Claim No: CL-2024-000563 - [2025] EWHC 1586 (Comm)

That leaves what is, necessarily, a highly contingent issue of whether, if Energyen had had any legitimate complaints under ss.67 or 68 of the 1996 Act, they had been lost by reason of s.73 of the 1996 Act. The potential challenges to which s.73 might have fallen to be applied are:

This issue revealed potential disputes as to whether the s.73 test was concerned with the knowledge (actual or that which would have followed from the exercise of reasonable diligence) of those individuals who constituted the directing mind and will of Energyen (at least for the purposes of the conduct of the arbitration), or some other category of employees or agents, and a potential issue in this context as to how to treat knowledge which ought to have been available to the company generally at some point prior to the commencement of the arbitration, but may not have been with the circle of knowledge reasonably available to those involved in the arbitration. It also raised the issue of whether there were duties of investigation in the context of the conduct of the arbitration which were relevant for the s.73 enquiry. As these issues do not arise on my findings, and they were explored in argument only to a limited extent, it is not necessary to address them.