English Court Upholds s.68 Challenge – Arbitrator Should Have Ensured That Costs Were Pleaded By All Parties

English Commercial Court upholds s68 serious irregularity challenges to an arbitral award holding that the arbitrator should have ensured that costs are pleaded by all parties

Herbert Smith Freehills review the English Commercial Court’s 2017 decision in Oldham v. QBE Insurance (Europe) Ltd [2017] EWHC 3045 (Comm), where the Court held that the arbitrator’s decisions on costs could be challenged on grounds of serious irregularity under s.68 of the English Act on the basis that the applicant had been denied the opportunity to make submissions.

As the authors observe, this is a rare instance of the English Courts intervening in the conduct of an arbitration in order to protect the integrity of the process, and ensure equal treatment of parties to the arbitration, and significant due to the Court’s clarification that the duty of the arbitral tribunal to act fairly and impartiality as between the parties under the Act applies with regard to the arbitrator’s decisions on costs.

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About Phillip Rompotis

Phillip practices as a barrister and arbitrator in Hong Kong. He has over 25 years’ litigation and arbitration experience in commercial disputes relating to construction & engineering, financial services, joint venture & shareholders agreements, technology, trusts, property and landlord & tenant. He is a Fellow of the Chartered Institute of Arbitrators, the Singapore Institute of Arbitrators, the Malaysian Institute of Arbitrators, and a member of various lists/panels of arbitrators.

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