Applications under section 68 of the English Arbitration Act 1996 (the Act) allow a party to challenge an arbitral award on the basis of serious irregularity affecting the tribunal, the proceedings, or the award itself. Despite this statutory mechanism, challenges rarely succeed: in 2020/21, the most recent year for which data is available, only 4% of section 68 applications before the High Court were upheld. Parties may nonetheless pursue section 68 challenges for strategic reasons during an arbitration. Section 68 remains unchanged following the enactment of the Arbitration Act 2025.[1]

Our analysis of recent case law continues to confirm that the threshold for a successful challenge is exceptionally high. Courts will intervene only in extreme circumstances, and even then, the available remedies—remitting the award to the tribunal, setting it aside, or declaring it of no effect—are applied rarely. Courts remain committed to the principles of minimal court intervention and respect for arbitral finality. Courts consistently refuse to entertain attempts to challenge a tribunal’s findings of fact, which fall outside the contours of section 68.

Use of Section 68

Section 68(2)(a) – Tribunal Failure to Comply with its General Duties

In Mare Nova Incorporated v. Zhangjiagang Jiushun Ship Engineering Co. Ltd,[2] the High Court found that a “serious irregularity” had occurred because the tribunal’s decision rested on an issue that was not raised or countered in the arbitration. The dispute related to an owner’s claim that the contractor had damaged a mechanical component of a vessel while carrying out repairs. The arbitral tribunal found that the contractor had caused physical damage, but that damages did not follow due to a clause discharging liability. This clause was not raised or countered in the arbitration (the contractor did not participate).

The High Court found that this was a serious irregularity resulting in “substantial injustice” since the owner lost an opportunity to fully plead its case. The owner was denied permission to appeal under section 69 of the Act, but the High Court considered the question of law on discharge of liability and found the tribunal’s conclusion “obviously wrong in law”. The award was set aside, and the matter was remitted to the tribunal on the basis of law set out by the court.

Similarly, in Stonegate Farmers Limited v Chuck Farms Limited,[3] the High Court found that the arbitrator had implied a term into the contract without affording Stonegate “a reasonable opportunity” of putting its case on the implied term to the arbitrator. The arbitrator invited submissions on the implied term after issuing the award, and even then, did not afford enough time to Stonegate to make such submissions. The arbitrator then confirmed that his decision on the implied term was sound. The High Court did not agree and the award was remitted to the arbitrator for reconsideration of the issue of the implied term.

In Eagle Bulk Pte Ltd v. Traxys North America LLC[4] the claimants alleged that the arbitral tribunal’s conclusion on facts was derived from a document which did not support the finding and that the finding was not argued in the arbitration. The challenge failed. The High Court found that the document was one of several that formed the basis for the tribunal’s finding. It was also corroborated by other evidence, and that the claimants had the opportunity to address the tribunal. Further, the document was not a “building block” of the tribunal’s reasoning. The High Court found that the tribunal was not bound by the parties’ views on a document nor was it required to notify the parties about its interpretation.

Section 68(2)(b) – Tribunal Exceeding its Powers

In  the 2005 Lesotho Highlands Development Authority v. Impregilo SpA judgment, the House of Lords had held that an excess of power under section 68(2)(b) only occurs if the tribunal exercises power that it does not have.[5] It does not cover a tribunal’s mistakes in exercising power that it has. This position was confirmed in Genel Energy Miran Bina Bawi Limited v The Kurdistan Regional Government of Iraq.[6] This concerned an award granting a relatively high and lumpsum amount in costs to the respondent without requiring any particularisation of costs. The claimant argued that section 63(3) of the Act requires items of recoverable costs to be expressed in the award, and that the tribunal’s failure amounted to an excess of power.

