ENGLAND & WALES Law and Practice Contributed by: James Stacey, Peter Wickham, Samantha Holland and William Humphries, Slaughter and May
• “substantial injustice” has resulted or will result from this irregularity. Section 68 is intended to remedy procedural irregulari - ties, not to correct errors of fact or law. The following exhaustive list of circumstances amounting to a seri - ous irregularity is contained in Section 68 (2): • the tribunal has failed to comply with its general duties under the 1996 Act – eg, the duty to give each party a reasonable opportunity to present its case under Section 33; • the tribunal has exceeded its powers; • the tribunal has failed to conduct the proceedings in accordance with the parties’ agreed procedure; • the tribunal has failed to deal with all the issues put to it; • an arbitral or other institution or person has exceeded the powers vested in it by the parties in relation to the proceedings or the award; • there is uncertainty or ambiguity as to the effect of the award; • the award was obtained by fraud or is otherwise contrary to public policy; • the award does not comply with requirements as to form; or • there was irregularity in the conduct of the pro - ceedings or in the award that is admitted by the arbitral tribunal or other institution or person vested by the parties with powers relating to the proceed - ings or the award. A “high threshold” must be met to make a successful challenge under Section 68 ( K v A [2019] EWHC 1118 (Comm)). An applicant may lose its right to bring a Section 68 challenge if it did not act promptly as soon as it thought it had a reason to object and continued to take part in the proceedings (Section 73; Radisson Hotels APS Denmark v Hayat Otel Işletmeciliği Turizm Yatırım Ve Ticaret Anonim Şirketi [2023] EWHC 892 (Comm)). Following a successful challenge, the court may remit the award to the tribunal for reconsideration, set aside the award or declare the award to be of no effect, in whole or in part (Section 68 (3)).
An appeal on a point of law can be brought with the agreement of all other parties to the arbitration or with the permission of the court (Section 69 (2)). An appli - cation for permission to appeal under Section 69 will usually be dealt with on the papers, unless the court considers it necessary to hold a hearing ( Osler v Osler and others [2024] EWCA Civ 516). An applicant must show that: • the appeal relates to a question of law and not fact; • the question arises out of the award; • a determination of the question will “substantially affect its rights”; • the question of law is one that the tribunal was asked to determine; • based on the findings of fact, the tribunal’s deci - sion is “obviously wrong” or, where the question is one of “general public importance”, at least “open to serious doubt”; and • it is just and proper for the court to determine the question. To be open to challenge, a point of law must have been put “fairly and squarely before the arbitration tribunal for determination” ( Sharp Corp Ltd v Viterra BV [2024] UKSC 14). It is not sufficient for an applicant to demonstrate that the tribunal may have come to a different conclusion had it applied the law correctly: the applicant must show that a tribunal that had correctly applied the law could not have reached the conclusion that was reached ( John Sisk & Son Ltd v Carmel Building Ser- vices Ltd (In Administration) [2016] EWHC 806). Following a successful appeal, the court may vary the award, remit the award to the tribunal in whole or in part, for reconsideration in light of the court’s deter - mination, or set aside the award in whole or in part (Section 69 (7)). Procedure A challenge or appeal is started by filing an arbitration claim form under CPR Part 62. Before making a challenge or appeal, the applicant must first exhaust any available recourse in the arbi -
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