Xstrata Coal Queensland Pty Ltd & Ors v Benxi Iron & Steel (Group) International Economic & Trading Co Ltd

Under section 79 of the Arbitration Act 1996, the court may extend a contractual or institutional time limit relating to arbitral proceedings where available recourse to the tribunal has been exhausted and substantial injustice would otherwise result. An arbitral rule permitting correction of clerical or similar errors can include clarification or removal of ambiguity caused by an omission, even where the rule does not expressly use those words. The correction process must remain limited and controlled by the tribunal; it cannot become a rehearing. Continuing uncertainty in an award, particularly where it impedes recognition and enforcement, may constitute substantial injustice. The court may exercise its discretion where the application was made without undue delay and extension would assist the arbitral process.

The claimants obtained a London-seated LCIA arbitration award requiring the defendant to pay US$27,846,000. The award treated ICRA OC Pty Ltd as one of the contracting joint venturers, although the contract referred to ICRA NCA Pty Ltd. Recognition and enforcement was refused by the Shenyang Intermediate People’s Court on the basis that ICRA OC was not party to the contract or arbitration agreement.

The claimants sought an extension of time under section 79 of the Arbitration Act 1996 to request the tribunal to correct the award under Article 27.1 of the LCIA Rules 1998. The central issues were whether Article 27.1 permitted clarification of an ambiguity caused by an omission, and whether the statutory conditions for extending time were satisfied.

1. The application was granted. The court exercised its power under section 79 of the Arbitration Act 1996 to extend the time limit under Article 27.1 of the LCIA Rules 1998. The precise form of order was left for discussion with counsel.

2. Article 27.1 was not confined to errors expressly described as clerical or typographical. The words covering errors of a similar nature included clarification or removal of ambiguity arising from an omission. The later express reference to ambiguity in the LCIA Rules 2014 made explicit what had previously been implicit.

3. The proposed application was limited. It would allow the tribunal to explain, by memorandum forming part of the award, how it had dealt with the discrepancy between the names ICRA NCA Pty Ltd and ICRA OC Pty Ltd. It would not permit a full jurisdictional rehearing.

4. Following Torch Offshore LLC v Cable Shipping Inc [2004] EWHC 787 (Comm), an additional-award provision concerned a claim presented but not dealt with, rather than an issue left undetermined in deciding a claim. The present case was instead concerned with clarification of an omission and ambiguity under the correction provision.

5. The statutory prerequisites were satisfied. Available recourse to the tribunal had been exhausted, and substantial injustice would otherwise result because the unexplained discrepancy created continuing uncertainty in the award and impeded the arbitral process. Recognition and enforcement in China remained a matter for the Chinese courts, but correction could assist there and could prevent similar challenges elsewhere.

6. In exercising the discretion, the court applied the guidance in Gold Coast Ltd v Naval Gijon SA [2006] EWHC 1044 (Comm). The circumstances strongly favoured extension, and the claimants had acted without undue delay after learning of the Chinese court’s decision.

First-instance decision. The judgment itself does not state any prior appellate history.