In <span class="news-text_italic-underline">Republic of Kazakhstan v World Wide Minerals Ltd and others [2025] EWHC 452 (Comm)</span>, the English Commercial Court upheld Kazakhstan's challenge to an investment treaty award under Section 68 of the <span class="news-text_italic-underline">Arbitration Act 1996</span>. The Court found that the tribunal had failed to address a central issue, which amounted to a failure of due process under Section 68(2)(d), causing Kazakhstan substantial injustice.
The case arose from a London-seated investor-state arbitration concerning a mining investment. The tribunal had initially ruled in favour of World Wide Minerals (“<span class="news-text_medium">WWM</span>”), awarding damages based on a point not argued by WWM. This deprived Kazakhstan of the opportunity to address the issue. Kazakhstan successfully challenged the award and the Court remitted the matter to the tribunal to reconsider the issues of loss and causation.
The challenge to the second award involved the tribunal’s decision on those issues. A key point in the dispute was whether Kazakhstan’s breach of a management agreement led to the collapse of WWM’s investment, or if WWM’s failure to make payments would have caused the investment to fail regardless. Kazakhstan argued that the tribunal had not addressed this critical “counterfactual case” and therefore failed to deal with a key issue.
Bryan J, upholding Kazakhstan’s challenge, concluded that the failure to address the counterfactual case constituted a failure to deal with an essential issue required to reach a decision in the award. The tribunal had acknowledged the issue but failed to address it in its final ruling, instead offering only a brief mention in one sentence of a lengthy award. The judge emphasised that a tribunal's failure to address an issue vital to the resolution of the dispute amounts to a serious procedural error.
This ruling highlights the importance of due process in arbitral proceedings. It confirms that a failure to address central issues can result in the annulment of an arbitral award under Section 68 of the <span class="news-text_italic-underline">Arbitration Act 1996</span>.
