribbean T20 matches for the reason that

these alleged breaches occurred on or about 10th

February 2010 and

July/August 2010 respectively, that is, after the date of the Notice of

Dispute.

(vii) Based on the Notice of Dispute before him, the Arbitrator was also not

entitled to order the WICB to account to the WIPA for its revenue earned

for the reason that this order was only granted to facilitate the awards he

made in relation to matters that occurred after the date of the Notice of

Dispute and outside his terms of reference.

IV. Causation

WICB's submissions

89. This ground is an alternative submission by the WICB to the effect that the Arbitrator

failed to identify any causal connection between the alleged breach of Article VI and

the damages he awarded to the WIPA.

90. They submitted that the awards made by the Arbitrator for loss of earnings, 40% of

the gross receipts for the T20 international match against South Africa and the usual

fees for those players who played in Caribbean T20 matches could only have been

awarded on the basis of breaches by the WICB of agreements which were not pleaded

and which were not the subject of a finding or holding by the Arbitrator.

91. Further, they submitted that the damages awarded do not flow from a breach of

Article VI on any or comprehensible basis.

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WIPA's submissions

92. In response, the WIPA submitted as follows:

(i) The agreements underlying the damages were pleaded in its Amended

Particulars of Claim;

(ii) The WICB made changes in the Schedules without the agreement of the WIPA

and, as a result of those breaches, players were deprived of income which they

would otherwise have earned, or played additional matches not previously

carded and therefore had to be paid either on an agreed basis or on a question of

merit. As a consequence, there was a causal connection between the breaches

and the damages awarded;

(iii)There was no error of law on the face of the Award so it could not be set aside;

(iv) The Court could not revisit the path of legal reasoning taken by the Arbitrator in

respect of his award of damages, unless some inadmissible evidence is

identified upon which his finding of law is based.

Decision

93. I disagree with the WIPA's submissions on this ground for the following reasons:

(i) For the reasons already given, the WIPA was not entitled to expand its complaint

to include facts which post-dated the Notice of Dispute. Accordingly, it could

not rely on any such allegations of breaches in support of a claim for damages

which was not covered by its Notice of Dispute dated 28th

January 2010;

(ii) The alleged changes by the WICB occurred after the date of the Notice of

Dispute and were not properly considered and/or accepted by the Arbitrator to

justify his award of damages;

(iii) For the reasons already given, the Court has jurisdiction to review the

Arbitrator's Award for errors of law;

(iv) For the reasons already given, the Arbitrator committed an error of law by

making the said awards.

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94. Accordingly, I uphold the submissions of the WICB that the Arbitrator failed to

identify any causal connection between the alleged breach of Article VI and the

damages awarded to the WIPA and that, in so doing, the Arbitrator erred in law.

V. WIPA's Standing

95. This ground is another alternative basis for challenging the award of damages made in

favour of the WIPA. I don't propose to spend much time hereon in the light of my

earlier reasons for deciding that the Arbitrator erred in law when he made the awards.

96. I would only reiterate that the Arbitrator ought not to have awarded damages to the

WIPA on behalf of players who were unidentified and from whom no evidence was

led to prove their losses. The WIPA is the exclusive players' representative and

bargaining agent recognised by the WICB. It may pursue breaches of the MOU or the

CBA on behalf of the players it represents utilising the Dispute Resolution process set

out in the CBA. However, just like a Union, if it complains that its members have

been aggrieved by the breaches of the WICB and have suffered loss of income by

reason thereof, it must frame its complaint in such a manner as to make clear the

persons on whose behalf it makes the complaint and it must adduce admissible

evidence to prove such loss in order to succeed in a claim for damages on behalf of

such players.

97. It is clear from a perusal of the Notice of Dispute that the complaint by the WIPA was

not so framed and it is also not in dispute that it did not lead any admissible evidence

from affected players.

98. Accordingly, this is yet another basis for finding that the Arbitrator erred in law when

he made the awards for loss of earnings, for 40% of the gross profits and for the

"usual fees".

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VI. Best Evidence and Substantive Procedural Irregularity

WICB's submissions

99. The WICB challenged the Arbitrator's award of US$100,000.00 to the WIPA by way

of compensation for the WIPA's loss of sponsorship opportunity on the ground that

he infringed the best evidence rule. Alternatively, they argued that he wrongly

accepted as admissible or attributed weight to secondary evidence regarding the

contents of a document that was not produced in evidence on grounds of

confidentiality.

