Arbitration Appeal? Don't Delay

Appeals to the English court from an arbitration award must be brought within 28 days of the date of the award. Time can be extended if the award requires correction to enable an appeal but minor corrections using the "slips rule" cannot be relied upon to extend the strict 28 day period (and nor do uncorrected minor typos create a bar to seeking an appeal), as was confirmed by Daewoo Shipbuilding & Marine Engineering Company Limited v Songa Offshore Equinox and another [2018] EWHC 538 (Comm).

Background

DSME sought to appeal two arbitration awards issued on 18 July 2017 (in connection with disputes arising from the construction of four semi-submersible drilling rigs) but DSME did not make its application until 8 September 2017, well outside the 28 day limit. Songa applied to strike out DSME's application on the basis it was made out of time.

DSME in turn relied upon corrections to the awards as restarting the 28 day period for pursuing an appeal. On 4 August 2017, DSME had applied to the tribunal to correct four clerical errors in the awards. The errors were dealt with in two memoranda of correction issued by the tribunal on 14 August 2017, which was 27 days after the awards had been issued. DSME applied for permission to appeal a further 25 days after that.

How could correction of an award extend the 28 day limit?

Section 70(3) of the Arbitration Act 1996 (the "Act") requires that any application to appeal must be brought within 28 days of:

the date of the award; or the date of notification of the result of "any arbitral process of appeal or review". Section70(2), however, provides that an application may not be brought if the applicant has not exhausted:

"any available arbitral process of appeal or review"; or "any available recourse under section 57". Section 57 provides that the tribunal (by itself or on application from the parties) may "correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity in the award".

Section 70(3), however, does not state whether the "date of the award" means the date of the original award or the date of the corrected award. This seemingly creates a paradox if you can't appeal before a correction has been issued and the time limit expires before any correction is issued. This has led some to say that only the corrected award starts the 28 day time limit running, whether as the relevant date of the award or the date of...