“(4) The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.”
“68.—(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award. A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3).
“(1) The tribunal shall— ” (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined. (2) The tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it.”
“(1) If a party to arbitral proceedings takes part, or continues to take part, in the proceedings without making, either forthwith or within such time as is allowed by the arbitration agreement or the tribunal or by any provision of this Part, any objection (a) that the tribunal lacks substantive jurisdiction, (b) that the proceedings have been improperly conducted, (c) that there has been a failure to comply with the arbitration agreement or with any provision of this Part, or (d) that there has been any other irregularity affecting the tribunal or the proceedings, he may not raise that objection later, before the tribunal or the court, unless he shows that, at the time he took part or continued to take part in the proceedings, he did not know and could not with reasonable diligence have discovered the grounds for the objection. (2)…”
“Further, intervention under s 68 should be invoked only in a clear case of serious irregularity. The court’s powers to interfere with an arbitrator’s discretionary decision as to how he should exercise his jurisdiction under s 30(1) should not be engaged unless it is clear that in exercising his discretion he has failed to have regard to the relevant facts and to his duty under s 33. Unless he has arrived at a conclusion which no reasonable arbitrator could have arrived at in the case in question having regard to his duties under s 33, it cannot be said that his decision is capable of being characterised as a serious irregularity.”
“A party who wishes to challenge an award for a serious irregularity should not only act promptly in making his application to the court but should also take care not to lose his right to object. A party who takes part or continues to take part in the proceedings must make his objection to the irregularity “either forthwith or within such time as is allowed by the arbitration agreement or the tribunal”… A waiver will arise in respect of an objection under s.68(2)(b)(excess of powers) where the relief was sought in the arbitration and the applicant took part without objecting that the tribunal lacked the powers in question. In the case of an alleged procedural irregularity committed by an arbitrator during the conduct of proceedings, the point must therefore be raised immediately (unless there is no knowledge or means of knowledge, which will be a difficult hurdle to overcome)…”
“The hearing will cover all the Parties’ respective claims and counterclaims. Specifically, the Parties and their experts will address, among others, the issue of whether an on-site visit by the experts is required prior to the Tribunal’s final award, in particular with regard to the Respondent’s counterclaims.”
“368 In accordance with Procedural Order N°1, the Experts met and produced a Joint Experts’ Report. The Experts agreed that allegation (i), regarding flood control facilities involved a factual or contractual issue and that a site visit was not necessary to form a view. They also agreed that allegation (ii), regarding the embankment toe drain, was a factual or contractual issue and that a site visit was not necessary. With regard to allegation (iii) this concerned the location of two groundwater drainage pipes, respectively in the eastern and western embankments. The experts disagreed as to the need for a site visit, Mr Legg considering that a visit was unnecessary, Mr Chirisa considering that it would be necessary to speak to the new contractor on site and to confirm that the work described by Golder as having been completed had indeed been completed. Mr Chirisa further believed that site visits were an established industry practice. With respect to allegation (iv) particle size and compaction, the Experts agreed that a site visit would not be necessary. The Experts disagreed as to allegation (v) slope ratio of embankment downstream slope, with Mr Legg considering that the issue could be resolved without the need for a site visit, Mr Chirisa being of the view that a site visit was necessary to view the workings and confirm that the site of the allegedly defective work had been covered over and how the new contractor had executed its work. 369. In cross-examination, Mr Legg recognized that, with respect to some of his conclusions, a site visit might have been useful. However, he added, in each case, that he believed a site visit would no longer be useful. 370. Mr Chirisa was cross-examined with respect to the alleged construction defects in respect of which the experts disagree as to the need or usefulness of a site visit. As to allegation (iii) concerning the location of groundwater drainage pipes, he agreed with the proposition that a site visit would be of no practical utility because it would not be possible to see or inspect the pipelines concerned. With regard to allegation (v) concerning the downstream slope ratio, Mr Chirisa confirmed that if the new contractor had completed the construction of the embankments it would no longer be possible to see or inspect the downstream slope ratio which was the subject-matter of this allegation. He also agreed that there would be a photographic record of construction by the new contractor and that once the liner had been placed it would no longer be possible to inspect the earthworks beneath it. 371. At the conclusion of the evidence, then, both experts agree that a site visit would not allow a visual inspection of the areas of the works concerned by the Respondent’s allegations of defective work. Nor would it be necessary to verify the actual state of completion of the TSF by the new contractor. The Tribunal recognizes of course that Mr Chirisa is still of the view that an on-site visit would be useful for the purpose of face to face interviews, in context, with the new contractor and the relevant mine personnel. However, given the circumstances of this case, and the uncertainties surrounding the possibility of travel given the restrictions imposed as a result of the covid pandemic, the Tribunal does not think it would be reasonable or fair to adjourn this arbitration for an uncertain period, for the sole purpose of conducting interviews face to face on site rather than by videoconference or telephone. 372. The Tribunal also has difficulty accepting, even if it were possible or useful to carry out visual inspections on site, that that reason alone would be sufficient to justify the current situation in which the Respondent finds itself with respect to its counterclaim. The Tribunal notes in this regard that, in its closing submissions, the Respondent pointed out that Mr Legg recognized that he would have been interested to see the execution records of the new contractor. But the Respondent does not address the question of why it did not itself produce those records. … 374. The Respondent clearly bears a procedural as well an evidentiary burden with regard to its counterclaim. It was incumbent upon it to submit evidence in support of that claim, in particular evidence regarding any remedial works made necessary by the claimed defective work and their cost. The Respondent cannot rely on the impossibility or difficulty of organising a site visit in order to justify this failure to discharge its burden. 375. For these reasons, the arbitration will not be adjourned and the counterclaim will be dismissed.”
