A Prior Application to the Tribunal to Admit Irregularity is not an ‘Arbitral Process of Appeal or Review’ for the Purposes of a Section 68 Arbitration Act 1996 Challenge

In <span class="news-text_italic-underline">RTI Ltd v OWH SE iL [2025] EWHC 1945 (Comm), the English Commercial Court</span> summarily dismissed a challenge to an arbitral award under section 68 of the <span class="news-text_italic-underline">Arbitration Act 1996</span> (“<span class="news-text_medium">AA 1996</span>”). The application, which sought to set aside or remit the award on the basis of fraud, was held to be out of time.

The claimants, RTI and Rusal, argued the award was obtained by fraud because O, the defendant, had allegedly failed to disclose documents relating to the service of default notices. They contended the cross-examination of O’s witness indicated the existence of undisclosed communications. Their application was based on section 68(2)(g) AA 1996, but was filed outside the 28-day period set by section 70(3). To overcome this, they argued their earlier request to the tribunal to admit an irregularity constituted an “available arbitral process of appeal or review” under section 70(2), which would defer the time limit for a court challenge.

Butcher J rejected this argument, holding that such a request was not a process of appeal or review. It did not involve a different arbitral body reconsidering the award, but was limited to the tribunal deciding whether to admit or decline to admit the irregularity. The court also refused to grant an extension of time, applying the principles from <span class="news-text_italic-underline">Terna Bahrain Holding Company WLL v Al Shamsi [2012] EWHC 3283 (Comm)</span>. The delay was substantial; there was no adequate explanation for it; and neither O nor the tribunal contributed to it. The application was also weak on its merits.

The judge stressed that section 68 AA 1996 sets a “high threshold” for intervention, limited to “extreme” cases where the tribunal has gone so wrong in its conduct of the arbitration that justice demands correction, citing <span class="news-text_italic-underline">Czech Republic v Diag Human SE [2024] EWHC 503 (Comm)</span>. On the facts, there was no evidence of undisclosed documents, no basis to show any such documents would have been disclosable and no proof of fraudulent non-disclosure.

The judgment highlights the strict approach taken by the English courts to the 28-day time limit for section 68 challenges. Parties cannot rely on applications to the tribunal as a means of extending time and speculative allegations of fraud will not satisfy the high threshold required for relief.