In Guangzhou Dockyards Co Ltd v ENE Aegialii [2010] EWHC 2826 (Comm), Mr Justice Blair dismissed an application which had sought to appeal against an arbitration award on an issue of fact.

A dispute arose between Guangzhou Dockyards Co Ltd (GD), a Chinese dockyard owner, and ENE Aegialii (ENE), a shipowner, in relation to a contract pursuant to which GD were to convert ENE's crude oil carrier into an ore carrier. The contract was subject to an English arbitration clause and governed by English law. The clause stated that either party could appeal to the High Court on any issue arising out of the arbitral award.

The arbitral panel issued an award on 9 June 2010, in which they found for ENE, awarding them approximately US$59m plus interest. GD then issued two separate applications in the Commercial Court seeking to challenge the appeal. The first was under s69 of the Arbitration Act 1996 (the Act) on an issue of law. This application is currently pending and was not in issue before Blair J. The second claim concerned the way in which the arbitral panel dealt with an issue of foreign law (which, as a matter of English law, is treated as a question of fact), which GD claimed the panel had misapplied. The principal issue was, therefore, whether the High Court had jurisdiction to hear an appeal as to a tribunal's decision of fact, in circumstances where the arbitration clause in question permitted an appeal on "any issue".

Blair J held that it was "very doubtful that the court has jurisdiction to hear an appeal from arbitrators on issues of fact, even if the parties were to agree to such an appeal." Although s69 of the Act (which deals with appeals on issues of law) began with the words "Unless otherwise agreed by the parties..." this could not be construed so as to expand the jurisdiction of the court to include an appeal to the court on an issue of fact as well as law. Further, the principle of party autonomy in s1 of the Act referred only to the conduct of the arbitration, it did not extend to the way in which the court interfaced with the arbitration. Finally, Blair J held that it was unlikely that it could be said that the court possessed any inherent jurisdiction to hear an appeal of fact in these circumstances. In any event, Blair J held that in the present case, the arbitration clause did not, on its proper construction, contain an agreement that an appeal on an issue of fact could be made. Such an intention would require far clearer expression to have any effect.

This decision strongly suggests that issues of fact decided by arbitral panels cannot be appealed, even in circumstances where the parties have agreed that they may do so. Appeals under s69 of the Act are confined to issues of law and it is highly unlikely that the court's inherent jurisdiction would extend to hearing such an appeal. The case also illustrates that the English courts are keen to preserve the finality of arbitral awards wherever possible.