[2025] EWCA Civ 998

The circumstances in which the disputes between the parties arose, the nature of those disputes and the jurisdictional and other challenges to which they have given rise are described in our judgment and need not be repeated here. However, we should mention some recent developments, which have occurred since the hand down of our judgment.

The first such development is that the arbitral tribunal has issued a further award (‘the Remittal Award’) on the issue remitted to it by the order of Mr Justice Foxton dated 11^th April 2024. That issue was:

‘Whether any damages should be reduced by 30% because of an assignment by Diag Human a.s. to a third party, Mr Jiri Orsula, of 30% of the value of Diag Human a.s.’s claim’.

The tribunal’s answer was that the damages should not be reduced, so that CZR ‘remains obliged to pay Claimants [i.e. both Diag SE and Mr Stava] 100% of the amount granted in the [BIT Award]’.

The tribunal issued the Remittal Award despite having been informed by CZR’s solicitors on 7^th May 2025 that we had decided in our judgment that the award in favour of Diag SE must be set aside. It did so on the ground that it had not invited any post-hearing submissions and was not willing to receive submissions on the effect of our judgment.

This led to three applications made by CZR. The first was a challenge to all three members of the tribunal on the basis that the issue of the Remittal Award, despite the tribunal having been informed of our decision that the award in favour of Diag SE must be set aside, gave rise to justifiable doubts about the impartiality of the tribunal. This application, made to the Permanent Court of Arbitration pursuant to Articles 12 and 13 of the UNCITRAL Rules 2010 as amended by the tribunal’s terms of appointment, was made on 12^th June 2025.

The second application was made by arbitration claim form in the Commercial Court and was a challenge to the Remittal Award under s.67 and s.68 AA 1996. The challenge was based in part on the submission that the issue of the Remittal Award without allowing an opportunity for submissions as to the effect of our judgment was a serious irregularity and in part on submissions as to the scope of the order for the remission made by Mr Justice Foxton.

The third application, made on 27^th June 2025, was a request to the tribunal for correction of the Remittal Award, made pursuant to Article 38 of the UNCITRAL Rules. This had the effect of reviving the jurisdiction of the tribunal, which had become functus officio on issue of the Remittal Award, although the notice of challenge meant that the arbitral proceedings were suspended in accordance with Article 13(4) of the UNCITRAL Rules and paragraph 5.1.4 of the terms of appointment.

The final development which needs to be mentioned is that on 11^th July 2025 all three members of the tribunal resigned at the request of CZR. They did so saying that they believed the challenge to their impartiality to be wholly without merit but that the arguments levelled against them by CZR had ‘tainted the nature of any possible future proceedings before’ them. They recognised that this might mean that a new tribunal would need to be constituted.

In my view the resignation of the tribunal is most unfortunate. One of the possibilities canvassed in the parties’ submissions is that the BIT Award may need to be remitted to the tribunal in the light of our judgment. But if we were to take that course, it would now be necessary to constitute a new tribunal, unfamiliar with the background, inevitably resulting in substantial delay, expense and potential injustice. If, as the tribunal clearly believes, the challenge to its impartiality is wholly without merit, it would have been far better had it continued to serve. Indeed, there was before it a request for a correction of the Remittal Award which it would be difficult for any new tribunal to provide.