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959 days later….

In what could best be described as a rather ambitious application, in State A v Party B[1], the Applicant sought an extension of the 28-day time limit to issue a jurisdictional challenge despite the fact that the challenge was issued 959 days late. The Court, perhaps unsurprisingly, refused.

The decision itself is heavily redacted and anonymised; however it is still possible to ascertain some factual background.

The application was brought under section 67 of the Arbitration Act 1996. The underlying arbitration was in relation to a claim by Party B against State A under a bilateral investment treaty (BIT).

Prior to the jurisdiction hearing, which led to a Partial Award against State A, State A put at issue the position of State D (a non-party) on a material point (not disclosed in the court’s decision). State D subsequently filed submissions which were accompanied by a substantial number of specially declassified documents, which in turn were reviewed by the Tribunal and found to have made “a useful contribution to the proceedings”.

A Partial Award was subsequently made against State A. State A did not challenge the award within 28 days (as required under section 70(3) of the Arbitration Act 1996 (the “Act”)) and the arbitration thereafter proceeded to the liability and quantum phase. This resulted in a 12-day hearing for which the parties had submitted 10 pleadings consisting of over 2,100 pages, numerous witness statements and expert reports, at considerable cost.

In the meantime, another arbitration claim under the same BIT was issued by Party E. Party E exhibited a letter written to Mr F, the State D Minister at the time (“the “Mr F Letter”), which was said to be relevant to the earlier submissions by State D. This document was not produced earlier by State D.

Once it became aware of the Mr F Letter, State A speedily issued the application for an extension of the 28-day limit to challenge the jurisdiction of the Arbitral Tribunal. By this time, however, the application was 959 days late.

The application was dismissed. In reaching that decision the Court considered “the Colman Guidelines”[2], namely:

  1. the length of the delay.
  2. the reasonableness of the applicant’s conduct in allowing the delay to arise;
  3. any contribution to the delay by the respondent or the tribunal;
  4. any irredeemable prejudice that would be suffered by the respondent (in addition to the delay) if the extension were granted;
  5. the impact of determining the challenge on any ongoing arbitral proceedings between the parties;
  6. the strength of the challenge;
  7. the overall fairness of denying the applicant the opportunity to have the challenge determined.

The court found that in the circumstances the fresh evidence was not strong enough to justify an extension after the ‘colossal’ delay and expenditure that had occurred in the arbitration.

In reaching this conclusion, the court considered that:

  1. The strength of the challenge (factor (6) of the Colman Guidelines) must be one of the primary factors where there has been a substantial delay.
  2. There is no specially formulated factor to address fresh evidence.
  3. However, the longer the delay, the more “transformational” or “seismic” the fresh evidence must be in order to justify the grant of an extension. As to the length of delay more generally, this must be measured against the yardstick of the 28 days provided for in the Act. A delay measured even in days is significant; a delay measured in weeks or months is substantial.

This decision reinforces the importance of bringing applications under the Act in a timely manner and makes clear that the strength of a challenge, and the extent to which new evidence is “transformational” will be in an important factor in assessing applications for extensions of time. Although an applicant may suffer prejudice if an extension is not granted, and moreover may have acted entirely reasonably, that may not be enough to overcome these priorities.

[1] [2019] EWHC 799 (Comm)

[2] First set out by Colman J in Kalmneft v Glencore International AG [2002] 1 All ER 76

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