Section 68 of the Arbitration Act 1996 (UK): can “inadequate reasons” constitute a “serious irregularity”?

— Jack Davies

Section 68 of the Arbitration Act (UK) enables parties to challenge an arbitral award on the basis of a “serious irregularity affecting the tribunal, the proceedings or the award”.[1]  The section sets out an exhaustive list of irregularities on which an award may be challenged, including s 68(2)(d) — “failure by the tribunal to deal with all the issues that were put to it” — and s 68(2)(h) — “failure to comply with the requirements as to the form of the award”.[2]  In holding that “inadequate” or “insufficient” reasons cannot found a legitimate challenge under either s 68(2)(d) or s 68(2)(h), the English High Court’s decision in Islamic Republic of Pakistan v Broadsheet LLC has helpfully clarified the scope of those subsections.[3]  In short, the Court has taken a narrow, arbitration‑friendly approach to s 68, one which aligns with the purposes of s 68, the objectives of the wider Arbitration Act and international practice.  The Court also denounced prior case law that suggested a wider approach ought to be taken to the interpretation of s 68: this criticism was well warranted, and should lead to clarity in the law. 

Relevant facts

Broadsheet was engaged by Pakistan to trace and locate assets taken from various state-run institutions, and transfer them back to the government.[4]  As compensation, Broadsheet was to receive 20 per cent of the “amount available to be transferred”.  Approximately two years after signing its contract with Broadsheet, Pakistan (via the National Accountability Bureau) gave notice to rescind the contract, alleging that Broadsheet had committed repudiatory breaches of contract.  Broadsheet denied that allegation, and commenced arbitration proceedings against Pakistan.  The tribunal awarded Broadsheet USD 21,589,460 in damages.  Approximately USD 19m of that figure related to Broadsheet’s “loss of a chance” claim in relation to the Sharif family. 

Pakistan then challenged the award in the English High Court under s 68, alleging a serious irregularity that caused it substantial injustice. 

The High Court’s decision

Pakistan’s primary complaint was that the tribunal did not explain, in any material way, the method by which it calculated the value of the Sharif family claim (i.e. the value of the chance that Broadsheet lost to receive payment in respect of recoveries made from Mr Sharif and his family).[5]  Pakistan relied principally on another recent High Court decision, Compton Beauchamp Estates Ltd v Spence, to contend that a failure of reasoning may constitute a valid challenge under s 68(2).[6]

Moulder J did not accept Pakistan’s submissions.  The Judge’s reasoning comprised three primary points.  First, as a matter of statutory interpretation, the Judge said the juxtaposition of ss 57 and 70(4) with s 68 means that “inadequate reasons” cannot found a legitimate challenge against an award under s 68.[7]  Section 57 entitles a party to apply to the tribunal to correct its award, or to issue an additional award.  Section 70(4) allows an English court to require an arbitral tribunal to state the reasons for its award in further detail, if the court considers that the tribunal’s reasons are insufficient, or perhaps “inadequate”, such that the court is unable to properly consider the merits of a challenge to the award under s 68.

Secondly, Moulder J did not accept the reasoning in the Compton decision as representing good law;[8] instead, the Judge preferred the contrary analysis given in Margulead Ltd v Exide Technologies[9]and UMS Holding Ltd v Great Station Properties SA.[10]  Because all relevant prior case law comprised other High Court decisions, the Judge was free to choose between the various analyses under the English system of stare decisis

Finally, Moulder J noted that a major purpose of the Arbitration Act was to reduce intervention by the English judiciary in arbitrations and arbitral awards.[11]  She considered that to allow challenges premised on “inadequate reasons” would be to expand unduly the scope of the High Court’s supervisory function in light of the Arbitration Act’s principles and objectives.[12] 

Analysis and appraisal of the decision

Moulder J’s decision should be applauded.  The Judge’s reasoning reflects an informed and pragmatic     approach to a section that, if interpreted erroneously, might have serious consequences for the future of arbitration in England.

First, the Judge’s statutory-interpretation point is correct.  If the UK Parliament had intended an inadequacy of reasons to be able to found a challenge under s 68, and such a challenge might lead to the award being set aside with the result that the parties have to “start from scratch”, then why would it provide the tribunal with the ability to give further reasons either on application of a party (s 57) or direction of the High Court (s 70(4))?  From reading the judgment, it appears, crucially, that Pakistan was never able to answer that question.  Inadequacy of reasons is not listed as one of the nine enumerated grounds in s 68(2).    The specificity of those available grounds means it is clear that the UK Parliament gave them substantial thought.  A traditional canon of English statutory interpretation is expressio unius est exclusio alterius.[13]  Where a statutory proposition might have covered many factors but only mentions some, unless those mentioned are listed merely by way of example, the rest are taken to be excluded from the proposition.[14]  Although not discussed by Moulder J, that canon applies with full force to s 68(2) and reinforces her reasoning.

