A v B

A challenge under section 68 of the Arbitration Act 1996 is a high-threshold, long-stop remedy concerned with serious procedural irregularity and substantial injustice, not errors of fact, law or evidential assessment. The court should read an award reasonably and commercially. It should not interfere with an arbitral tribunal’s assessment of evidence unless a genuinely exceptional procedural failure is established, such as the admitted overlooking of agreed or admitted evidence. A tribunal need not address every argument or issue in its first award where it has decided an anterior issue or has legitimately deferred a matter for a later stage. A dissenting arbitrator’s personal comments do not amount to an admission by the tribunal under section 68(2)(i).

The Buyers applied under section 68 of the Arbitration Act 1996 to challenge a unanimous partial award arising from a contract for the sale of fertiliser. The tribunal held that the Buyers had lost the right to reject the cargo but retained a claim for damages for breach of specification, with quantum deferred.

The Buyers alleged serious irregularity under sections 68(2)(a), (d), (f) and (i). They challenged the tribunal’s evaluation of factual and expert evidence, its treatment of statutory quality issues, its deferral of the question whether an analysis report was final and binding, alleged ambiguity concerning damages, and minority comments made by one arbitrator.

1. The application under section 68 of the Arbitration Act 1996 was dismissed. Section 68 is a high-threshold, long-stop jurisdiction available only in extreme cases involving serious irregularity causing or capable of causing substantial injustice. It is concerned with due process rather than the correctness of the tribunal’s decision.

2. The complaint concerning the treatment of the Buyers’ factual evidence was impermissible. The tribunal had considered and assessed the evidence rather than overlooked it. Its evaluation of evidence and the weight assigned to it were matters for the tribunal. The court should not review that assessment under section 68. Even if an exceptional category exists for genuinely overlooked agreed or admitted evidence, the present case did not fall within it.

3. The tribunal had not failed to deal with the expert evidence. It had expressly avoided deciding which analysis method was correct because there was a breach of specification on either approach. No substantial injustice could arise from a finding which the tribunal had not made.

4. Section 68(2)(d) concerns failure to deal with a fundamental issue, generally one essential to the decision. It does not require a tribunal to address every argument or explain every step in its reasoning. The contention based on section 14(2B)(a) of the Sale of Goods Act 1979 was, at most, an unclear and incidental argument, not a fundamental issue requiring determination. Section 14(2B)(a) is a consideration relevant to satisfactory quality, not itself an implied term.

5. The tribunal was entitled to defer the question whether an analysis report was final and binding. That was a procedural decision within its discretion, and the issue could be raised at the later quantum stage if relevant.

6. There was no uncertainty or ambiguity in the partial award. Read as a whole, it clearly preserved a claim for damages and deferred assessment of quantum. The damages assessment was not confined to a limited trade allowance.

7. A dissenting arbitrator was not a person vested with the relevant powers for the purposes of section 68(2)(i), and his personal comments were not admissions by the tribunal. In any event, the comments did not establish a serious irregularity or substantial injustice.

First-instance decision. The judgment records that Knowles J refused permission to appeal under section 69 of the Arbitration Act 1996 on 28 December 2016.