In Michael Wilson & Partners v Emmott, the Commercial Court recently held that an arbitral tribunal's decision on an application to amend a counterclaim and to obtain production of various related documents was a procedural order and not an award. Consequently, that decision could not be made subject to challenge as an award under the English Arbitration Act.

The amendments and documents sought by Emmott in its application to the tribunal related to an additional alleged agreement upon which it had not previously relied in the arbitration. Michael Wilson argued that the tribunal did not have jurisdiction to determine claims arising under that agreement. The tribunal gave permission to amend and ordered production of the documents sought in a decision headed "Sixth Procedural Order". Michael Wilson then sought to challenge that decision under section 67 of the English Arbitration Act (which governs the challenges of awards on the basis that the Tribunal exceeded its jurisdiction).

In considering the challenge, Teare J found that the parties could not reasonably have understood the tribunal's decision regarding Emmott's application as being the tribunal's disposition of the question of jurisdiction. The tribunal's decision on Emmott's application was expressed to be a procedural order and was not communicated in the formal language typical of a final and binding award. In content, the decision amounted to the determination of two procedural questions.

Crucially, neither party had requested that the tribunal make an award as to its jurisdiction. It remained open to the tribunal to vary or rescind its directions given in its "Sixth Procedural Order". It equally remained open to Michael Wilson, should the tribunal persist in its apparent view that it had jurisdiction over Emmott's new counterclaims, to challenge any part of its final award determining those counterclaims.

This decision gives clear guidance on the important distinction between tribunals' rulings in respect of procedure and evidence during the course of an arbitration, and arbitral awards which finally determine an issue or claim. Absent this distinction, the discretionary power of arbitral tribunals to deal with procedure and evidence might be severely hampered.

(Michael Wilson & Partners Ltd v Emmott [2008] EWHC 2684 (Comm))