“I accept that those courts haven't engaged with allegations of fraud and looked at witnesses and made findings. What they have looked at is procedural questions and decided them on that basis. So I don't present those decisions as ones that have considered on the merits and rejected fraud allegations. They are procedural decisions made based on the application of local law instructions.”
“3.2 For procedural matters not addressed by the UNCITRAL Rules, the Tribunal shall apply the rules on which the Parties have agreed. In the absence of such agreement, the Tribunal shall apply the rules it deems appropriate in the circumstances, provided that the Parties are treated equally and that, at any stage of the proceedings, each Party is given a full opportunity of presenting its case, in accordance with Article 15(1) of the UNCITRAL Rules.”
“Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it considers appropriate, provided that the parties are treated with equality and that at any stage of the proceedings each party is given a full opportunity of presenting his case”
“4 The parties may be represented or assisted by persons of their choice. The names and addresses of such persons must be communicated in writing to the other party; such communication must specify whether the appointment is being made for purposes of representation or assistance.” “33(1) The arbitral tribunal shall apply the law designated by the parties as applicable to the substance of the dispute. Failing such designation by the parties, the arbitral tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.”
“4.1 The Parties have designated their respective representatives listed in section (1) of the Terms of Appointment, as being authorized to act on their behalf in these arbitration proceedings. “4.2 In the event of any change by a Party of its representatives or of the contact details of any of its representatives, that change shall be notified promptly in writing to opposing counsel, to each member of the Tribunal, and to the Permanent Court of Arbitration (the “PCA”). The Tribunal reserves the right to exclude the participation of any representatives from any hearing or other meeting where their participation has not been duly notified sufficiently in advance of that hearing or meeting. The Tribunal may withhold approval of the intended change or addition and, after having heard the Parties, exclude the participation of any such representatives from the arbitration where their participation might create a conflict of interest or for other compelling reasons.”
“it has not decided on the issue of representation, which continues being debated in the courts of Mauritius. As of the date hereof, the courts of Mauritius have not issued a final determination on the issue of representation. In any event, any final determination on this matter by the courts of Mauritius would still be subject to the Tribunal’s determination on whether and to what extent such decision is binding, or has to be recognized by, an international tribunal seated in London.”
“the present circumstances are exceptional. They call for the greatest circumspection by the Tribunal. The legal consequences that arise from the above-described factual circumstances are obvious: the Tribunal must either decide the Threshold Issues of the identity of the Claimant Parties and their representation in this arbitration; or – if for whatever reason it cannot – the arbitral proceedings cannot now continue.”
“is also bound to consider the provisions of the [1996 Act]. This is so, not least, because the [1996 Act] provides that the final award may be challenged for “serious irregularities” that cause “substantial injustice to the applicant,” which includes “the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy.”
“Consequently, the Tribunal must decide the issue of [the Mauritian Companies’] representation by considering international law, the 1976 UNCITRAL Rules, the [ToA], and the [1996 Act]. The question for this Tribunal is therefore not restricted to determining whether under the law of Mauritius, which is the place of incorporation of [the Mauritian Companies], Mr Thacoor is the representative or the administrator of [the Mauritian Companies]. This is the perspective of, and the law applied by, the courts of Mauritius. The issue before this Tribunal is whether under international law, the 1976 UNCITRAL Rules, the [ToA], and the [1996 Act] this Tribunal must recognize, for purposes of this arbitration, the decision of Mauritian courts pursuant to which Mr Thacoor has been appointed as representative of [the Mauritian Companies]. In its decision the Tribunal may not ignore the decisions of the courts of Mauritius but is not bound to blindly or automatically apply and recognize such decisions without considering the laws and rules that govern this arbitration.”
“not only that the matter is still subject to litigation in Mauritius, but also that a final decision on the issue may take another two to three years. However, it is not for this Tribunal to decide on the dispute that is pending before the courts of Mauritius as to the validity and finality of decisions issued by such courts. At the same time, Claimants’ right to pursue their claims in this arbitration cannot remain subject to the fluctuations of proceedings before local courts.”
