Key Facts
- •LMH, a mobile phone operator, and EGK had a long-term contract (MSA) for telecommunication services.
- •LMH served a termination notice, which EGK disputed, leading to ICC arbitration.
- •The Tribunal found LMH breached its good faith negotiation obligation under the MSA and awarded EGK €10,270,400.
- •LMH challenged the award under s.68 of the Arbitration Act 1996 on five grounds of serious irregularity.
Legal Principles
Section 68 of the Arbitration Act 1996 provides a closed list of grounds for challenging an arbitral award, requiring proof of the irregularity and substantial injustice.
Arbitration Act 1996, s.68
The threshold for a successful s.68 challenge is high; it applies only in extreme cases where the tribunal's conduct is seriously flawed.
Lesotho Highlands Development Authority v Impreglio SpA [2006] 1 AC 221, [28]; Departmental Advisory Committee Report on the Arbitration Bill of February 1996, [280]
A tribunal's duty is to decide the essential issues and provide reasons; it doesn't need to address every point or piece of evidence.
UMS Holding Ltd v Great Station Properties SA [2017] EWHC 2398 (Comm), [28]
Tribunals can make their own loss calculations if the essential building blocks were in play, even if not precisely articulated by parties.
Reliance Industries Ltd v The Union of India [2018] EWHC 822, [32]; RAV Bahamas Ltd v Therapy Beach Club [2021] AC 907
An arbitral tribunal may correct clerical, computational, or typographical errors under Article 36 of the ICC Rules or s.57 of the Arbitration Act 1996.
ICC Rules, Article 36; Arbitration Act 1996, s.57
Failure to exhaust available recourse under s.57 before bringing a s.68 application is a bar to the application.
Arbitration Act 1996, s.70(2)(b)
Outcomes
LMH's challenge under s.68 failed on all five grounds.
The Tribunal addressed the causation issue and gave sufficient reasons; the alleged procedural irregularities did not meet the high threshold for a s.68 challenge; and any computational error should have been addressed under Article 36 of the ICC Rules.