English Commercial Court releases s68 and s69 statistics: the high hurdle remains

On 29 April 2018, the Judiciary of England and Wales published the Commercial Court Users’ Group Meeting Report – March 2018. Contained within that report are some statistics regarding the number and outcome of arbitration claims within the Commercial Court over the past three years. These statistics make interesting reading, and give pause for thought to any practitioner or party considering bringing a challenge to an English-seated arbitral award.

The Report states that arbitration claims made up approximately 30% of the total claims issued over the period. Of the claims brought under s69 of the Arbitration Act 1996 (Appeal on a point of law), the statistics read as follows:

YearNumber of Applications madeNumber of cases in which permission was grantedNumber of successful appeals
201560204
20164600
2017 (to date)56101

 

Of the claims brought under s68 of the Arbitration Act 1996 (Serious irregularity), the statistics demonstrate:

YearNumber of challenges broughtNumber of successful challenges
2015341
2016310
2017 (to date)470

 

Comment

It is difficult to draw too many conclusions from the number of applications for leave to appeal under s69 or challenges brought under s68. The number of both has fluctuated. In terms of the success of those applications, the 2017 statistics would appear to have been compiled before the decisions in the cases of P v D [2017] EWHC 3273 (Comm) and Oldham v QBE Insurance (Europe) Ltd [2017] EWHC 3045 (Comm) were released in late 2017. However, even factoring these successful s68 challenges into the statistics, we see only 5 successful s69 challenges from 162 applications made over the period (3.1%), and only 3 successful s68 challenges out of the 112 brought (2.7%). Few can argue in the face of such statistics that the threshold set by the English court is extremely high, and that there is little scope for overturning or remitting an arbitral award in any but the most egregious of cases. This is important confirmation of the English court’s pro-arbitration stance and its reluctance to interfere with the arbitral process or its outcome.

For more information, please contact Nicholas Peacock, Partner, Vanessa Naish, Professional Support Consultant, or your usual Herbert Smith Freehills contact.

Nicholas Peacock
Nicholas Peacock
Partner
Email | Profile
+44 20 7466 2803
Vanessa Naish
Vanessa Naish
Professional Support Consultant
Email | Profile
+44 207 466 2112

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