When is a procedural order an award? Court applies ZCCM test following section 68 challenge

Following several recent high profile cases, the potential to challenge an arbitral award in the English court is attracting significant interest and debate. It is important to bear in mind that the scope for challenging the decision of an arbitral tribunal in the English court remains narrow and will be subject to strict technical requirements.

In an article first published by LexisNexis in November 2023, Anna Gilbert considers the recent decision of Betta Oceanway Company v SC Tomini Trading SRL [2023] EWHC 2707 (Comm) where an arbitration party applied to the Court to set aside a procedural order under section 68 of the Arbitration Act 1996. However, Mr Justice Dias dismissed the application because the procedural order was not an award and therefore could not be challenged under section 68. Further, Dias J held that, even if it had been an award, it would not be set aside because no serious irregularity had occurred, nor had any substantial injustice been suffered.

These types of challenges are never easy and careful consideration of the nature of the decision made by the Tribunal is essential before commencing a challenge in the English Court.

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