K v S

Under section 70 of the Arbitration Act 1996, a correction request postpones the 28-day period for challenging an award only where the correction is necessary to enable the applicant to know whether grounds of challenge exist. A correction by the original tribunal is recourse under section 57, not an arbitral process of appeal or review. An applicant seeking an extension must explain the delay with evidence and show that the interests of justice require an exceptional departure from the statutory timetable. A challenge brought nearly two months late, without adequate explanation and appearing intrinsically weak, was struck out.

S obtained an arbitral award exceeding US$72 million against K and Y. K sought corrections under article 27 of the LCIA arbitration rules concerning statements about whether it had challenged the tribunal’s jurisdiction. The tribunal issued the corrected award on 9 January 2015, and K issued challenges under sections 67 and 68 of the Arbitration Act 1996 on 6 February 2015.

S applied to strike out the challenges as out of time under section 70(3), and opposed an extension. The issues were whether time ran from the corrected award and, if not, whether the court should extend the 28-day period.

1. A correction by the original arbitral tribunal is recourse under section 57 of the Arbitration Act 1996, not an arbitral process of appeal or review under section 70(2)(a). The 28-day period therefore did not automatically begin again when K received the correction.
2. A correction postpones time only where it is necessary to enable the applicant to know whether it has grounds to challenge the award. K already knew the tribunal’s jurisdictional reasoning and its grounds of challenge. It could and should have issued the challenge on 9 December 2014.
3. Section 73 did not bar K’s jurisdiction challenge because K had objected to the tribunal’s jurisdiction. The award contained sufficient reasons, so an order for clarification under section 70(4) was unnecessary.
4. Applying the principles summarised in Terna Bahrain Holding Co. WWL v Al Shamsi, the nearly two-month delay was substantial. K gave no adequate evidence explaining the delay. Neither S nor the tribunal materially caused it. The primary factors did not justify an extension.
5. The challenge also appeared intrinsically weak. The agreements were signed on behalf of K and identified K as a party. Extrinsic evidence could not vary their true construction. The application was struck out.