Waste recycling business wins stay in battle with council over appropriate forum to resolve EcoPark dispute

Suez Recycling and Recovery Surrey has won a stay of proceedings in a dispute with Surrey County Council over the provision of waste infrastructure.

Alexander Nissen QC, sitting as a judge of the High Court, was asked by Suez for a stay of proceedings under s.9 Arbitration Act 1996.

He said in Surrey County Council v Suez Recyling And Recovery Surrey Ltd [2021] EWHC 2015 (TCC): “This is one of those cases where the parties have entered into a number of contracts and it is necessary to determine what they ultimately agreed should be the appropriate forum for dispute resolution.”

The two sides originally entered into a contract to build an incinerator but planning difficulties later meant this was abandoned and changed to provision of a gasification process at what became known as the EcoPark.

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This was an existing waste facility which was to be upgraded to have a recycling centre, a new refuse bulking facility, an anaerobic digester and an energy-from-waste (EfW) plant.

Surrey and Suez eventually fell into dispute over what the council said had been considerable delay in the construction and commissioning of the new facilities at the EcoPark.

It said the independent certifier appointed had not issued an acceptance certificate for either the anaerobic digester or the EfW plant although the longstop date had long since passed.

Suez challenged this and said it was due an extension of time and that the facilities had only to pass minimum performance tests - rather than the more stringent reliability tests - to obtain the acceptance certificate.

Mr Nissen said: “I have come to the clear conclusion that the parties in this case intended the dispute resolution provisions of the [original] Waste Disposal Project Agreement to remain applicable for their substantive disputes arising in respect of the construction of the EcoPark.”

Surrey had argued that different arbitration arrangements applied under the three later contracts related to the project.

He said: “The dividing line which I have identified, whereby all substantive disputes about the construction and operation of the EcoPark are subject to arbitration under the WDPA, is far more satisfactory and in accordance with the expectation of commercial businessmen than one which divides the fora for dispute resolution between the construction of the EcoPark on the one hand and its operation on the other.

“That distinction lacks reality where both construction and operation are provided for in [one contract] and, once constructed, the EcoPark is to form part of the entire provision for services under the WDPA.”

Mark Smulian

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