You’ve got a friend in me: English courts show support for the finality of arbitral awards

19 May 2022

The English High Court has made it clear that there is no automatic right to an oral hearing where a party seeks to challenge an arbitral award - and that the Court is willing and able to decide such challenges quickly and without the need for a hearing.

In WSB v FOL [2022] EWHC 586 (Comm), the claimant applied to:

  • set aside an order by a judge (given after reading the papers and without a hearing);
  • dismissing the claimant’s challenge of an arbitral award under sections 67 (substantive jurisdiction) and 68 (serious irregularity) of the Arbitration Act 1996 (the “Arbitration Act”);
  • refusing permission to appeal under section 69 (point of law) of the Arbitration Act; and
  • have an oral hearing of four hours to re-hear the Claimant’s challenge of the arbitral award.

In dismissing the application, the Court:

  • referenced previous case law describing the Court’s “objective of weeding out hopeless applications at an early stage by a prompt and economical procedure”; and
  • emphasised that “it is important that challenges to arbitrator's awards are resolved without protracted litigation and unnecessary delay or expense”.

The Court confirmed that it will only allow challenges of an arbitral award under sections 67 and 68 of the Arbitration Act to be heard orally if there is good reason to do so, or if there is a real prospect of success (neither of which applied in this case). In any other circumstances, where a party seeks an oral re-hearing of a decision reached on paper in respect of sections 67 and 68 of the Arbitration Act, it is likely to be dismissed and the party will be at risk of an adverse order for indemnity costs.

The process for appeals under section 69 of the Arbitration Act is slightly different, because there is a threshold permission application which will ordinarily be determined on the papers and there is no right to an oral rehearing of that decision.

In this case, the Court held that this threshold had not been reached. There was no good reason to set aside the order refusing permission to appeal and the applicant’s section 69 arguments had no real prospect of success.

The Court’s conclusion should not come as any surprise – it is consistent with the position set out in the Civil Procedure Rules and Commercial Court Guide.

Once again, we see the English High Court’s commitment to respecting and upholding arbitration awards. The Court continues to protect those awards by carefully controlling (and limiting) the risk of costly and time-consuming satellite litigation.

it is important that challenges to arbitrators' awards are resolved without protracted litigation and unnecessary delay or expense.