The Republic of India v CC Devas (Mauritius) Ltd (In Administration) & Ors

Section 45 of the Arbitration Act 1996 permits the court to determine a question of English law arising during an arbitration, even where the tribunal has previously addressed the issue in a procedural order. The court is not thereby reviewing or setting aside that order. The order remains effective unless and until the tribunal revisits it.

The jurisdiction is confined to questions of law. It does not confer a general supervisory power over arbitral procedure, factual findings or discretionary procedural decisions. In an English-seated arbitration, procedural questions are ordinarily governed by the law of the seat, notwithstanding that the substantive dispute is governed by international law and the tribunal has flexibility under the applicable arbitration rules.

India commenced an arbitration claim under section 45 of the Arbitration Act 1996 concerning the authority of an administrator appointed over three Mauritian companies involved in an English-seated investment arbitration.

The arbitral tribunal had declined, in Procedural Order No 6, to recognise the administrator for the purposes of the arbitration and had continued to recognise the companies’ former lawyers. The tribunal subsequently refused a stay in Procedural Order No 7.

The threshold issues concerned whether the application required the interveners’ consent, whether it was an impermissible challenge to the procedural orders, whether section 45 was limited to prospective questions, and whether the parties’ choice of international law and the applicable arbitration rules excluded the court’s jurisdiction.

1. Issue 1. The parties to the BIT-2 Arbitration were India and the Mauritian Companies. The consent required by section 45(2)(a) was therefore the consent of the Mauritian Companies, not that of the interveners as a separate class. Whether the companies had agreed to the application through the administrator was a question for the court under English law. The tribunal’s recognition of representatives for the exclusive purposes of the arbitration did not determine who could agree to a court application under section 45.
2. Issues 2 and 3. The proposed question arose in the course of the proceedings and substantially affected the parties’ rights. Section 45 was not confined to questions which the tribunal had not previously considered. It could be used to obtain the court’s answer to a question already addressed in a procedural order, provided the statutory conditions were met.
3. The application was not itself a challenge to Procedural Orders Nos 6 and 7. Section 45 did not empower the court to review or correct those orders. They remained binding unless and until reconsidered by the tribunal. The court’s function was limited to answering the question of English law, after which the tribunal would decide how to proceed.
4. The authorities concerning the absence of a general power to supervise or review interlocutory arbitral decisions did not prevent a section 45 determination. The jurisdiction remained subject to the parties’ agreement or the tribunal’s permission, and to the court’s discretion whether to grant relief.
5. Issue 4. The parties’ choice of international law as the substantive governing law did not oust section 45. Section 46(3) and article 33(1) of the 1976 UNCITRAL Rules concerned the law applicable to the substance of the dispute, not procedural questions. In an English-seated arbitration, procedural questions were ordinarily governed by the law of the seat. Article 15(1) and section 34 gave the tribunal procedural discretion but did not displace that legal framework.
6. The answers to Issues 2, 3 and 4 were no. The judgment determined threshold jurisdictional questions only; it did not decide the merits of the proposed section 45 application.

First-instance determination of threshold issues arising from an arbitration claim under section 45 of the Arbitration Act 1996. The judgment refers to the earlier threshold judgment of Sir Nigel Teare, [2025] EWHC 1738 (Comm), but does not state any appellate history for the present judgment.