“…It is not for this court to tell an international commercial tribunal how to set out its award or the reasons therefor.” (paragraph 98 of the Judgment)
Introduction
Charles Edwards, high performing Construction Barrister, reviews the Commercial Court case of Collins & Ors v Wind Energy Holding Company Ltd [2025] EWHC 40 which involved an international commercial arbitration.
In this dispute Collins & Ors (the “Claimant”) sought to set aside a Final Award from the London Court of International Arbitration (LCIA) Arbitration No. 225475 on the grounds of serious procedural irregularity pursuant to section 68 of the Arbitration Act 1996 (the “Act”). In summary, the Claimant alleged that the Arbitrator breached her duties under section 33 of the Act. The Court set out the alleged breaches in paragraph 2 of the Judgment as follows:
“…i) by refusing to adjourn an evidential hearing, which commenced on 4 October 2023, in order to allow further time for the Claimants to obtain legal representation and/or prepare for the hearing, and for the First Claimant (“Ms Collins“) to recover from a breakdown;
ii) by declining to admit certain evidence at the hearing and to test the evidence tendered by the Defendant; and
iii) by taking an inappropriate approach to various matters in the Final Award.”
The Arbitration
The underlying arbitration concerned whether a letter of indemnity (LoI) was valid and binding, and whether Wind Energy Holding Company Ltd (the “Defendant”) was in breach of the LoI by not covering the Claimant’s ongoing costs in related litigation.
The Claimant’s position in the arbitration was that certain board members had terminated their positions at the Defendant Company, and they prevented the Defendant Company from paying the Claimant’s legal costs in the related litigation. On the other hand, the Defendant contended that the LOI was void or unenforceable on various grounds, some of which includes a lack of considerations, want of authority and illegality.
During the arbitration, the Claimant requested a stay of the arbitration on the following basis:
“ … (a) [the Defendant] had brought parallel proceedings in Thailand in relation to the same loss and
(b) the forthcoming judgment in the Litigation would impact on their claimed losses.”
However, the Arbitrator refused the Claimant’s request for a stay and granted an extension of time on the Claimant’s final written submission.
Following the judgment of the related litigation ([2023] EWHC 1998 (Comm)), Calver J granted a without notice post-judgment freezing order to the Claimants in the litigation. This meant that the Claimant’s ability to spend money, including on legal representation, was restricted. The judgment further provided at paragraph 16 and 17 as follows:
“16. The draft judgment in the Litigation was circulated, subject to the usual embargo, on 24 July 2023 and judgment was handed down on 31 July 2023 (the “Judgment”). The present Claimants, and some of the other defendants to the Litigation, were found jointly and severally liable to the Litigation claimants in the sum of around £850 million. Calver J refused permission to appeal, but granted an interim stay of enforcement pending an application which the Claimants made to the Court of Appeal for permission to appeal. Ms Collins in her two witness statements for the present application explains her shock at the Judgment and its serious effect on her mental health and on the Claimants’ ability to focus on the arbitration.
17. Also on 31 July 2023, Calver J granted a without notice post-judgment freezing order to the Claimants in the Litigation. Among other things, this froze the present Claimants’ assets, subject to the usual exception allowing each respondent to spend a reasonable sum on “legal advice and representation”. Ms Collins states in her witness statements in this claim, and stated in her witness statement dated 28 August 2023 in support of the Claimants’ application for an adjournment of the final hearing in the arbitration, that (without waiving privilege) she and the other Claimants understood the freezing order to prevent them from spending any sums on legal representation in the arbitration.”
[Emphasis added]
Further, on 31 July 2023, the Claimant’s representative wrote to the Arbitrator providing a copy of the Judgment and again seeking a stay of the Arbitration in the following terms:
“18 …As a practical matter, the Claimants cannot pursue the arbitration in circumstances where they have jointly and severally been found liable for in excess of USD500m, including incurring further costs in the arbitration proceedings. The Former WEH Managers are advised by counsel that they have good grounds for appeal and therefore intend to appeal the judgment. It is not known precisely how long the appeal process will take but the Former WEH Managers are confident that a decision can be achieved within the next 12 months. Only if the appeal is successful will the Claimants be able to proceed with the arbitration.