Secondly, the Judge was correct to reject the analysis of Morgan J in Compton.  In that case, Morgan J stressed the importance of reasons in an arbitral award: “an arbitrator should explain why he has decided the essential issues in the way in which he has”.[15]  He reasoned, therefore, that “[a]n award which did not contain such reasoning would not comply with [the duty of an arbitrator to give reasons under s 52(4)][16] and that would give rise to an irregularity within s 68(2) of the 1996 Act”.[17]  No judge, in any of the relevant cases, has argued that an arbitral tribunal does not have a duty to give reasons for its award under s 52.  And no judge has doubted the importance of such reasons.  It is only natural and correct that parties are entitled to know the grounds upon which the tribunal has come to its conclusions, unless they waive that right.[18]  But that point still does not answer the question that Moulder J asked above: if a deficiency of reasons can be cured by a further award or clarification under either s 57 or s 70(4), then why should an award be liable to be set aside under s 68?  That remains the most crucial point of interpretation when evaluating the correctness of the decision in Islamic Republic.  Setting aside an award is simply too drastic a course of action to have available to litigants, when the relevant deficiencies can be cured with no prejudice to the complaining party.

Lastly, Moulder J’s reliance on the Arbitration Act’s objective of reducing judicial intervention in arbitration deserves both elaboration and applause.  The Judge made that point briefly, and did not cite any of the Act’s legislative history.  However, when that history is examined, it becomes clear that this is perhaps the strongest point in favor of disallowing an inadequacy of reasons to found a valid challenge under s 68.  Aside from the Bill itself, the most important piece of les travaux préparatoires to the Arbitration Act is the Departmental Advisory Committee’s 1996 report on the Arbitration Bill, where all provisions of the Bill were discussed in detail by the drafters, including the clause which was to be enacted as s 68.[19]  The drafters said that s 68 was intended only to be applied “by way of support for the arbitral process, not by way of interference with that process”.[20]  Furthermore, that s 68 was “really designed as a long stop, only available in extreme cases where the tribunal has gone so wrong in its conduct of the arbitration that justice calls out for it to be corrected”.[21]  In the light of these statements, it is very hard to see how the UK Parliament envisaged judges to be entitled to cast critical eyes over the reasoning in arbitral awards with an eye to invalidating them, particularly when further reasons are able to be requested or mandated under other provisions of the Arbitration Act.  The Act’s legislative history, then, adds further weight to Moulder J’s conclusions. 

An international comparison also highlights the propriety of the decision in Islamic Republic.  In enacting s 68, the UK Parliament deliberately provided for a variety of procedural challenges to awards that are not be able to be made under standard international practice.[22]  For example, under s 68, an award may be challenged on the grounds that the arbitral tribunal failed “to comply with the requirements as to the form of the award”.[23]  In contrast, art 34 of the UNCITRAL Model Law on International Commercial Arbitration contains comparatively few provisions upon which a party may apply to set aside an arbitral award rendered in an international arbitration.[24]  Those provisions parallel art 36 of the Model Law, which sets out the grounds on which a court may refuse to recognize or enforce an arbitral award.  Those grounds, in turn, parallel the grounds listed under art V of the New York Convention.[25]  In short, art V only allows for setting aside on grounds of incapacity, lack of jurisdiction, or major violations of due process.

In contrast, the longer list of procedural irregularities which may found a challenge under s 68 reflects the old English judicial tradition of heightened interference in arbitration.[26]  It must therefore be recognized that, if the approach taken by Morgan J in Compton was to stand — the same approach urged upon Moulder J by Pakistan in Islamic Republic — English judicial supervision of arbitration could substantially increase.  England already allows for heightened scrutiny of awards in contrast to international practice on this point and, should supervision from the bench extend to assessing the “adequacy” or “sufficiency” of a tribunal’s reasoning, parties might seriously think twice before choosing to seat their arbitrations in London.  After all, one of the key selling points of arbitration is a streamlined adjudicatory process.  Even acknowledging that international arbitration is far more complex and time-consuming than it was 50 years ago, it remains that a lack of a right of appeal on the merits can be a drawcard in attracting parties to arbitration.[27]  Allowing parties to challenge the adequacy of a tribunal’s reasons would undermine this.

