English Report Shows Decline in s.68 and s.69 Applications

The recent release of the UK Judiciary’s 2019 Report indicates a reduction in applications brought under s.68 (challenge to award on the ground of serious procedural irregularity) and under s68 (appeals on a point of law). The Report covers the period October 2018 – July 2019.

  • There was a dramatic reduction in s.68 challenges (19 instead of 71 the previous year). While the Report did not highlight the number of successful challenges under s68, they are P v D [2019] EWHC 1277 (Comm), where the serious procedural irregularity concerned failure to cross examine a witness on an important issue, and Fleetwood Wanderers Ltd v AFC Fylde Ltd [2018] EWHC 3318 (Comm) where a serious irregularity was found in circumstances where an arbitrator pursued his own inquiries. The Commercial Court attributed the decline in the number of challenges to potential applicants being deterred by the high hurdle for success.
  • There was a significant reduction in s.69 challenges (39 instead of 81 the previous year). Again, while the Report did not highlight the number of successful challenges under s.69, there have been very few, including Nubiskrug Gmbh v Valla Yachts Ltd [2019] EWHC 1219 (Comm), where the tribunal wrongly found that the applicant (a party to a sale contract) had an obligation to make certain payments to the buyer, and Silverburn Shipping IOM Ltd v Ara Shipping Company LLC [2019] EWHC 376 (Comm) regarding the construction of an obligation in a contract which a tribunal had wrongly held not to be a condition.

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 Hong Kong 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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