Chantiers De L'atlantique SA v Gaztransport & Technigaz SAS

An award may be set aside under section 68(2)(g) of the Arbitration Act 1996 only where fraud in the arbitration caused, or will cause, substantial injustice. The applicant must prove deliberate and reprehensible conduct, a causative link between that conduct and the award, and that the new evidence could not reasonably have been obtained at the arbitration. It must also show that disclosure would probably have had an important influence on the result. Fraud before the arbitration is insufficient unless it was continued in the arbitration and affected the award. The court found deliberate concealment and dishonest evidence, but held that disclosure would probably not have altered the tribunal’s conclusion. The application was therefore dismissed.

CAT sought to set aside an ICC arbitration award under section 68(2)(g) of the Arbitration Act 1996. The arbitration concerned a French-law licence agreement for LNG-containment technology. The tribunal had dismissed CAT’s claims, including allegations of design and economic fault.

After the award, CAT discovered that GTT had withheld preliminary test results showing adhesive failures and that later tests had used Mark III rather than CS1 panels. CAT alleged that GTT had concealed those matters before and during the arbitration and had misled the tribunal. CAT also relied on alleged non-disclosure of other documents. The central issues were whether there had been fraud in the arbitration, whether the evidence was sufficiently new and material, whether CAT had acted in time, and whether the alleged irregularity probably affected the award.

1. Extension of time. The application was substantially out of time, but the court granted an extension under section 80(5) of the Arbitration Act 1996 and Civil Procedure Rules 1998, rule 62.9. CAT had acted reasonably in investigating the allegations before issuing its application.
2. Applicable threshold. Section 68(2)(g) is an exceptional longstop remedy. The applicant must prove fraud by cogent evidence. Innocent failures to disclose or innocent false evidence are insufficient. Fraud must occur in the arbitration and must causally contribute to the award. The applicant must also show that the new evidence was unavailable with reasonable diligence and would probably have had an important influence on the result, thereby causing substantial injustice.
3. Findings on conduct. GTT deliberately decided not to disclose the B0 tests and their adhesive failures to CAT in 2005. The letter of 29 June 2005 was deliberately misleading. GTT’s disclosure responses in the arbitration were not dishonest. However, M Chapot deliberately and dishonestly concealed the B0 results from the tribunal and gave the misleading impression that the B1–B5 tests had used CS1 panels supplied by CAT. That amounted to fraud by GTT in the arbitration.
4. Causation and injustice. The B0 tests were preliminary, while later B1–B5, 2397 and shear tests produced largely satisfactory results. Mark III panels adapted to CS1 geometry were technically representative of the CS1 system. The tribunal would probably have reached the same factual conclusion. More importantly, the tribunal had held that even a design fault would not establish liability under the applicable French-law test because CAT had been able to implement the technology after technical modifications. Disclosure would therefore probably not have affected the award.
5. Other allegations. CAT was estopped from reopening complaints concerning the GDF documents, the AMDEC study and document 681. In any event, those allegations lacked merit and could have been pursued before the tribunal. The section 68 application was dismissed.