Republic Of India Successful At Hearing Of Preliminary Issues In Section 45 Arbitration Act 1996 Application

The judgment offers useful guidance on the scope of applications under s. 45 Arbitration Act 1996, a provision little used in practice. 

The Republic of India, represented by PCB Byrne in respect of the s. 45 Application, is currently engaged in an investor-State arbitration (seated in London) against certain Mauritian companies governed by the 1976 UNCITRAL Rules. During the course of the arbitration, the Mauritian companies were placed into administration. There is a dispute as to who had (or has) authority to act on behalf of the Mauritian companies in the arbitration. In a procedural order the tribunal decided that the administrator did not have authority to represent the Mauritian companies in the arbitration (and the arbitration only). 
 
The Republic of India’s s. 45 Application sought determination of a question of law in respect of the applicable law the tribunal ought to have applied. The Mauritian companies, Interveners in the s. 45 Application, acting through their directors and shareholders, sought determination of 4 preliminary issues. Mr Justice Trower, in his judgment dated 30 January 2026, found in favour of the Republic of India in respect of all 4 preliminary issues, finding: 

1. The Court has jurisdiction to hear the s. 45 Application notwithstanding the Interveners did not consent to it. 
2. The s. 45 Application is not an impermissible challenge to the tribunal’s procedural order. 
3. Section 45 is not only concerned with prospective questions of law, but it wider in scope and is engaged where questions of law have been determined by a tribunal. 
4. Finally, s. 45 is not ousted despite the fact that the claims in the arbitration are governed by international law in circumstances where the question which the Court is being asked to determine is not one which involved the tribunal having a discretion to apply the conflict of laws rules which it considered appropriate.

The decision confirms the scope of s. 45 and the extent to which a tribunal seated in England is obliged to apply English conflict of law rules.

The Republic of India was represented by PCB Byrne LLP in the s. 45 Application. The team was led by Neil Micklethwaite, Olga Bischof and Joe Woodward and instructed Andrew Green KC, Peter Head, and Myron Phua of Blackstone Chambers.

Please read the judgement here.

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