Hong Kong court provides guidance on award challenges for failure to deal with an essential issue

The Hong Kong Court of First Instance has provided further clarity on when awards can be set aside for failure to deal with an essential issue, dismissing a challenge on the basis that the points in question were not the focus of submissions to the tribunal (X and YCo v ZCo [2024] HKCFI 695).

Simon Chapman KC of Herbert Smith Freehills appeared for the successful award creditor in the case, which emphasises that the onus is on the parties and their lawyers to clearly identify the key issues to be determined by the tribunal, and to include these in any list of issues.

Continue reading

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL FINDS THAT NO EXPRESS ALLEGATION, CONSIDERATION OR FINDING OF ‘SUBSTANTIAL INJUSTICE’ IS REQUIRED TO ESTABLISH A SERIOUS PROCEDURAL IRREGULARITY

In the recent decision of RAV Bahamas Ltd and another v Therapy Beach Club Incorporated the Judicial Committee of the Privy Council (the “Privy Council”) considered that s90 of the Bahamas Arbitration Act 2009 (the “Bahamas Arbitration Act”) – which provides for challenges to arbitration awards on the grounds of serious irregularity – did not require an express allegation, consideration and finding of “substantial injustice” for a serious irregularity to be established.

Continue reading

ENGLISH HIGH COURT CHARACTERISES UNSUCCESSFUL CHALLENGE TO AWARD UNDER S68 AS “SEEKING TO ATTACK AN ARBITRATOR’S FINDINGS OF FACT AND HER EVALUATION OF THE EVIDENCE” UNDER GUISE OF PROCEDURAL IRREGULARITY

In the recent decision in ASA v TL [2020] EWHC 2270 (Comm), the English High Court (the “Court”) rejected an application brought by ASA under s68 Arbitration Act 1996 (the “Act”) that sought to challenge an arbitral award on the basis of two alleged serious procedural irregularities.

ASA had contended that the arbitrator had decided two issues on points which ASA did not have a fair opportunity to deal with, as they had not been raised by either party or their experts, and departed from common ground.

Continue reading