E v F [2026] EWHC 1493 (Comm)

[2026] EWHC 1493 (Comm)Case No CL-2025-000395
IN THE HIGH COURT OF JUSTICE
THE BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
KING'S BENCH DIVISION
COMMERCIAL COURT
Venue Rolls Building, Royal Courts of JusticeDate 17 June 2026
London
Before
THE HON MR JUSTICE ROBIN KNOWLES CBE
Between
EClaimantFDefendant
Between: E Claimant/ Respondent in the Arbitration- and -F Defendants/Claimants in the Arbitration
Hearing Hearing date:
Roderick Cordara KC and Stephen Donnelly (instructed by Gresham Legal LLP) for the Claimant
Lucas Bastin KC, Edward Batrouney and Eliza Bond (instructed by Fietta LLP) for the Defendants
1 May 2026
Approved JudgmentThis judgment was handed down remotely at 14:00 on 17 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
[1]In an award dated 31 July 2025 (“the Award”) made under a Bilateral Investment Treaty (“the BIT”) and the UNCITRAL Rules 1976, an Arbitral Tribunal (“the Tribunal”) found, by a majority, that it had jurisdiction in this dispute between the Claimants in the Arbitration (“F”) and the Respondent in the Arbitration (“the State”). It went on to require the State to pay compensation to F.[2]On 27 August 2025 the State commenced a claim before the Commercial Court challenging the jurisdiction of the Tribunal under section 67 of the Arbitration Act 1996 (“the 1996 Act”) and alleging serious irregularity affecting the Award under section 68 of the 1996 Act.[3]By an application dated 9 January 2026 the State applied to amend its claim. Some of the proposed amendments are agreed or not opposed by F but others are opposed. The present hearing was concerned with whether the opposed amendments should be allowed. It comes ahead of a case management conference listed for 29 June 2026 and the substantive hearing of the challenges under sections 67 and 68 which has been listed for June 2027.

Legal Framework

[4]Section 70(3) of the 1996 Act imposes a 28 day time limit for a challenge under section 67 or 68 to an award. Section 80(5) of the 1996 Act allows extension of this period on application to the Court.[5]Section 1 of the 1996 Act provides that these provisions are founded on (among others) the principle that “the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense” and are to be construed accordingly.[6]A number of well-known authorities guide the consideration of this type of application. These include Terna Bahrain Holding Co WLL v Al Shamsi [2012] EWHC 3282 (Comm); [2013] 1 Lloyd’s Rep 86 (Popplewell J). Both parties refer to the factors in Kalmneft JSC v Glencore International AG [2001] EWHC QB 461; [2002] 1 Lloyd’s Rep 128 [59] (Colman J). The factors are: “(i) the length of the delay; (ii) whether, in permitting the time limit to expire and the subsequent delays to occur, the party was acting reasonably in all the circumstances; (iii) whether the respondent to the [challenge] or the arbitrator caused or contributed to the delay; (iv) whether the respondent to the [challenge] would by reason of the delay suffer irremediable prejudice in addition to the mere loss of time if the [amendment] were permitted to proceed; (v) whether the arbitration has continued during the period of delay and, if so, what impact on the progress of the arbitration or the costs incurred the determination of the [challenge sought to be introduced by amendment] by the court might now have; (vi) the strength of the [amendment]; and (vii) whether in the broadest sense it would be unfair to the applicant for him to be denied the opportunity of having the [challenge sought to be introduced by amendment] determined”.[7]Popplewell J (as he then was) in Terna (at [27]) described factors (i), (ii), and (iii) as “the primary factors”.

Kalmneft and amendment

[8]Mr Roderick Cordara KC for the State argued that the application to amend sat differently from many cases because, given the date for which the substantive hearing of the State’s challenges has been fixed, the amendments would not in practice delay the determination of the challenges.[9]In relation to this circumstance, Mr Cordara KC argued in writing:
“Importantly, none of the mainstream Kalmneft line of cases appears to be a case of amendment, and so they are to be applied with appropriate restraint here. That is because … the strong policy objections noted in the judgments to late challenges being raised (ie challenges out of time, ab initio) are much more nuanced/muted where the challenge has already been launched in time, and what is sought is a true amendment. These cases are different from the classic cases - where the award creditor was entitled to believe that proceedings were over, only to find a long [p]eriod thereafter that it has to face an attempted revival in Court. … Specifically, it is submitted that the familiar ‘check list’ of Kalmneft factors needs to be adjusted at least in terms of delay- or prejudice-related points: the main event that needed to happen in 28 days of the Award has happened. …”
[10]Mr Cordara KC referred in oral argument to what he termed the “bridgehead” having been established in this case, with the commencement, in time, of a procedurally compliant claim. In such a case when amendments came to be considered, he argued: “.. the essence of what I say the balance is … that one begins to look to the future, not just to a potentially non-compliant past and the specific future is the trial and we know that whether or to what extent this application may succeed or fail the trial will occur …”.[11]In my judgment the approach to be taken is one that recognises that the legislation provides the framework and that the Kalmneft factors are a guide and not a closed list. This approach allows the circumstance of an existing in-time claim, and of a substantive hearing of challenges that amendments would not in practice delay, to be taken into consideration. The approach is sufficient without overlaying more than a requirement that the Court should consider all material circumstances.[12]An example tests the argument that would overlay more. “[T]he strong policy objections noted in the judgments to late challenges being raised (ie challenges out of time, ab initio)” may not be “much more nuanced/muted where the challenge has already been launched in time, and what is sought is a true amendment” if the challenge launched in time was based on one bad point and a major wide ranging set of challenges is then sought to be introduced by way of amendment.

