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

I prefer to start with Issue 3 since it gives rise to a question of statutory construction of section 45, the section on which India and the Administrator rely.

Section 45 must be construed in the context of the Arbitration Act as a whole, and in particular, in the context of section 1 (General Principles), section 34 (Procedural Matters) and section 69 (Appeal on a Point of Law arising out of an Award). The essential question raised is whether, when the Arbitral Tribunal has decided a matter, in this case, a dispute as to who is entitled to represent a party to the Arbitration, and there is no opportunity to seek leave to appeal on a point of law pursuant to section 69, a party may apply to the Court pursuant to section 45 for the determination of a question of law which arose in the course of the Tribunal’s decision and was determined by the Tribunal. The Interveners say that the answer to that question is No. India and the Administrator say that the answer is Yes. In my judgment this is a short point of statutory construction which cannot take long to argue.

Counsel for the Administrator submitted that even if section 45 applies only to prospective questions of law the present case involves a prospective question because the Tribunal may revisit the authority question in the future. But the Interveners would say that even if the question were revisited the Tribunal has already decided the question of law and so the court is being asked to review a decision already made by the Tribunal. The resolution of that dispute cannot add much time to the debate as to the true construction of section 45.