Tribunal’s failure to deal with issue

Section 68 of the Arbitration Act 1996 provides that an arbitration award made in England and Wales may be challenged on the grounds that a serious irregularity has occurred, causing substantial injustice to the applicant and affecting either the tribunal, the proceedings or the award. Section 68 is designed as a ‘long stop’ to deal with those extreme cases where, for one reason or another, something has gone seriously wrong with the arbitral process. The section is a mandatory provision, so the parties cannot contract out of the right to challenge awards on one or more of the nine grounds laid down in the section. One such irregularity is the tribunal’s failure to deal with all the issues that were put to it (s68(2)(d)). This particular ground reflects the previous common law position that an award which does not deal with all the issues referred to the arbitrators may be remitted to the arbitrators with a direction to remedy the deficiency. It has been considered in some detail in several recent cases, most recently by Colman J in World Trade Corp v Czarnikow Sugar [2005] 1 Lloyd’s Rep 422. The provision came once again before the Commercial Court in the decision of Morison J in Fidelity Management SA and others v Myriad International Holdings BV [2005] EWHC 1193 (Comm), a case arising out of a series of contracts relating to pay-TV services in Greece. The case is discussed by Louis Flannery of Howes Percival.