Faced with an unsatisfactory arbitral award, a party may turn its mind to the potential recourse available under the Arbitration Act 1996 (AA 1996). That may include sections 67 to 69 of the AA 1996, which allow a challenge to be brought to an award based on, respectively, a lack of substantive jurisdiction, a serious procedural irregularity, or an error of law. However, parties less often consider the further options available under section 57 of the AA 1996, under which a party may request the correction of errors or the removal of ambiguities in an award, or request an additional award in respect of a claim that has not been addressed. Many arbitral rules also contain a similar provision. In certain circumstances, an application under section 57 may provide a sufficient standalone remedy. In others, it will be a prerequisite to a subsequent application under sections 67 to 69 of the AA 1996 and may also strengthen the challenge brought under those provisions.
Scope and uses of section 57
Section 57 of the AA 1996 empowers the tribunal to either:
- “Correct an award so as to remove any clerical mistake or error arising from an accidental slip or omission”.
- “Clarify or remove any ambiguity in the award”.
- “Make an additional award in respect of any claim (including a claim for interest or costs) which was presented to the tribunal but was not dealt with in the award”.
The English courts have confirmed that section 57 deals “not merely with slips and other such mistakes but with substantive clarifications and the removal of ambiguities, both of which are likely to be of potential importance if required” (McLean Homes South East Ltd v Blackdale Ltd). In this regard, the power under section 57 to “remove any ambiguity in the award” is notably broader than the corresponding language in section 68(2)(f) of the AA 1996, which is confined to “uncertainty or ambiguity as to the effect of the award”. It follows that section 57 empowers and obliges the tribunal to remove ambiguity not only from the operative parts of an award but also to remove such an ambiguity from any underlying observations, reasoning or findings in the award. This too has been recognised by the courts, which have observed that “if the award contains inadequate rationale or incomplete reasons it is likely to be ambiguous or to require clarification, which is precisely within the jurisdiction in section 57(3)(a)” (Al-Hadha Trading Co v Tradigrain SA).
The benefit of clerical corrections and of an additional award addressing a missed claim is plain. Clarification of ambiguities or a lack of reasoning in an award may be of equal utility. Where the award arises in the context of a long-term commercial relationship, for example, the removal of ambiguities in the award may help provide a clearer footing for the parties’ future conduct, in particular where the tribunal has declined to grant declaratory relief intended to address such issues. In other circumstances, an elaboration of the tribunal’s reasoning in response to a section 57 application may simply be sufficient for a party to understand, and thus accept (if not approve!), why a given issue has been decided against it, with the comfort that its position has at least been duly considered.
Relationship between section 57 and sections 67 to 69
For the above reasons, in the right circumstances, a section 57 application may be justified in its own right. In others, an application under section 57 will be an unavoidable prerequisite to a subsequent challenge under sections 67 to 69 of the AA 1996.
Section 70(2) of the AA 1996 provides that to pursue a challenge under sections 67 to 69, an applicant must first have exhausted “any available recourse under section 57”. This provision applies to both:
- Issues that must be first pursued through section 57 (for example, where the tribunal has simply failed to deal with a claim).
- Issues where a section 57 application is “material” or “relevant” to the intended section 67 to 69 challenge, in the sense that the outcome of the section 57 challenge may determine the availability or scope of the challenge, and allow the applicant to know whether such a challenge can be made.
For example, an application under section 57 may be material where clarification of the tribunal’s reasoning is required to determine whether the tribunal lacked substantive jurisdiction (section 67), made an error of law (section 69), or either failed to deal with all the issues that were put to it or issued an award that is uncertain or ambiguous as to its effect (section 68).
Importantly, where a section 57 application is required, it changes the deadline for the subsequent section 67 to 69 application. A challenge under any of sections between 67 to 69 must normally be brought within 28 days of the award (unless the parties agree otherwise, or the court orders otherwise). However, challenges to an award that are dependent on a prior section 57 application (that is, because the section 57 application may reveal whether there are grounds to challenge the award) can be brought within 28 days of the corrected award (or additional award), or the decision not to make a correction under section 57.
For this reason, applicants must assess carefully whether the section 57 application would indeed be material to their envisaged challenge under sections 67 to 69. If it is, an application within 28 days of the award would be premature and risk non-compliance with section 70(2). However, if the section 57 application is subsequently deemed not to be material, then the subsequent section 67 to 69 application would be out of time. This dilemma has encouraged a practice of filing protective applications under sections 67 to 69 in parallel with a section 57 application. However, the English courts in 2020 held that parties should not adopt this approach (Xstrata Coal Queensland Pty Ltd v Benxi Iron and Steel (Group) International Economic & Trading Co Ltd).
An extra tool in the arbitration toolbox
A party intent on pursuing a challenge under sections 67 to 69 of the AA 1996 needs to be aware of the scope and applicability of section 57 to ensure that it brings its challenge within the applicable deadline. However, it would be a mistake to view section 57 as nothing more than a hoop to jump through. In the right circumstances, a section 57 application may clarify or even strengthen a subsequent challenge to the award; for example, where, in response to a section 57, the tribunal declines to issue an additional award addressing a claim it missed or to resolve manifest ambiguities in the award. Furthermore, while tribunals will typically be reticent to make invasive changes to the award in response to a section 57 application, such an application may nevertheless provide a sufficient resolution of unsatisfactory elements of an award so as to at least provide closure to the parties. In this way, section 57 can be a useful additional tool in the arbitration toolbox.
