English High Court Reviews Principles Applicable to s.68 Serious Irregularity Challenges

In ASA v TL & Clare Ambrose [2020] EWHC 2270 (Comm), the English High Court dealt with a serious irregularity application under s.68 in a dispute concerning various sums agreed to be paid for chartering a ship.

The crux of the complaint by the owner was that the Arbitrator decided two issues on the basis of points which it did not have a fair opportunity to deal with because they were not put forward by either party or their experts, and also because the Arbitrator departed from common ground.

The facts and the Tribunal’s decision are set out in paragraphs 2 – 37 of the judgment.

In relation to the applicable law for applications under s.68, the Court stated (@38-39):

“Section 68(1) enables an award to be challenged on the ground of serious irregularity affecting the tribunal, the proceedings or the award. Section 68 (2) provides that a serious irregularity is one in which the court considers has caused or will cause substantial injustice to the applicant by (a) failure by the tribunal to comply with its duty under section 33 of the Act. Section 33(1)(a) obliges the tribunal to act fairly and impartially as between the parties, giving each a reasonable opportunity of putting his case and dealing with that of his opponent.

39. The principles applicable to a section 68 challenge of the kind in issue in this case were recently summarised by Carr J in Obrascon Huarte Lain SA v. Qatar Foundation for Education, Science & Community Development [2019] EWHC 2539 (Comm), [2019] 2 Lloyd’s Rep 559:

“45. Determining whether or not the duty of fairness has been breached will always be a question of fact and sometimes degree. However, the relevant broad legal principles are uncontroversial and can be summarised for present purposes as follows:

(i) There will generally be a breach of section 33 of the Act where a tribunal decides the case on the basis of a point which one party has not had a fair opportunity to deal with. It is not right that a decision should be based on specific matters which the parties have never had the chance to deal with, nor is it right that a party should first learn of adverse points in the decision against him.

(ii) If a tribunal considers that the parties have missed the point and/or contemplates a completely different basis for a decision, the parties need to be given notice and a proper opportunity to consider the position and respond. This does not mean that every nuance or inference which the tribunal wishes to draw needs to be put to the parties if it differs from that which has been precisely contended for in the arbitration.

(v) In determining whether there has been substantial injustice, the applicant does not need to show that the result would necessarily or even probably have been different. He simply has to show that the tribunal might well have reached a different view and produced a significantly different outcome. It is enough for the applicant to show that the arbitrator reached a conclusion unfavourable to him which, but for the irregularity, he might well never have reached, provided always that the opposite conclusion is reasonably arguable.”

The Court concluded with a salutory reminder to practitioners (@77):

“The grounds the charterer has advanced do not in my view constitute the procedural unfairness necessary for the purposes of section 68(2)(a) of the 1996 Act. This is one of those cases Flaux J referred to in Primera Maritime (Hellas) Ltd v Jiangsu Eastern Heavy Industry Co Ltd [2013] EWHC 3066 (Comm), [50] where a party, in this case the charterer, is seeking to attack an arbitrator’s findings of fact and her evaluation of the evidence on the basis of procedural unfairness when there was none. The application fails.”

See below for our earlier post on the Obrascon case,

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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