- Court clarifies the scope of AA 1996, s 73(1) in challenge to ICC award (Province of Balochistan v Tethyan)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Arbitration analysis: Mr Justice Robin Knowles CBE in the Commercial Court clarified recently the scope of section 73(1) of the Arbitration Act 1996 (AA 1996). The claimant (the Province of Balochistan; Balochistan) applied to set aside a partial arbitral award issued by an International Court of Arbitration of the International Chamber of Commerce (ICC) tribunal on the basis that, inter alia, the underlying arbitration agreement was tainted by corruption, depriving the tribunal of jurisdiction. Balochistan’s set-aside application was made under AA 1996, ss 67 (substantive injustice) and 68 (serious irregularity). The defendant (Tethyan Copper Company; Tethyan) argued that this specific allegation had never been raised in the arbitration and that Balochistan was therefore precluded from raising it before the English court by application of AA 1996, s 73. The court reviewed the caselaw concerning AA 1996, s 73 in considerable detail and concluded that it was not enough for an issue to have been mentioned in the arbitration—the issue must have been ‘put to the arbitral tribunal as denying jurisdiction’. In this case the relevant issue had not been put, and the court therefore held that Balochistan was indeed precluded from raising it at that stage. Written by Mark Wassouf, barrister at 3 Verulam Buildings.
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