1. Statutory Framework: Section 68 Arbitration Act 1996

Section 68 provides a limited supervisory jurisdiction allowing the court to set aside or remit an award for “serious irregularity” causing substantial injustice.

Key Features

Mandatory provision (cannot be excluded)

High threshold: exceptional cases only

Focuses on process, not merits

Exhaustive Grounds (Selected)

Failure by the tribunal to comply with its general duty (s.33)

Tribunal exceeding its powers

Failure to deal with all issues

Uncertainty or ambiguity in the award

Procedural unfairness or bias

2. Judicial Philosophy: Minimal Intervention

English courts have consistently emphasised that Section 68 is not an appeal route and is invoked only where the arbitral process has gone “seriously wrong”.

3. Failure to Deal With All Issues

(a) ABB AG v Hochtief Airport GmbH (2006)

Facts
The tribunal failed to address a distinct defence raised by one party.

Held

An award may be set aside where a key issue essential to the outcome is not dealt with

Minor omissions are insufficient

Principle
➡️ Only failure to address material, outcome-determinative issues qualifies as serious irregularity.

4. Breach of the Tribunal’s General Duty (Section 33)

(b) Lesotho Highlands Development Authority v Impregilo SpA (2005)

Facts
Alleged procedural unfairness in the tribunal’s approach to issues of law.

Held

Section 68 targets procedural injustice, not legal error

Even serious legal mistakes are not irregularities unless they affect fairness

Principle
➡️ Fair process, not correctness, is the benchmark.

5. Serious Procedural Unfairness and Lack of Opportunity to Be Heard

(c) Vee Networks Ltd v Econet Wireless International Ltd (2004)

Facts
The tribunal decided the case on a point not fully argued by the parties.

Held

Parties must have a reasonable opportunity to address determinative issues

Failure constituted serious irregularity

Principle
➡️ “Due process paranoia” is rejected, but ambush decisions are impermissible.

6. Apparent Bias and Arbitrator Conduct

(d) Cofely Ltd v Bingham (2016)

Facts
Arbitrator’s undisclosed relationship raised concerns of apparent bias.

Held

Failure to disclose circumstances giving rise to apparent bias may amount to serious irregularity

Actual bias need not be proven

Principle
➡️ Transparency is integral to procedural fairness.

7. Tribunal Exceeding Its Powers

(e) World Trade Corporation v Czarnikow Sugar Ltd (2004)

Facts
The tribunal decided issues outside the scope of the submission to arbitration.

Held

Acting beyond jurisdiction can amount to serious irregularity

However, excess must be material and prejudicial

Principle
➡️ Jurisdictional overreach with procedural consequences may justify setting aside.

8. Substantial Injustice Requirement

(f) Terna Bahrain Holding Company v Al Shamsi (2013)

Facts
Procedural defects were established, but outcome likely unchanged.

Held

Even proven irregularity fails without substantial injustice

Applicant must show the result might realistically have been different

Principle
➡️ Section 68 is a two-stage test: irregularity + injustice.

9. Uncertainty and Ambiguity in Awards

(g) Margulead Ltd v Exide Technologies (2005)

Held

An award so unclear that it cannot be enforced may constitute serious irregularity

Courts prefer remission over setting aside

Principle
➡️ The remedy is usually remittal, not annulment.

10. Remedies Under Section 68

Courts may:

Remit the award to the same tribunal (preferred)

Set aside the award (exceptional)

Declare the award ineffective in part

Total annulment is rare and reserved for extreme cases.

11. Practical Trends in Section 68 Applications

12. Conclusion

Section 68 reflects a deliberate policy choice to protect arbitration from excessive judicial interference while preserving procedural justice. English courts:

Enforce a high threshold

Focus on process, not merits

Require demonstrable injustice

Only where the arbitral process has gone fundamentally and unfairly wrong will an award be set aside.

Case Laws Referenced (Summary)

ABB AG v Hochtief Airport GmbH

Lesotho Highlands Development Authority v Impregilo SpA

Vee Networks Ltd v Econet Wireless International Ltd

Cofely Ltd v Bingham

World Trade Corporation v Czarnikow Sugar Ltd

Terna Bahrain Holding Company v Al Shamsi

Margulead Ltd v Exide Technologies