Seacrest Group Ltd v BCPR PTE Ltd & Anor

A challenge under section 68 of the Arbitration Act 1996 is concerned with procedural fairness, not whether an arbitral tribunal reached the correct conclusion. A party that fails to advance an argument within the procedural opportunities provided cannot ordinarily establish a serious irregularity merely because the tribunal does not address that argument. A tribunal may require a new and unpleaded case to be introduced by an application to amend. Substantial injustice requires a real possibility that the outcome would have been different. A tribunal’s refusal to correct an award under Article 38 of the UNCITRAL Arbitration Rules is not part of the award, but may have legal effect as a decision under the agreed arbitral procedure and may provide admissible evidence of the counterfactual outcome.

Seacrest challenged a final UNCITRAL arbitration award under sections 68 and 69 of the Arbitration Act 1996. The underlying dispute concerned deferred consideration payable under an English law investment agreement relating to shares in a Norwegian company.

Two issues remained. First, Seacrest alleged that the tribunal had failed to consider a new exchange-rate argument raised for the first time in written closing submissions. Secondly, it sought declarations concerning the legal effect of the tribunal’s refusal under Article 38 of the UNCITRAL Arbitration Rules to correct the award.

1. Exchange-rate challenge. The challenge under section 68(2)(a) failed. The statutory threshold is deliberately high and requires both a failure to comply with the tribunal’s duty under section 33 and substantial injustice.
2. Seacrest’s exchange-rate case was a significant new point. It was unpleaded, contradicted its own pleaded position, and was raised for the first time after the hearing in written closings. The tribunal had directed that new issues could not be introduced in closings without an application to amend. It was procedurally fair to proceed on the pleaded case unless Seacrest applied to amend.
3. The tribunal was not required to raise the point of its own motion and invite an amendment application. Seacrest had a reasonable opportunity to advance the case by complying with the procedural directions. Its failure to use that opportunity did not constitute a breach of section 33.
4. In any event, substantial injustice was not established. The tribunal’s Article 38 Decision showed that it would have reached the same conclusion on the exchange rate even if Seacrest’s argument had been considered. The court could take that decision into account as admissible evidence of the counterfactual outcome.
5. Article 38 Decision. The court refused the declarations sought. The refusal to correct was not itself an award and did not form part of the Award. Nevertheless, it had legal effect as a decision reached under the arbitral procedure agreed by the parties. Its reasoning did not bind or alter the parties’ substantive rights as an award, but could be relevant to the section 68 substantial-injustice inquiry.
6. The parties were directed to agree and submit an order reflecting the judgment.

First-instance arbitration challenge. The judgment itself records that permission to appeal under section 69 of the Arbitration Act 1996 had previously been refused by Foxton J on 18 March 2025.