CL-2025-000046 - [2025] EWHC 1738 (Comm)

If the Interveners are correct on Issues 1 and/or 2 then the Tribunal’s decision in PO6 cannot be challenged. It binds India and the Administrator. As a result India and the Administrator cannot say that the parties to the Arbitration have agreed that the Question of Law should be decided by the court.

Thus Issue 1 gives rise to very little further argument. It can be dealt with very speedily, just as the Tribunal dealt with the application for a stay pursuant to section 45(4) in PO7.

However, India and the Administrator argue that Issue 1 encompasses all the issues of public policy discussed by the Tribunal and so would take a long time to debate. I disagree. The issues of public policy would not be gone into because they have all been addressed by the Tribunal. What would be “centre stage” (the phrase used by counsel for the Administrator) would be the Tribunal’s conclusion as to who represented the Mauritian Companies for the purposes of the Arbitration. If that cannot be challenged (because the Interveners are right on Issues 3 and/or 2) then little further argument is required to answer Issue 1 in the negative. Counsel for the Interveners said that this could be made even clearer by amending Issue 1 as follows:

“Does the Court have jurisdiction and/or power to hear the Section 45 Application and/or are the requirements of Section 45 not satisfied, in circumstances where (a) the Interveners have not given their consent to the Section 45 Application within the meaning of s.45(2)(a) (and where the Arbitral Tribunal has not given its permission pursuant to s.45(2)(b)) and (b) by the terms of PO6 and PO7 the consent of the Interveners is required for the purposes of section 45(2)(a)?”

I agree that that would put the scope of Issue 1 beyond doubt.