English Commercial Court firmly rejects attempt to re-open arbitral award challenges and provides guidance on Sections 67, 68, and 69 of the Arbitration Act 1996

England and Wales

In WSB v FOL [2022] EWHC 586 (Comm), the Commercial Court affirmed that a party may not circumvent the Court’s refusal of permission to appeal an arbitration award by applying for it to be relisted as an oral hearing. In the interest of avoiding protracted litigation, the Court will generally consider challenges to awards under section 67 (substantive jurisdiction) and section 68 (serious irregularity) of the Arbitration Act 1996 (“AA 1996”) on paper, without an oral hearing. Applications to appeal on a point of law (section 69, AA 1996) are on paper only and if dismissed are final. The decision highlights the Court’s pro-arbitration posture, as well as providing a useful reminder of the procedural and practical considerations of such applications.


The dispute arose out of a Securities Loan Agreement (“SLA”) between WSB as lender and FOL as borrower. WSB agreed to lend FOL an amount set by reference to the value of certain shares in a company lodged as collateral. FOL deposited the shares in accordance with the SLA. However, WSB decided not to advance the loan on the purported basis of unsatisfactory due diligence. WSB subsequently terminated the SLA.

The parties referred their dispute to arbitration under the JAMS International Arbitration Rules (“JAMS Rules”), in accordance with the SLA, which was governed by English law.

The arbitrator rendered an award in April 2021, finding that WSB should have advanced FOL a US$13.3 million loan per the terms of the SLA. WSB had no contractual right to request due diligence information from FOL and, in any case, these documents were not reasonably necessary to consummate the loan transaction. WSB was not entitled to terminate the SLA on the basis that FOL had committed an event of default by freezing the collateral after WSB’s failure to extend the loan. WSB was ordered to repay FOL the collateral it had advanced.

WSB applied to challenge the award under the AA 1996, alleging that the arbitrator:

  • lacked jurisdiction to grant relief from forfeiture of collateral under the SLA or to order that WSB was not entitled to its arbitration costs (section 67);
  • unfairly relied on an argument not raised by FOL (section 68); and
  • made errors of law (section 69).

Moulder J dismissed WSB’s challenges under sections 67 and 68 without a hearing under CPR 3.3(4), which allows the Court to make an order without hearing the parties or giving them an opportunity to make representations. WSB was also refused permission to appeal the award on a point of law under section 69.

WSB sought to set aside Moulder J’s order (the “Order”) by relying on CPR 3.3(5)(a) whereby a party may apply to set aside, vary or stay an order made pursuant to CPR 3.3(4). WSB argued that Moulder J had incorrectly determined the challenges without a hearing and that there was “a good reason” for disagreeing with the decision.


WSB’s application was dismissed in its entirety.

Section 69 challenge

On the section 69 challenge, Calver J in the Commercial Court held that WSB could not seek an oral rehearing of the Order. Section 69(5) of the AA 1996 is clear that an application under section 69 for leave to appeal on a question of law shall proceed without a hearing. The only exception is if it appears to the Court that a hearing is required. Paragraph O.8.7 of the new edition of the Commercial Court Guide (published in 2022) (the “Guide”) refers only to the right to an oral hearing for section 67 and 68 challenges.

Moulder J had not granted WSB permission as the point of law was not one of general importance or one which for some other special reason should be considered by the Court of Appeal (section 69(6), AA 1996). WSB could not circumvent Moulder J’s finding by seeking to set aside the Order and having the matter relisted for a hearing.

If WSB disagreed with Moulder J’s decision, its only recourse was to appeal against the Order in the Court of Appeal, but this had been declined by Moulder J. WSB had not sought to appeal against the Order in any case.

Sections 67 and 68 challenges

Calver J rejected WSB’s contention that Moulder J erred by determining the sections 67 and 68 challenges without a hearing. As WSB had not sought permission to appeal the Order, its application was to be determined under CPR 3.3(5) and paragraph O.8.7 of the Guide. The Court has the power to dismiss a section 67 or 68 claim without a hearing. If an applicant disagrees with the Court’s decision, it can apply to the Court to set aside the order and to seek directions for the hearing of the application.

The Guide provides that the Court will normally determine applications for permission to appeal without an oral hearing and that it may dismiss any claim without a hearing “where the nature of the challenge or the evidence filed in support of it leads the court to consider that the claim has no real prospect of success” (paragraphs O.8.1(l) and O.8.6 of the Guide). Hence, the Court will only allow sections 67 and 68 challenges to be heard orally if there is good reason to do so or a real prospect of success.

WSB had failed to demonstrate either that there was a good reason for its section 67 and 68 challenges to be heard orally, a test set out in (Kuznetsov, R (on the application of) v London Borough of Camden [2019] EWHC 2910), or that its claims had a reasonable prospect of success pursuant to paragraph O.8.6 of the Guide (also established in Midnight Marine v Thomas Miller [2018] EWHC 3431).

  • On the section 67 challenge, WSB’s claim that the arbitrator had no jurisdiction to grant relief from forfeiture of collateral under the SLA or to order that WSB was not entitled to its arbitration costs had no prospect of success. The provision in the SLA that FOL would pay any arbitration costs was invalid pursuant to section 60, AA 1996. The arbitrator was entitled to reach a decision on costs based on the JAMS Rules.
  • On the section 68 challenge, there was no serious irregularity in the award. Despite WSB’s allegation that the arbitrator had made a finding based on an argument that was not advanced by FOL, the finding was “clearly in play” in the arbitration proceedings. It would not amount to a serious irregularity if a tribunal decided a case on the basis of a point not strictly argued or pleaded by a party. This would only be triggered if a party was deprived of the opportunity to address the arbitrator on a point that was not raised at all in the proceedings and the arbitrator proceeded to base his decision on that point (emphasis added).

Calver J also outlined the procedural requirements on an application for an oral hearing where a challenge under sections 67 and 68 of the AA 1996 had been dismissed. He emphasised that it should not become a full hearing of the application preceded by a further round of submissions and evidence. Citing Males J (as he then was) in Midnight Marine, he noted that the hearing should typically be:

  • no more than 30 minutes in length;
  • where possible, listed before the judge who had dismissed the application without a hearing;
  • without the need for further written submissions, except for the applicant’s succinct argument against the judge’s reasons for dismissing the application without a hearing; and
  • without the respondent in attendance.


This decision is in line with the English Court’s continued pro-arbitration stance and support for the finality of arbitration awards. Meritless challenges to awards will be dealt with swiftly, and without an oral hearing.

Parties should not seek to re-open matters by requesting an oral hearing unless there are strong and valid reasons to do so. On section 67 and 68 challenges, even if a party successfully applies for an oral hearing, the practical constraints placed on the hearing limit the applicant’s ability to use this means to seek to change the Court’s decision.

For section 69 challenges, the bar is even higher. The Court sent a clear message that parties cannot seek to circumvent the Court’s order. If a party fails to meet the “threshold requirement” under section 69(5) of the AA 1996, barring leave granted by the Court to appeal the decision in a higher court, that decision is final.

The Commercial Court’s emphasis on avoiding unnecessary delay and expense associated with challenges to arbitral awards are a boon to the English legal system and strengthen the attractiveness of arbitration seated in this jurisdiction.