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

Issue 2 is closely related to Issue 3. It raises the question whether the court can review a procedural decision of the Arbitral Tribunal. The conventional view on that question is that is cannot; see The Republic of Uganda v Rift Valley Railways (Uganda) Limited and others [2021] EWHC 970 (Comm) at paragraphs 44-45 per Butcher J. If there is to be a challenge to that conventional view the argument is unlikely to be long. Counsel for the Administrator made reference to just one authority which he suggested supported a challenge to the contrary view, namely, The Vasso [1983] I WLR 838 per Lloyd J.

The further argument advanced against Issue 2 is that it proceeds upon the assumption that India’s Question of Law is a challenge to PO6. India and the Administrator say that it is not.

“Instead, the Section 45 Application seeks to have determined a point of English law (namely the correct approach in the case of an English seated arbitration to the question of who has authority to represent a foreign corporate claimant which is subject to an insolvency process in its country of incorporation). The effect of answering that question (if it were to be answered in the way that India suggests is correct) would not be to reverse PO6: however what it will do is to inform the Tribunal of the correct approach as a matter of English law (being the law of the seat) as and when the Tribunal is invited to revisit the question as to who may represent the Companies in the Arbitration. The Tribunal will likely be invited to revisit that question in order to avoid or reduce the scope of any challenge that might be made to the Court in due course under section 68(2)(c) of the 1996 Act in respect of any Award.”

However, the Interveners say that India and the Administrator are in fact seeking a different answer to the question of the relevant law than that given by the Tribunal. If so then India and the Administrator, whether or not they are intending to invite the Tribunal to revisit its decision in the future, are seeking to have the court review a decision made by the Tribunal in its determination of a procedural matter. This is a short point as to how one should describe the exercise upon which India and the Administrator are engaged. It cannot take long to argue that issue.