“38 In the event, TFM did instruct new counsel, Mr Paul Wright of Brick Court Chambers, who cross examined certain of KCS’s witnesses at the hearing. TFM also engaged another partner in Fasken’s Vancouver office, Mr Gavin Cameron, who cross-examined the remainder of KCS's witnesses (at least, those whom TFM chose to cross-examine following the withdrawal of the Illicit Payment Allegations) and KCS's expert (Mr Legg). Mr Wright has over thirty years' experience as a barrister at a leading set of commercial chambers. Mr Cameron is a partner in Fasken's Vancouver office who regularly acts as counsel in international arbitrations. 39 In addition, TFM’s core team of litigators at Fasken (who had been involved since the commencement of the Arbitration) included: (1) Mr Peter Mantas, who was called to the Ontario Bar in 1994, and whose profile states that he is one of the 25 most influential lawyers in Canada who has "experience in investigations, trials, appeals, administrative hearings, and domestic and international arbitrations"; (2) Ms Alexandra Logvin, who was called to the Bar in Belarus in 1998, obtained a Master of Laws degree in Canada specialising in international commercial arbitration in 2003, and was called to the bar in Ottawa in 2010. Her profile states that she has extensive experience in arbitration; and (3) Ms Nabila Abdul Malik, who is qualified in multiple jurisdictions (including England and Wales in 2011) and whose profile states that she has "acted as counsel in numerous international arbitration proceedings, both commercial and investment, conducted under various arbitration rules including ICSID, UNCITRAL, ICC, SIAC, LCIA and DIAC".”
“The Tribunal agrees that the Claimant’s costs submission raises new factual and evidentiary issues, specifically with regard, firstly, to the recovery of the costs of funding its claims, through an agreement with a funder, Logos Agvet Limited, which is recognised by the Claimant to be a related entity. This includes issues as to whether recourse to such funding was justified by reason of the Claimant’s precarious financial situation, as to the terms and cost of the funding and their reasonableness. Secondly, the Claimant’s claim for pre and post‐award compound interest at a rate of 9.5%, with monthly rests, allegedly based on the Claimant’s actual costs of borrowing, also gives rise to factual and evidentiary issues regarding the Claimant’s choice of finance providers and the forms and terms of the financing to which it had recourse. The Tribunal considers it just and appropriate that, prior to replying on these two points, the Respondent should have the opportunity to examine the facts underlying these two claims and specifically to request the production of relevant documents which have not been spontaneously made available by the Claimant. “However, the Tribunal does not consider it vital, for the Respondent to challenge the Claimant’s claims, that it should cross‐examine Messrs. Fourie and Fussell on their respective witness statements, particularly at this late stage in the proceedings and in the light of the disclosure which the Tribunal is ordering. ”
“raises fresh questions as to what KCS's financial situation was and is, and who its shareholders are.”
