The threshold for challenging arbitration awards remains high, as Richard Marshall & Nicole Finlayson illustrate
- Challenging an award can bring an otherwise confidential matter into the public domain.
- Parties should avoid unilateral communications with the arbitrator.
One key reason for choosing arbitration over litigation has always been the perceived finality of arbitral awards. Arbitration rules and agreements commonly provide that awards will be final and binding on the parties. However, where the seat of the arbitration is within England and Wales, the Arbitration Act 1996 (AA 1996) sets out three routes, found at ss 67, 68 and 69, under which an arbitral award can be challenged in the English courts. Two of these (s 67 and s 68) are mandatory provisions which cannot be contracted out of by the parties. Case law shows, however, that the threshold for succeeding under these sections is a high one, and that the courts will not lightly intervene in an arbitration. Recent decisions provide some interesting lessons.
Route one: section 67—challenging jurisdiction
Under s 67,
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