LIVIAN GmbH v ELEKTA LIMITED

A challenge to an arbitral award under section 68 of the Arbitration Act 1996 requires proof of a breach of the tribunal’s section 33 duty, a serious irregularity, and substantial injustice. The threshold is deliberately high and intervention is reserved for extreme cases. A tribunal need not refer to every item of evidence, and failure to mention evidence does not establish that it was overlooked. Even where genuine oversight is shown, the applicant must demonstrate that the tribunal might well have reached a significantly different outcome.

The claimant challenged an LCIA award dismissing its contractual claim against the defendants. It alleged that the tribunal had ignored or overlooked oral evidence concerning whether the parties’ agreement required the claimant’s product to be bundled with every new linear particle accelerator sold by the defendants.

The challenge was brought under section 68(2)(a) of the Arbitration Act 1996, alleging failure to comply with the tribunal’s general duty under section 33. The central issues were whether the tribunal had overlooked the evidence, whether that constituted a serious irregularity, and whether it caused substantial injustice.

1. Challenge dismissed. The claimant had not established a serious irregularity affecting the award or substantial injustice.
2. Under section 68(2)(a) of the Arbitration Act 1996, the applicant must establish a breach of section 33, a serious irregularity, and substantial injustice. The threshold is high because the statutory scheme gives substantial weight to the finality of arbitration. Court intervention is reserved for extreme cases in which justice calls for correction.
3. The court followed the approach stated in UMS Holding Limited and others v Great Station Properties SA. A tribunal must decide the essential issues and give reasons, but it need not refer to every submission or item of evidence. The court cannot reassess the tribunal’s evaluation of evidence or infer that evidence was overlooked merely because it was not mentioned.
4. The court considered contrary first-instance authorities, including Arduina Holdings BV v Celtic Resources Holdings PLC and Sonatrach v Statoil. Even on the assumption that genuine oversight of evidence could in principle support a section 68 challenge, the claimant failed on the facts.
5. The tribunal had rejected the alleged universal bundling obligation by reference to the contractual language, contemporaneous correspondence, and the business plan. The omitted oral evidence was consistent with those reasons and did not support the claimant’s case. It was therefore inherently improbable that the tribunal had overlooked it.
6. In any event, the claimant could not show that any omission was a serious irregularity or that the tribunal might well have reached a significantly different outcome. The challenge was dismissed.