“410. The Respondent disputes this characterization, stressing that the Claimant’s financial difficulties were essentially its own doing and that the funding agreement with Logos Agvet is little more than an opportunistic and unjustified attempt to confer a windfall benefit on a related party, i.e. on itself and its shareholders through “ill-considered funding agreements”. 411. As appears from the legal authorities discussed above, the principal issue that the Tribunal needs to decide in relation to the claimed funding costs is whether they are “reasonable” in two respects: as to the principle of the Claimant having recourse to this type of funding and as to the amount. 412. With regard to the principle of the Claimant’s having recourse to litigation funding (as opposed to having recourse to loan finance on commercial terms) it is not, in the Tribunal’s view, a determining factor whether the Claimant’s financial difficulties, which are not disputed, were caused exclusively by TFM’s non-payment of KCS’ invoices, together with the recourse to complex, expensive and ultimately, unjustified litigation, or whether TFM’s conduct merely contributed to these difficulties, thus making a bad situation worse. The issue, in both cases, is whether the Claimant’s recourse to this kind of funding was reasonable in the circumstances. In other terms, KCS’ position does not have to be on all fours with that of Norscot in relation to Essar in order for KCS’ funding choice to be considered reasonable. 413. The same is true of the fact that the funder Logos Agvet Limited is controlled by a shareholder of KCS and that the funding transaction is therefore not considered as an arms’ length transaction. Subject to the terms, i.e. the cost of the transaction, discussed below, the question remains whether such a choice by KCS was reasonable in the circumstances. 414. Based on the facts of this case, the Tribunal considers that KCS’ decision to obtain funding from Logos Agvet is not inherently unreasonable. In the first place, it is clearly not designed to enrich KCS. It is not disputed that, under the terms of the funding agreement, the funding fee will be payable to Logos Agvet which, despite their common shareholder, cannot be conflated with KCS. Furthermore, the fact that Logos Agvet was a related party, controlled by a shareholder of KCS, may well have been an advantage from the viewpoint of KCS, given the knowledge that the funder may thereby be presumed to have had of KCS’ affairs, including its dispute with TFM. This would certainly have helped KCS to reach agreement for the required funding more quickly, without the need for the “extensive” evaluation and due diligence process which is usual with professional third-party litigation funders, as described by the Respondent’s expert. This process would not have been made any easier by the nature and amount of the counterclaims advanced by TFM against KCS. 415. In any case, it is doubtful, on the basis of the available evidence, whether KCS, given its financial position, would have been able to obtain funding for its arbitration costs on the basis of normal commercial financing such as bank loans or overdrafts.”
“(1) The tribunal may make an award allocating the costs of the arbitration as between the parties, subject to any agreement of the parties.”
“(1) References in this Part to the costs of the arbitration are to – (a) the arbitrators' fees and expenses, (b) the fees and expenses of any arbitral institution concerned, and (c) the legal or other costs of the parties.”
“405. The Claimant also claims USD 1,514,217 as the cost of funding obtained from Logos Agvet Limited, a company owned by one of the Claimant’s shareholders, as discussed below. This amount includes a fixed fee or markup, payable in the event of a successful outcome for the Claimant, of 100% of the amount of the funding, namely USD 1,300,000 plus a variable fee of USD 214,317. 406.Under the Arbitration Act 1996, section 59(1) , includes in the definition of “costs of the Arbitration” “the legal or other costs of the parties”
“The question arises how section 68(2)(b) and section 69, so far as the latter excludes a right of appeal on a question of law, are to operate. Specifically, can an alleged error of arbitrators in interpreting the underlying or principal contract be an excess of power under section 68(2)(b), so as to give the court the power to intervene, rather than an error of law, which can only be challenged under section 69 if the right of appeal has not been excluded?”
“(4) The tribunal may order the payment of a sum of money, in any currency.”
"… section 48 applies 'unless otherwise agreed by the parties'. The respondent contended that the matter of currencies was dealt with under the contract. While this may provide for the currencies in which payment under the contract is to be made, the contract is silent as to the currency in which any arbitral award is to be given. The tribunal is of the opinion that the parties have not 'otherwise agreed' on the powers available to the tribunal, and the tribunal accordingly concludes that it has the power to order payment of any sum of money found to be due in any currency. Accordingly, while the tribunal takes careful note of the contract currencies and their stated proportions, the tribunal will express its awards in such currencies as are considered appropriate in the circumstances."
“(a) Did the tribunal have the power to express the award in the currencies they did pursuant to section 48(4) of the Act or was any power that might otherwise have been available under that section excluded or modified by the terms of the principal contract? (b) If the decision of the tribunal on the currency point amounted to an error of law, did it constitute an excess of jurisdiction under section 68(2)(b)?”
"…It has given to the court only those essential powers which I believe the court should have; that is, rendering assistance when the arbitrators cannot act in the way of enforcement or procedural steps, or, alternatively, in the direction of correcting very fundamental errors."