In the event that permission to appeal is not granted, or in the event that any appeal is ultimately lost, then the Claimants undertake to withdraw the arbitration proceedings at that stage. As such, the Claimants respectfully request the Sole Arbitrator temporarily to stay this arbitration until the outcome of the appeal.
I note that the Claimants did not in this communication suggest that the freezing order prevented them from paying for legal representation in relation to the arbitration. The arbitrator rejected the stay application the same day.”
On 1 August 2023, the Claimant’s Representative wrote to the Arbitrator advising that the Claimant hereby withdraws their claim in LCIA Arbitration No.225475 and also at the same time inviting the Respondent to withdraw their counterclaim on the basis that it already secured a decision in the Courts of Thailand in favour of the Respondent, awarding the very sum sought by way of the counterclaim in the Arbitration. Further, on this day, the Claimant’s legal representative, Signature Litigation, gave notice to the Arbitrator that it was no longer instructed in the arbitration.
A few days later, the Claimant explained to the Arbitrator that it was in the process of appointing a new international arbitration counsel to represent them in defending the Defendant’s counterclaim. Further, the Claimant sought permission from the Arbitrator to reinstate the Claimant’s claim in the arbitration as well as a request from the Claimant’s new counsel, that the evidential hearing be postponed whilst the Claimant’s new counsel gets up to speed. The Claimant’s request was permitted by the Arbitrator, however, the Arbitrator denied the Claimant’s new counsel’s request to vary the procedural timetable. The Judgment further provides as follows:
“…29. The same day, 14 August 2023, the arbitrator gave a ruling permitting the Claimants to reinstate their claim, but denying the request to vary the procedural timetable, saying:
“It is not appropriate, however, for the Claimants’ choice to withdraw then reinstate their claim to impact the timetable of this arbitration. The timetable was established in September 2022 and all parties have been fully aware at all times of the deadlines set out in Procedural Order No.1. The Sole Arbitrator is mindful of her duty under the LCIA Rules to conduct proceedings expeditiously and without unnecessary delay and finds that the Claimants have not shown good cause to delay the evidentiary hearing scheduled to commence on 11 September 2023…
Should the Claimants wish to submit the Sur-Reply, they have leave to do so by 25 August 2023.”
Following the Claimant’s failure to file its final written submission, the Arbitrator directed that the Claimant no longer had permission to submit any further evidence before the hearing. Two weeks before the set date for the evidential hearing the Claimant’s counsel emailed the Tribunal that it was currently unable to represent the Claimant due to “a variety of fatal obstacles” and sought the adjournment of the evidential hearing in an 18-page application. Along with the application, the Claimant’s counsel stated for the first time that the freezing order against the Claimant prevented the Claimant from “incurring liabilities or spending money that would be necessary to allow them to prosecute their claim and defend the counterclaim” paying for the travel of their expert witness. Despite the Defendant’s objects to the adjournment, the Arbitrator granted the Claimant’s application for adjournment, although on very limited grounds. The Judgments states at paragraph 38:
“38…1 September 2023 the arbitrator circulated her ruling… although it is deeply regrettable that the Claimants did not, for whatever reason, alert the Sole Arbitrator and the Respondent to the existence of the freezing injunction until the eleventh hour, she determines that a short adjournment of the hearing is appropriate in order for the Claimants to address the scope of the freezing injunction.
The Arbitrator set the date for the evidential hearing at paragraph 40 of the Judgment as follows:
“40 …on 6 September, the arbitrator directed that the evidential hearing would take place on 4 to 6 and 9 to 10 October 2023”
On 22 September 2023, the Claimants attempted to request an adjournment until the freezing order was resolved after a consequentials hearing which upheld the freezing order. The Arbitrator responded the same day at paragraph 45 of the Judgment:
“45 …The Claimants did not inform me of the existence of the freezing order and its impact on the Claimants’ ability to disburse funds in this arbitration until 28 August 2023. On 29 August I asked “has an application been made to vary the freezing injunction?…If an application has not been made, why not?”. Claimants’ Counsel responded on 31 August 2023 that “if an application is required to be made to Court, the Claimants anticipate that the variation of the freezing injunction will be addressed at the consequentials hearing listed for 11-13 September 2023.” It now appears that no application has been made to vary the freezing injunction, but that, according to Claimants’ Counsel on 19 September 2023 “an application will be made as soon as possible.” Today, there is a further request to delay the hearing, with no indication of whether an application to vary the freezing injunction will ever be made.
