Bandwidth Shipping Corporation v Intaari (‘Magdalena Oldendorrf’): CA 17 Oct 2007

An arbitrator hearing a case, and who appreciated that counsel had failed to take a point, should draw counsel’s attention to the point. No duty could arise if the arbitrator did not himself see the point.
An applicant under section 68 faces a high hurdle in establishing serious irregularity, reflecting the reluctance of the courts to interfere with the conduct of arbitration by the relevant tribunal.
Waller LJ observed: ‘In my view the authorities have been right to place a high hurdle in the way of a party to an arbitration seeking to set aside an award or its remission by reference to section 68 and in particular by reference to section 33. Losers often think that injustice has been perpetrated when their factual case has not been accepted. It could be said to be ‘unjust’ if arbitrators get the law wrong but if there is no appeal to the court because the parties have agreed to exclude the court, the decision is one they must accept. It would be a retrograde step to allow appeals on fact or law from the decisions of arbitrators to come in by the side door of an application under section 33 and section 68.’
Lawrence Collins LJ said of the first instance hearing: ‘As Christopher Clarke J observed, paragraph 280 of the Departmental Advisory Committee Report on the Arbitration Bill has been referred to often in this context. It is unnecessary to set it out again. What it emphasises is that what became section 68 was intended for cases where it could be said that what had happened was so far removed from what could reasonably be expected of the arbitral process that the court could be expected to take action. It was ‘really designed as a longstop, only available in extreme cases where the tribunal has gone so wrong in its conduct of the arbitration that justice calls out for it to be corrected.”
Waller, Lawrence Collins, Gage LJJ
[2007] EWCA Civ 998, Times 31-Oct-2007, [2008] 1 Lloyd’s Rep 7, [2008] Bus LR 702, [2007] ArbLR 7
Arbitration Act 1996 68
England and Wales
CitedABB Ag v Hochtief Airport Gmbh and Another ComC 8-Mar-2006
The court considered the authorities on when an applications to set aside an arbitration award might succeed under section 68.
Held: Any such application faced a high hurdle. It can constitute a serious irregularity that a tribunal determines . .
CitedInterbulk Limited v Aiden Shipping Co Limited (The ‘Vimeira’) CA 1984
The court considered whether an arbitrator had a duty to raise a point missed by counsel.
Held: Robert Goff LJ: ‘In truth, we are simply talking about fairness. It is not fair to decide a case against a party on an issue which has never been . .

Cited by:
CitedED and F Man Sugar Ltd v Belmont Shipping Ltd ComC 18-Nov-2011
Allegation of serious irregularity in arbitration.
Held: The request was refused: ‘the present case can hardly be said to be an extreme case which justice calls out to be corrected.’.
‘Arbitrators are not barred from asking a party . .

These lists may be incomplete.
Updated: 04 February 2021; Ref: scu.259899