InBandwidth Shipping Corporation v Intaari – Butterworths Law Direct 17.10.07 the Claimants were the owners of the Magdalena Oldendorrf, an ice-classed multi-purpose Ro-Ro vessel. Arbitrators had found that the vessel was seriously in breach of warranty, in relation to its ice breaking capabilities, and that jamming in the ice on certain dates had been caused by that incapacity. The Claimants applied under s 68 Arbitration Act 1996, to have the award remitted to the arbitrators. The application was dismissed at first instance and the Claimants appealed, arguing that the critical point on which they lost the arbitration was a point with which they were not given a reasonable opportunity to deal, or on which they were not given a reasonable opportunity of putting their case.

The Court of Appeal held that if an arbitrator appreciated that a party had missed a point then fairness required the arbitrator to raise it so that the party could deal with it. Where, however, there was no such appreciation, it was not unfair to leave the matter to counsel, who showed a detailed knowledge of the case, to take such points as he wished.

It held that the authorities were correct in placing a high hurdle in the way of a party to an arbitration seeking to set aside an award, or its remission, by reference to s 68 and, in particular, by reference to s 33. It would be a retrograde step to allow appeals on fact or law from the decisions of arbitrators to come in by the side door of an application under those sections.