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Orascom TMT Investments S.À.R.L v. Veon Ltd [2018] EWHC 985 (Comm)

In a recently published Commercial Court judgment, which was initially delivered ex tempore in private, Mr Justice Andrew Baker considered a challenge, brought under section 68 of the Arbitration Act 1996 ("the Act"), to a final arbitral award made under the LCIA rules. The claim failed and was dismissed. However, the decision is of interest to arbitration practitioners for two main reasons. First, the Judge provided a helpful analysis of when section 68(2) of the Act will in principle be engaged. Second, the Judge indicated that the common practice for formulating and presenting challenges under sections 67 & 68 of the Act was inappropriate and should not be followed. The Judge also concluded by explaining why he decided that a copy of his decision should be published.

The decision is considered by Ben Elkington QC, FCIArb1 and Richard Liddell2 of 4 New Square.

BACKGROUND

The Claimant sought to challenge, under section 68 of the Act, a final arbitral award made under the Rules of the LCIA. Section 68(1) provides that a party to arbitral proceedings may apply to the court challenging an award on the grounds of "serious irregularity affecting the tribunal, the proceedings or the award." Section 68(2) provides that "serious irregularity" means an irregularity of one or more specified kinds "which has caused or will cause substantial injustice to the applicant." One of those specified kinds of irregularity, set out in section 68(2)(d) is a "failure by the tribunal to deal with all the issues that were put to it."

The claim was brought by Claim Form dated 23 October 2018, but the Court observed that the Claim Form did not clearly or helpfully define the issue said to have been put to the tribunal, but not dealt with by the tribunal, in their award. Rather, the Claim Form merely stated that the tribunal "...failed to address a fundamental issue as to the impact of Italian law on the defendants' obligations under the contractual indemnity that was the subject of the parties' dispute".

The award, and therefore the challenge, arose out of a share sale agreement entered into in April 2011, by which Orascom (the Claimant in this case and respondent in the arbitration) sold to Veon (the Defendant and claimant in the arbitration), the Wind Telecom Group. The share sale agreement was governed by New York law, but contained an arbitration agreement providing for arbitration in the event...