CA-2024-002477 - [2025] EWCA Civ 1054

Nevertheless, clause 14.3 does have real content because it provides for a right of appeal on a question of law without the need to obtain leave to appeal under section 69(2)(b) of the Act. However, that entitlement is subject to the proviso that the appeal must be brought ‘within thirty (30) days after the decision is rendered’. That may be compared with the period of 28 days from the date of the award referred to in section 70(3) of the Act.

Mr Davenport submitted, and I accept, that applying well established principles of contract interpretation, the question is how this proviso would be understood by a reasonable person having all the background knowledge available to the parties. He submitted that such a person would have concluded that the parties intended the 30 day period to run from the date when the award was communicated to the parties. That would allow the losing party time to review the award, to take advice, to consider the cost implications and to prepare the necessary appeal documents. To shorten that period so that it ran from the date of the award, and might even expire before the parties had received the award, would be unfair and would defeat their intention to allow a wide scope for an appeal. That would be even more unfair if, as the judge held, there was no possibility of applying for an extension of time.

In my judgment the word ‘render’ or ‘rendered’, considered in isolation, is capable of referring to the date when the award was made or to the date when it was provided to the parties. However, when the language of the clause is considered in its context and taking account of the background information available to the parties, it is clear that it has the former meaning.

First, the use of the word ‘render’ in clause 14.2(b) (‘The arbitration tribunal shall conduct its session and render its decision in English’) is unambiguous. It can only refer to the making of the award. Rendering the award in clause 14.2(b) refers to something which is done by the arbitration tribunal. It is the arbitration tribunal which makes the award by drafting a decision and signing it, but it is not the arbitration tribunal which provides the award to the parties under the LCIA Rules. Rather, the tribunal delivers the award to the LCIA Court (in practice, the Secretariat), which then transmits certified copies to the parties (Article 26.5 of the 1998 Rules). Even then, the Secretariat will only transmit the award if the costs of the arbitration have been paid to the LCIA. So there will inevitably be some delay between the making of the award and its transmission to the parties and if the costs of the arbitration have not been paid, the delay may be considerable.

I did not understand Mr Davenport to dispute any of this. Rather, he submitted that the reference to the decision being ‘rendered’ in clause 14.3(a) did not necessarily have the same meaning as the requirement for the tribunal to ‘render its decision’ in clause 14.2(b). I would reject that submission. It is overwhelmingly likely that the parties, using the same term in different parts of the same clause, intended to refer to the same thing, i.e. the making of the award.

Second, the LCIA Rules 1998 which were current at the time of the parties’ contract and which form part of the legally relevant background refer to a tribunal rendering an award in terms which plainly refer to the making of an award. Article 26.8 provides:

‘In the event of a settlement of the parties’ dispute, the Arbitral Tribunal may render an award recording the settlement if the parties so request in writing (a “Consent Award”), provided always that such award contains an express statement that it is an award made by the parties’ consent. …’

This terminology no longer appears in the equivalent provision (Article 26.9) of the 2020 Rules, but it is the 1998 Rules which the parties would have had in mind when concluding their contract.

Third, the ICC Rules which were current at the time of the parties’ contract also speak of the arbitral tribunal rendering its award in terms which can only refer to the making of the award and contrast the rendering of the award and its notification to the parties (see Articles 24.1, 27 and 28.1 of the 1998 Rules). Although the parties did not contract on the ICC Rules, these were widely known in the field of international arbitration and demonstrate that this was a common and well understood use of language. Accordingly they too form part of the background of which the parties can be taken to have been aware.

Fourth, I see nothing unfair or unreasonable in the parties having agreed a right of appeal which was subject to a time limit which might start running before they were aware of the terms of the award. Although there might be some delay between the making of the award and its transmission to the parties, the parties would have contemplated that the transmission of the award by the LCIA would take place within a few days at most, which would leave sufficient time for the preparation of any appeal documents. (Although not relevant to the interpretation of the clause, I note that the parties lost only two working days as a result of the delay in the present case, Friday 12^th and Monday 15^th April). The only reason why the delay might be greater than a few days would be if the costs of the arbitration had not been paid, in which case the remedy lay in the hands of whichever party needed more time to consider the possibility of an appeal.

Finally, to interpret clause 14.3(a) as referring to the making of the award by the arbitral tribunal accords with the scheme of the 1996 Act. The Act does not refer to rendering an award, but it does distinguish clearly between the making of an award (section 54) and its notification to the parties (section 55), with time for an appeal running from the date when the award is made and not from its notification to the parties (section 70(3)). It is true that, in the absence of contrary agreement, the statutory time limit of 28 days can be extended (section 79(1)), which mitigates to some extent the strictness of the time limit, but there is no reason to think that the power of the court to extend time was intended to be exercised merely because of a delay of a few days between the making of the award and its notification to the parties. That would be unlikely to constitute the ‘substantial injustice’ which must be shown before the power to extend time can be exercised (section 79(3)(b)).

For these reasons I consider that the judge was right to interpret the time limit in clause 14.3(a) as running from the date of the award, so that Mr Eronat’s appeal came too late.