RTI Limited & Anor v OWH SE iL

A request to an arbitral tribunal to admit an irregularity is not an “arbitral process of appeal or review” for the purposes of section 70(2) of the Arbitration Act 1996. It does not postpone the 28-day time limit in section 70(3). The court’s power to extend time is exceptional and must be exercised consistently with the statutory policy of speed and finality.

A challenge alleging that an award was obtained by fraud under section 68(2)(g) requires more than speculative inferences from evidence suggesting that further documents may exist. The applicant must show a realistic prospect of establishing fraudulent conduct and substantial injustice.

RTI Limited and United Company Rusal International PJSC challenged an LCIA arbitration award in favour of OWH SE i.L. under section 68 of the Arbitration Act 1996. The award concerned sums payable under an ISDA Master Agreement following termination of transactions after the imposition of sanctions affecting the Russian rouble.

The claimants alleged, principally, that the award had been obtained by fraud because OWH had failed to disclose documents concerning service of default notices. The application was issued after expiry of the statutory 28-day period. The issues were whether an earlier request to the tribunal to admit an irregularity postponed time, whether an extension should be granted, and whether the fraud allegation had any realistic prospect of success.

1. Summary dismissal. The section 68 application was summarily dismissed. An extension of time was refused, and the application was independently held to be intrinsically weak.
2. Time limit. Section 70(2) of the Arbitration Act 1996 requires available arbitral processes of appeal or review to be exhausted before a court challenge is brought. Following K v S [2015] EWHC 1945 (Comm) and Daewoo Shipbuilding v Songa Offshore Equinox [2018] EWHC 538 (Comm), that expression refers to a process by which an award is subject to appeal or review by another arbitral body. A tribunal’s ad hoc request to admit an irregularity was neither an appeal nor a review. An LCIA tribunal could admit or decline to admit the alleged irregularity, but could not reconsider its decision. The contrary view in Surefire Systems Ltd v Guardian ECL Ltd [2005] BLR 534 was rejected.
3. The request would not in any event have postponed time because it was not material or necessary to enable the claimants to know whether grounds for challenge existed. The statutory policy of speed and finality also weighed against the proposed construction (paras 19–21).
4. Extension of time. Applying the factors identified in Terna Bahrain Holding Company WLL v Al Shamsi [2012] EWHC 3283 (Comm), the delay from 1 November 2024 to 11 April 2025 was substantial, no adequate explanation was given, and neither OWH nor the tribunal caused the delay. The weakness of the proposed challenge and the absence of unfairness in refusing an extension also told against relief. The absence of additional irremediable prejudice to OWH was not sufficient to justify an extension (paras 22–24).
5. Merits. The serious-irregularity jurisdiction is confined to extreme cases, focuses on due process rather than correctness, and requires substantial injustice. The outcome must at least have been capable of being materially different absent the irregularity. Those principles, drawn from Czech Republic v Diag Human SE [2024] EWHC 503 (Comm) and RAV Bahamas Ltd v Therapy Beach Club [2021] AC 907, were applicable here (paras 26–27).
6. For section 68(2)(g), the focus is on the parties’ conduct in the arbitration and the process by which the award was obtained, not the underlying claim or cause of action: Federal Republic of Nigeria v Process & Industrial Development Ltd [2023] EWHC 2638 (Comm). The evidence relied upon did not establish deliberate withholding, identify disclosable documents, exclude privilege, distinguish fraud from error, or identify the alleged wrongdoer. The case was speculative both as to the existence and content of further documents and as to any different arbitral outcome (paras 27–31).