Arbitration Law Monthly

The judgment of Andrew Baker J in RJ and Another v HB [2018] EWHC 2833 (Comm) discusses two important consequences of a finding by a court that there has been serious irregularity by the arbitrator contrary to section 68 of the Arbitration Act 1996: what is the appropriate remedy; and is it permissible for the arbitrator to be removed in the absence of an application for removal under section 24 of the 1996 Act?

Section 108 of the Housing Grants, Construction and Regeneration Act 1996 established the adjudication scheme for construction contracts, and provides that “party to a construction contract has the right to refer a dispute arising under the contract for adjudication” in accordance with the scheme.

A v B [2018] EWHC 2325 (Comm), a combined appeal for serious irregularity under section 68 of the Arbitration Act 1996 and an application for permission to appeal on the ground of error of law under section 69, appears to be yet another case where the challenge was little more than an attempt to have a second bite of the cherry.

One of the clearest ways in which an arbitrator can fail to hold a fair hearing, in breach of section 33 of the Arbitration Act 1996 and leading to serious irregularity under section 68, is for the arbitrator to take into account evidence upon which one or both parties have not had the chance to comment.

Section 103 of the Arbitration Act 1996 provides that recognition or enforcement of a New York Convention award may be refused if it would be contrary to public policy to recognise or enforce the award. Carr J in Carpatsky Petroleum Corporation v PJSC Ukrnafta [2018] EWHC 2516 (Comm) has considered various aspects of the test for the triggering of this discretion where facts pointing to fraud allegedly arose after the award had been delivered.