“There is a possibility, of course, once all proceedings in Mauritius have come to an end, and the matter is final and binding also from the perspective of the Mauritian order, and in case the Tribunal were to reconfirm its position on the issue of representation in the present decision in the event of a change in the status quo, that this may result in a difference between how the representation of Claimants is dealt with from the perspective of Mauritian courts and how it is dealt with by other decision-making bodies that are not under the sovereignty of Mauritius and jurisdiction of Mauritian, such as this Tribunal.”
“192. In sum, the Tribunal has serious concerns that the Appointment Orders that are being litigated in Mauritius contravene basic notions of due process under international law and English notions of substantive justice, such as the right to be heard and present one’s case and the right to receive a reasoned decision, and hence “fall short of the guarantee to a fair trial” under English law and international law standards. 193. These are additional reasons for the Tribunal to be reluctant at this stage to recognize the appointment of Mr Thacoor in this arbitration based on the Appointment Orders and to accept all acts Mr Thacoor has taken in the name of Claimants. This includes terminating the power of attorney of Gibson Dunn that validly had been given to them at the start of the present arbitration, which, consequently, continues to be valid.”
“It follows from the foregoing that Mr Thacoor failed to identify a specific prejudice or harm to Claimants’ rights if he is not recognized as their representative, and instead demonstrated with his conduct that his interests do not appear to be aligned with Claimants’ right to pursue their claim in this arbitration.”
“228. For the reasons mentioned above, the Tribunal, by majority: a. Decides not to recognize, for the exclusive purposes of this arbitration, the appointment of Mr. Thacoor as the representative of Claimants based on the Appointment Orders, and therefore, does not give effect to his decision to terminate the powers of attorney given to Gibson Dunn to represent Claimants in this arbitration. b. Continues to recognize Gibson Dunn as the representatives of Claimants in this arbitration. c. Invites the Parties to confer and agree on the steps to follow in this arbitration, and specifically, on a procedural timetable before31 January 2025 and inform the Tribunal accordingly. If no agreement is reached by said date, each Party must submit on that date its respective position. d. Reserves the decision on costs to a later stage.” a. Decides not to recognize, for the exclusive purposes of this arbitration, the appointment of Mr. Thacoor as the representative of Claimants based on the Appointment Orders, and therefore, does not give effect to his decision to terminate the powers of attorney given to Gibson Dunn to represent Claimants in this arbitration. b. Continues to recognize Gibson Dunn as the representatives of Claimants in this arbitration. c. Invites the Parties to confer and agree on the steps to follow in this arbitration, and specifically, on a procedural timetable before31 January 2025 and inform the Tribunal accordingly. If no agreement is reached by said date, each Party must submit on that date its respective position. d. Reserves the decision on costs to a later stage.”
“In Procedural Order No. 6, the Tribunal decided, after extensive submissions from [India’s] counsel – despite their indication that [India] was not participating – and from Mr Thacoor and his counsel, that the representative of Claimants in this arbitration is Gibson Dunn. The Tribunal likewise dismissed Mr Thacoor’s request to be recognized as representative of Claimants in this arbitration”. “The [Section 45 Application] was submitted by [India] – who is a party to this arbitration but claims not to be participating – and by counsel for Mr Thacoor who is neither a party to this arbitration nor a representative of Claimants according to the findings and the decision in Procedural Order No 6. Consequently, whatever the agreement reached between Mr Thacoor and his counsel and [India], it is not, for purposes of the present arbitration proceedings, an agreement of the parties to this arbitration for purposes of Section 45(4) of the [1996 Act].”
“At the same time, by assessing the Appointment Orders for the exclusive purposes of ascertaining the identity of Claimants’ representatives in this arbitration, the tribunal is not substituting English courts or Mauritian courts. English courts preserve any jurisdiction they may have under English law that involve assessing the Appointment Orders and/or any future award; similarly, Mauritian courts preserve any jurisdiction they have under Mauritian law to determine who the representative of a Mauritian company is under the laws of Mauritius. Likewise, this tribunal finds that it is within its remit to determine the issue of who represents claimants in this arbitration, without this having any impact on the decisions reached in other fora.”
