The Republic of India v CC/Devas (Mauritius) Ltd (in administration) & Ors

Applications under section 45 of the Arbitration Act 1996 should not be used to review a procedural determination already made by an arbitral tribunal. Where preliminary issues may dispose of an arbitration claim, avoid unnecessary examination of the substantive question and minimise the risk of the court entering the tribunal’s proper terrain. Preliminary issues are appropriate where they raise short, discrete points capable of determining the claim and producing meaningful savings or procedural advantages. A preliminary issue concerning the court’s discretion should ordinarily await determination of the substantive application if that application is reached.

India applied under section 45 of the Arbitration Act 1996 for determination of whether an English-seated tribunal was required to apply Mauritian law alone when deciding who had authority to instruct lawyers for Mauritian companies in an investment arbitration.

The tribunal had already determined in Procedural Order No. 6 that Gibson Dunn remained authorised to represent the companies and that the Administrator was not recognised for the purposes of the arbitration. The companies represented by Gibson Dunn sought to intervene and proposed five preliminary issues concerning joinder, jurisdiction under section 45, the effect of the tribunal’s prior decision, the applicable law, and abuse of process.

1. Joinder. The companies represented by Gibson Dunn were added as Interveners. The Defendants were described as being in administration and represented by the Administrator. This was principally a matter of nomenclature and costs, and did not prejudice the underlying arguments.
2. Preliminary issues. Issues 1–4 were ordered to be determined as preliminary issues. Issues 2 and 3 raised closely related questions: whether the section 45 application was in substance a challenge to Procedural Order No. 6 and whether section 45 could be used to revisit a question already determined by the tribunal. The conventional view is that the court cannot review a procedural decision of an arbitral tribunal: The Republic of Uganda v Rift Valley Railways (Uganda) Limited and others [2021] EWHC 970 (Comm) at paragraphs 44–45.
3. The court considered that Issues 1–4 were short points capable of being argued within one day. If the Interveners succeeded on Issues 1–3 or Issue 4, the Arbitration Claim would be determined without the need to decide the substantive Question of Law.
4. The court attached particular weight to the Commercial Court’s supervisory role and the need not to enter the terrain properly belonging to the arbitral tribunal. Determining Issues 1–4 first could avoid both the costs of deciding the substantive question and the risk of impermissibly reviewing the tribunal’s determination.
5. Issue 5, concerning abuse of process and the court’s discretion under section 45(1), was not a suitable preliminary issue because that discretion would arise only if section 45 were properly engaged.

A one-day hearing with one day’s pre-reading was directed. The provisional view was that costs should be costs in the Arbitration Claim.