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

By letter dated 5 February 2025 Mishcon de Reya informed PCB Byrne, the solicitors acting for India, that they had been retained by the Administrator. Mishcon de Reya noted that India had sought the agreement of the Administrator to an application under section 45(2)(a) of the Arbitration Act 1996 and to a stay of the Arbitration pending determination of the application pursuant to section 45(2)(a). Mishcon de Reya stated that the objective of the Administrator was to ensure that the Tribunal accepted the Arbitrator’s authority to appoint representatives to appear on behalf of the Mauritian Companies and stated that the Administrator was willing to agree for the purposes of sections 45(2)(a) and 45(4) provided that the question of law was phrased in a particular was (which it subsequently was).

The Claimant’s Arbitration Claim was issued on 6 February 2025. The Claimant sought an order pursuant to section 45 of the Arbitration Act 1996 determining a question of law that has arisen in the arbitration between the parties to which this arbitration claim relates, namely: is the Tribunal seated in England required to apply Mauritian law (and only Mauritian law) (being the law of the place of incorporation of the Defendants) to determine who has authority to instruct lawyers to act on the Defendants’ behalf in the Arbitration?

In order to make an application under section 45 the Claimant must show that it is made with the agreement of the other party to the dispute. The Claimant says that that condition is satisfied because the Defendants, the Mauritian Companies represented by the Administrator, have agreed.

On the same day, 6 February 2025, the Claimant (who is the Respondent to the arbitration) applied to the Tribunal for an order staying the Arbitration pending the determination of the application made pursuant to section 45 of the Arbitration Act 1996.

By an application notice dated 28 February 2025 the Mauritian Companies, as represented by Gibson Dunn & Crutcher, sought from this court an order adding them as a party to the Claimant’s Arbitration Claim (“the Joinder Application”). They said in their notice that the Arbitration Claim was defective for several reasons but in particular that it was a “disguised and impermissible appeal” against the decision of the Tribunal in PO6 and that section 45 cannot be used to determine issues already determined by the Tribunal. Joinder was necessary so that the court could resolve those and other issues.

On 22 March 2025 the Tribunal issued Procedural Order No.7 (“PO7”) in which it considered and rejected the application for a stay which had been issued on 6 February 2025. The Tribunal noted that section 45(4) of the Arbitration Act 1996 provided that, “unless otherwise agreed by the parties” the Tribunal may continue the arbitration while an application under section 45 is pending. The Tribunal stated that the reference to “the parties” in section 45(4) refers to the parties to the arbitration proceedings. The Tribunal then referred to PO6 and stated that the Administrator was neither a party to the Arbitration nor a representative of the Claimants according to the findings and the decision in PO6. The Tribunal further stated that “whatever the agreement reached between the Administrator and his counsel and India, it is not, for the purposes of the present arbitration proceedings, an agreement of the parties to this arbitration for the purposes of Section 45(4) of the Arbitration Act.” The Tribunal therefore dismissed the stay application; see paragraphs 18-24 of PO7.

On the same day, 22 March 2025, the Chairman of the Tribunal informed Mishcon de Reya (who had informed the Tribunal that they had been instructed by the Administrator) of PO6 and advised that firm that the Administrator was “neither the representative of Claimants nor a party in the arbitration and therefore, that the Tribunal could not accept the intervention of [the Administrator] either directly or through counsel, and that the Tribunal would not copy [the Administrator] or his counsel in further correspondence related to this arbitration”. It is on account of PO6 and PO7 that the Mauritian Companies as represented by Gibson Dunn & Crutcher have described the Administrator as a stranger to the BIT-2 Arbitration.