“22. Section 48 provides that unless otherwise agreed by the parties, the tribunal may order the payment of a sum of money, in any currency. Any agreement to the contrary is only effective if in writing: section 5(1). The Court of Appeal did not take into account the radical nature of the alteration of our arbitration law brought about by the 1996 Act…But for this approach [having regard to case law pre 1996 Act] the Court of Appeal would have had no reason to disagree with the natural and commercially sensible construction of the wide words of section 48(4) which the tribunal adopted. I would hold that the power of the tribunal under section 48(4) was unconstrained and was available to the tribunal…” 23. Contrary to the view I have expressed, I will now assume that the tribunal committed an error of law. That error of law could have taken more than one form. The judge (para 25) and the Court of Appeal (para 35) approached the matter on the basis that the tribunal erred in the interpretation of the underlying contract. Another possibility is that the tribunal misinterpreted its powers, under section 48(4) to express the award in any currency. Let me approach the matter on the basis that there was a mistake by the tribunal in one of these forms. Whichever is the case, the highest the case can be put is that the tribunal committed an error of law. 24. But the issue was whether the tribunal "exceeded its powers" within the meaning of section 68(2)(b). This required the courts below to address the question whether the tribunal purported to exercise a power which it did not have or whether it erroneously exercised a power that it did have. If it is merely a case of erroneous exercise of power vesting in the tribunal no excess of power under section 68(2)(b) is involved. Once the matter is approached correctly, it is clear that at the highest in the present case, on the currency point, there was no more than an erroneous exercise of the power available under section 48(4). The jurisdictional challenge must therefore fail. 25 The reasoning of the lower courts, categorising an error of law as an excess of jurisdiction, has overtones of the doctrine in Anisminic Ltd v Foreign Compensation Commission[1969] 2 AC 147 which is so well known to the public law field. It is, however, important to emphasise again that the powers of the court in public law and arbitration law are quite different. This has been clear for many years, and is now even more manifest as a result of the enactment of the 1996 Act. Sir Michael J Mustill (now Lord Mustill) and Steward Boyd QC (Law and Practice of Commercial Arbitration in England, 2nd ed (1989) p 555) explained: "If … [the arbitrator] applies the correct remedy, but does so in an incorrect way - for example by miscalculating the damages which the submission empowers him to award - then there is no excess of jurisdiction. An error, however gross, in the exercise of his powers does not take an arbitrator outside his jurisdiction and this is so whether his decision is on a matter of substance or procedure."… 29… But nowhere in section 68 is there any hint that a failure by the tribunal to arrive at the "correct decision" could afford a ground for challenge under section 68. On the other hand, section 68 has a meaningful role to play. An example of an excess of power under section 68(2)(b) may be where, in conflict with an agreement in writing of the parties under section 37, the tribunal appointed an expert to report to it. At the hearing of the appeal my noble and learned friend, Lord Phillips of Worth Matravers MR, also gave the example where an arbitration agreement expressly permitted only the award of simple interest and the arbitrators in disregard of the agreement awarded compound interest. There is a close affinity between section 68(2)(b) and section 68(2)(e) . The latter provision deals with the position when an arbitral institution vested by the parties with powers in relation to the proceedings or an award exceeds its powers. The institution would exceed its power of appointment by appointing a tribunal of three persons where the arbitration agreement specified a sole arbitrator… 32. In order to decide whether section 68(2)(b) is engaged it will be necessary to focus intensely on the particular power under an arbitration agreement, the terms of reference, or the 1996 Act which is involved, judged in all the circumstances of the case. In making this general observation it must always be borne in mind that the erroneous exercise of an available power cannot by itself amount to an excess of power.
