A recent decision by the English High Court presents a rare exception to the low success rate for challenges to arbitral awards on the ground of “serious irregularity” under section 68 of the Arbitration Act 1996.
The judgment in RJ and another v HB [2018] EWHC 2833 (Comm) dated 26 October 2018 granted a section 68 challenge to an ICC arbitration award issued by “a very senior English QC, well known and highly regarded in the world of international commercial arbitration”. The sole arbitrator’s award was set aside on the ground that the arbitrator based his decision upon a novel point without giving the parties “notice” nor “a proper opportunity to consider and respond”. However, the court concluded that even where an award is set aside, that will not require removal of the arbitrator unless an application to remove the arbitrator is also successfully advanced.