Key takeaways and conclusions

Moulder J’s decision in Islamic Republic is an excellent one.  She has taken an arbitration-friendly approach to s 68 of the Arbitration Act and has ruled that English judges cannot invalidate an arbitral award for want of reasons on the tribunal’s part.  Instead, they have the power to request additional reasons, or an additional award, from the tribunal to address any perceived deficiencies in this regard.  Parties can have confidence that their arbitral awards will not be scrutinized in painful detail, as judges pore over every aspect of the tribunal’s thinking.  Moulder J’s decision supports the intention of the drafters of the Arbitration Act that s 68 really only function as a “long stop … in extreme cases”. 

The fact remains, however, that Moulder J’s decision is only another High Court judgment to add to the list that was cited to her by the parties in Islamic Republic.  Putting its compelling reasoning to one side, the judgment technically has no more authority than the contrary decision in Compton, given the English tradition of stare decisis.  Furthermore, it has not yet been cited or endorsed by any other cases.  Until appellate guidance is given, or Parliament amends the wording of the Arbitration Act to clarify matters, the issue remains unresolved.  That said, I consider that practically speaking, Moulder J’s analysis is persuasive and future High Court judges are likely to apply it.

Jack Davies is an LL.M. Candidate in the International Business Regulation, Litigation and Arbitration Program at NYU School of Law.  Prior to enrolling at NYU, Jack clerked for the current Chief Justice of New Zealand, Dame Helen Winkelmann, and then practiced commercial litigation in Auckland.

[1]           Arbitration Act 1996 (UK), s 68(1). 

[2]           For any of the enumerated irregularities to lead to a successful challenge, the irregularity must have caused, or will cause, “substantial injustice” to the applicant: s 68(1).  Note also, in relation to s 68(2)(h), that pursuant to s 52(4) — a section titled “Form of award” — the award must “contain the reasons for the award unless … the parties have agreed to dispense with reasons”. 

[3]           Islamic Republic of Pakistan v Broadsheet LLC [2019] EWHC 1832 (Comm), [2019] WLR(D) 402. 

[4]           A broader summary of the background facts is given at [5]–[11] of the Court’s decision. 

[5]           See at [18(iii)]. 

[6]           Compton Beauchamp Estates Ltd v Spence [2013] EWHC 1101 (Ch). 

[7]           Islamic Republic of Pakistan v Broadsheet LLC, supra n 4, at [42].

[8]           Ibid. 

[9]           Margulead Ltd v Exide Technologies [2004] EWHC 1019 (Comm), [2005] 1 Lloyd’s Rep 324.

[10]          UMS Holding Ltd v Great Station Properties SA [2017] EWHC 2398 (Comm), [2018] Bus LR 650.

[11]          Islamic Republic of Pakistan v Broadsheet LLC, supra n 4, at [42].

[12]          Ibid.

[13]         FAR Bennion Understanding Common Law Legislation: Drafting and Interpretation (OUP, 2001, Oxford) at 88.

[14]          Ibid.

[15]         Compton Beauchamp Estates Ltd v Spence, above n 7, at [51].  Morgan J cited an older decision, Benaim (UK) Ltd v Davies Middleton (2005) 102 Cons LR 1 (QB), where the Court said in reference to s 68 at [95]: “It is strongly arguable that unless a party knows the reasons for an award there is automatically substantial injustice to him”. 

[16]          See footnote 3, supra. 

[17]          Compton Beauchamp Estates Ltd v Spence, above n 7, at [51].

[18]          See Arbitration Act 1996 (UK), s 52(4).

[19]         Departmental Advisory Committee on Arbitration Law “1996 Report on the Arbitration Bill” (1997) 13 Arbitration International 276.  See also Andrew Tweeddale and Keren Tweeddale Arbitration of Commercial Disputes: International and English Law and Practice (OUP, Oxford, 2005) at 765. 

[20]          At [280]. 

[21]          Ibid. 

[22]         Jean-François Poudret and Sébastien Besson Comparative Law of International Arbitration (2nd ed, 2007, Sweet & Maxwell, London) at 721. 

[23]          Section 68(2)(h). 

[24]         United Nations Commission on International Trade Law UNCITRAL Model Law on International Commercial Arbitration (1985, with amendments as adopted in 2006) accessible at: <>.

[25]         Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”) (opened for signature 10 June 1958, entered into force 7 June 1959).   

[26]          Poudret and Besson, supra n 23, at 721. 

[27]         Frank-Bernd Weigand and Antje Baumann “Introduction” in Frank-Bernd Weigand (ed) Practitioner’s Handbook on International Commercial Arbitration (2nd ed, OUP, 2009, Oxford) 1 at 28.