EGF v HVF & Ors.

An arbitrator’s power to grant interim measures under article 26 of the UNCITRAL Rules includes power to order provisional payment on account of a money claim, subject to adjustment after the final award. However, article 34.2, requiring awards to be final and binding, is inconsistent with granting such interim relief by way of award. A challenge under section 67 concerns substantive jurisdiction, not merely an excess of power. A section 68(2)(b) challenge requires substantial injustice on the pleaded case. Apparent bias is assessed objectively by asking whether the decision, fairly considered in context, is so odd that a reasonable person might think bias could explain it.

The claimant, respondent in a London-seated arbitration, challenged the arbitrators’ conduct and an interim payment order requiring payment of US$250 million. It sought removal of the arbitrators under section 24 of the Arbitration Act 1996, and relief under sections 67 and 68 concerning alleged apparent bias and the arbitrators’ power to grant provisional payment by award.

The arbitration tribunal had consolidated a further arbitration and issued the interim payment order in a document described as a Partial Award. The claimant alleged that a procedural ruling concerning late witness statements created justifiable doubts about impartiality, and that the tribunal lacked jurisdiction or power to make the payment order. The central issues were whether the apparent-bias claims were made out, whether the challenge fell under section 67 or section 68, and whether the UNCITRAL Rules permitted the relief.

1. Apparent bias. The claims based on alleged apparent bias were dismissed. The Witness Statement Ruling was a rational and reasonable case-management response to a late allegation concerning disclosure. It did not predetermine any factual or merits issue. Applying the objective approach described in Porter v Magill, the ruling was not so odd, considered in its procedural context, that a reasonable observer might think bias could explain it (paras [84]-[95]).
2. Section 67. The challenge did not concern substantive jurisdiction. Under section 30(1), jurisdiction existed because the tribunal was properly constituted under valid arbitration agreements and the relevant matter had been submitted to it. An alleged absence of power to grant particular relief is not converted into a jurisdictional challenge merely because the power derives from the arbitration agreement and incorporated rules (paras [97]-[100]).
3. Section 68. The pleaded section 68(2)(b) case failed because substantial injustice had not been established. The claimant could not introduce during argument a new case based on the practical effects of the Partial Award. That issue should have been pleaded and supported by evidence and developed submissions (paras [102]-[107]).
4. UNCITRAL Rules. Article 26 conferred power to order provisional payment on account of a money claim, because such relief is temporary in substance and remains subject to adjustment by the final determination (paras [109]-[115]). Article 34.2, however, did not contemplate an award whose substantive relief was interim, since awards were required to be final and binding. Had substantial injustice been established, the court would have upheld the section 68 challenge on that narrow ground. The conclusion concerning article 34 was expressly unnecessary to the outcome (paras [116]-[128]).