UK Law and Practice Contributed by: Roger Gherson, Emma Anderson, Cong Gao, Elizaveta Rachkova and Galiya Mustafina, Gherson Solicitors LLP
11. Review of an Award 11.1 Grounds for Appeal
may order specific performance but not in relation to a contract relating to land. Regarding punitive or exemplary damages, the Act does not expressly confer such a power. In Rookes v Barnard [1964] AC 1129, the House of Lords confined exemplary damages to narrow cat - egories, and it is generally accepted that English- seated tribunals are unlikely to award them. An award exceeding the tribunal’s jurisdiction may be refused enforcement under Section 66 of the Act. Additionally, under Section 68 of the Act, awards may be challenged for serious irregularity, including where the tribunal has exceeded its powers. Thus, the par - ties’ agreement and the applicable substantive law together prescribe the effective limits on remedies. 10.3 Recovering Interest and Legal Costs Arbitral tribunals have broad discretion to award both interest and costs pursuant to the Arbitration Act 1996. General practice in English-seated arbitrations typically follows the costs-follow-the-event model rather than a costs-sharing approach. Interest Section 49 of the Act empowers tribunals to award simple or compound interest on sums awarded, for any period up to the date of payment. The parties may agree otherwise, but absent such agreement, the tri - bunal’s discretion is wide. In Lesotho Highlands Devel- opment Authority v Impregilo SpA [2005] UKHL 43, the House of Lords confirmed the tribunal’s autonomy in determining monetary remedies, including interest. Costs The default principle is “costs follow the event” (Sec - tion 61 (2)), meaning the unsuccessful party generally bears the successful party’s reasonable legal costs. However, tribunals retain discretion to apportion costs differently based on party conduct, partial success or other relevant factors. In Fence Gate Ltd v NEL Construction Ltd [2001] EWHC 456 (TCC), the court endorsed this general approach whilst recognising the tribunal’s broad discretionary power.
Under the Arbitration Act 1996, parties may chal - lenge or appeal an award on three grounds: substan - tive jurisdiction under Section 67, serious irregularity under Section 68, or (unless excluded by agreement) a question of law under Section 69. An appeal under Section 69 requires the leave of the court unless all parties agree, and leave is only granted where the tri - bunal’s decision is “obviously wrong” or the question is “one of general public importance” and “open to serious doubt”. Applications and appeals must first exhaust any avail - able arbitral process of appeal or review under Sec - tion 70 (2), and must be brought within 28 days of the award under Section 70 (3). 11.2 Excluding/Expanding the Scope of Appeal Under English law, parties may agree to exclude the right of appeal on a point of law under Section 69 of the Arbitration Act 1996, which is expressly non- mandatory by virtue of the opening words “unless otherwise agreed by the parties” (Section 69 (1)). However, parties cannot expand the court’s appellate jurisdiction beyond questions of law. In Guangzhou Dockyards Co Ltd v ENE Aegiali I [2010] EWHC 2826 (Comm), the Commercial Court held that Section 69 (1) could not be construed as conferring jurisdiction to hear an appeal on questions of fact, even where the parties had expressly agreed to such an appeal. By contrast, Sections 67 (challenge on substantive jurisdiction) and 68 (challenge for serious irregularity) are listed as mandatory provisions in Schedule 1 to the Act and cannot be excluded or expanded by party agreement. Parties may, however, establish an arbitral appellate mechanism (as recognised by the definition of “available arbitral process” in Section 82 (1)) that reviews both law and fact, though this operates as an internal arbitral tier rather than an expansion of the
court’s statutory supervisory jurisdiction. 11.3 Standard of Judicial Review
An appeal on a point of law under Section 69 of the Arbitration Act 1996 applies a deferential standard: leave is granted only where the tribunal’s decision is
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