Challenges and appeals to arbitral awards: Volume increases but English Courts remain steadfast

Introduction

To paraphrase a well-known English adage, you can wait for months for a successful challenge to an arbitral award on grounds of procedural irregularity under Section 68 of the Arbitration Act 1996 of England and Wales (the “Act”) to arrive and then three come along at once. Do these recent judgment signal a shift in the English court’s traditional approach of avoiding interfering with arbitral awards and the arrival of a new era of judicial intervention?   

From a quick glance at the 2023-2024 Commercial Court Report, you might be forgiven for thinking that this might be the case. The number of Section 68 challenges has risen 34 percent, from 27 in 2022-2023, to 37 in 2023-2024.¹ However, that is apt to mislead: of those 37 applications, none succeeded. The position is similar for jurisdiction challenges under Section 67 and appeals on a point of law under Section 69. While the number of applications is rising – 242 percent for Section 67 challenges and 40 percent for Section 69 appeals in 2023-2024 – there was only one successful s67 challenge and one successful s68 appeal over that period. It follows that parties with London-seated arbitration agreements can be confident that these examples are aberrations, England remains an arbitration-friendly jurisdiction with minimal scope for judicial and the likelihood of a successful challenge or appeal is very low.  It is just that unsuccessful parties in arbitrations cannot help themselves in challenging awards despite formidable odds against doing so successfully.  

In this article, we examine each of the three grounds for challenging or appealing arbitral awards under the Act by reference to recent decisions and developments.

Challenges to Jurisdiction under Section 67 of the Act

The Commercial Court Report shows a notable increase in Section 67 challenges based on the tribunal’s lack of substantive jurisdiction: 242 percent up since last year. 
It is perhaps unlikely that 2025 will see similar levels because, under the new UK Arbitration Act 2025 (the “2025 Act”), parties cannot raise an objection or rely on evidence in a s67 challenge that was not before the tribunal in the arbitration. As the amendments alter the previous position, in which Section 67 challenges were effectively a fresh review by the Court of all jurisdiction issues determined by the tribunal including new evidence and arguments, the tactical merit of pursuing a unmeritorious Section 67 application is now questionable.  In principle, therefore, the volume of such challenges should fall. 

You can read our deep dive into the Arbitration Act 2025 amendments in this issue.

Challenges on the basis of a serious procedural irregularity under 68 of the Act

A “serious irregularity” is an irregularity that: (i) falls within the prescribed categories in s68(2) – for example, failure by the tribunal to conduct the proceedings in accordance with the agreed procedure; (ii) affects the tribunal, the proceedings or the award; and (iii) has caused or will cause “substantial injustice” to the applicant. 

Three recent successful challenges demonstrate that the English courts will intervene if there is a threat to arbitration’s fundamental principles, namely, that each party is given a fair opportunity to present its case and address its opponent's and the tribunal considers all the issues put to it.

1. Djanogly v Djanogly & Ors [2025] EWHC 61

This case concerns a hard-fought family dispute referred to ad hoc arbitration seated in London and governed by Jewish law. The parties agreed to appoint the Golders Green Beth Din of the Union of Orthodox Hebrew Congregations as the tribunal. The losing party challenged the award under Sections 67, 68 and 69 of the Act. The Section 68 challenge was brought on the basis that the tribunal had failed to address a limitation defense because it concluded that there is no limitation period for money claims under Jewish law.

Although the Court dismissed the other challenges, it upheld the limitation challenge because: (i) the arbitration was seated in London so the Act governs its procedure; (ii) under Section 13 of the Act – a mandatory provision – England and Wales’ Limitation Acts² applied; (iii) Jewish law is not the law of “any other country” under the Limitation Acts so the relevant law on limitation was English; and (iv) the tribunal failed to apply English law and, if it had done so, the claims would have been statute-barred, meaning that there was substantial injustice. 

2. Mare Nova Inc v Zhangjiagang Jiushun Ship Engineering Co Ltd [2025] EWHC 223 (Comm)

This case concerned a dispute over ship repair works performed on a vessel pursuant to a contract incorporating certain general conditions. Having discovered damage following the repair, the claimant commenced an arbitration claiming damages for breach of contract and negligence, and a sum under a contractual guarantee to remedy the defective works. The respondent did not participate in the proceedings other than to object to the tribunal’s jurisdiction. The tribunal dismissed the claimant’s claims on the basis that the respondent’s liability was discharged by the operation of certain provisions and awarded a reduced sum under the guarantee.