The freezing injunction was obtained against the Claimants on 31 July 2023. There has been ample opportunity to make the requisite application. The renewed request is denied.”
The evidential hearing commenced as planned and various witness statements were excluded and the Claimants draft Sur-Reply stood as the Claimants pre-hearing brief. The Arbitrator rejected the Claimants’ claim and allowed the Defendant’s counterclaim in her award. The Arbitrator’s award provided as follows:
“…i) declared that the LOI was unenforceable and rejected the Claimants’ claim that WEH was in breach of it;
ii) directed that the Claimants, on a joint and several basis, should repay to WEH the £7,654,186 odd which had been paid to Stephenson Harwood and Simmons & Simmons in relation to the Claimants’ legal costs, and awarded pre- and post-award interest on that sum;
iii) directed that the First to Third Claimants should repay to WEH the sums disbursed to Byrne & Partners in relation to the legal costs of Messrs Narongdej and Phowborom, plus pre- and post-award interest on those sums; and
iv) directed the Claimants to pay WEH’s legal costs of the arbitration in the sum of USD 3,067,291, plus the arbitration costs of £47,700.”
The Claim to Set Aside the Final Award in LCIA Arbitration No. 225475
Pursuant to Article 14.5 of the LCIA rules, arbitrators have wide discretion when it comes to procedural rulings. Article 14.5 of the LCIA rules provides as follows:
“14.5 Without prejudice to the generality of the Arbitral Tribunal’s discretion, after giving the parties a reasonable opportunity to state their views, the Arbitral Tribunal may, subject to the LCIA Rules, make any procedural order it considers appropriate with regard to the fair, efficient and expeditious conduct of the arbitration.”
The Court rejected the Claimant’s submissions that the Arbitrator breached her section 33 (of the Act) duty and/or that a serious irregularity occurred. The Court stated at paragraphs 79 and 80 as follows:
“79. I am unable to accept the Claimants’ submissions that the arbitrator breached her section 33 duties or that a serious irregularity occurred.
80. On the materials made available to the arbitrator, the Claimants’ lack of legal representation was a result of their failure, over a period of time, to take proper and prompt steps to obtain a variation of the freezing order (assuming such a variation to have been necessary).”
Conclusion
In dismissing the claim, the Commercial Court held that there was no merit in the Claimant’s claim. To quote from paragraph 98 of the judgment, where the Commercial Court, quoted Teare J in UMS Holding Ltd v Great Station Properties SA [2017] EWHC 2398 (Comm) where it was stated as follows:
“…It is not for this court to tell an international commercial tribunal how to set out its award or the reasons therefor.”
- This case highlights that arbitrators have a wide discretion with regard to procedural rules and that parties to an arbitration must be proactive in order to comply with the timetables set by the arbitrator.
- This case also highlights the challenges pursuant to section 33 of the Act and/or cases of serious irregularity.
The above is for general information only and to encourage discussion and does not constitute legal advice. The author does not assume any responsibility for the accuracy of any statements made and appropriate legal advice should be taken in each instance and relied upon before taking or omitting to take any action in respect of any specific matter.
Charles Edwin Edwards MSt(Cantab) MSc(Lond) MCIArb MRICS FCInstCES Barrister
New Temple Chambers
30 St Mary Axe (The Gherkin)
London EC3A 8BF
17th November 2025
charles.edwards@newtemplechambers.com
For further information with regard to the resolution of any construction, engineering or infrastructure dispute and issues as set out above, please do not hesitate to contact, Charles Edwards, high performing Construction Barrister and Head of Chambers at New Temple Chambers to see how chambers can assist you or your organisation.
