Setting aside an arbitration award

Grounds under the UNCITRAL Model Law

Article 34 of the Model Law, adopted in 1985 and amended in 2006, lets a court set aside an award only on listed grounds. The applicant must prove the first four. The court may find the last two on its own ¹.

• A party was under some incapacity, or the arbitration agreement is not valid ¹
• The applicant was not given proper notice of the arbitrator's appointment or the proceedings, or could not present its case ¹
• The award deals with a dispute outside the terms of the submission to arbitration ¹
• The tribunal's composition or procedure did not follow the parties' agreement ¹
• The subject matter cannot be settled by arbitration under the law of the state ¹
• The award conflicts with the public policy of the state ¹

Grounds under the English Arbitration Act 1996

Section 67 allows a challenge to an award on the tribunal's substantive jurisdiction ³. Amendments in force from 1 August 2025 allow court rules to bar new grounds of objection and evidence not put before the tribunal, and to bar the court from re-hearing evidence, subject to the court ruling otherwise in the interests of justice ³.

Section 68 allows a challenge for serious irregularity that the court considers has caused or will cause substantial injustice to the applicant ². The listed kinds include the tribunal failing in its general duty, exceeding its powers, failing to deal with all issues put to it, and the award "being obtained by fraud" or being contrary to public policy ².

Section 69 allows an appeal to the court on a question of law arising out of an award, where the parties have not agreed otherwise. An agreement to dispense with reasons counts as an agreement to exclude this appeal ⁴. Section 70 requires an applicant to exhaust any arbitral appeal and any request for correction under section 57 first. The application must be brought within 28 days of the applicable date ⁵.

Case example: Nigeria v P&ID

A tribunal issued an Award on Liability on 17 July 2015 and a Final Award on 31 January 2017 requiring Nigeria to pay Process & Industrial Developments Limited (P&ID) US$6.6 billion with interest at 7% ⁷. Nigeria challenged the awards in the English Commercial Court ⁷.

On 23 October 2023, Mr Justice Robin Knowles held that the Award on Liability and the Final Award "were obtained by fraud" and should be set aside ⁸. He identified three matters that brought the case within section 68(2)(g): evidence P&ID knew to be false, continued bribery of Mrs Grace Taiga directed to the arbitration period, and P&ID's retention of Nigeria's internal legal documents received during the arbitration ⁸. The court rejected as untrue the evidence of Mrs Taiga and Mr Cahill denying that payments were bribes ⁷.

P&ID sought permission to appeal. The judge refused it on 21 December 2023 and made an order setting aside the awards in whole ⁸.

Effect on enforcement in other countries

Under Article V(1)(e) of the New York Convention, a court may refuse to enforce an award that has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made ⁹. Under Article VI, where a setting-aside application has been made, a court asked to enforce the award may adjourn its decision and may order the other party to give suitable security ⁹.

ICSID awards are different

Article 53 of the ICSID Convention says an ICSID award is binding and is not subject to any appeal or to any other remedy except those provided in the Convention ⁶. The remedy for a party seeking to cancel an ICSID award is annulment by an ad hoc committee under Article 52, not a court action at a seat ⁶.