26/04/2017

'A v B – A Section 68 Challenge' Thomas Raphael QC

On 23 March 2017, the Commercial Court (Christopher Butcher QC) gave an interesting judgment rejecting a s. 68 challenge alleging “serious irregularity” in respect of an arbitration award.

The judgment has recently been published in anonymised form.

The challenge failed on the facts but the Court also reached legal conclusions which helpfully clarify the law.

First, in respect of challenges under s. 68(2)(a) alleging breach of the duty of fairness, the Court adopted and extended the reasoning in Sonatrach v Statoil [2014] 2 Lloyd’s Rep 252 which makes challenges to the arbitrators’ findings of fact near impossible.

Second, in respect of challenges under s. 68(2)(d) alleging failure to deal with an issue the Court concluded that failure properly to argue for an issue in a clear way meant that there could be no serious injustice if it was not addressed by the Tribunal – that was the fault of the party who had failed to argue it properly

Third, a challenge was made under s. 68(2)(i) arguing that a dissenting opinion by a dissenting arbitrator was an “admitted irregularity” by “a person vested by the parties with powers over the proceedings or the award” This was rejected, the Court holding that a dissenting arbitrator, not being the majority, had no relevant powers, and that his allegations were not admissions.

Thomas Raphael QC, instructed by Hill Dickinson, acted for the Defendants.