BV Scheepswerf Damen Gorinchem v The Marine Institute

An excessive delay in publishing an arbitral award may constitute a breach of the tribunal’s general duty to avoid unnecessary delay under the Arbitration Act 1996. Delay alone, however, does not establish serious irregularity under section 68. The applicant must show substantial injustice, ordinarily by demonstrating that the delay contributed to a failure to deal with an essential issue and that the result might have been different.

Section 68 is concerned with due process, not the correctness or quality of the tribunal’s factual evaluation. Once the tribunal has dealt with an issue, the court cannot use section 68 to criticise the reasoning, treatment of evidence, or factual findings.

The claimant applied under section 68 of the Arbitration Act 1996 to set aside an award concerning damage to the research vessel Celtic Explorer. The arbitrator had published the award 376 days after a three-day hearing.

The claimant alleged that the delay breached the arbitrator’s duties and agreed procedure, and that the arbitrator had failed to deal with the common-cause theory, finite element analysis evidence, maintenance evidence and contributory negligence. The latter two grounds were abandoned. The central questions were whether there had been serious irregularity and whether it had caused substantial injustice.

1. The application was dismissed. The arbitrator’s delay was extremely regrettable, but it did not cause or threaten substantial injustice.
2. Delay in publishing an award is capable of constituting serious irregularity because the tribunal’s general duty under section 33 includes avoiding unnecessary delay. Clause 20 of the LMAA terms, which stated that an award should normally be available within six weeks, was not an immutable procedural rule. In any event, delay without substantial injustice was insufficient.
3. The statutory test requires a high threshold. Section 68 concerns due process rather than the correctness of the award. It cannot be used to circumvent restrictions on appeals on fact or law.
4. An “issue” under section 68(2)(d) is distinct from an argument, point, evidential step or sub-issue. The tribunal must deal with essential issues necessary to resolve the dispute, but it need not address every argument or piece of evidence separately.
5. The arbitrator had dealt with the common-cause theory and the finite element analysis. He identified the competing causes, preferred the claimant’s expert evidence and rejected the defendant’s three alternative causes. That reasoning was sufficient even if it might have been fuller or better expressed.
6. Once an issue has been dealt with, section 68(2)(d) does not permit a qualitative review of the tribunal’s reasoning. Nor can the court investigate whether the tribunal overlooked or gave insufficient weight to particular evidence. Those matters concern factual evaluation and are outside section 68.
7. Even if an irregularity had been established, substantial injustice was not shown. The arbitrator had accepted the claimant’s expert evidence, so the result could not realistically have been different.

First-instance decision. No prior appellate decision was stated in the judgment.