TENKE FUNGURUME MINING S.A. v KATANGA CONTRACTING SERVICES S.A.S.

A challenge under section 68 of the Arbitration Act 1996 is a longstop remedy reserved for extreme cases. The applicant must show a serious irregularity and substantial injustice, ordinarily by demonstrating that the outcome might well have been different. The court should interfere with discretionary procedural decisions only where no reasonable tribunal could have reached the decision. An erroneous exercise of an available arbitral power is not an excess of power under section 68(2)(b). A tribunal may award funding costs as “other costs” of the parties where the relevant costs fall within its statutory and institutional powers and are reasonable. A party cannot circumvent an excluded section 69 appeal by recasting an alleged error of law as an excess of power.

The claimant challenged an ICC arbitration award under section 68 of the Arbitration Act 1996. The award required it to pay the defendant’s claims, costs, shareholder-loan funding costs and compound interest, while dismissing its counterclaims.

The challenge alleged serious irregularity arising from refusal to adjourn for a site visit, refusal to adjourn after leading counsel became ill, refusal to permit cross-examination concerning funding and interest, the award of funding costs, and the award of compound interest. A further challenge to a success fee was advanced out of time. The central issues were whether the tribunal had failed to comply with section 33, exceeded its powers, acted contrary to public policy, or caused substantial injustice.

The application was dismissed on every ground.

1. Section 68 threshold. The remedy is confined to extreme cases. The applicant must establish a serious irregularity causing or likely to cause substantial injustice. Where the complaint concerns procedural discretion, intervention is justified only if the tribunal failed to consider relevant matters or reached a conclusion which no reasonable arbitrator could have reached.
2. Site visit. The tribunal had considered the experts’ evidence and the practical utility of a visit. The evidence showed that visual inspection would largely be impossible or unhelpful, and interviews could be conducted remotely. The tribunal was entitled to refuse an adjournment. The counterclaim also failed because the claimant had not produced evidence of remedial works and their cost, so the outcome might not have been different.
3. Illness of counsel. The tribunal was entitled to balance the proposed delay against the arbitration agreement’s requirement for expedition and the availability of an experienced legal team and replacement counsel. A different tribunal’s decision would not justify intervention.
4. Cross-examination and funding costs. The tribunal provided disclosure and was entitled to conclude that cross-examination was not vital. Following P v D was unnecessary because credibility was not a core issue. The funding costs fell within “other costs” under sections 59(1) and 61 of the Arbitration Act 1996, and the tribunal’s assessment of reasonableness was at most an erroneous exercise of an available power.
5. Excess of power and public policy. Applying Lesotho Highlands Development Authority v Impregilo SpA and Essar Oilfields Services v Norscot Rig Management, the alleged error was not an excess of power. The public-policy challenge failed because the demanding test was not met.
6. Interest and late challenge. The tribunal had evidence supporting its interest award and was entitled to refuse cross-examination. The additional success-fee challenge was 69 days late, lacked explanation, and would fail on its merits even if time were extended.

The judgment concerned a first-instance challenge to an ICC arbitration award dated 26 August 2021. The High Court dismissed the section 68 application on all grounds.