Invalid appointment

Sumukan Ltd v Commonwealth Secretariat (2) CA TLR 18 December

The claimants argued that their contract with the defendant compelled them to arbitrate before a tribunal effectively appointed by the other party, giving rise to a perception of partiality; and in the process of the appointment of that tribunal, the procedures, which might have given them some protection against any lack of independence were not even complied with. The key issues were: (i) whether any non-compliance with the relevant statute in appointing the president of the tribunal affected the substantive jurisdiction, under s67 of the Arbitration Act 1996 of the panel that sat and made its awards; and (ii) if so, whether any failures were cured, or Sumukan could with reasonable diligence have discovered the failures, so as to preclude reliance on them by reason of s73.