Whether a party bringing a section 68 application can argue that the tribunal disregarded or overlooked a particular piece of evidence


The claimant applied under section 68 of the  Arbitration Act 1996 to challenge an ICC award. The focus of the inquiry under section 68 is due process, rather than the correctness of the tribunal’s decision. It  has been emphasised in a number of cases that the evaluation of   the evidence is entirely a matter for the  tribunal. However, the claimant sought to argue here that the tribunal had overlooked or  disregarded a particular piece of evidence. Although that might be said to amount to an assertion  that the arbitrators made mistakes in their findings of primary facts, the claimant sought to rely  on a passage in Toulson  J’s judgment in Arduina Holdings BV v Celtic Resources [2006], which suggested that, in an exceptional case, the court may interfere under section 68 where the  tribunal has reached the wrong findings of fact.

That argument was rejected by Flaux J. He instead referred to Colman J’s decision in World Trade  Corporation  v C Czarnikow Sugar [2005], in which it was said that failure to take into account  evidence relevant to an issue is not properly to be regarded as failure to deal with an issue.  Flaux J said that he did not feel constrained to follow Toulson J (even though Andrew Smith J had  felt  so constrained in Petrochemical Industries v Dow Chemical (see Weekly Update 28/12) because Toulson J’s comments were clearly obiter. Furthermore, Toulson J  had not specified what sort of exceptional case he had had in mind. Flaux J said that “it seems to  me that, as the present case demonstrates, the contention that the tribunal has overlooked or misunderstood particular evidence necessarily involves interference with the  evaluation of the evidence by the tribunal”. Arbitrators cannot set out every piece of evidence in  an award and so the court cannot determine whether a particular piece of evidence has been  overlooked, without analysing the tribunal’s evaluation of evidence, which is not permissible under  section 68.

In any event, Flaux J held that the tribunal had not overlooked or mischaracterised evidence.