“41. As Lord Steyn noted, in order to see if what the arbitrator did fell within s.68(2)(b) as being in excess of his powers or whether it was no more than an erroneous exercise of a power that he did have, it is necessary to focus “intensely on the power concerned”
“380 In order to determine the applicable rate which would “best meet the justice of the case”, the Tribunal considers it appropriate to have regard, among other things, to the creditor’s cost of borrowing. The Claimant has provided a list of its outstanding loans and other credit facilities. This shows that, at31 December 2020 , KCS had 21 outstanding credit facilities, including bank overdraft and asset-based facilities and that the applicable annual interest rates ranged from 7.5% to 13.5%. Although only some of the documents are available, it seems that in a number of cases, including bank overdrafts and supplier credits, applicable interest was compounded monthly. 381. The Respondent argues that such high cost of finance reflects the compromised financial position and poor management of KCS prior to the dispute which has arisen with TFM; It is, contrary to KCS’ allegations, due to problems with other projects, unrelated to the TSF and unrecovered sums due by other KCS debtors, unrelated to TFM. It is also due to a general business decline. 382. The Tribunal agrees that the evidence shows that KCS’ financial position in 2019-2020 was fragile and suffered a decline, but that this seems in significant part to have stretched back to previous years and cannot have been entirely caused by the dispute with TFM and the unpaid receivables relating to the TSF and the SCATS Agreements. At the same time, KCS’ financial position, already weakened as it was, must necessarily have been further weakened by TFM’s failure, in 2019, to pay amounts due in excess of USD 10 million. 383. In reality, it matters little to the Tribunal’s decision on interest whether KCS’ weak financial position, which is undisputed, was caused exclusively or even principally by the actions of the Respondent. What matters is that the interest rate chosen reflect as closely as possible the actual cost of borrowing of KCS, based on relevant market rates (as opposed to penalty or default interest rates). ”
“The principles regarding extensions of time to challenge an arbitration award have been addressed in a number of recent authorities, most notably in Kalmneft JSC v Glencore International AG [2001] 2 All ER (Comm) 577, Nagusina Naviera v Allied Maritime Inc[2002] EWCA Civ 1147 , [2003] 2 CLC 1, L Brown & Sons Ltd v Crosby Homes (North West) Ltd[2008] EWHC 817 (TCC) ,[2008] BLR 366 , Broda Agro Trade (Cyprus) Ltd v Alfred C Toepfer International GmbH[2010] EWCA Civ 1100 , [2011] 2 All ER (Comm) 327, and Nestor Maritime SA v Sea Anchor Shipping Co Ltd[2012] EWHC 996 (Comm) ,[2012] 2 Lloyd’s Rep 144 , from which I derive the following principles. (1) Section 70(3) of the 1996 Act requires challenges to an award under ss 67 and 68 to be brought within 28 days. This relatively short period of time reflects the principle of speedy finality which underpins the 1996 Act, and which is enshrined in s1(a). The party seeking an extension must therefore show that the interests of justice require an exceptional departure from the timetable laid down by the 1996 Act. Any significant delay beyond 28 days is to be regarded as inimical to the policy of the 1996 Act. (2) The relevant factors are: (i) the length of the delay; (ii) whether the party who permitted the time limit to expire and subsequently delayed was acting reasonably in the circumstances in doing so; (iii) whether the respondent to the application or the arbitrator caused or contributed to the delay; (iv) whether the respondent to the application would by reason of the delay suffer irremediable prejudice in addition to the mere loss of time if the application were permitted to proceed; (v) whether the arbitration has continued during the period of delay and, if so, what impact on the progress of the arbitration, or the costs incurred in respect of the arbitration, the determination of the application by the court might now have; (vi) the strength of the application; (vii) whether in the broadest sense it would be unfair to the applicant for him to be denied the opportunity of having the application determined.
“In seeking relief from the court, it is normally incumbent upon the applicant to adduce evidence which explains his conduct, unless circumstances make it impossible”
“[32] The position, however, is different where, as has happened in the current case, the application for an extension of time has been listed for hearing at the same time as the challenge application itself, and the court has heard full argument on the merits of the challenge application. In such circumstances the court is in a position to decide not merely whether the case is ‘weak’ or ‘strong’, but whether it will or will not succeed if an extension of time were granted. The court is in a position to decide whether the challenge is a good or a bad one. If the challenge is a bad one, this should be determinative of the application to extend time. Whilst it may not matter in practice whether the extension is allowed and the application dismissed, or whether the extension is simply refused, logical purity suggests that it would be wrong to extend time in those circumstances: there can be no justification for departing from the principle of speedy finality in order to enable a party to advance a challenge which will not succeed. “[33] Conversely, where the court can determine that the challenge will succeed, if allowed to proceed by the grant of an extension of time, that may be a powerful factor in favour of the grant of an extension, at least in cases of a challenge pursuant to s 68. In such cases the court will be satisfied that there has been a serious irregularity giving rise to substantial injustice in relation to the dispute adjudicated upon in the award. Given the high threshold which this involves, the other factors which fall to be weighed in the balance must be seen in the context of the applicant suffering substantial injustice in respect of the underlying dispute by being deprived of the opportunity to make his challenge if an extension of time is refused. Where the delay is due to incompetence, laxity or mistake and measured in weeks or a few months, rather than years, the fact that the court has concluded that the s 68 challenge will succeed may well be sufficient to justify an extension of time. The position may be otherwise, however, if the delay is the result of a deliberate decision made because of some perceived advantage”