The claimant challenged the award under Section 68 and, alternatively, appealed on points of law under s69. The basis of the Section 68 challenge was that the respondent had not argued that it ought to be discharged of its liability in the arbitration. The Court held that the tribunal’s ruling on an issue not raised in the arbitration was a “serious irregularity” causing “substantial injustice” under s68(2)(a). The tribunal had failed to comply with its duty under s33 of the Act, which includes acting “fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent.” The claimant had had no opportunity to address the argument before the tribunal found it determinative. The award was then remitted back to the tribunal for reconsideration.

The alternative Section 69 challenge was brought on the grounds that the tribunal’s discharge of liability issue was wrong in law. The Court agreed that the tribunal’s interpretation was obviously wrong in law because there was no way to interpret the provisions in question as having the effect determined by the tribunal. However, because the claimant had succeeded in its primary s68 challenge, the Court dismissed the s69 appeal and directed the tribunal to reconsider the law when reconsidering its award.

3. Republic of Kazakhstan v. World Wide Minerals and Paul Carroll QC [2025] EWHC 452 (Comm)

In this case, Kazakhstan challenged an investment treaty award relating to a uranium processing facility. The substantive claim in this case was brought by World Wide Minerals (a Canadian mining company) (“WWM”) and its CEO under the 1989 Canada-USSR Bilateral Investment Treaty in relation to a uranium processing facility managed and operated by WWM in 1996 to 1997. Kazakhstan challenged the award on the basis that the tribunal had failed to address its key argument in respect of causation. Unusually, this was the second successful challenge made by Kazakhstan in this case. The Commercial Court had already set aside the original decision on damages and remitted the award back to the tribunal to reconsider the issue of causation and loss in 2020 and found that it had failed to do so again in relation to causation.

The English courts will not intervene in all cases where a tribunal has not dealt with arguments raised by a party in the arbitration. K and others v P and others provides insight into the threshold – there will be grounds for challenge under s.68(2)(d) if an argument is sufficiently important to constitute an “issue” which ought to have been dealt with by the tribunal. In that case, the applicants argued that the tribunal had failed to deal with two arguments. For one, the Court found that “although it may be said that the Tribunal did not specifically determine each and every argument put forward, it cannot, in my judgement, be said that it failed to deal with an issue in the sense of an essential matter which had to be determined in order for the Tribunal properly to reach its conclusion.” By contrast, for the other, the tribunal’s failure to deal with the argument was a serious irregularity causing substantial injustice because, had the tribunal determined the issue, its decision on liability might have been different. 

The remedy in all these successful Section 68 challenges was for the award to be remitted back to the tribunal. The other available remedies are for the Court to set the award aside or to declare it to be of no effect, in whole or in part. The Court will however generally remit the award to the tribunal unless satisfied that it would be inappropriate to do so (s68(3)). Importantly, while this gives the parties another opportunity to be heard, it does not necessarily lead to a different result; the court’s focus in invariably on the fairness of the procedure adopted to make the decision. It is important to keep this point in mind if considering a Section 68 challenge: there should be scope for the tribunal to make a different decision if, for example, it is presented with new arguments or evidence not previously considered.

Section 69 challenges for errors in law

Surprisingly, despite its non-mandatory nature and the standard waiver of rights to appeal in the ICC and LCIA rules, Section 69 appeals are the most frequent challenges to awards in the English courts.

Last year, the UK Supreme Court provided guidance on the limits of such appeals in Sharp Corp Ltd v Viterra BV (previously known as Glencore Agriculture BV) [2024] UKSC 14. This case concerned an appeal on a point of law relating to the interpretation of a default clause. See our full update on the case here. The principles relevant to the appeal were:

• A party may appeal on "a question of law arising out of an award" (s69(1)).
• The question must be one which “the tribunal was asked to determine" (s69(3)(b)).
• The first step is application for permission to appeal which must "identify the question of law to be determined" (s69(4)).
• At this stage, the Court must be satisfied (amongst other things) that "on the basis of the findings of fact in the award" (in other words, there should be no new evidence), the decision of the tribunal is "obviously wrong" or "the question is one of general public importance and the decision of the tribunal is at least open to serious doubt" (s69(3)(c)).

Surprisingly, despite its nonmandatory nature and the standard waiver of rights to appeal in the ICC and LCIA rules, Section 69 appeals are the most frequent challenges to awards in the English courts."

• Amendments to questions of law under s69 are permissible, provided that “the substance of the question of law remains the same” and is tied to the relevant facts in the tribunal’s award.
• The Court of Appeal had acted beyond these limits by introducing and deciding a question of law that the tribunal had not been asked to address. 
• The Court of Appeal had also exceeded its authority in making additional findings of fact. 

This decision reinforces the safeguards that the English courts apply to s69, borne out by the limited number of successful s69 challenges (one in 2023-24).