S v A & B

An extension of time to challenge or appeal an arbitration award is exceptional. The statutory 28-day period reflects the policy of speedy finality. The court should assess the relevant factors iteratively, including delay, reasonableness, contribution to delay, prejudice and the apparent strength of the challenge.

A challenge under section 68 of the Arbitration Act 1996 is a high-threshold, long-stop remedy concerned with due process rather than the correctness of the award. A tribunal is not generally required to identify supposed common ground by scrutinising isolated passages in submissions or cross-examination where the pleaded issues remained live and the parties had an opportunity to address them.

The claimant sought to challenge an arbitration award concerning two coking-coal sale contracts. The tribunal had awarded damages to the buyers for breach of express contractual specifications and implied terms under sections 13 and 14 of the Sale of Goods Act 1979.

The applications under sections 68 and 69 of the Arbitration Act 1996 were issued 74 days after the statutory 28-day period. The claimant therefore also sought extensions of time under section 80(5). The central issues were whether the tribunal had committed a serious irregularity by deciding contrary to alleged common ground, and whether there was a sufficiently arguable question of law for permission to appeal.

1. The applications for extensions of time under section 80(5) of the Arbitration Act 1996 were refused. The delay was substantial when measured against the statutory period: proceedings were issued 102 days after the award. The claimant had acted unreasonably by failing to secure release of the award or make timely enquiries, despite knowing the significance of the deadline. The buyers’ and tribunal’s contribution to delay did not materially alter that conclusion.
2. The section 68 challenge failed on its merits. The claimant had to establish a breach of section 33 or the agreed procedure, a serious irregularity and substantial injustice. The statutory jurisdiction is a high-threshold long-stop remedy and does not permit a disguised appeal on the facts.
3. Although parts of the buyers’ submissions could be read as suggesting that coal with the certified figures was on-specification, the position was not unequivocal. The pleaded case that the coal failed to comply with clause 2 and the statutory implied terms remained live. The claimant had never plainly stated that compliance at those figures was common ground. The tribunal was therefore not required to identify and adopt that alleged common ground, nor was it required to give further opportunity for submissions or evidence.
4. The tribunal’s reasoning on satisfactory quality under section 14(2) was connected to its finding that the coal was off-specification. The claimant’s alternative argument concerning section 14 therefore did not establish substantial injustice.
5. Permission to appeal under section 69 was refused. The questions had not all been questions which the tribunal had been asked to determine, involved mixed questions of law and fact, were not obviously wrong, and were not shown to be matters of general public importance or open to serious doubt. The substantive applications were accordingly refused.

First-instance decision on applications to challenge an arbitration award under sections 68 and 69 of the Arbitration Act 1996, together with applications for extensions of time under section 80(5).