Answer ... England and Wales provides for the challenge of an award on two mandatory grounds and one non-mandatory ground. Taking first the mandatory grounds, which cannot be excluded by party agreement, a party may apply to the court to challenge an award on the grounds that:
- the tribunal lacked substantive jurisdiction (Section 67); or
- there was a serious irregularity affecting the tribunal, the proceedings or the award (Section 68).
Section 68 provides an exhaustive list of irregularities, and in each case the court must be satisfied that the irregularity has caused or will cause substantial injustice to the applicant. The courts adopt a relatively strict approach to the interpretation of Section 68 and do not permit appeal on the merits of the case disguised as Section 68 applications. The courts’ statistics consistently underline the point that successful Section 68 applications are rare.
A party may also seek to appeal an award on the grounds that the tribunal made an error on a question of law (Section 69). An appeal on a question of law is non-mandatory and the parties can therefore agree to exclude this as a ground for challenging an award. Many institutional arbitration rules expressly exclude all non-mandatory rights of appeal. It is not possible, for example, to challenge an award issued in a London-seated arbitration under the International Chamber of Commerce or LCIA Rules on the grounds that there has been an error of law in the award.
Answer ... A Section 67 or 68 challenge or an appeal under Section 69 must be brought within 28 days of the date of the award or, if there has been any arbitral process of appeal or review, of the date on which the applicant or appellant was notified of the result of that process (Section 70(3)). However, the applicant or appellant must first have exhausted any available arbitration process of appeal or review and any available recourse for correction of the award (Section 70(2)).
The applicant must file an arbitration claim form to bring a challenge. Part 62 of the English Rules of Civil Procedure will apply.
Answer ... As set out above, the parties are permitted to exclude the right to challenge an award on a question of law (Section 69).