High Court Once Again Upholds Award Of Third Party Funding Costs In Arbitration

• Published date: 17 February 2022
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution
• Law Firm: Herbert Smith Freehills
• Author: Herbert Smith Freehills

The Commercial Court has refused a challenge to an arbitral award brought on the basis of the tribunal's award of the costs of third party funding to the successful party, finding that it did not constitute a serious irregularity under s68 of the 1996 Arbitration Act: Tenke Fungurume Mining SA v Katanga Contracting Services SAS [2021] EWHC 3301 (Comm).

The court reached a similar view a few years ago in Essar Oilfields Services Ltd v Norscot Rig Management PVT Ltd [2016] EWHC 2361 (Comm) (considered here). These decisions highlight the English courts' reluctance to second-guess the discretionary exercise of tribunal powers (including to award costs), with the court emphasising that it "should be extremely slow to interfere with these discretionary procedural decisions".

The decisions also highlight an important distinction between the costs that have been successfully awarded to date in English-seated arbitrations and those in English...