Basically, you have to argue that either the arbitrator did not have jurisdiction, or alternatively that there was a serious ‘irregularity’ that led to substantial injustice (ss67 and 68 Arbitration Act 1996).

Cases on ‘irregularity’ are rare but there have been three recently:

• T argued that an award should be set aside because the arbitrator had relied upon his own knowledge without giving the parties an opportunity to comment. That argument failed; an arbitrator can use his own knowledge (especially with rent review clauses which do require him to have specific experience of the market). However, an arbitrator cannot rely upon evidence of specific deals he has been involved in, unless the parties are given an opportunity to comment. Checkpoint [2003];
• in another case, L asked for the award to be set aside because the arbitrator decided to use an approach that had been put forward - but not adopted - by T. Since L's expert had understood that T's case did not rely upon this approach he had not dealt with that part of T's evidence. It was held that the award should not be set aside, because the approach had been raised and the arbitrator was entitled to use the material put forward before him even though he might do so in a way that the parties might not have anticipated. Warborough [2003];
• an arbitrator made a substantial allowance for a rent-free period, although neither L nor T had offered any evidence on the point and neither had been given a chance to do so. Accordingly, this was one of those rare cases where the award was set aside, with the court taking the view that when an arbitrator is considering a substantial discount in this way he should give both sides an opportunity to comment. In effect, the arbitrator had failed to act fairly and impartially, and to give each party a reasonable opportunity of putting its case.

Do not forget, however, that if a case is remitted back to an arbitrator then you are simply returning to the person whose decision has been challenged in the first place. In simple terms, is it not likely that the arbitrator will find a different justification for arriving at the same decision? That, in practical terms, must surely be the main constraint on asking for an arbitrator’s award to be set aside – unless it goes to a different arbitrator, it might well prove to be a fruitless exercise. For a commentary on the recent cases see article in [2004] EG 13 March 130. © Practical Lawyer