Law 7155 Introduction To Arbitration: Assessment Answers

Consider the cases on Section 68 related to the use by the arbitrator of his own expertise. Are these cases sensible? Is the arbitrator perhaps being punished too much given the purpose of an arbitration - to make use of the arbitrator's expertise?

Answer:

Challenging Arbitral Award:  

“Section 68 in the Arbitration and Conciliation Act” with the conciliation procedures, the parties, or the conciliator has frequently quoted the benefit of arbitration as conflicting litigation is regarded as one of the conclusiveness of the procedure. The parties can only confront or file petition for an arbitration award on the foundation if the court does not have substantive jurisdiction “Under Section 67”. The parties can also confront based on “serious irregularity” leading to considerable unfairness “under section 68”. “Section 68” of the Arbitral Act offers opportunity of challenging an award on under the comprehensive list of nine foundation of ‘serious irregularity’ upsetting the court, proceedings or an award.

Presumptuous to the nine grounds is met, a supplementary preconditions needs to be satisfied for the purpose of serious irregularity and such kind of irregularity has lead to considerable injustice to the applicant.

Serious irregularity has been laid down by the arbitral act which was inherited to transact with the cases where the court has made mistake while executing the demeanour of arbitration in respect of the “Section 68”. It should be noted that the threshold limit of meeting this trial is regarded as high and section 68 is understood as longstop to contract with intense cases where something critically goes off beam under the  process of arbitration. As stated in the case of “The Secretary of State for the Home Department v Raytheon Systems Limited” the Justice found that the tribunal that is created to address the disagreement amid the concerned parties were unsuccessful in considering two noteworthy issues of “liability and quantum” while executing its award in favour of respondent.

The failure to address the issues constituted severe indiscretion in section 68, which led to considerable unfairness to the claimant. As noticed in the case, the “Home Office” took the proceedings in the court of technology and construction to set aside the partial award and declaring the same to be of no effect. The court remained dependent on section 68 based on the grounds of solemn indiscretion since the tribunal failed to deal with the issues. As argued by the “Home Office” that the tribunal’s incapacity of dealing with the issues of liability and quantum led to an award of £126 million which has resulted in critical determination of arbitration. In the first hearing, the Justice concluded that section 68 highlighted globally accepted views, which led the tribunal to rectify solemn breakdowns in order to meet the terms and procedures of arbitrations proceedings.

Referring to the judgement laid down in the case of “Highlands Development Authority v Impregilo SpA [2005]” the justice reiterated that there was the circumstances of high irregularity, which the court should have, strive in order to uphold the arbitration award. However, it should not move towards settling an award with a scrupulous lawful eye endeavouring to choose loopholes, discrepancy and errors on awards with the purpose of distressing the procedure of arbitration.    

References

Born G, International Commercial Arbitration (Kluwer Law International 2014)

Grannum S, Securities Arbitration, 2014

Straube F, Finkelstein C and Filho N, The CAM-CCBC Arbitration Rules 2013

Waring M, Commercial Dispute Resolution 2016 (College of Law Publishing 2016)