“For the purpose of this Agreement: (1) The term ‘investor’ refers with regard to either Contracting Party to (a) natural persons who are nationals of that Contracting Party in accordance with its laws; (b) legal entities, including companies, corporations, business associations and other organisations, which are constituted or otherwise duly organised under the law of that Contracting Party and have their seat, together with real economic activities, in the territory of that same Contracting Party; (c) legal entities established under the law of any country which are, directly or indirectly, controlled by nationals of that Contracting Party or by legal entities having their seat, together with real economic activities, in the territory of that Contracting Party. (2) The term ‘investments’ shall include every kind of assets and particularly: (a) movable and immovable property as well as any other rights in rem, such as servitudes, mortgages, liens, pledges; (b) shares, parts of any other kinds of participation in companies; (c) claims and rights to any performance having an economic value; (d) copyrights, industrial property rights (such as patents, utility models, industrial designs or models, trade or service marks, trade names, indications of origin), know-how and goodwill; (e) concessions under public law, including concessions to search for, extract or exploit natural resources as well as all other rights given by law, by contract or by decision of the authority in accordance with the law.”
“The present Agreement shall apply to investments in the territory of one Contracting Party by investors of the other Contracting Party, if the investments have been made later than1st January 1950 in accordance with the laws and regulations of the former Contracting Party.”
“(1) Each Contracting Party shall in its territory promote investments by investors of the other Contracting Party and admit such investments in accordance with its laws and regulations. (2) When a Contracting Party shall have admitted an investment on its territory, it shall, in accordance with its laws and regulations, grant the necessary permits in connection with such an investment and with the carrying out of licensing agreements and contracts for technical, commercial or administrative assistance. Each Contracting Party shall, whenever needed, endeavour to issue the necessary authorizations concerning the activities of consultants and other qualified persons of foreign nationality.”
“(1) Each Contracting Party shall protect within its territory investments made in accordance with its laws and regulations by investors of the other Contracting Party and shall not impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment, extension, sale and liquidation of such investments. In particular, each Contracting Party shall issue the necessary authorizations mentioned in Article 3, paragraph (2) of this Agreement. (2) Each Contracting Party shall ensure fair and equitable treatment within its territory of the investments of the investors of the other Contracting Party. This treatment shall not be less favourable than that granted by each Contracting Party to the investments made within its territory by its own investors or than that granted by each Contracting Party to the investments within its territory by investors of the most favoured nation, if this latter treatment is more favourable. Joint ventures in which investors of both Contracting Parties participate shall enjoy the aforementioned treatment as economic entity. (3) The treatment of the most favoured nation shall not apply to privileges which either Contracting Party accords to investors of a third State by virtue of a double taxation agreement or an agreement establishing a free trade area, a customs union or a common market.”
“Neither of the Contracting Parties shall take, either directly or indirectly, measures of expropriation, nationalization or any other measure having the same nature or the same effect against investments of investors of the other Contracting Party, unless the measures are taken in the public interest, on a non discriminatory [sic] basis, and under due process of law, and provided that provisions be made for effective and adequate compensation. The amount of compensation, interest included, shall be settled in the currency of the country of origin of the investment and paid without delay to the person entitled thereto without regard to its residence or domicile.”
“(1) For the purpose of solving disputes with respect to investments between a Contracting Party and an investor of the other Contracting Party and prejudice to Article 10 of this Agreement (Disputes between Contracting Parties), consultations will take place between the parties concerned. (2) If these consultations do not result in a solution within six months, the dispute shall upon request of the investor be submitted to an arbitral tribunal. Such arbitral tribunal shall be established as follows: (a) The arbitral tribunal shall be constituted for each individual case. Unless the parties to the dispute have agreed otherwise, each of them shall appoint one arbitrator and these two arbitrators shall nominate a chairman who shall be a national of a third State. The arbitrators are to be appointed within two months of the receipt of the request for arbitration and the chairman is to be nominated within further two months. (b) If the periods specified in paragraph (a) of this Article have not been observed, either party to the dispute may, in the absence of any other arrangements, invite the President of the Court of Arbitration of the International Chamber of Commerce in Paris to make the necessary appointments. If the President is prevented from carrying out the said function or if he is a national of a Contracting Party the provisions in paragraph (5) of Article 10 of this Agreement shall be applied mutates mutandis. (c) Unless the parties to the dispute have agreed otherwise, the tribunal shall determine its procedure. Its decisions are final and binding. Each Contracting Party shall ensure the recognition and execution of the arbitral award. (d) Each party to the dispute shall bear the costs of its own member of the tribunal and of the chairman and the remaining cost shall be borne in equal parts by both parties to the dispute. The tribunal may, however, in its award decide on a different proportion of costs to be borne by the parties and this award shall be binding on both parties. (3) In event of both Contracting Party having become members of the Convention of Washington of March 18, 1965 on the Settlement of Investment Disputes between States and Nationals of other States, disputes under this article may, upon request of the investor, as an alternative to the procedure mentioned in paragraph 2 of this article, be submitted to the International Center for Settlement of Investment Disputes. (4) The Contracting State which is a party to the dispute shall at no time whatever during a procedure specified in paragraphs (2) and (3) of this Article or during the execution of the respective sentence assert as a defense the fact that the investor has received compensation under an insurance contract covering the whole or part of incurred damage. (5) Neither Contracting State shall pursue through diplomatic channels a dispute submitted to arbitration, unless the other Contracting State does not abide by or comply with the award rendered by an arbitral tribunal.”
“Either Contracting Party shall constantly guarantee the observance of the commitments it has entered into with respect to the investments of the investors of the other Contracting Party.”
“This Agreement shall enter into force on the day when both Contracting Parties have notified each other that they have complied with the constitutional requirements for the conclusion and entry into force of international agreements ….”
“Respondent argues that the evidence put forward by Claimant does not list Mr Stava as one of the beneficiaries of the Koruna Trust, and leaves unclear the identity of the settlor; the role and distribution of powers among the trust organs; and the distribution of rights and interests among the separate beneficiaries.”
“To conclude, the Tribunal has found that Respondent breached the FET standard in Article 4(2) of the BIT through the following conduct: (i) by issuing the Bojar Letter in bad faith; (ii) by abusing its sovereign powers in order to interfere with the Commercial Arbitration; and (iii) by manifestly failing to comply with the principle of due process during the review proceedings. In particular, as a result of the latter violation, the Tribunal considers that the 2014 Resolution is not entitled to recognition under international law. By way of necessary implication, from the point of view of international law, the 2008 Award has not been cancelled.”
“For the reasons set out above, the Tribunal decides as follows: (i) Finds that it does not have jurisdiction ratione temporis over events that pre-dated the entry into force of the BIT; (ii) Finds that Respondent breached Article 4(2) of the BIT; (iii) Orders Claimants to provide Respondent, within 30 days of the issuance of the present Award, a written undertaking confirming the following: a. The amounts, if any, collected by Claimants under the 2008 Award; and b. Claimants’ formal commitment that they will discontinue any and every enforcement proceedings commenced under the New York Convention for the 2008 Award, and that they will henceforth only seek to enforce the present Award; (iv) Awards Claimants damages and interest as calculated in the 2008 Award, from which any amounts already collected under the 2008 Award shall be deducted: a. CZK 4,089,716,666.00 in damages (lost profits, in addition to those awarded in the Partial Award) for the period from1 July 1992 to30 May 2000 ; b. CZK 4,244,879,686.00 in interest for the period from1 July 1992 to30 June 2007 ; c. Interest of CZK 1,287,877.00 per day, starting on1 July 2007 until payment, and, from14 July 2007 until payment, additional interest per day on the amount CZK 58,130,213.00 at the repo rate per annum set by the Czech National Bank (on 1 January and 1 July of each year for the respective half calendar year thereafter) plus 7 percent. (v) Orders Respondent to reimburse Claimants 70% of their share of the arbitration costs, i.e., EUR 378,442.86; (vi) Orders Respondent to reimburse Claimants 70% of their legal and other costs, i.e., USD 427,135 .7, GBP 739,205.77, CZK 850,688.3, EUR 165,700.21 and CHF 18,225 .65; (vii) Dismisses all other claims.”
“31 Objection to substantive jurisdiction of tribunal. (1) An objection that the arbitral tribunal lacks substantive jurisdiction at the outset of the proceedings must be raised by a party not later than the time he takes the first step in the proceedings to contest the merits of any matter in relation to which he challenges the tribunal's jurisdiction. A party is not precluded from raising such an objection by the fact that he has appointed or participated in the appointment of an arbitrator. (2) Any objection during the course of the arbitral proceedings that the arbitral tribunal is exceeding its substantive jurisdiction must be made as soon as possible after the matter alleged to be beyond its jurisdiction is raised. (3) The arbitral tribunal may admit an objection later than the time specified in subsection (1) or (2) if it considers the delay justified.”
“Loss of right to object (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) Where the arbitral tribunal rules that it has substantive jurisdiction and a party to arbitral proceedings who could have questioned that ruling— (a) by any available arbitral process of appeal or review, or (b) by challenging the award, does not do so or does not do so within the time allowed by the arbitration agreement or any provision of this Part, he may not object later to the tribunal's substantive jurisdiction on any ground which was the subject of that ruling.”
“(1) The arbitral tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause that forms part of a contract shall be treated as an agreement independent of the other terms of the contract. A decision by the arbitral tribunal that the contract is null shall not entail automatically the invalidity of the arbitration clause. (2) A plea that the arbitral tribunal does not have jurisdiction shall be raised no later than in the statement of defence or, with respect to a counterclaim or a claim for the purpose of a set-off, in the reply to the counterclaim or to the claim for the purpose of a set-off. A party is not precluded from raising such a plea by the fact that it has appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it considers the delay justified.”
“(1) The fundamental principle, or policy, is fairness, and justice, in the sense of openness and fair dealing between the parties… (2) There is also a concern to seek to avoid waste of time and expense… (3) The issue as to jurisdiction must normally have been raised at least on some grounds before the arbitrator … (4) In addition, each ground of challenge to jurisdiction or of objection to jurisdiction must have been raised if it is to be raised; by this is meant the jurisdictional objection that the party considers renders the whole or the relevant part of the arbitral process invalid… (5) It is wrong to be prescriptive or try to lay down precise limits in the abstract for the meaning of the phrase ‘ground of objection’, but it is usually easy to recognise (or obvious) in particular cases whether a party is attempting to raise a new ground of objection to jurisdiction on an appeal … (6) The ‘grounds of objection’ should not be examined closely as if a pleading, but broadly, or adopting a broad approach. The fact that different and broader arguments are raised or new evidence is put forward does not mean that there is a new ground … (7) This is not to suggest an unduly relaxed approach, especially bearing in mind sub-para (1) above. The substance of each ground of objection relied upon should have been communicated to the other party (and the arbitral tribunal).” (8) It would be unfair if a party took part in arbitration yet kept an objection up his sleeve and only attempted to deploy it later ... (9) It is not enough that the party mention an issue; the issue must be distinctly put to the arbitral tribunal as denying jurisdiction.”
“The Corruption Allegation is defined to mean the allegation by the Province of Balochistan that the ICC tribunal lacked jurisdiction because the CHEJVA and related agreements were void due to the existence of corruption. In my judgment, the jurisdictional issue (relevant for present purposes) that was raised before the ICC tribunal by the Province was whether the Supreme Court of Pakistan had decided that the arbitration agreement was void, including on the basis of corruption, and if so whether the ICC tribunal should give effect to that decision. The Corruption Allegation as defined is a wider and different allegation to the jurisdictional issue that was raised.”
“109 [A]t the arbitration, although the issue of delay was in issue in general terms, ImageSat did not rely on section 31 as a ground for contending that the jurisdictional objection Serbia had raised in its Defence was too late. ImageSat did not argue before the arbitrator that Serbia was out of time and could not raise the jurisdictional objection because it had not done so in its Answer. There are obiter statements by Flaux J … indicating that, if no objection was taken to the jurisdictional point being argued before the arbitral tribunal, and the tribunal has dealt with it, it is too late to say in response to an application under section 67 that the jurisdictional point cannot be raised. Mr Owen submitted this could not be so. He argued that since section 31 is mandatory, the only basis for stating that the jurisdictional objection can be relied upon, is if the arbitrator considered that the delay was justified (see section 31(3)) and that there cannot be a deemed extension of time. 110 It appears that the preliminary issue before the arbitrator, who had full submissions and skeleton arguments, was conducted on the assumption that the issue as to delay by Serbia in raising the point concerned the effect of inter-party correspondence and the Terms of Reference and not because of its failure to do so in its Answer. Serbia would, in these circumstances, not have known that it should make an application under section 31(3) in respect of the Answer. Not surprisingly it did not do so. It cannot now do so. The point could have been taken by ImageSat at the arbitration. ImageSat took other points on delay but not this one. Serbia cannot now make an application under section 31(3). I share Flaux J’s view that there are difficulties in saying that an application pursuant to section 67 is barred because the jurisdictional objection was not raised in the Answer where the point could have been, but was not, raised in the arbitration, and the arbitrator has dealt with it.”
“150 I do not think that I need to express any concluded view on whether or not the comments of Flaux J set out above are correct, since in my judgment the issue must always depend on the facts of the individual case. On the facts of the current case, I have concluded that there was no implicit extension of time. I have reached this conclusion for the following reasons: (1) As I have noted, in my judgment the objection to jurisdiction was not made forthwith. (2) It was thus for Stockman to make an application to the arbitrator for an extension of time. Only the arbitrator had a discretion to extend time, and this would have been a matter of discretion, applying the principles established under s.73 and/or s.31(3). (3) Because such an application was not made, the arbitrator did not have to consider these principles. (4) In circumstances in which the arbitrator did not have to address his mind to the question of whether or not to extend time, because no such application was made, I do not think it is safe to assume that he would have done so, particularly since the consequence of so doing would have been that his decisions on jurisdiction would become challengeable in a way that they would not be absent such an extension. 151 Accordingly, I hold that Stockman also waived its right to object to the jurisdiction of the arbitrator….”
“C raised the objection that the Tribunal lacked substantive jurisdiction in the arbitration proceedings. That objection included the ground that there was no protected investment. C deployed a number of arguments in respect of it, though did not argue in support of that ground that the investment was obtained by or tainted by bribery.”
“(1) Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, that is, as to— (a) whether there is a valid arbitration agreement, (b) whether the tribunal is properly constituted, and (c) what matters have been submitted to arbitration in accordance with the arbitration agreement.”
“Issues of jurisdiction go to the existence or otherwise of a tribunal's power to adjudge the merits of a dispute; issues of admissibility go to whether the tribunal will exercise that power in relation to the claims submitted to it. The distinction was expressed by the International Court of Justice in Oil Platforms (Islamic Republic of Iran v United States of America) [2003] ICJ Rep 161, para 29 as follows: ‘Objections to admissibility normally take the form of an assertion that, even if the court has jurisdiction and the facts stated by the applicant state are assumed to be correct, none the less there are reasons why the court should not proceed to an examination of the merits.’”
“146 … it is clear to the tribunal that, where the claim is founded upon an alleged breach of the Treaty's substantive standards, a tribunal's jurisdiction is limited to a dispute between the host state and a national or company which has acquired its protected investment before the alleged breach occurred. In other words, the Treaty must be in force and the national or company must have already made its investment when the alleged breach occurs, for the tribunal to have jurisdiction over a breach of that Treaty's substantive standards affecting that investment. 147 This conclusion follows from the principle of non-retroactivity of treaties, which entails that the substantive protections of the BIT apply to the state conduct that occurred after these protections became applicable to the eligible investment. Because the BIT is at the same time the instrument that creates the substantive obligation forming the basis of the claim before the tribunal and the instrument that confers jurisdiction upon the tribunal, a claimant bringing a claim based on a Treaty obligation must have owned or controlled the investment when that obligation was allegedly breached. 148 [A claimant] must therefore prove that [it] had already acquired [its] investment at the time of the impugned conduct.”
“I accept, in line with this extensive jurisprudence, that the offer to arbitrate contained in article 9 of the BIT should be construed as one subject to a temporal limitation by reference to the relationship between the date on which a protected investment was acquired and the date of the occurrence of the breaches of the BIT complained of. More specifically, I accept that the limitation is, as indicated by the tribunal in the Philip Morris case, as to whether the relevant investment had been acquired before the time at which the alleged breach of the BIT occurred, and that the offer to arbitrate is only in respect of disputes where that was the case.”
“Consent serves as the touchstone for whether an objection is jurisdictional because arbitration is a consensual dispute resolution process: jurisdiction must be founded on party consent. For this reason, arguments as to the existence, scope and validity of the arbitration agreement are invariably regarded as jurisdictional, as are questions of the claimant’s standing to bring a claim or the possibility of binding non-signatory respondents. Conversely, admissibility relates to the ‘nature of the claim, or to particular circumstances connected with it’ … It asks whether a tribunal may decline to render a decision on the merits for reasons other than a lack of jurisdiction, and is determined by the tribunal on the basis of their discretion guided by, amongst others, principles of due administration of justice and any applicable external rules …”
“(1) It is for the court to interpret the Bilateral Investment Treaty in accordance with international law, and the principles of interpretation contained in articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969 (‘the Vienna Convention’), which codifies customary international law … (2) Article 31 sets out the primary rule of interpretation: (i) A treaty shall be interpreted in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. (ii) The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. (3) There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. (4) A special meaning shall be given to a term if it is established that the parties so intended.”
“The rule of interpretation is textual, not teleological ... That is, ‘interpretation must be based above all upon the text of the treaty’ (per the International Court of Justice in Territorial Dispute (Libya/Chad) [1994] ICJ 6, para 41). Accordingly, the text is presumed to be the authentic expression of the intention of the parties and is not to be substituted for or overridden by the presumed intention of the parties …”
“Claimant TLGI urges that since it had the requisite nationality at the time the claim arose, and, antedate the time that the claim was submitted, it is of no consequence that the present real party in interest - the beneficiary of the claim - is an American citizen. Both as a matter of historical and current international precedent, this argument must fail. In international law parlance, there must be continuous national identity from the date of the events giving rise to the claim, which date is known as the dies a quo, through the date of the resolution of the claim, which date is known as the dies ad quem.”
“(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 sections 70(2) and (3). (2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant— (a) failure by the tribunal to comply with section 33 (general duty of tribunal); (b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction: see section 67); (d) failure by the tribunal to deal with all the issues that were put to it.”
“The rules of natural justice do require … that matters which are likely to form the subject of decision, in so far as they are specific matters, should be exposed for the comments and submissions of the parties. If an arbitrator is impressed by a point that has never been raised by either side then it is his duty to put it to them so that they have an opportunity to comment. If he feels that the proper approach is one that has not been explored or advanced in evidence or submission then again it is his duty to give the parties a chance to comment … It is not right that a decision should be based on specific matters which the parties have never had the chance to deal with, nor is it right that a party should first learn of adverse points in the decision against him.” ii) An arbitrator will not have acted fairly if a party is learning for the first time in the award about findings and matters in the decision of the arbitrator which that party has not had the opportunity to address. iii) Dealing with assessments of damages, the Board approved Mr Justice Popplewell’s statement in Reliance Industries Ltd v Union of India [2018] 2 All ER (Comm) 1090, [32] that “it is enough if the point is ‘in play’ or ‘in the arena’ in the proceedings, even if it is not precisely articulated … [A] party will usually have had a sufficient opportunity if the ‘essential building blocks’ of the tribunal's analysis and reasoning were in play in relation to an issue, even where the argument was not articulated in the way adopted by the tribunal. Ultimately the question which arises under section 33(a), whether there has been a reasonable opportunity to present or meet a case, is one of fairness and will always be one of fact and degree which is sensitive to the specific circumstances of each individual case.” iv) The Board also cited with approval the observation of Judge Humphrey Lloyd QC in Weldon Plant Ltd v Commission for the New Towns [2001] 1 All ER (Comm) 264, [33] that “matters of quantification and valuation frequently lead to the tribunal taking a course which is not that put forward by either party, but which lies somewhere between. ‘Doing the best one can on the material provided’ almost inevitably produces such a result. Provided that the finding is not based on a proposition which the parties have not had an opportunity of dealing with the arbitral tribunal will not be in breach of its duties … if it makes such a finding without giving the parties a chance of dealing with it.”
“Against this background it must have been obvious to the parties, and wholly within their contemplation, that if the case reached the question of damages, then unless the Tribunal either awarded the entire amount claimed or nothing (and I cannot believe any lawyer with experience of international arbitration would have regarded either outcome as a likely scenario), then the Tribunal would have to make its own adjustments or allowances to reflect LMH's attacks on EGK's quantum case to the extent that they were regarded as having merit.”
“57 Correction of award or additional award. (1) The parties are free to agree on the powers of the tribunal to correct an award or make an additional award. (2) If or to the extent there is no such agreement, the following provisions apply. (3) The tribunal may on its own initiative or on the application of a party— (a) correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission or clarify or remove any ambiguity in the award, or (b) make an additional award in respect of any claim (including a claim for interest or costs) which was presented to the tribunal but was not dealt with in the award. These powers shall not be exercised without first affording the other parties a reasonable opportunity to make representations to the tribunal. (4) Any application for the exercise of those powers must be made within 28 days of the date of the award or such longer period as the parties may agree.”
“(1) Where parties have agreed that disputes between them in respect of a defined legal relationship, whether contractual or not, shall be referred to arbitration under the UNCITRAL Arbitration Rules, then such disputes shall be settled in accordance with these Rules subject to such modification as the parties may agree. … (3) These Rules shall govern the arbitration except that where any of these Rules is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail.”
“(1) Within 30 days after the receipt of the award, a party, with notice to the other parties, may request that the arbitral tribunal give an interpretation of the award. (2) The interpretation shall be given in writing within 45 days after the receipt of the request. The interpretation shall form part of the award…”
“Interpretation is not a mechanism for revisiting an issue … that the tribunal should have decided but did not.”
“There may be situations where a statement needs to be clarified, or it is uncertain whether some specific issues have been dealt with in the award or reserved for future determination. Interpretation can be used whenever the final award does not contain the minimum information necessary to grasp the tribunal’s line of reasoning.”
“If Torch is correct in its submission that the arbitrator simply failed to deal with the issue to which I have adverted, then there is no question of any clerical mistake or error arising from an accidental slip or omission. There is a wholesale failure to deal with an important issue. … In my judgment section 57(3)(b), which uses the word ‘claim’, only applies to a claim which has been presented to a Tribunal but has not been dealt with, as opposed to an issue which remains undetermined, as part of a claim. It is noteworthy that the terms of section 7(3)(b) differ from the terms of section 68(2)(d) in the language used. I consider that the terms of section 57(3)(b) are apt to refer to a head of claim for damages or some other remedy (including specifically claims for interest or costs) but not to an issue which is part of the process by which a decision is arrived at on one of those claims. As Counsel for Torch pointed out, Torch had claimed rescission and that claim had been rejected by the arbitrator. He could not change his award on that point and there was no room for an application to him to decide that claim, even if he had failed to decide whether there was inducement by the second representation which would have entitled Torch to rescind. If however Torch had reverted to him, applying for clarification as to whether he had decided against it on inducement by the second representation, it would have been clear in this court whether or not he had determined the issue. It seems to me that section 57(3)(a) can be used to request further reasons from the arbitrator or reasons where none exist. The policy which underlies the Act is one of enabling the arbitral process to correct itself where possible, without the intervention of the Court. Torch contended that it was clear that the arbitrator had not decided the issue and that therefore there was no ambiguity in the award which required clarification, but the very existence of a genuine dispute on this question militates against that argument. If there was unarguably a clear failure to deal with an issue, it could be said that there was no ambiguity in the award, but as set out in Al Hadha at paragraph 70, an award which contains inadequate rationale or incomplete reasons for a decision is likely to be ambiguous or need clarification. There was therefore room for an application by Torch under section 57, as an exchange of letters with the Owners in relation to this part of the Award would have revealed, so that the time limit of 28 days (for which section 57(4) provides) applied. In these circumstances Torch had available recourse under section 57, which had not been exhausted and section 70(2) therefore presents an insurmountable bar to Torch's section 68 application.” iii) In that case, far from it being unclear whether the arbitrator had addressed the issue of inducement in relation to the second arbitration, Mr Justice Cooke found that it was clear he had: [44] and [46]. Torch was a case in which the claimant was seeking to bring appeals on points of law on both inducement and loss of the right to rescind, and if it was not clear on what ground or grounds the arbitrator had refused rescission in respect of the second misrepresentation, it would not be possible to determine the practical effect of each s.69 application on its own (cf. [64]). To that extent, the claimant was seeking to raise a specific kind of ambiguity: ambiguity as to the precise basis on which it had lost. iv) In Buyuk Camlica Shipping Trading and Industry Co Inc v Progress Bulk Carriers Limited[2010] EWHC 442 (Comm) , [42], Gavin Kealey QC (as a Deputy High Court judge) rejected the argument that s.57(3)(a) applied to an alleged failure to deal with an issue (whether a breach had been waived) where there was “no ambiguity in the Reasons (and thus in the Awards) that requires clarification”
“I am however satisfied that the two challenges made by way of s.68 to this Award are not, or would not amount to, a correction of the Award, so as to qualify for recourse under s.57. If the Claimant were right, it would mean in relation to the two grounds, either no liability of the Claimant at all or, in relation to the second ground, a substantially lesser figure in damages; and I am clear that neither of the two grounds argued before me would have or could have been satisfactorily dealt with by an application under s.57.” vi) Finally, in Gracie v Rose[2019] EWHC 1176 (Ch) , His Honour Judge Russen KC reviewed the authorities on this issue. He referred to Mr Justice Toulson’s observation in Ascot Commodities NV v Olam International Ltd [2002] CLC 277, [29] that “where there is a finding which addresses a central issue, but leaves its reasoning unclear, the appropriate course is to ask for further reasons, But if an award as delivered fails to contain a finding on a central issue, it would be odd to ask for reasons for something which is not there.”