International Arbitration: The Tide Rises and Falls, but the Sands of Error Crumble

It is often said that “justice must not only be done but must be seen to be done.” In the context of arbitration that is controversial especially when as Lord Wolfson submitted in relation to arbitration generally in The Federal Republic of Nigeria v Process & Industrial Developments Limited : “You have made your bed, and you lie on it.” In that case questions of bribery, corruption and perjury were raised undermining the arbitration process. Not only that but the arbitrators suffered from a deliberate concealment on one side and mismanagement and incompetence on the other. The tribunal’s Award was challenged in the Commercial Court, Mr Justice Robin Knowles CBE giving judgement on 23 October 2023. His thorough and comprehensive analysis of a such a serious case has raised questions as to how far arbitrators should go in dealing with allegations of fraud. A subject that was raised at the LCIA Symposium at Tylney Hall this year. The case has caused concern and debate amongst arbitrators, lawyers, academics and the judiciary because of the exceptional circumstances of the case. It must be emphasised that it is only in extreme cases where it can be said that “what has happened is so far removed from what could reasonably be expected of the arbitral process that we would expect the court to take action.” Here the conduct of the arbitral tribunal was challenged under Section 68 Arbitration Act 1996 which opens up the prospect of serious reflection as to what steps can be taken to avoid such difficulties.