“44. The court does not have a general power to supervise the conduct of an arbitration prior to award: see Charles M Willie & Co (Shipping) Ltd v Ocean Laser Shipping Ltd (The Smaro)[1999] 1 Lloyd’s Rep 225 , per Rix J. As it was put by Steyn J in K/S A/S Bill Biakh v Hyundai Corporation[1988] 1 Lloyd’s Rep 187 at page 189 col 1: “In the interests of expedition and finality of arbitration proceedings, it is of the first importance that judicial intrusion in the arbitral process should be kept to a minimum. A judicial power to correct during the course of the reference procedural rulings of an arbitrator which are within his jurisdiction is unknown in advanced arbitration systems …” 45. Consistently with this, in Fletamentos Maritimos SA v Effjohn International BV (No 2)[1997] 2 Lloyd’s Rep 302 Waller LJ said this, at page 306 col 2: “I have always understood the position to be that there are no circumstances which could give rise to a power to review an interlocutory direction not made in the form of an award. Basically, the position is, as I understand the authorities, that the Court has never had some general power to supervise arbitration and review interlocutory decisions. …” “In the interests of expedition and finality of arbitration proceedings, it is of the first importance that judicial intrusion in the arbitral process should be kept to a minimum. A judicial power to correct during the course of the reference procedural rulings of an arbitrator which are within his jurisdiction is unknown in advanced arbitration systems …” “I have always understood the position to be that there are no circumstances which could give rise to a power to review an interlocutory direction not made in the form of an award. Basically, the position is, as I understand the authorities, that the Court has never had some general power to supervise arbitration and review interlocutory decisions. …”
“It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter.”
“The use of the word ‘may’ in the first line of section 45 is a clear indication that the court has a discretion. Further guidance is to be obtained from the Court of Appeal’s decision in Babanaft International Co. SA v Avant Petroleum Inc[1982] 1 WLR 871 . Babanaft concerned an application to the High Court to determine a question of law arising in the course of a reference pursuant tosection 2 of the Arbitration Act 1979 . At page 882 Donaldson LJ said this: “The judge has to consider the application on its inherent merits. If he is not satisfied that the question of law proposed for determination ought to be determined at that stage he should refuse the application... “Section 2 is the successor in title to the old consultative case which more aptly describes its nature. Put colloquially the arbitrator or the parties nip down the road to pick the brains of one of Her Majesty's judges and, thus enlightened, resume the arbitration. It is essentially a speedy procedure designed to interrupt the arbitration to the minimum possible extent and it is an exception to the general rule that the courts do not intervene in the course of an arbitration”
“46 Rules applicable to substance of dispute (1) The arbitral tribunal shall decide the dispute – (a) in accordance with the law chosen by the parties as applicable to the substance of the dispute, or (b) if the parties so agree, in accordance with such other considerations as are agreed by them or determined by the tribunal. (2) For this purpose, the choice of the laws of a country shall be understood to refer to the substantive laws of that country and not its conflict of laws rules. (3) If or to the extent that there is no such choice or agreement, the tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.” (1) The arbitral tribunal shall decide the dispute – (a) in accordance with the law chosen by the parties as applicable to the substance of the dispute, or (b) if the parties so agree, in accordance with such other considerations as are agreed by them or determined by the tribunal. (2) For this purpose, the choice of the laws of a country shall be understood to refer to the substantive laws of that country and not its conflict of laws rules. (3) If or to the extent that there is no such choice or agreement, the tribunal shall apply the law determined by the conflict of laws rules which it considers applicable.”
“The basic effect of section 34 is that it is not possible to attack arbitration awards on the basis that judicial rules of evidence and procedure have not been followed. This is, however, subject to the general principles in section 33 that the arbitrators are to act impartially, to allow each party to put his case and to adopt a procedure suitable to the circumstances of the case. Whatever procedure is agreed upon must, therefore, be impartial, fair and appropriate. Subject to that, the arbitrators are, in default of agreement between the parties, given almost total autonomy.”