It is the classic issue. Shortly after receiving an unfavourable award you take possession of a document not disclosed in the arbitration, and which could have changed the tribunal's findings in your favour. That was the position in this case reported at [2007] EWHC 11.
Background
E alleged that V (not its lawyers) deliberately concealed a vital document produced during a period of negotiations central to the dispute. The document (the "G Memorandum") was addressed to the CEO and other senior executives of V. E claimed that if this document had emerged during the arbitration process the award which found in favour of V, would have found in E's favour and the contract out of which the arbitration arose would be declared void.
E made a application under s.68(2)(g) of the 1996 Act to set aside the LCIA tribunal award on the grounds that the award was obtained by fraud or procured contrary to public policy. The court rejected the application.
The issues were:-
Did the (in)actions of V (in not disclosing the G Memorandum) amount to "obtained by fraud" or "procured contrary to public policy"?
The G Memorandum ought to have been disclosed. However, there must be a fraud of a party to the arbitration or by someone else to which that party was privy and not to anyone simply connected with the arbitration process. If a party either through its directors, employees or lawyers knowing there exist documents to be disclosed and deliberately conceals them so inducing the tribunal or the other side to believe they did not exist, it is a "fraud" for the purposes of s.68(2)(g). Fraud must be demonstrated to a high standard of proof. Negligence or error of judgment is insufficient.
The court found that no one at V or its lawyers deliberately concealed the G Memorandum and the application under s.68(2)(g) failed.
Did the (assumed) deliberate concealment of the G Memorandum result in the award being obtained by fraud?
No. Even assuming (1) the G Memorandum was fraudulently concealed, (2) some of G's evidence at the tribunal was false, and (3) he knew of this and of V's fraud, it could not be shown that the award was obtained by fraud. There had to be a causative link between the (assumed) fraud and the award and this had to be proven.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.