Consideration

[13]The amendments the State would make were provided 162 days after the Award. In the context of section 67 and 68 challenges that is a very considerable delay, at over 5 times the section 70(3) time limit. That is Kalmneft factor (i).[14]The State refers to the consequences in terms of time taken, of involving new lawyers, of the process of instructions where a state is involved, of appreciating the points to which analysis led, and of reacting to the Defence. I have not been persuaded that I can accept that the State was acting reasonably in all the circumstances in allowing this amount of time to pass for these (and other given) reasons in this case (Kalmneft factor (ii)).[15]An important consideration is that neither F nor the arbitrators caused or contributed to the delay (Kalmneft factor (iii)). On the other hand, as to Kalmneft factors (iv) and (v), F would not by reason of the delay suffer irremediable prejudice, and the arbitration has not continued during the period of delay.[16]A review of the amendments does not allow a sufficiently reliable conclusion at this interim stage that they are strong or weak (Kalmneft factor (vi)). However, for present purposes only, I treat the State’s claim as one fairly described by Mr Cordara KC in his oral submissions in reply:
“a solid claim by a party who has within the time limit launched his missile and is not abusing the system for any collateral advantage”
. I am reluctant to elaborate further on this factor in the present case because, if the amendments are refused, it will be for the Judge at the substantive hearing of the claim to consider what is in fact already available to the State, even without those amendments: see the point referred to at paragraphs 20 and 21 below.[17]Would it “in the broadest sense … be unfair” to the State for it to be denied the opportunity of having matters first introduced by the proposed amendments determined (Kalmneft factor (vii))? My assessment, on the facts of this case, is that it would not.[18]There is then the circumstance highlighted by Mr Cordara’s argument: the fact that, given the date for which the substantive hearing of the State’s challenges has been fixed, the amendments would not in practice delay the determination of the challenges by the State.[19]In my judgment in the present case this circumstance, taken with the position in relation to Kalmneft factors (ii) to (vii), does not overcome the weight of Kalmneft factor (i). Finality in the sense of fixing the remaining compass of the disputes to be resolved is compromised where that compass is extended by amendment. To allow the amendments at this stage in the present case would not honour the foundational principle, provided by statute, of “obtaining the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense”.[20]However, I wish to make clear that nothing in this decision limits the compass of the case or arguments that the State may advance on its challenges already advanced without the amendments. The Commercial Court does not adopt an over-technical approach to statements of case. Matters the subject of the proposed amendments that are in fact already raised by the unamended statement of case remain open to the State, subject to any further ruling by the Court.[21]This may be particularly important in the present proceedings because Mr Cordara KC described some of the proposed amendments as “refinements”, as amendments assisting the Judge, as “merely developments of points already pleaded”, as a “reaction” to the service of a Defence, as “pure matters of argument” that “could be put in a skeleton”, as by reference to “more particular data”, and as “not new”. Even the proposed amendment to add an additional ground under section 68, whilst at one point referred to by Mr Cordara KC as “the one truly new point in the case”, was also said by him to be “perhaps as braces for a belt the same event” as advanced under section 67, “characterised in a different way … as a procedural failure … under section 68”, and as “not new other than in its incarnation in section 68”.

Conclusion

[22]The State’s application to amend, save where agreed or unopposed, is refused.

Case management

[23]I add that in advance of the case management conference on 29 June 2026 the Court expects the parties’ legal teams to cooperate to review, with a view to reducing, the length of time required for the substantive hearing.[24]This may allow consideration to be given to the possibility of bringing forward the substantive hearing date, again in the interests of avoiding unnecessary delay. The context includes the fact that the State’s aim in challenging the Award is, if successful, to achieve a remission to the Tribunal.