AA 1996—challenging the award on grounds of serious irregularity (s 68)
AA 1996—challenging the award on grounds of serious irregularity (s 68)

The following Arbitration guidance note provides comprehensive and up to date legal information covering:

  • AA 1996—challenging the award on grounds of serious irregularity (s 68)
  • AA 1996, s 68—what does the section provide?
  • A high threshold for success
  • The meaning of substantial injustice
  • Evidence to be adduced
  • Timing of the challenge
  • Making the application
  • Summary dismissal of a serious irregularity challenge on the papers in the Commercial Court where there is no real prospect of success (Commercial Court Guide, para O8.5)
  • Consequences of the challenge

For a general introduction to the three main heads of challenging or appealing an arbitral award under sections 67–69 of the Arbitration Act (AA 1996), see Practice Note: AA 1996—challenging and appealing arbitral awards in the English court.

AA 1996, s 68—what does the section provide?

A party to arbitration proceedings may (on notice to the other parties and to the tribunal) apply to the court challenging an award in proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award (AA 1996, s 68(1)).

Generally speaking there will be no question regarding the status of a tribunal or arbitrator’s decision. If a challenge is made on the ground of serious irregularity and the status of the decision is not clear, the court will consider the status of the decision as a threshold point before it proceeds. A decision cannot give rise to a serious irregularity challenge if the court considers that it is not an award (see ZCCM v Kansanshi). In ZCCM v Kansanshi, Cockerill J set out some useful guidance to consider when seeking to determine the distinction between an award and a procedural order in these circumstances, see News Analysis: AA 1996, s 68 challenge to an arbitrators’ ‘ruling’ fails on threshold point (ZCCM v Kansanshi).

Serious irregularity is defined as irregularity that falls within