Obrascon Huarte Lain SA & Anor v Qatar Foundation For Education, Science And Community Development

A challenge to an arbitral tribunal’s exercise of powers to correct or interpret an award concerns the tribunal’s powers under Arbitration Act 1996, s 68(2)(b), rather than substantive jurisdiction under s 67. The court should allow the tribunal an appropriate margin of appreciation when assessing whether an omission or ambiguity falls within the agreed correction or interpretation power. Interpretation may clarify the true meaning of an award without revising its reasoning or outcome. A serious irregularity also requires substantial injustice. The court assesses that issue in context, rather than simply comparing the applicant’s position before and after the tribunal’s act.

The claimants challenged an ICC tribunal’s Addendum to a Fourth Partial Award concerning a major hospital construction project. The Addendum amended declarations granting extensions of time and prolongation costs so that they were subject to compliance with contractual preconditions, including notification requirements which the tribunal had not previously considered.

The claimants applied under ss 67 and 68 of the Arbitration Act 1996, arguing that the tribunal had become functus officio and lacked jurisdiction to make the amendments. The central issues were whether the challenge concerned substantive jurisdiction, whether the tribunal had exceeded its powers under Article 35 of the ICC Rules, and whether any irregularity caused substantial injustice.

1. Section 67. The challenge did not concern substantive jurisdiction. Section 30(1)(c) addressed whether particular matters had been submitted to arbitration, not whether an otherwise properly constituted tribunal had exceeded its powers after making an award. The claim therefore fell under s 68(2)(b), not s 67.
2. Article 35 powers. The tribunal had power to correct errors similar to clerical, computational or typographical errors and to interpret the award. Those powers involved evaluative judgments. The court should respect a tribunal’s margin of appreciation when deciding whether an omission or uncertainty fell within the agreed power.
3. The amendments were not straightforward clerical, computational or typographical corrections. However, they could reasonably be regarded as corrections of similar errors because the tribunal had not considered the notification issues and the award did not reflect its original intention. More importantly, the amendments were capable of constituting an interpretation clarifying the award without changing its true meaning. The tribunal had not exceeded its powers.
4. Substantial injustice. Alternatively, any excess of power was not a serious irregularity because it caused no substantial injustice. The notification issues had not been decided and would be determined on their merits by an impartial tribunal. The court did not simply compare the claimants’ position before and after the Addendum. If the notification arguments succeeded, the original extensions would remain available; if they failed, the claimants might not be entitled to them.
5. The applications under ss 67 and 68 were dismissed.