Summary

Arbitration - allegation of apparent bias by seeming to pre-judge an aspect of the merits (Arbitration Act 1996, s.24) - arbitrators’ power to require a payment on account as an interim remedy in respect of a money claim (UNCITRAL Rules, Articles 26 & 34, Arbitration Act 1996, ss.39 & 58)

In an arbitration seated in London and governed by the UNCITRAL Rules, HVF claimed c.US$400 million as a debt it said was owed by HVF under three related long-term supply contracts. The arbitrators permitted HVF to rely on two extra witness statements served on the final day of a four-day merits hearing, in response to an allegation of dishonesty raised by EGF the previous day, without allowing for cross-examination on those statements (which would have necessitated an adjournment). The court dismissed a claim that the arbitrators had thereby made it appeared that they might be pre-judging an issue going to the merits so as to create a justifiable doubt as to their impartiality. The arbitrators issued a partial award requiring EGF to pay HVF US$250 million on account of HVF’s claim, by way of interim relief, subject to later adjustment or reconsideration. The court dismissed challenges to that award under s.67 and s.68 of the 1996 Act. EGF contended that the arbitrators had no power to order payment on account by way of interim relief, alternatively no power to issue an award for interim relief. That challenge did not go the arbitrators’ substantive jurisdiction, so the s.67 claim failed. The pleaded claim of substantial injustice was not made out, so the s.68 claim also failed. Obiter, if substantial injustice had been shown, the s.68 claim would have succeeded: Article 26 of the UNCITRAL Rules did confer power to order payment on account by way of interim relief; but Article 34 of the UNCITRAL Rules requires in unqualified terms that any relief granted by an award must be final, so the arbitrators exceeded their powers by granting interim relief in the form of a partial award.