Radisson Hotels APS Danmark v Hayat Otel Işletmeciliği Turizm Yatırım Ve Ticaret Anonim Şirketi

Section 73 of the Arbitration Act 1996 may apply throughout a bifurcated arbitration, including after a partial award where issues remain to be determined. A party continuing to participate must raise an objection promptly once it knows, or reasonably ought to know, the grounds for objection. It need not possess the cogent or admissible evidence required to establish the challenge. The grounds of objection are construed broadly by reference to the underlying irregularity, rather than by treating each item of supporting evidence as a separate ground. A party seeking to rely on the reasonable-diligence qualification bears the burden of showing that it could not have discovered the grounds earlier.

The claimant sought to set aside a partial ICC arbitration award under sections 68(2)(a) and (c) of the Arbitration Act 1996, and sought extensions of time under sections 70(3) and 80(5). The arbitration was bifurcated between liability and causation, and quantum. The claimant relied on communications between an arbitrator and a person engaged by the defendant, including tribunal emails later found on a USB drive.

The defendant contended that the claimant had waived its objections under section 73 by continuing to participate after learning of the alleged irregularity, and alternatively could have discovered the grounds with reasonable diligence. The central issues were whether section 73 applied after the partial award, what constituted the grounds of objection, when the claimant had knowledge, and whether reasonable diligence had been established.

1. Section 73 applied. The statutory reference to continuing participation in “the proceedings” encompassed the arbitration as a whole. It was not confined to the period before an award, nor did a partial award prevent its application where the quantum phase remained outstanding. The purpose of section 73 would otherwise be defeated by allowing a party to continue with the next phase while reserving an objection for later deployment.
2. Grounds of objection. Applying the broad approach described in Province of Balochistan v Tethyan Copper Company Pty Ltd [2021] EWHC 1884 (Comm), the grounds were bias and lack of disclosure arising from communications between a tribunal member and the opposing party or its representative. The March, April and May emails were evidence of one underlying ground, not separate grounds.
3. Knowledge and promptness. The claimant knew the grounds, at the latest, on 13 January 2022, when it discovered the Word Document reproducing tribunal emails. It already believed that the arbitrator had improperly shared tribunal correspondence. Native copies and further verification were unnecessary before raising the objection. The claimant nevertheless filed its quantum rejoinder and continued correspondence in the arbitration while keeping the objection in reserve for strategic reasons.
4. Reasonable diligence. The claimant failed to show that it could not have discovered the grounds earlier with reasonable diligence. Information received from a source it regarded as sufficiently credible to investigate warranted further enquiries and witness statements. The claimant could have sought evidence from that source and from the person who had supplied the USB drive. Its failure to progress the investigation, together with the absence of reliable evidence from relevant witnesses and unsatisfactorily explained message deletions, did not satisfy the statutory burden.
5. Accordingly, the claimant was precluded by section 73 from raising its objection. It was unnecessary to decide the extension-of-time issue or the substantive allegations of bias.