Arbitration Tips
Challenging an arbitral award in the English court
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Arbitration Tips Challenging an arbitral award in the English court Finality is one of the key selling points of arbitration. Consequently, challenging an award before the English court is far from easy. There are obstacles in the path of any challenge or appeal and the available grounds are limited and closely scrutinised.
John Abbott
Russell Beard
Partner john.abbott@laytons.com +44 (0)20 7842 8000
Partner russell.beard@laytons.com +44 (0)20 7842 8000
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Arbitration Tips | Challenging an arbitral award in the English court
When can an aggrieved party challenge or appeal an award?
On what grounds can an aggrieved party challenge an award?
Exhaustion of available processes before the tribunal
The scope for challenging an award before the English court is limited. An aggrieved party can:
Before making any application to challenge or appeal an
• challenge the substantive jurisdiction of the tribunal1;
award to the English court, the aggrieved party must first
• challenge the award on grounds of serious irregularity2;
have exhausted any available arbitral process for appeal,
and/or
review or correction of the award. In practice, arbitral rules
• appeal to the English court on a point of law3.
do not often include an appeal process (although the rules of some commodities associations – e.g. GAFTA – do); many do,
We look at each briefly below.
though, provide a process for correcting clerical errors and ambiguities in an award.
Time limits
Challenge to the substantive jurisdiction of the tribunal A party can challenge both:
Applications and appeals to the English court must be brought within 28 days of (a) the award or (b) the date when
• any award by the tribunal as to its own jurisdiction;
the party making that application or appeal is notified of the
• any award made by the tribunal on the merits of the
outcome of a process for the review, appeal or correction of
case.
an award, as above. Challenges to the substantive jurisdiction of the tribunal tend It is important for parties to take into account that the tribunal
to focus on the existence, validity or scope of any arbitration
will decide the date of the award which might not coincide
agreement and the constitution of the tribunal.
with the date that party receives notice of the award (so the clock for a challenge or appeal might start ticking earlier than
Parties cannot contract out of this provision.
parties may think).
Challenge on grounds of serious irregularity The irregularity in question may affect the tribunal, the proceedings or the award and it must cause substantial injustice to the applicant.
1.
Section 67, Arbitration Act 1996 Section 66, Arbitration Act 1996 3. Section 69, Arbitration Act 1996 2.
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Arbitration Tips | Challenging an arbitral award in the English court
Legislation sets out an exhaustive list of the types of irregularity which include: • tribunal failing to comply with its general duties (e.g. to act impartially)
What can a challenge or appeal achieve? The relief available to a party who makes a successful challenge will depend on the nature of the challenge or
• tribunal exceeding its powers
appeal made. The English court has a heavy measure of
• procedural failings by the tribunal
discretion. Relief may include, for example, the following:
• tribunal failing to deal with all the issues put to it • award obtained by fraud
• confirming the award • varying the award in whole or in part
Parties cannot contract out of this provision.
• setting aside the award in whole or in part • remitting the matter to the tribunal in whole or in part
Appeal on a point of law
• declaring the award to be of no effect in whole or in part • making no order
In many cases, this option will not be open. Parties can contract out of the right to appeal on a point of law, either in the arbitration agreement or under the institutional rules which it is agreed will govern the arbitration (e.g. both ICC and LCIA rules waive this right of appeal in favour of finality).
Is it possible to appeal against the decision of the English court? In principle, yes; in practice, a party which is unhappy with the
Even where the parties have not contracted out, permission
decision of the English court will need the court’s permission
from the court is required to launch an appeal on a point
for a further appeal. To obtain permission, the applicant will
of law (the parties may also agree that an appeal may be
need to demonstrate that the appeal has a real prospect of
brought but, in practice, agreement will be rare). The grant
success. Where the applicant seeks to appeal a decision in
of permission is tightly regulated and statistics (see below)
relation to an appeal on a point of law, the court will not give
demonstrate that few applications make the grade.
permission unless it considers that the question is one of general importance or there is some other special reason why
It is important to note that appeals on points of law do not
it should be considered by the English Court of Appeal.
extend to factual findings or procedural errors of the tribunal (serious procedural errors may form a separate basis for challenge under the provision referenced above). The English court will not consider points of law which were not in issue before the tribunal.
Challenges to recognition and enforcement The New York Convention sets out grounds on which parties can seek to challenge the recognition and enforcement of awards. They are addressed in our separate article: Arbitration Tips: Challenging recognition and enforcement of an arbitral award.
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Arbitration Tips | Challenging an arbitral award in the English court
Challenges and appeals in practice before the English court Statistics published by the English Commercial Court demonstrate that the English court is very slow to interfere with an arbitral award. The Commercial Court Users’ Group Meeting Report dated 13 March 2018 reported the following:
Appeal on point of law Year
Applications for leave Leave to appeal to appeal granted
Appeal successful
2015
60
20
4
2016
46
0
0
2017
56
10
1
Challenge on grounds of serious irregularity Year
Applications challenging award
Challenge successful
2015
34
1
2016
41
0
2017
37
0
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Arbitration Tips | Challenging an arbitral award in the English court
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Arbitration Tips | Appointing the Tribunal
Arbitration Our team is experienced in resolving disputes through arbitration and committed to providing outcomes-focused, innovative and commercially minded advice to guide our clients through all stages of the arbitration process. We represent clients from across the globe in arbitrations involving a range of sectors including construction, international trade and commodities, investment treaties and shipping. Our experience spans arbitrations convened through the main international institutions such as the ICC, LCIA, LMAA, DIFC and SIAC as well as on an ad-hoc basis.
Our Team John Abbott
Russell Beard
Partner john.abbott@laytons.com +44 (0)20 7842 8000
Partner russell.beard@laytons.com +44 (0)20 7842 8000
Robert Clark
Simon Foster
Partner robert.clark@laytons.com +44 (0)20 7842 8000
Partner simon.foster@laytons.com +44 (0)1483 407 000
Richard Harrison
Paddy Kelly
Partner richard.harrison@laytons.com +44 (0)20 7842 8000
Partner paddy.kelly@laytons.com +44 (0)20 7842 8000
Rebekah Parker
Will Slater
Partner rebekah.parker@laytons.com +44 (0)20 7842 8000
Consultant will.slater@laytons.com +44 (0)20 7842 8000
Geraint Thomas
Ben Thorogood
Partner geraint.thomas@laytons.com +44 (0)20 7842 8000
Solicitor ben.thorogood@laytons.com +44 (0)20 7842 8000
Daniel Walter Solicitor daniel.walter@laytons.com +44 (0)20 7842 8000
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This information is offered on the basis that it is a general guide only and not a substitute for legal advice. We cannot accept any responsibility for any liabilities of any kind incurred in reliance on this information.
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