GENERAL POINTS CONCERNING CHALLENGES UNDER THE 1996 ACT (SECTIONS 67, 68 AND 69)

THE THREE GROUNDS OF CHALLENGE IN OUTLINE

There is a ground of challenge before the High Court (Commercial Court: 24.01 ff, vol I) based on (i) lack of jurisdiction (section 67, Arbitration Act 1996: 18.19 ff), or (ii) the assertion that the arbitral panel has been guilty of ‘serious irregularity affecting the tribunal, the proceedings or the award’ (section 68, 1996 Act: 18.41 ff), or (iii) on the basis of an error of (English) law (section 69, 1996 Act: 18.67 ff).

Ground (iii), under section 69, can be excluded by agreement (18.95 ff).

But grounds (i) and (ii) are mandatory: they cannot be excluded by party agreement.

Permission to appeal, under sections 67–69, from the High Court to the Court of Appeal can only be given by the High Court itself, unless (i) the High Court decision was made outside the court's jurisdiction, or (ii) consideration of the issue of permission involved an unfair process, or (iii) there is a preliminary issue whether section 69 applies at all or whether the parties have excluded it. The reason for exception (iii) is this: ‘there is a distinction between those cases where the court is assisting or overseeing the arbitration process and the cases where the question is whether the jurisdiction of the court has been excluded.’

The policy of the law is to lean against second appeals from arbitration decisions, that is, from the High Court and then to the Court of Appeal. That policy was noted in the Itochu case (2012), the Amec case (2011), and earlier in the Sukuman case (2007), where Waller LJ said: