Seacrest Group Ltd v BCPR PTE Ltd & Anor [2025] EWHC 3266 (Comm)

[2025] EWHC 3266 (Comm)Case No CL-2024-000579
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 15/12/2025
Before
THE HONOURABLE MR JUSTICE TROWER
Between
SEACREST GROUP LTDClaimantBCPR PTE LTDDefendantsBANGCHAK CORPORATION PUBLIC COMPANY LIMITEDDefendant
RUPERT HAMILTON (instructed by Wikborg Rein LLP) for ClaimantALEXANDER GUNNING KC and GIDEON COHEN (instructed by Norton Rose Fulbright LLP) for DefendantsHearing Hearing date: 18 November 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on Monday 15 December 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]In this arbitration claim, Seacrest Group Ltd (“Seacrest”) mounts a challenge under s.68 of the Arbitration Act 1996 (the “1996 Act”) to a final arbitration award dated 27 September 2024 (the “Award”). The arbitration was between Seacrest as claimant and BCPR Pte Ltd and Bangchak Corporation Public Company Limited as respondents. For the purposes of this judgment there is no need to distinguish between the two BCP entities and I shall refer to them separately and together as “BCP”. The arbitration was conducted under the terms of the UNCITRAL Arbitration Rules (2021). The Tribunal comprised Mr Stuart Isaacs KC, Mr Jasbir Dhillon KC and Prof Benjamin F Hughes.[2]The dispute with which the arbitration was concerned arose out of an English law investment agreement dated 30 November 2018 (the “Investment Agreement”) between, amongst other parties, Seacrest and BCP. The Investment Agreement was concerned with the acquisition by BCP of an interest in OKEA AS, a Norwegian company owned by an affiliate of Seacrest.[3]The questions with which this judgment is concerned are amongst a number of challenges to the Award made by Seacrest under ss.68 and 69 of the 1996 Act. Several of those challenges have fallen away, but two issues remain for determination by the court.[4]The first issue relates to the manner in which the Tribunal determined the value of deferred consideration payable to Seacrest under the Investment Agreement. The argument flows from Seacrest’s contention that the Tribunal treated a dispute in relation to the exchange rate to be applied as part of the computation of that consideration as common ground, having failed to consider and/or disregarded certain of its written closing submissions without good or proper reason. For the purposes of these proceedings, this has been called the Exchange Rate Issue. It is said that these breaches of the Tribunal’s duty are serious procedural errors under s.68(2)(a) of the 1996 Act (a failure by the Tribunal to comply with its general duty under s.33 of the 1996 Act).[5]The second is Seacrest’s case that the Tribunal’s decision refusing its request (the “Article 38 Request”) under Article 38 of the UNCITRAL Arbitration rules (“Article 38”) for correction of the Award does not bind the parties and is of no legal effect. Originally, there was a separate challenge to the Tribunal’s order relating to the costs of the Article 38 Request which was also said to have been in excess of the Tribunal’s powers and to have had no legal effect. That is no longer pursued as a separate issue. It is said that the way that the Article 38 Request was handled constituted a serious irregularity under s.68(2)(b) of the 1996 Act (irregularities in the form of the tribunal exceeding its powers), which has caused Seacrest substantial injustice in that it has ostensibly been ordered to pay costs of almost US$56,500. For the purposes of these proceedings, this has been called the Article 38 Issue.

Background to the Exchange Rate Issue

[6]In order to understand the precise nature of Seacrest’s complaint in relation to the Exchange Rate Issue it is necessary to say a little about both the background to this part of the dispute and the course which the arbitration took.[7]Article 4 of the Investment Agreement was entitled Performance Compensation. It made provision for the calculation of the deferred compensation payment (“DCP”) which Seacrest was to receive from BCP for the acquisition of its interest in OKEA. This was payable on the date or dates identified in section 4.02 to be calculated and distributed in a waterfall in accordance with section 4.03.[8]There were various inputs into the mechanism for calculation of the DCP, one element of which was called the “Received Proceeds”. This was a figure defined in section 1.01 of the Investment Agreement by reference to amounts received by BCP from any sales of its shares in OKEA or, if it still held shares in OKEA on the four year anniversary of its investment in OKEA (the “4 Year Anniversary”), by reference to the value of BCP’s shares as at that date.[9]It was also provided that if, by the time of the 4 Year Anniversary, shares in OKEA were publicly traded, the figure for the Received Proceeds was to be calculated on the basis of a deemed sale price quantified as “the average of the closing price of such Shares on the relevant exchange for the 60 day period ending on the 4 Year Anniversary”. The parties referred to this period as the “Pricing Period”, a phrase which was also adopted by the Tribunal in the Award.[10]The details of the waterfall for distribution of the Received Proceeds do not matter for present purposes. It suffices to say that BCP was first entitled to an amount equal to its Total Invested Capital, followed by a 10% internal rate of return on its Outstanding Invested Capital. Seacrest was then entitled to receive an amount equal to 10.7% of the sum distributed to BCP in accordance with its entitlement to a 10% IRR. Finally, the balance was to be split 70% to BCP and 30% to Seacrest.[11]The dispute which arose between Seacrest and BCP related to the quantum of the DCP, and the amount of Seacrest’s entitlement under the distribution waterfall. The claims by Seacrest fell into two separate categories, the first of which was said to give rise to claims in damages by Seacrest against BCP and the second of which was concerned with the more confined question of how the mechanism for computing the figure for Received Proceeds was intended to work.[12]The claims in damages arose out of the circumstances in which OKEA’s share price fell shortly before the start of the Pricing Period. It was said that conduct by BCP led to a reduction in the deemed sale price used for the purpose of computing the figure for the Received Proceeds with a consequential reduction in the amount of the DCP due to Seacrest. It was alleged that BCP was liable to Seacrest in damages for its conduct, having acted in breach of an express obligation of good faith and in breach of an implied term of the Investment Agreement. It was also said to have participated in a conspiracy to harm Seacrest.[13]The Tribunal rejected these claims. Seacrest sought permission to appeal against the Tribunal’s findings in relation to good faith and the implied term. On 18 March 2025, permission to appeal under s.69 of the 1996 Act was refused by Foxton J.[14]The second category of dispute related to the calculation of the DCP by reference to the OKEA share price during the Pricing Period. The principal issue was whether the calculation set out in Article 4 should be carried out in Norwegian krone (“NOK”) or whether the inputs that were naturally denominated in NOK should be converted into US dollars (“USD”) so that the DCP calculation was then carried out in USD. The most significant input for this purpose was the figure for Received Proceeds, 99% of which was attributable to the deemed sale price of the OKEA shares still owned by BCP on the 4 Year Anniversary.[15]The Tribunal found that the 4 Year Anniversary occurred on 14 November 2022. This meant that the Pricing Period ran from 16 September to 14 November 2022. It was common ground that the NOK figure for the Received Proceeds was NOK 1,928,663,140.[16]BCP pleaded in paragraph 22 of its Statement of Defence that this figure should be converted into USD, and that the USD figure produced by the conversion would then form part of the DCP calculation. BCP then contended that the exchange rate used for the conversion should be “the applicable average exchange rate for the duration of the 60-day Pricing Period, which was USD 1 : NOK 10.4510”. It went on to plead later in its memorial (paragraphs 142 to 143 of the Statement of Defence) that when the relevant USD inputs were included in the calculation of the figure for Received Proceeds, the amount produced was US$184,614,434.83. BCP’s Statement of Defence was accompanied by a witness statement from Rawee Boonsinsukh which explained how this figure had been calculated.[17]It was Seacrest’s position, as pleaded in its Statement of Reply, that the currency of account was NOK and that there should be no conversion of the Received Proceeds figure from NOK to USD. However, it did not advance a positive case anywhere in its memorials as to what the position would be if it was wrong. In particular,(a) nothing was pleaded in response to BCP’s clearly pleaded position in paragraph 22 of its Statement of Defence as to how the exchange rate should be calculated and(b) no figure was given for what exchange rate should be used to convert the NOK figure for Received Proceeds into USD if the Tribunal were to find that the currency of account was USD.[18]Indeed Seacrest went rather further than that, because the effect of paragraph 86 of its Statement of Reply was that there was no dispute as to the figure to be included in the calculation of the Received Proceeds if it were to be wrong that there should be no conversion of the Received Proceeds figure from NOK to USD. Having contended for an updated DCP calculation in paragraph 85 of its Statement of Reply it then went on in paragraph 86 to plead as follows:
“The outstanding points of dispute in relation to the Received Proceeds figure for use in the DCP Calculation are: (1) the average share price for the shares held by BCP, which turns on the question of when the 4 Year Anniversary fell; and (2) whether the calculation is to be carried out in USD or NOK, both of which are addressed above.” both of which are addressed above.”
[19]On its face, this amounted to confirmation by Seacrest that, if the calculation was to be carried out in USD, there was no dispute as to the period over which the conversion from NOK to USD should be calculated. If Seacrest had wanted to advance a case that, if it was wrong that NOK was the currency to be applied, the figure for the Received Proceeds should be calculated by using an exchange rate other than the position for which BCP contended (i.e., an average over the whole of the Pricing Period), it could not properly have expressed itself in the way that it did in paragraph 86 of its Statement of Reply. The upshot was that there was no issue memorialised in the pleadings that, if BCP was right on the principal issue, the applicable rate was anything other than USD 1 : NOK 10.4510 leading to a figure of US$184,614,434.83 for the Received Proceeds.[20]Consistently with this, BCP treated the exchange rate calculation as agreed in paragraph 130 of its Statement of Rejoinder. It pleaded in response to paragraphs 85-86 of Seacrest’s Statement of Reply as follows:
“In Reply paragraph 85, Seacrest confirms that it has adjusted its DCP calculation to take account of the sale price of the greenshoe option shares described by the Respondents at Defence paragraph 142(a). As a result, the parties agree that, adopting the Pricing Period contended for by BCP and calculating the DCP in US Dollars, the Received Proceeds amount is US$184,614,434.83.”
[21]This remained the case throughout the hearing, which lasted for four days between 28 and 31 May 2024. Seacrest has not drawn the court’s attention to anything said during the course of the hearing which amounted to a challenge either to the method of calculation of the exchange rate applied by BCP, or to BCP’s pleaded case that, if the calculation was to be done in USD, the figure was agreed. However, there were a number of exchanges during the hearing which bear on the issues with which this arbitration claim is concerned.[22]The first such exchange occurred on Day 1 when, in response to a request for clarification made by BCP’s counsel, the Presiding Arbitrator made clear that (absent any application to amend the parties’ cases) there should not be any “new issues introduced into closings. The case is as it stands at the moment … Absent any applications dealing with this case as it stands at the moment.” Mr Gunning KC for BCP submitted that this statement was consistent with the approach of the Tribunal as reflected in paragraph 14.5 of Procedural Order 1. This provided that nothing which could and should have been included in an original written submission should be included in a later responsive submission.[23]There were then two further occasions on which there was some discussion about the form of the parties’ closing written submissions. The first occurred on Day 2, when the Tribunal made clear that it would appreciate it if the parties “adopted the approach of the closing submissions representing the definitive statement of your respective cases so that we can work simply from the closing submissions without having to go back to the existing pleadings”. The Tribunal then reiterated at the end of the hearing on Day 4 that it wanted what Mr Stothard for BCP called “one composite definitive document”.[24]There were also three exchanges during the course of the hearing in which the Tribunal raised the issue of the exchange rates to be used to convert figures between NOK and USD. The first was at the beginning of Day 2, when the Presiding Arbitrator said the following:
“I have been looking at the issue about the correct currency of account, if I can put it that way. It seemed to me, looking at it in a bit more detail last night after having heard the argument, that one side is taking the US dollar approach, the other side is taking the Norwegian krone approach and it just crossed my mind whether the tribunal is going to have any issues when it comes to decide that point of what the appropriate exchange rate is for krone/US dollars at any particular time. At the moment it seems to me that the pleadings are a bit like two ships in the night because one is formulated in US dollars terms, the other is formulated in Norwegian krone terms. It would be helpful if you could just give some thought to how the tribunal deals with that A, on the hypothesis that it concludes that the correct currency is dollars and B, on the hypothesis it concludes that the correct currency is krone.”
[25]The second occasion was on Day 3 of the hearing when the Presiding Arbitrator sent the parties an email, requesting assistance in their written closing submissions on a number of issues, including “the NOK/USD exchange rates to be applied at the relevant times”.[26]The third occasion was towards the end of Day 4 when, as foreshadowed in that email, the Presiding Arbitrator came back to the issue of exchange rates. He said the following:
“The question we really have is that are each side’s krone or dollar figures, as the case may be, accepted and if not - accepted by the other side, by the opposing party - and if not, what is it said that the correct exchange rate should be? I mean, if I can just take one example of that - and it is an example - Seacrest arrives at a total invested capital of 970,000-odd krone calculated in the way it is set out in the Statement of Claim, and leaving a NOK balance. But for their part the Respondents arrive at a total invested capital of US $116-odd million calculated as they say in their Statement of Defence. Now, they apply a conversion rate, you may or may not agree with that conversion rate. Similarly with the OKEA figures, there may be conversion rates to be applied which we would want to know from the Respondents obviously depending on whether we end up saying the correct currency is krone or dollars. So I think the issue is the rate of exchange. The related issue is the applicable date on which that should be applied and you can maybe give us a table, perhaps an agreed table, I don't know, so we can save time, which will give us that information.”
[27]Written closing submissions were served by the parties on 17 July 2025, a little over six weeks after the conclusion of the four-day hearing. In paragraphs 114 to 117 of its written closing submissions, Seacrest argued that, if the Tribunal were to find that the currency of account was USD, then, on the proper construction of the Investment Agreement, the deemed sale price for the OKEA shares still held by BCP should be converted into USD at the prevailing exchange rate on the 4 Year Anniversary (or, alternatively, at the prevailing exchange rate on the date that the DCP actually fell due for payment).[28]Paragraphs 114 to 117 of Seacrest’s written closing submissions raised the Exchange Rate Issue for the first time. They were contrary to BCP’s pleaded case, on which Seacrest had not joined issue in its Statement of Reply, that the deemed sale price should be converted to USD using the average NOK/USD exchange rate over the Pricing Period. Seacrest’s submissions also included an annex containing calculations, prepared on the basis that the currency of account was USD and explaining what the answer would be if the NOK/USD rate on the date of the 4 Year Anniversary were to prevail. It also provided the Tribunal with an Excel spreadsheet showing its calculations and invited the Tribunal to “seek further input from the parties” in relation to the calculation of the DCP. Seacrest said that the difference in the amount payable was c.US$3 million.[29]BCP’s written closing submissions did not mention the 60-day average exchange rate used to calculate a USD figure for Received Proceeds, nor did they mention the rate of 10.4510 or the figure of US$184,614,434.83 given in the Statement of Defence and the Statement of Rejoinder as the converted USD figure for the Received Proceeds. However, in the context of its argument as to why the currency of account should be USD, BCP contended that: “The definition of “Received Proceeds” also includes multiple inputs. Again these logically fall to be accounted for in USD at the prevailing exchange rate when they were paid (whether derived from a Sale Event or an Anniversary Event in respect of Shares as listed or unlisted)”.[30]Seacrest submitted that this amounted to an abandonment by BCP of its pleaded case on the Exchange Rate Issue as set out in paragraphs 22, 142 and 143 of its Statement of Defence. Seacrest said that it followed that BCP now accepted that the figure for the Received Proceeds should be converted to USD at the 4 Year Anniversary (what it called the more obvious and straightforward approach) rather than on the basis of the average exchange rate over the Pricing Period.[31]In the event, the Tribunal found for BCP on the question of whether the currency of account was NOK or USD. On the Exchange Rate Issue it concluded that BCP’s original pleaded case was correct, although, significantly for the present claim, it did so on the basis that the correct answer was common ground. In paragraph 206 of the Award, the Tribunal made the following finding:
“Based on the Tribunal's determinations that the 4 Year Anniversary occurred on 14 November 2022 and that the currency of account for the DCP calculation is USD, it is common ground that the Received Proceeds amount (rounded up to the nearest dollar) is USD 184,614,435.”
[32]It included a footnote to this finding which referred to those parts of the parties’ memorials which addressed the point. It made no reference to paragraphs 114 to 117 of Seacrest’s closing written submissions in which the Exchange Rate Issue was referred to by Seacrest for the first time.[33]Seacrest’s response to this finding was to make the Article 38 Request on 7 October 2024. The Article 38 Request was made on the basis that the Tribunal’s failure to make any finding as to what exchange rate should be used to calculate the Received Proceeds amounted to an omission that could be corrected under Article 38. It did so in order to avoid an argument that it was not entitled to appeal or challenge the Award until it had exhausted all available arbitral processes of appeal or review (s.70(2) of the 1996 Act).[34]The relevant parts of Article 38 are in the following form:
“1. Within 30 days after the receipt of the award, a party, with notice to the other parties, may request the arbitral tribunal to correct in the award any error in computation, any clerical or typographical error, or any error or omission of a similar nature. If the arbitral tribunal considers that the request is justified, it shall make the correction within 45 days of receipt of the request. .... 3. Such corrections shall be in writing and shall form part of the award.”
[35]The Tribunal sought and received submissions from the parties as to the approach it should take to the Article 38 Request. BCP opposed Seacrest’s request for a correction. The first ground on which it did so was that the Tribunal did not have the power to entertain the Article 38 Request. It also said, without prejudice to that objection, that there was no error or omission in the Award. It contended that Seacrest was wrong to assert that the exchange rate applicable to the deemed sale price for the purposes of calculating the Received Proceeds should be the rate prevailing on the 4 Year Anniversary or the date the DCP actually fell due, rather than the average exchange rate over the Pricing Period.[36]On 30 October 2024, the Tribunal gave its decision on the Article 38 Request, refusing to make any correction to the Award (the “Article 38 Decision”). It did so for the following reasons: i) There was no pleaded dispute as to the basis upon which the exchange rate should be calculated. The Tribunal drew attention to the parts of the Statement of Defence (and accompanying witness statement) and Statement of Reply I have already identified. It held that, although BCP had pleaded what it contended was the appropriate exchange rate and the legal basis for it, Seacrest did not put in issue either of those matters either in its Statement of Reply or at any time prior to its written closing submissions. ii) The Tribunal had made clear that no new issues were to be raised in the written closing submissions, and what it had said on Day 4 was not a departure from this position. In particular it made clear that what it had said was not a direction that there be submissions on matters not raised at the hearing, but an indication to the parties that it would be assisted by the clarification in their written closing submissions of certain existing issues based on the materials before the Tribunal. It remained the case that it had made clear to the parties from the outset that no new issues were to be raised in the written closing submissions and what the Tribunal had said on Day 4 was not a departure from that previously expressed position and could not have been misunderstood as such. iii) If Seacrest had wished to change its case so as to advance the new allegations made in paragraphs 114 to 117 of its written closing, it could and should have applied to the Tribunal for permission to do so. The onus as to this was on Seacrest and, it not having done so, it was open to BCP to disregard those paragraphs in closing its case. iv) It followed that, in the absence of any dispute raised by Seacrest prior to its written closing submissions as to the basis for the calculation of the deemed sale price of the remaining listed shares and the applicable exchange rate, the Tribunal was entitled to treat this issue as being common ground. v) Further and in any event, even if the reference to the figure being “common ground” was erroneous, the Tribunal was entitled to and did consider that the appropriate exchange rate to be applied to the deemed sale price was the average USD/NOK rate during the Pricing Period and that such rate was 10.4510. It would therefore have decided against correction in any event because any error would have had no material impact on the final award (as to which the Tribunal referred to the Commentary by Caron and Caplan on the UNCITRAL Arbitration Rules at page 814).[37]This was then followed by a further series of submissions on BCP’s application for its costs of the Article 38 Request in which Seacrest took the position that the Tribunal had no power to make any further award. The Tribunal disagreed and on 3 December 2024, it held that the power to correct an award under Article 38 must carry with it the power to make ancillary orders associated with the application to correct an award under that provision. It therefore ordered Seacrest to pay BCP’s legal costs and expenses in the sum of US$32,000 and the costs of the arbitration in respect of the correction decision and BCP’s application for costs in the total sum of US$24,493.25.[38]Seacrest’s challenge to the Tribunal’s award on the costs of the Article 38 Request is no longer maintained as a separate issue. But it continues to pursue the Article 38 Issue generally in order to avoid what it said is the risk that the Article 38 Decision, and the conclusions and findings within it, might otherwise be relied on as a basis for shutting out Seacrest’s submissions on the Exchange Rate Issue.

The Applicable Legal principles

[39]Seacrest’s challenge on the Exchange Rate Issue is made on the basis that there was a serious irregularity under s.68(2)(a) of the 1996 Act:
“(1) A party to arbitral proceedings may … apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award. … (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);” (a) failure by the tribunal to comply with section 33 (general duty of tribunal);”
[40]Section 33 provides for the general duty of the tribunal as follows:
“(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.””
[41]It was not in issue that the questions for the court are whether there has been a failure by the Tribunal to comply with its duties under s.33 of the 1996 Act and whether what is alleged by Seacrest to be the failure amounted to a serious irregularity which has caused or will cause substantial injustice. This is a high threshold which is intended only to be available in what has been described as “extreme cases” (RAV Bahamas Limited v Therapy Beach Club Inc [2021] AC 907 (“RAV Bahamas”) at [30] and [31]). The height of the threshold is emphasised by the fact that there must have been substantial injustice caused by the serious irregularity, which means that “the outcome of the arbitration might well have been different”: RAV Bahamas at [34].[42]Both parties agreed that the focus of the inquiry is therefore on whether due process was followed not whether the tribunal 'got it right'. This has been made clear in many cases, but Mr Gunning cited as helpful examples the judgments of Flaux J in Sonatrach v Statoil [2014] 2 All ER (Comm) 857 at [11] and Popplewell J in Terna Bahrain Holding Company WLL v Al Shamsi [2013] 1 All ER (Comm) 580 (“Terna Bahrain”)at [85]. In both these cases, it was said that the section is designed as a longstop available only in extreme cases where the tribunal has gone so wrong in its conduct of the arbitration that justice calls out for it to be corrected and that the threshold is deliberately high because a major purpose of the 1996 Act was to reduce drastically the extent of intervention by the courts in the arbitral process.[43]In Terna Bahrain at [85], Popplewell J also made the following points which are of more specific relevance to the current appeal:
“(4) There will generally be a breach of s.33 where a tribunal decides the case on the basis of a point which one party has not had a fair opportunity to deal with. If the tribunal thinks that the parties have missed the real point, which has not been raised as an issue, it must warn the parties and give them an opportunity to address the point. (5) There is, however, an important distinction between, on the one hand, a party having no opportunity to address a point, or his opponent's case, and, on the other hand, a party failing to recognise or take the opportunity which exists. The latter will not involve a breach of s. 33 or a serious irregularity.”
[44]On this aspect of the issue, Mr Hamilton for Seacrest also relied on another decision of Popplewell J (Oldham v QBE Insurance (Europe) Ltd [2017] EWHC 3045 (Comm); [2018] 1 Lloyd’s Rep 191 at [41]) in which it was also said that a breach of the tribunal’s duty under s.33 of the 1996 Act to give a party a fair opportunity to advance an argument on an issue will amount to a serious irregularity. He then went on to submit that it is implicit in the tribunal’s duty under s.33 that it must go on to actually consider the case put by each party once it has given them a reasonable opportunity to do so. This submission was also supported by a passage from the judgment in RAV Bahamas at [69]in which Lord Hamblen said that a failure to deal with an issue which had been put before the tribunal, and which would potentially more than halve what was in that case a $6.8 million damages award, was on the face of it obviously unfair and unjust.

Seacrest’s case

[45]Against this background, Seacrest's starting point was that there was no serious doubt that the Tribunal failed to take into consideration its submissions on the Exchange Rate Issue as set out in its closing submissions. It says that this is obvious from the fact that the Award makes no mention of the Exchange Rate Issue or the parties’ submissions in relation to it and wrongly described it as being common ground that the figure for Received Proceeds was US$184,614,435. It also submitted that this was obvious from the fact that the Tribunal required submissions on the Article 38 Request before reaching its conclusion. This was something it would not have done if it had in fact already considered Seacrest's case on the Exchange Rate Issue. Indeed the manner in which the Article 38 Decision was expressed made plain that the Tribunal did not consider the allegations because Seacrest did not do what it should have done and ask for permission to rely on allegations that had not been made in its memorials.[46]It was also submitted by Mr Hamilton that, if accepted by the Tribunal, Seacrest’s submissions on the exchange rate would have resulted in an award of approximately US$3 million to Seacrest. It therefore followed that there could be no doubt that there was a substantial injustice caused by the irregularity.[47]Seacrest accepted that it had concentrated in its Reply on its case that the currency of account should be NOK and that there should therefore be no conversion from NOK to USD. It also accepted that it did not positively plead that, if there was to be any conversion from NOK to USD, it should take place at a time other than that advanced by BCP. However, it submitted that, insofar as BCP contended that the Investment Agreement should be construed as providing for the Received Proceeds to be calculated by reference to the average exchange rate over a 60-day period, it bore the burden of satisfying the Tribunal that this was the correct construction. It then submitted that, applying ordinary principles, the Exchange Rate Issue was therefore in issue on the basis of the parties’ pleaded cases.[48]Seacrest also submitted that there could be no doubt that the Tribunal and the parties all understood that the Exchange Rate Issue was in dispute. It relied on the passages from Days 2, 3 and 4 of the hearing transcript I have set out and referred to above. It also said that both parties sought to address the Exchange Rate Issue in their closing submissions, thereby acknowledging that they knew it was a point to be determined in the Award. This submission was said to have been fortified by the fact that, following the exchange of the parties’ closing submissions, BCP did not raise any objection to Seacrest’s submissions on the Exchange Rate Issue.[49]It was also submitted by Seacrest that if a tribunal considers that the parties have missed the real point, including if the real point has not been raised as an issue, then the tribunal must put the point to them so that they have an opportunity of dealing with it. It is said that, in the present case, the Exchange Rate Issue was put in issue by the Tribunal’s requests for submissions on the applicable exchange rates, which it was not then open to the Tribunal to disregard.[50]As to BCP’s characterisation of Seacrest’s submissions on the Exchange Rate Issue as raising “a completely different, and much broader, issue” than the pleaded issues as to the exchange rate, Seacrest submitted that BCP was wrong because the Exchange Rate Issue was not an issue in its own right but merely one of the points that the Tribunal needed to determine in order to determine the actual issue, which was the outstanding balance of the DCP. In other words it said that Seacrest’s closing submissions merely advanced an argument on a point that the Tribunal needed to decide in order to determine the amount of the outstanding balance due to Seacrest under the terms of the Investment Agreement.[51]It said that, even if the applicable exchange rate had been a new “issue” in its own right, the Tribunal could and should have raised it with the parties and requested submissions on it. In support of this submission, Mr Hamilton cited PBO v DonPro [2021] EWHC 1951 (Comm); [2022] 2 Lloyd's Rep. 359at [90]-[91], in which it was held that the tribunal should have raised with the parties the question of whether it had jurisdiction, which would undoubtedly have been an issue in its own right.[52]Mr Hamilton also submitted that a tribunal is not entitled to ignore an issue just because it is raised late. He drew attention to a passage from RAV Bahamas (at [57]-[61]) where the Privy Council concluded that the arbitrator’s failure to rule on an issue (or to make a ruling that it had been raised too late) was a serious irregularity, notwithstanding that the issue had not been pleaded and was only raised for the first time during oral closing submissions, to which the other party objected (see [57]-[61]). He submitted that in circumstances in which the point is raised late it is still incumbent on the Tribunal, if only because there may be a genuine reason why. He said that this reasoning must apply a fortiori where a party does not seek to introduce a new issue but merely a new point or argument going to an existing issue.[53]Mr Hamilton also submitted that it is unfair for a tribunal to determine an issue by reference to a point that has not been raised by either side and which the parties have not had the opportunity to deal with. He said that, if either BCP or the Tribunal had raised an objection to Seacrest’s submissions on the Exchange Rate Issue on the grounds that it was not pleaded, fairness would have demanded that Seacrest be given the opportunity to respond to that objection. If that had happened Seacrest would have responded and if necessary would have applied for permission to amend its pleaded case. He said that, if it had done so, there could have been no sensible basis for refusing the application.[54]It was also submitted by Seacrest that it could not be suggested that the Tribunal had prospectively ruled out the possibility of any such amendment by its comment that no new issues were to be raised in the closing submissions. To do so would have been a breach of the Tribunal’s duties under s.33.[55]Mr Hamilton also said that BCP’s own closing submissions were inconsistent with the case it had previously advanced on the Exchange Rate Issue in paragraph 22 of the Statement of Defence. This was because in its closing submissions BCP contended that the logical position was that the exchange rate to be applied for converting the deemed sale proceeds on the 4 Year Anniversary (making up 99% of the Received Proceeds) was a conversion from NOK to USD at the “prevailing exchange rate”. It was said that there could be no proper basis for the Tribunal to disregard BCP’s own submissions on the Exchange Rate Issue. Rather than it being common ground that the USD Received Proceeds figure was US$184,614,434.83, it was instead common ground that the Received Proceeds should be calculated by converting the figure of NOK 1,928,663,140 to USD at the prevailing exchange rate on the 4 Year Anniversary.[56]On the question of substantial injustice, Mr Hamilton submitted that BCP had effectively sought to treat the Article 38 Decision as part of the Award, by contending that the situation it had produced was akin to that in Compania Sud Americana de Vapores SA v Nippon Yusen Kaisha[2009] EWHC 1606 (Comm), [2010] 1 Lloyd's Rep 436 (“CSAV”). In CSAV, Beatson J held, at [67] to [70], that the tribunal’s error had caused no substantial injustice in the light of other findings that the tribunal had made within the award itself. He said that this was misconceived because the Article 38 Decision is not itself an award (nor part of the Award) and the findings made within it can “in no way bind or affect the rights of the parties”.[57]In support of this submission, he said that an arbitral tribunal that has determined, by a final award, all matters or disputes referred to it is functus officio. It has no further power to issue an award that binds the parties, unless and until the award is remitted. Article 38 gives a tribunal power to “correct in the award any error in computation, any clerical or typographical error, or any error or omission of a similar nature”. He submitted that the provision is similar to the power under s.57(3)(a) of the 1996 Act. In both cases, any correction forms part of the award, but neither provision gives a tribunal the authority or power to issue a new award.[58]He then submitted that, applying the reasoning of Sir Ross Cranston in Doglemor Trade Ltd v Caledor Consulting [2020] EWHC 3342 (Comm); [2020] Bus LR 313(“Doglemor”)at [52] to [54], it is clear that any decision by a tribunal which refuses to make a correction has no status under the 1996 Act or under the rules governing the arbitration, is not part of the award, does not contain further reasons for the award and is not binding. He also relied on Sir Ross Cranston’s statement that a response refusing a request to make a correction:
“cannot function to rewrite the award. In as much it seeks to contradict, reinterpret or supplement the reasoning of the award, it is inadmissible.”
Doglemor involved a tribunal’s response to a request for a correction under Article 27 of the LCIA Rules (2014), but Mr Hamilton said that the reasoning could be applied to the Article 38 Decision by analogy.[59]He also submitted that, even if the reasoning in the Article 38 Decision had appeared in the Award itself, that would not have assisted BCP’s case. It would merely have made plain that the Award was the product of a serious irregularity in the form of a positive error in intentionally disregarding submissions, rather than an apparently accidental error in failing to consider them.

BCP’s case

[60]The starting point for Mr Gunning’s response on the Exchange Rate Issue was that it could not be correct that Seacrest had a guaranteed procedural right to insist that the Tribunal address a new unheralded case advanced for the first time in written closings, more particularly where it had said at the outset that “there won't be new issues introduced into Closings”. He said that it could not be right that the Tribunal could have addressed Seacrest's new case without giving BCP an opportunity to respond. It is clear to me that he is right about that. If the Tribunal had taken that course it would plainly have been procedurally unfair to BCP.[61]Mr Gunning submitted that the only other course to the one actually adopted was for the Tribunal of its own motion to treat Seacrest as having applied to amend its case and to respond by allowing for a new set of submissions to be made on the Exchange Rate Issue. He did not say that it was impossible for the Tribunal to have taken that course, but he submitted that, for Seacrest to succeed on this argument, it would have had to establish not just this was an option open to the Tribunal, but that it was procedurally impermissible for the Tribunal not to decide of its own motion to take this series of steps. It would also be necessary for the court to conclude that, in not taking this course, the Tribunal committed a breach which was sufficiently serious to found a challenge under s.68.[62]He then submitted that it is common ground that Seacrest did not advance its new argument until closing submissions, and the question of whether it formally foreclosed that argument by a positive admission, or merely left BCP’s case unchallenged, does not matter. He said that, either way, the new point did not arise on the pleadings, had never previously been the subject of any submissions, and Seacrest had no right to insist upon raising it (without any accompanying application to amend) in its closing submissions.[63]He also submitted that Seacrest was wrong to suggest that the Tribunal must have understood that the Exchange Rate Issue was “in play” by reference to the observations it made on Days 2, 3 and 4 of the hearing. It was BCP’s case that none of those observations related to the Exchange Rate Issue as it is now presented, i.e. the period over which an exchange rate is to be assessed.[64]Mr Gunning also said that Seacrest’s submission that the Tribunal asked the parties for submissions on exchange rates, and therefore intended to allow them to depart from the pleadings on anything to do with exchange rates, including therefore the Exchange Rate Issue, was wrong. He said that it was plain that the Tribunal was only interested in assistance on the narrow question of the correct rate on any particular date. It was not inviting, and could not have been thought to have been inviting Seacrest to put forward a new case as to the period over which the currency conversion calculation was to be carried out.[65]He then submitted that Seacrest was not assisted by the passage from RAV Bahamas relied on by Mr Hamilton. In particular it did not support the proposition that, if the Tribunal thought that the Exchange Rate Issue was being raised too late, it should have put that to Seacrest, allowed for submissions, and then made a ruling. The critical difference between this case and RAV Bahamas (apparent from [60] of the judgment) is that, in RAV Bahamas, the arbitrator had never ruled that the relevant issue could not be raised. In the present case, the Tribunal had ruled that no new issues could be raised in the single round of written closings and that, if a party wished to raise a new issue, that could only be done once an application to amend had been made and was successful.[66]Mr Gunning said that Seacrest had chosen not to make any such application, and therefore fell foul of the Tribunal’s perfectly proper direction, that, absent any application to amend, new issues could not be raised in written closings. Mr Gunning accepted that, if Seacrest had applied for permission to amend its pleadings, the Tribunal would have been bound to give proper consideration to that application. But he said that, as Seacrest had made no such application, it could not be said that there had been a failure of due process for the Tribunal not to address an application which Seacrest had never made. He also said that Seacrest was quite wrong to suggest that BCP had any responsibility to point out that the new issue was being raised in contravention of the Tribunal’s direction. If Seacrest wished to raise the point, it was its responsibility to do so by way of an application to amend.[67]As to the suggestion that, in its closing submissions, BCP ostensibly conceded the Exchange Rate Issue by changing its own position on the period over which the currency conversion was to be calculated, Mr Gunning submitted that the passage on which Seacrest relied (paragraph 278 of BCP’s closing submissions) only addressed the question of whether the correct currency for calculating the DCP was USD or NOK. The fact that BCP argued that “Received Proceeds” should be “accounted for in USD at the prevailing exchange rate when they were paid” does not alter the position. The words “when they were paid” clearly referred to those components of the Received Proceeds which could be “paid”, such as professional advisory fees, and could not be applied to the currency conversion of a 60-day average share price for listed shares which threw up a figure which was never “paid” to anyone. Still less can this be read as a volte face on an issue which, as the Statement of Rejoinder recorded, BCP understood to be agreed on the pleadings.[68]It was also said by BCP that, even if there had been some serious irregularity, that would not have caused Seacrest any substantial (or indeed any) injustice. The reason for this is that the Tribunal made clear in its Article 38 Decision that it had concluded that the appropriate exchange rate to be applied to the deemed sale price was the average USD/NOK rate during the Pricing Period and that such rate was 10.4510, i.e., that BCP’s case on the Exchange Rate Issue was correct. It followed that, whether or not the Tribunal had been correct to treat the rate as “common ground” is irrelevant, because, having considered the evidence adduced on the Article 38 Issue, the Tribunal had reached the conclusion that BCP’s position was correct. This means that Seacrest is unable to show substantial injustice: see CSAV, per Beatson J at [67] to [70].[69]It also means that Seacrest will have failed to show that the Tribunal “was caused by adopting inappropriate means to reach one conclusion whereas had he adopted appropriate means he might well have reached another conclusion favourable to the applicant”: Vee Networks Ltd v Econet [2005] 1 All ER (Comm) 303, per Colman J at [90]. In short it was submitted that, as the Tribunal had made clear how it would have regarded the matter if it had treated the Exchange Rate Issue as disputed, it cannot be said that any irregularity would have made any difference to the result.[70]I did not understand Mr Gunning to dispute that the Article 38 Decision was not an award and was not part of the Award. However, he said that Seacrest’s submission that the Tribunal was not permitted to say that the new argument would have made no difference to its conclusions because it was functus officio and therefore unable to issue any new Award or make any determination was wrong for a number of reasons.[71]The first reason is that Article 38 is an exception to the general rule that the Tribunal was functus officio from the moment it rendered the Award (Handbook of UNCITRAL Arbitration, 4th ed., para 38-05). This is consistent with the policy which underlies the 1996 Act of “enabling the arbitral process to correct itself where possible, without the intervention of the Court” (Torch Offshore v Cable Shipping [2004] 2 All ER (Comm) 365, per Cooke J at [28]). It was submitted that it is incoherent for Seacrest to submit that the Tribunal would have had jurisdiction to determine that it could correct the Award to reflect Seacrest’s argument that the Award was irregular (giving reasons for its conclusions), but that it did not have jurisdiction to make the opposite determination by explaining why the Award was not irregular and would not be corrected.[72]The second reason is that it is irrelevant that the Tribunal could not have issued a new or supplementary Award. It did not do so. It simply considered an application for a correction, heard the parties’ arguments, and comprehensively and correctly explained why there was no correction to be made. Mr Gunning said that, since the early days of the 1996 Act, the court has taken into account the reasoning provided by arbitrators when refusing corrections under the UNCITRAL rules. He cited Margulead v Exide Technologies [2004] 2 All ER (Comm) 727 (“Margulead”) at [46] as an example of a case in which Colman J had taken just such a course.[73]He also submitted that Seacrest’s reliance on Doglemor does not assist its case. While it is authority for the proposition that the Article 38 Decision does not form part of the Award, it also says (at [53] to [54]) that such a decision will provide evidence (even the “best evidence” per Robert Goff LJ in The Montan [1985] 1 WLR 625 at 638F-G), as to what the Award would have said in the counterfactual, i.e., if there had been no irregularity. The Tribunal’s conclusion in the Article 38 Decision shows that Seacrest’s argument advanced in support of the Exchange Rate Issue did not make, and would not have made, any difference to its conclusions. Mr Gunning submitted that no argument as to the status of the Tribunal at the relevant time can undermine the incontrovertible evidence that the conduct of the Tribunal said by Seacrest to have amounted to a serious irregularity made no difference to the result.

Disposition

[74]It is clear that, in making the Award, the Tribunal did not expressly engage with what was said by Seacrest in paragraphs 114 to 117 of its written closing submissions, in the sense that the points made in those paragraphs as to the Exchange Rate Issue were not referred to, and the contrary was said to be common ground. To that extent Seacrest is entitled to say that the Tribunal did not take those submissions into account. Put in those simplistic terms, it might be thought that the Tribunal must have been guilty of a serious irregularity because, as Lord Hamblen said in RAV Bahamas at [69], failing to deal with an issue which was put to the tribunal, and which would have a very significant impact on the amount to which the party concerned would otherwise be entitled, is on the face of it obviously unfair and unjust.[75]However, I do not agree that the court should conclude that the Tribunal did not even turn its mind to whether it should take into account any new points which were being raised in relation to the Exchange Rate Issue for the first time. I agree with Mr Gunning’s submission that it is consistent for the Tribunal to have refused to allow Seacrest to raise a new issue in written closings, but also to have read the relevant part of Seacrest's written closings, which I agree it would obviously have done, and been unpersuaded by what was said.[76]I also do not agree that the use of the language of common ground has quite the significance attributed to it by Seacrest. The Tribunal had already determined that no new issues were to be raised in the parties’ closing submissions and that was a decision which continued to be effective, including in relation to any new point on the Exchange Rate Issue, unless and until Seacrest applied to amend. The footnote to that part of the Award in which the Tribunal found that it was common ground that the Received Proceeds amount (rounded up to the nearest dollar) is US$184,614,435 confirmed that this was the approach that the Tribunal had taken. Its conclusion as to common ground was by reference to the parties’ memorials as the only basis on which it could properly proceed in the light of the directions it had already given.[77]The context in which the Tribunal declined to articulate a response to the submissions made by Seacrest in relation to the Exchange Rate Issue is all important. In that regard it is necessary to examine in a little more detail the factors, including procedural determinations made by the Tribunal during the course of the arbitration, which had an impact on the approach that it took to Seacrest’s closing submissions. Only then is it possible to identify whether what occurred amounted to a serious irregularity in the form of a failure by the Tribunal to comply with s.33 by not giving Seacrest a reasonable opportunity of putting its case and dealing with that of BCP as its opponent.[78]The first is that, in paragraphs 114 to 117 of Seacrest’s closings it sought to run a new and unpleaded case (which has come to be called the Exchange Rate Issue). Furthermore, it was not just unpleaded in the sense that it should have been advanced in reply to paragraph 22 of BCP’s Statement of Defence. It was a case which contradicted a positive assertion that had been made by Seacrest in its own Statement of Reply, viz., that there were two outstanding points of dispute in relation to the Received Proceeds figure for use in the DCP Calculation, neither of which were the Exchange Rate Issue.[79]Of equal significance was the fact that BCP’s Statement of Rejoinder made clear that it read Seacrest’s Statement of Reply as reflecting an agreement that “adopting the Pricing Period contended for by BCP and calculating the DCP in US Dollars, the Received Proceeds amount is US$184,614,434.83”. In my judgment, it was very clear that what came to be advanced as the Exchange Rate Issue was not therefore open to Seacrest on the case pleaded in the memorials.[80]Irrespective of any direction that may have been given by the Tribunal, the natural consequence of this was that, if Seacrest wished to advance the Exchange Rate Issue, it would have needed to apply to amend its memorials (and more specifically its Statement of Reply). The form in which any such application might need to be made was something on which the Tribunal was entitled to regulate its own procedure, but it is plain that it would have been unfair to BCP for Seacrest to be entitled to make this new case without giving BCP a proper opportunity to say that the amendment should not be allowed and in any event to respond to the new arguments.[81]This was particularly significant in circumstances in which Seacrest’s new case on the Exchange Rate Issue was only advanced for the first time in written closing submissions served after the four days of hearings had concluded. To that extent the points were being raised even later in the process than the oral submissions which were under consideration in RAV Bahamas (a case concerned with the Bahamian equivalents of both s.68(2)(a) and s.68(2)(d) of the 1996). In that case the issue had been raised in opening and one of the criticisms of the arbitrator was that she failed to deal with a new argument made in support of that issue in closing submissions. It was a very different situation from the present case not just for that reason, but also because, unlike in this case, there was no specific ruling by the arbitrator that no new case could be advanced in closing submissions.[82]It is evident that the Tribunal was alive to the undesirability that one of the parties might seek to spring a new and unpleaded case on the other side, which is why the Presiding Arbitrator made the statement he did on Day 1 of the hearing. This was an important clarification of the approach the Tribunal proposed to take, but was a relatively obvious reflection of what fairness required. It was simply saying that the parties should be required to put their cards on the table at the outset and that, in the absence of an application to amend, they would be held to their cases as they then stood. There is nothing at all remarkable about this position, and I agree with Mr Gunning’s submission that it was consistent with what was said in paragraphs 14.1 and 14.5 of Procedural Order 1.[83]Some of Seacrest’s submissions sought to minimise the significance of the Exchange Rate Issue being advanced for the first time in its written closings. It did so by characterising the point as one which was just an argument relating to an issue which had already been articulated on the pleadings, namely the precise amount of the DCP calculation. It submitted that what occurred in the current case was analogous to the circumstances under consideration by Popplewell J in Oldham at [41] and illustrated why raising the Exchange Rate Issue for the first time in closings in the way that it did, did not mean that it was a point which the Tribunal could decline to decide.[84]I do not accept this submission. Popplewell J was simply concerned with the question of whether, on the facts of that case, Mr Oldham had been deprived of a fair opportunity to advance an argument that no order for costs of the arbitration should be made until after the outcome of some High Court proceedings. He did not draw a bright line between issues and arguments. All depends on the circumstances. But in any event it is clear to me that the Exchange Rate Issue was a significant new point, which should have been pleaded if it was to be run, and which was precisely the type of issue which the Tribunal made clear at the outset could not be advanced without an application to amend being made.[85]A number of the submissions made by Seacrest are founded on the proposition that, despite the absence of any mention in the memorials, it was recognised by the parties throughout the arbitration that the Exchange Rate Issue was in dispute between them. I do not accept that submission. In particular, I do not agree that it is supported by the passages from the transcript for Days 2, 3 and 4 of the hearing that I set out earlier in this judgment. I accept BCP’s case that none of those statements relate to the Exchange Rate Issue as it is now presented, in other words the period over which an exchange rate is to be assessed.[86]Likewise, I do not agree with Seacrest's submission that the Tribunal somehow intended to allow the parties to depart from their pleadings when asking for submissions on exchange rates. I accept Mr Gunning's submission that it was plain that the Tribunal was only interested in assistance on the narrow question of the correct rate on any particular day. It was not inviting either party to put forward a new case as to the period over which the currency conversion calculation was to be carried out and in all the circumstances could not reasonably have been thought to be doing so.[87]I also do not accept Seacrest's argument that BCP's own closing submissions revealed that the case it had previously advanced on the Exchange Rate Issue in paragraph 22 of the Statement of Defence was no longer pursued. It seems to me to be inherently improbable that BCP’s case could have been thought to have been abandoned by such an insubstantial sidewind. But in any event I accept Mr Gunning's submission that the passage on which Seacrest relied in support of this argument only addressed the question of whether the correct currency for calculating the DCP was USD or NOK, and is unaffected by the reference to accounting for Received Proceeds in USD at the prevailing exchange rate when they were “paid”. Mr Hamilton's submission on this point seems to me to be inconsistent with the fact that the relevant part of BCP’s closing submissions was referring to figures that were “paid” not the 60-day average share price leading to a figure which was never paid to anyone.[88]Stripped of the detail, the real substance of Seacrest’s complaint is that, before it issued the Award, the Tribunal should have raised with the parties that it regarded the Exchange Rate Issue as a new issue with which it did not propose to engage in the absence of an application for permission to amend. It was said that the Tribunal should have explained to the parties that it was proposing to take that course on the grounds that it was an unpleaded new issue and was inconsistent with the parties’ positions on the memorials. It was then said that. if that had happened, Seacrest would have applied to amend and would have succeeded on that application.[89]I agree that it would have been open to the Tribunal to take that course, but I do not accept that it was a serious irregularity that it did not do so. In my judgment there is no doubt that Seacrest had had a reasonable opportunity to advance its new case on the Exchange Rate Issue by complying with the procedural directions that had been given. There was nothing unfair or irregular about the course which the Tribunal took, leaving it as they did to the parties to apply to amend if they wished to advance a new case, but otherwise proceeding on the basis of the case set out in the memorials.[90]In short, even if Seacrest was in doubt as to whether paragraphs 114 to 117 of its closing submissions would be treated by the Tribunal as a new case, I think it is obvious that it might have been so regarded. In my judgment, there is nothing unfair about an approach which left it up to Seacrest to apply to amend if it was in any doubt.[91]I also think that BCP is correct on the issue of substantial injustice for the reasons it gives. I agree that there will be substantial injustice where it is established that, if the irregularity had not occurred, the outcome of the arbitration might well have been different (Vee at [90]) and that it is not necessary to show that the outcome would “necessarily or even probably be different” (RAV Bahamas at [34]). However, it is also the case (per Lord Hamblen in RAV Bahamas at [34]) that “In general, there will … be no substantial injustice if it can be shown that the outcome of the arbitration would have been the same regardless of the irregularity”.[92]In my view, BCP has established that there is no real doubt that the Tribunal would have reached the same decision even if Seacrest had been permitted to address it on why it was correct on the Exchange Rate Issue. This is very clear from the Article 38 Decision itself and means that Seacrest falls short of demonstrating substantial injustice on the basis that if the irregularity had not occurred the outcome of the arbitration might well have been different.[93]I do not accept Seacrest’s submission that the court is not permitted to take the Article 38 Decision into account when reaching this conclusion. In my view the court is entitled to do so whether or not it formed part of the Award (the argument being that a refusal to correct does not fall within the language of Article 38(3)): Margulead at [46]. I also agree with Mr Gunning that Doglemor is authority for the proposition that the Article 38 Decision (in Doglemor it was a correction decision called a Response under the LCIA Rules) will provide admissible evidence as to what the Award would have said in the counterfactual, i.e., if there had been no irregularity. As Sir Ross Cranston said at [53] “in my view it constitutes admissible evidence from the tribunal not only about the mistake but also its consequences for the award”. It appears to me that this is consistent with the conclusion reached in relation to the arbitrator’s evidence discussed by Robert Goff LJ in The Montan [1985] 1 WLR 625 at 638F-G.[94]It follows that, even if I had concluded that there had been a serious irregularity in the manner in which the Tribunal dealt with the Exchange Rate Issue, it would not have caused substantial injustice. The Tribunal would have reached the same conclusion in any event. For all these reasons I do not consider that Seacrest has made out its case for relief on the grounds of serious irregularity affecting the Tribunal, the proceedings or the Award of the kind described in s.68(2)(a) of the 1996 Act. I therefore refuse the relief identified in paragraph 91 of Seacrest’s skeleton argument.[95]In large part, my conclusions on that issue have also traversed the ground to be covered in relation to the Article 38 Issue. However, Seacrest still seeks a determination that the Article 38 Decision is not an award and that such findings as are made within it can in no way bind or affect the rights of the parties. Mr Hamilton submitted that it appeared in particular from the final sentence of the Article 38 decision that the Tribunal considered that it had a power to determine whether any error or omission had a material impact on the final award. He said that this was wrong because the Tribunal did not have a power in those terms and, insofar as it purported to exercise that power, it committed a serious procedural error under s.68(2)(b) of the 1996 Act.[96]I have reached the conclusion that it is not appropriate for the court to grant the form of declaratory relief which Mr Hamilton now seeks in paragraph 92 of his skeleton argument. This is because it is clear to me that the Article 38 Decision does have legal effect as a decision reached pursuant to a process agreed by the parties in accordance with the UNCITRAL rules applicable to the arbitration even though the product of the process does not form part of the Award.[97]Of course it is the case that the decision I have reached in relation to substantial injustice is in part affected by the terms of the Article 38 Decision, but that is not because the Article 38 Decision was itself part of the Award. It is simply because, in accordance with the approach adopted in cases such as Margulead and Doglemor, the reasons for dismissing the Article 38 Request explained why any irregularity in the form of the Award or the approach adopted by the Tribunal to the Exchange Rate Issue did not itself cause any substantial injustice.[98]The parties should seek to agree and submit for my approval an order which reflects the conclusions reached in this judgment.