CL-2024-000260 - [2025] EWHC 2539 (Comm)

Section 68 of the Arbitration Act 1996 provides in material part:

“Challenging the award: serious irregularity.

(1)

A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3).

(2)

Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant—

… (g) the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy.”

In Federal Republic of Nigeria v Process & Industrial Developments Limited [2023] EWHC 2638 (Comm) at [475]-[476] I said of section 68:

“475.

The section is founded on the principles set out in section 1 of the Act (set out in full in the Annex to this judgment) and is to be construed accordingly. Those principles are:

"(a)

the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;

(b)

the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;

(c)

in matters governed by this Part the court should not intervene except as provided by [Part I of the Arbitration Act 1996]".

476.

The objection under consideration in section 68(2)(g), that of "the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy", is of fundamental character to the arbitration process because it goes to the integrity of that process. No policy of arbitration law calls for section 68(2)(g) to be given other than its plain meaning. An award obtained by fraud or contrary to public policy (or procured in a way that was contrary to public policy) and which has caused or will cause substantial injustice is not what the parties agreed to when they agreed on arbitration. To support it in the name of supporting arbitration as a process achieves the opposite. Unless the right to object is lost for reasons of finality (the business of section 73, below), and subject to the procedural restrictions in section 70(2) and (3), there is no sanctuary. This architecture meets the requirements of justice.”