The High Court found that by choosing to arbitrate under the LCIA Rules (which contain a comprehensive costs regime), section 63(3) of the Act had been displaced. Article 28 of the LCIA Rules 2020 applied which does not require particularisation. There was no excessive use of power by the tribunal. The High Court found that section 68(2)(b) is not appropriate if the complaint is simply that the tribunal reached a wrong conclusion. The challenge was dismissed. Readers will note that Lesotho continues to be the authority on the position that erroneous exercise of power or erroneous application of law cannot sustain a challenge under section 68(2)(b).

Section 68(2)(d) – Tribunal Failure to Deal with all Issues

Indus Powertech v Echjay Industries Private Ltd[7] is a rare example of successful recourse against the award.[8] Here, the tribunal’s determination of a loss of profit claim did not consider two counterfactuals that were put to it by the respondent. The High Court adopted the four-step test – i) whether the relevant argument / point was an “issue”; ii) whether the issue was “put” to the tribunal; iii) whether the tribunal had failed to “deal” with it; and iv) whether the failure caused or will cause substantial injustice. The High Court found that a question is an “issue” if the whole or substantial part of a claim depends on the answer to the question. To determine if it has been “dealt” with, the award will be read in a “fair, commercial, and commonsense” way. If the answer is not obvious, courts will look for indicia of decision-making, including the analysis conducted for decisions on other issues. The High Court found that two counterfactuals could properly be construed as “issues” and did not feature in the tribunal’s reasoning. The award was remitted for reconsideration of the two issues.

A similar issue arose in Eagle Bulk Pte Ltd v. Traxys North America LLC[9] where the High Court held that the arbitral tribunal had made a material finding of fact against the claimant’s main argument and removed the need to consider related facts. The High Court had no problem with what the arbitral tribunal had done. The High Court confirmed that its conclusion would not be affected by an issue being dealt with badly. All that matters is that an issue was dealt with.

Section 68(2)(g) – Fraud / Public Policy

In K1 v B,[10] the claimant complained that the arbitrator’s  award contravened public policy because the underlying contract contemplated a fraud. The issue was not raised in arbitration. The High Court observed that the challenge did not allege fraud in the way the award had been procured. It made clear that section 68(2)(g) is limited to an inquiry about the arbitral process and does not go to the merits. The application was dismissed.

Our Thoughts

Challenging an arbitral award requires exceptional circumstances. The caselaw continues to demonstrate that section 68 sets out a two-fold test for “serious irregularity” and “substantial injustice” – both elements must be proved. In this context, it is noted that:

• section 68(2)(a) will not apply if a party had an opportunity to make submissions but elected not to do so;
• section 68(2)(b) will not apply if a tribunal decides incorrectly, it will apply if in so deciding, the tribunal exercises a power it did not have;
• section 68(2)(d) will be engaged only when there is lack of decision making, and not when the decision exists but is unclear or is wrong;
• section 68(2)(g) focuses on fraud in the arbitral process and is unconcerned with fraud on the merits.

Indus is a reminder that tribunals cannot deal with issues in ‘secret’ – parties cannot be left to guess whether an issue was decided.

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^[1] Section 68 has not been amended by the Arbitration Act 2025, but Readers should note that there are amendments to related provisions of the Act affecting section 68 – by section 12 of the Arbitration Act 2025, the time limits for challenges under inter alia section 68 set out in section 70 of the Act have been amended to run from “the applicable date” rather than “the date of the award”.  Before applying to court, an applicant must exhaust any available arbitral remedies, including correction or clarification under section 70(2).

^[2] [2025] EWHC 223 (Comm).

^[3] [2026] EWHC 742 (Comm).

^[4] [2026] EWHC 518 (Comm).

^[5] [2005] UKHL 43.

^[6] [2026] EWHC 1003 (Comm).

^[7] [2026] EWHC 827.

^[8] Also see, Djanogly v Djanogly [2025] EWHC 61 (Ch); and The Republic of Kazakhstan v World Wide Minerals [2025] EWHC 452 (Comm).

^[9] [2026] EWHC 1003 (Comm).

^[10] [2025] EWHC 2539 (Comm).