Successful challenges to arbitration awards under s68 of the English Arbitration Act 1996 (the “Act”) are rare. Their rarity reflects the principle that, whilst the Court should be able to correct serious failings to comply with the “due process” of arbitral proceedings, relief under s68 will only be appropriate where the tribunal has gone so wrong in the conduct of the arbitration that “justice calls out for it to be corrected”.[1]

Three months into 2025, the English Court has handed down three separate judgments in which a party succeeded in a s68 challenge of an arbitral award.[2] In this blog post, we summarise the latest, Republic of Kazakhstan and World Wide Minerals Ltd & Ors [2025] EWHC 452 (Comm).

S68 of the Act

S68 of the Act enables a party to arbitral proceedings to apply to the court to challenge an arbitral award on the grounds of “serious irregularity affecting the tribunal, the proceedings or the award”.

“Serious Irregularity” means an irregularity of one or more of the nine categories set out in S68(2), which the court considers has caused or will cause substantial injustice to the applicant.

Amongst the exhaustive grounds is “failure by the tribunal to deal with all the issues that were put to it” (s68(2)(d)).

Background and Challenge

The challenge arose out of a long-running Investor-State arbitration seated in London under UNCITRAL rules between the Republic of Kazakhstan and World Wide Minerals and others (the “WWM Parties”).

Kazakhstan had previously successfully challenged the “Final Award on Merits” handed down in 2019 on the grounds of serious irregularity, and the issues of causation and loss had been remitted to the Tribunal.

The Tribunal then had a second attempt to consider issues of causation and loss based on evidence and arguments placed before them at the remitted hearing. The Tribunal rendered its award on 26 March 2024, finding that Kazakhstan was liable to the WWM Parties in an amount of USD54.5 million (including interest).

Kazakhstan brought its second challenge for serious irregularity on the basis that the Tribunal had failed to deal with its central argument on causation and loss at the remitted hearing, which would (per Kazakhstan’s case) have provided a complete defence to the claim. Kazakhstan submitted that it was a key issue as to whether a (limited) breach by Kazakhstan was in fact a cause of the demise of WWM’s investment at all since, even but for the breach, the relevant agreement would still have been terminated by Kazakhstan for WWM’s failure to make payments thereunder, and WWM’s investment would have been lost in any event, with the result that WWM suffered no loss (the “Counterfactual Case”).

For its part, WWM accepted that the Counterfactual Case was put by Kazakhstan to the Tribunal at length and that, if it was not dealt with, there would be a substantial injustice to Kazakhstan within the meaning of s68. However, it submitted that the Tribunal did deal with the key issue (however briefly and however inferentially).

Decision and reasoning

Mr Justice Bryan upheld Kazakhstan’s challenge to the Award in no uncertain terms. The Judge held that “if there was ever a case where there was a failure to comply with the due process of the arbitral proceedings by a tribunal failing to deal with a central issue that was put to it, then this was it”. The parties agreed that they would make submissions on the appropriate relief at a consequentials hearing.

Bryan J agreed with Kazakhstan’s submission that the Counterfactual Case was not only “an issue”, but rather the “centrepiece” of its defence, and that there could be no doubt that it had been “put” to the Tribunal. In assessing whether the Tribunal had “failed to deal” with the issue, Bryan J noted that it was necessary “to undertake a fair, commercial and commonsense reading of the Award as a whole in the factual context of what was argued before the Tribunal”. Having undertaken such an exercise, the Judge concluded that he was “in no doubt whatsoever” that the Tribunal did not deal with Kazakhstan’s Counterfactual Case.

The Judge rejected the “crie de Coeur” of the WWM Defendant’s counsel that it was not likely that an experienced tribunal would fail to deal with the Counterfactual Case as:

“looking at matters through the wrong end of the telescope. The reason why the Tribunal went wrong is because it went wrong. Experienced tribunals do fail to deal with issues that are put to then. With the greatest respect to the eminent arbitrators in this case, even Homer nods, and experience does not bring with it infallibility, and even the most knowledgeable and skilled arbitrators can fall into errors or have lapses of judgment”.

Having established that there was a serious irregularity, Mr Justice Bryan dealt swiftly with the “substantial injustice” limb, finding that this is one of those cases where the irregularity is so serious that substantial injustice is inherently likely.

Discussion

Successful s68 challenges are rare. According to the Judiciary Guide 2023-2024 (the latest available), the Court received 37 s68 challenges that year, of which 5 applications were dismissed at a hearing, 7 applications were dismissed on the papers, 3 were discontinued, 1 was settled, 1 was withdrawn, and 20 were “pending”.[3] The threshold for a successful challenge remains high.

It is notable against that backdrop that, only three months into 2025, the Kazakhstan judgment is the third instance in which the High Court upheld a s68 challenge and found that there had been a serious irregularity causing substantial injustice.

In Djanogly v Djanogly, the court found that, amongst other errors, the tribunal had failed to address a limitation defence amounting to a serious irregularity under s.68(2)(d), although it dismissed the claimant’s other s68 challenge. In Mare Nova, the Claimant successfully argued that the tribunal had failed to comply with its general duties under s33 of the Act in ruling on an issue which had not been raised in the proceedings.

The three judgments serve as useful reminders that the courts will intervene in the arbitral process where they are satisfied that a serious irregularity has occurred, although the threshold remains high.

If you would like to discuss the contents of this article further, please contact Evgeniya Rubinina or Boris Telyatnikov.

[1] As per Akenhead J in Secretary of State for the Home Department v Raytheon Systems Limited (“Raytheon”) [2014] EWHC  4375 (TCC) at [33], quoting Lesotho Highlands Development Authority v Impregilo SpA [2005] UKHL 43, paragraph 27.

[2] Mare Nova Incorporated v Zhangjiagang Jiushun Ship Engineering Co., Ltd [2025] EWHC 223 (Comm), Rabbi Saul Djanogly v Mr David Djanogly & Ors [2025] EWHC 61.

[3] https://www.judiciary.uk/wp-content/uploads/2025/03/24.295_JO_Commercial_Court_Report_23-24_WEB.pdf