Setting aside delayed arbitration award


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The Commercial Court has considered the criteria for setting aside an arbitration award where there is a substantial delay between the hearing and the award.

In BV Scheepswerf Damen Gorinchem v Marine Institute [2015] EWHC 1810 (Comm), the delay had been 12 months and the unsuccessful respondent to the arbitration applied to have the award set aside.

The court held that although delay in publishing an award was not in itself a ground of serious irregularity under section 68(2) of the Arbitration Act 1996, a delay of 12 months was inordinate.  There was a general duty under section 33(1)(b) to avoid unnecessary delay, which included delay in publishing an award, and such a delay in this case was capable of amounting to a serious irregularity that would allow the award to be set aside.

However, at the most, in a case of lengthy delay, the court might be more likely to examine the findings in the award in order to check that the arbitrator had dealt with all the issues put before him.  If he had dealt with all the issues, it was then irrelevant how they had been dealt with.

The respondent had to show that the irregularity had caused substantial injustice, in particular that, if it was not for the delay, the arbitrator might have found in its favour.  In the present case it was impossible to satisfy that test, and the application was refused.

Paul Howcroft, Partner, Fladgate LLP (phowcroft@fladgate.com)

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