100. They also submitted that by failing to require disclosure of the document and

accepting the assertion of Mr. Ramnarine as to its existence and terms, the Arbitrator

was guilty of substantive procedural irregularity.

WIPA's submissions

101. In response, the WIPA once again submitted that there was no error on the face of

the Award. In addition, they submitted that the question whether the Arbitrator based

his findings on evidence which was tenuous is a matter that should not be raised in

arbitrations. Further still, they submitted that the complaint of procedural irregularity

pointed to a ground of misconduct by the Arbitrator but the Court does not have an

inherent jurisdiction to remit.

Decision

102. I am of the opinion that the Arbitrator erred in law when he made his Award for

because he ought to have insisted on the production of the original documentation to

support this claim. There were several ways in which the issue of confidentiality

could have been protected, none of which the Arbitrator either considered or insisted

upon. Instead he chose to accept, without explanation, the viva voce evidence of Mr.

Ramnarine as to the existence of such a sponsorship opportunity and the terms

thereof and to award $100,000.00 for loss of sponsorship opportunity.

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103. In addition, an award of compensation for loss of sponsorship opportunity does not

flow naturally from the alleged breach of Article VI as set out in the Notice of

Dispute. Further still, the alleged loss resulted from the inability of the WIPA to host

its own T20 games in July/August 2010 as a consequence of the scheduling of the

Caribbean T20 matches in the same month and therefore arose after the date of the

Notice of dispute.

104. Accordingly, I find that the Arbitrator erred in law when he awarded the WIPA

compensation of US$100,000.00 for loss of sponsorship opportunity.

VII. Speculative damages

105. Having regard to my earlier findings with regard to the Arbitrator's awards at

paragraph 23 (v)(b) of the Award, I consider it unnecessary to embark on any further

consideration of this ground of challenge.

VIII. Nominal damages

106. The WICB challenged the award of nominal damages of US$10,000.00 for loss of

income for WIPA T20 on the ground that such a large amount is no nominal.

107. I am of the opinion that in making this award the Arbitrator fell into error for the

reason that he took into account facts that post-dated the Notice of Dispute. Further,

consistent with my earlier findings, I am of the opinion that any such loss did not

flow from the alleged breaches described in the Notice of Dispute. So apart from the

issue of whether US$10,000.00 could be considered an appropriate amount to award

as nominal damages, (which I am of the view it is not), I have come to the same

conclusion that the Arbitrator erred in law to order any compensation to the WIPA

for the loss of the WIPA T20.

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Disposition

108. Subject to the provision of the Arbitration Act, the question whether an award should

be remitted or set aside altogether is one for the discretion of the Court.[1]

In the

exercise of this discretion and guided by the Court’s power to set aside an award

under section 19 of the Arbitration Act and/or under the inherent jurisdiction of the

Court, I order that the Arbitrator’s decision should be set aside because of the errors

of law in his construction of Article VI of the MOU hereinbefore outlined. Based on

the interpretation of the Article VI adopted by the Arbitrator and the awards

consequent upon his interpretation, I am of the opinion that it will not be appropriate

to make an order for remission of any of matters referred to the Arbitrator for his

reconsideration. The several errors of law in the Arbitrator’s Award constitute

misconduct sufficient to justify an order that the Award be set aside altogether.

109. On the issue of costs, the Arbitrator ordered the WICB to pay 8/10 of the costs of the

Arbitration and 8/10 of all fees legal fees incurred by the WIPA. In this Claim, the

WICB sought an order for the costs of Mediation which preceded the Arbitration and

the Legal Fees associated with it, together with the costs of the Arbitration and

interest on the said sum. I am not inclined to grant an order in favour of the WICB for

costs associated with the Mediation since that does not arise out of the Award of the

Arbitrator which I am called to review. I am however persuaded that the WICB,

having been successful in its claim, is entitled to an award of the costs of the

Arbitration together with the costs of legal fees associated with the Arbitration and

costs in the present proceedings, to be assessed in default of agreement.

Dated this 28th

day of March 2014

André des Vignes

Judge

[1] Halsbury’s Laws of England 3rd Edition Volume 2 Paragraph 119

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