The court set out the principles applicable in an application under section 68: ‘a) Perhaps the best summary of the applicable principles relating to section 68 generally, which lies at the heart of these applications is by His Honour Judge Humphrey Lloyd QC in Weldon Plant Ltd. v. The Commission for the New Towns [2000] BLR 496, approved by Colman J. in World Trade Corporation v. Czarnikow Sugar Ltd. [2004] 2 All E.R. Comm: ‘ 28. I do not accept the proposition that simply because the award contains an error which is unfair to a party there must have been a failure to comply with s 33 of the 1996 Act on the part of the tribunal and thus a serious irregularity for the purposes of s 68(2)(a). First, there is nothing in the 1996 Act to suggest that it is intended to allow the court to intervene to put right mistakes of fact or of law which could not have been put right under earlier legislation. The 1996 Act was intended to ‘ restate and improve the law in relation to arbitration’ , and in view of the well-established policy of the courts to intervene only in cases where there had been some unfair treatment or result which warranted intervention, the grounds must remain limited. Secondly, such a proposition, if correct, would enable a dissatisfied party to challenge an award on the grounds of an error of fact or of law under s 68(2) and thereby to open up the whole course of the arbitral proceedings so as to invite the court to conclude that there was some unfairness, whereas it is in my view plain from the Act that the only method of appealing against a decision, as such, is provided by s 69 of the 1996 Act (appeal on point of law). Whilst there will be occasions when there is an overlap between an appeal under section 69 and a challenge under s 68 of that Act the latter should not be used as an indirect method of appealing against a decision of fact, other than in an exceptional case. Thirdly, s 33 is primarily concerned with the tribunal’s failure to conduct the proceedings fairly and impartially, and although a failure to comply with section 33 is placed first in s 68(2), it is in reality more in the nature of a general provision of which section 68(2) contains further examples
Similarly, section 68(2)(d) of the 1996 Act is not to be used as a means of launching a detailed inquiry into the manner in which the tribunal considered the various issues. It is concerned with a failure, that is to say where the arbitral tribunal has not dealt at all with the case of a party so that substantial injustice has resulted, eg where a claim has been overlooked or where the decision cannot be justified as a particular key issue has not been decided which is crucial to the result. It is not concerned with a failure on the part of the tribunal to arrive at the right answer to an issue. In the former instance the tribunal has not done what it was asked to do, namely to give the parties a decision on all the issues necessary to resolve a dispute or disputes (which does not of course mean decisions on all the issues that were ventilated but only those required for the award). In the latter instance the tribunal will have done what it was asked to do (or will have purported to do so) but its decision or reasoning may be wrong or flawed. The arbitral tribunal may therefore have failed to deal properly with issues but it will not have failed to deal with them.
b) The most recent authority under section 68 is the decision of the House of Lords in Lesotho Highlands Development Authority v. Impregilo SPA and Ors [2005] UKHL 43. The proper operation of section 68 is summarised by Lord Steyn at paragraph 28 of his speech: ‘ First, unlike the position under the old law, intervention under s 68 is only permissible after an award has been made. Secondly, the requirement is a serious irregularity. It is a new concept in English arbitration law. Plainly a high threshold must be satisfied. Thirdly, it must be established that the irregularity caused or will cause substantial injustice to the applicant. This is designed to eliminate technical and unmeritorious challenges. It is also a new requirement in English arbitration law. Fourthly, the irregularity must fall within the closed list of categories set out in paragraphs (a) to (i).’
Judges:
His Honour Peter Coulson Q.C.
Citations:
[2005] EWHC 1631 (QB)
Links:
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – O’Donoghue v Enterprise Inns Plc ChD 29-Sep-2008
The tenant sought to appeal against an arbitration award as to his rent. He said that the arbitrator should have allowed him an oral hearing.
Held: The claim failed: ‘the fact that the Arbitrator might have come to a different conclusion if . .
Lists of cited by and citing cases may be incomplete.
Arbitration
Updated: 23 October 2022; Ref: scu.236286
