Arbitration Act 1996: Section 67 and section 68 challenges in the English Commercial Court – 39 Essex Chambers
‘Sections 67 and 68 of the Arbitration Act 1996 (“AA 1996”) have long been the main escape valves for aggrieved parties in English-seated arbitrations. Section 67 permits challenges to awards based on substantive jurisdiction. Section 68 permits challenges based on serious irregularity affecting the tribunal, the proceedings or the award. These applications are notoriously difficult and have a very low success rate in the English Commercial Court. This is widely considered to reinforce the finality and efficiency of English-seated arbitrations and awards. By the Arbitration Act 2025 (“AA 2025”), section 67 has been amended as far as the scope of admissible evidence and the remedial powers of the court are concerned. These are significant amendments which are consistent with the strict approach of the English courts. There are also amendments affecting Section 68, but these are less far-reaching. Parties must be careful to avoid the impression that they are simply re-running merits arguments on which they lost in the arbitration. Dressing up merits arguments under the guise of jurisdiction or procedure will not do. Any credible section 67 or section 68 must be carefully tailored and focused. In the majority of cases, there will, on proper analysis, be no viable challenge.’
39 Essex Chambers, 29th May 2025
Source: www.39essex.com
