Overview of s.68 Serious Irregularity Challenges

As readers will know, s.68 of the English Arbitration Act provides the basis for challenging an arbitration award where there has been a serious irregularity that has or will cause substantial injustice to the applicant. In a useful overview, Dentons provide an update of the few successful challenges in recent years and also outline the ways in which the parties can assist the Tribunal in procedural matters that can minimise the chances of the award being challenged for serious irregularity.

The authors note the following seven successful s.68 challenges:

  • RJ and another v HB [2018] EWHC 2833 (Comm) (where the Commercial Court set aside an arbitral award for serious irregularity due to the tribunal’s failure to give the parties notice and a proper opportunity to consider and respond to a new point that ultimately affected the arbitrator’s reasoning in the award)
  • Fleetwood Wanderers Ltd (t/a Fleetwood Town Football Club) v AFC Fylde Ltd [2018] EWHC 3318 (Comm) (see our post on this case)
  • P v D [2017] EWHC 3273 (Comm) (where the Court found that the Tribunal had failed to deal with all the issues and remitted the issue to the Tribunal)

noting that five of the seven fell under s.68(2)(a) and three out of the seven under s.68(2)(c), with no successful challenges under the other s.68(2) subsections.

The authors conclude:

“It should, however, be noted that successful challenges on the basis of Tribunals’ deficiencies in case management are extremely rare. Tribunals are still afforded a large amount of flexibility in the way they manage cases and the Courts are rightly reluctant to allow successful s.68 challenges except in the most extreme cases, where there is both serious irregularity and substantial injustice. To do otherwise would undermine one of the key benefits of arbitration – the finality of arbitration awards. As the small number of successful s.68 challenges show, arbitrators should not be unduly fearful that their case management decisions will expose them to successful s.68 challenges, as long as in making them they remain procedurally fair.”

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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