Court of Appeal affirms the distinction between the date an arbitration award is made and when it is notified to the parties

Court of Appeal affirms the distinction between the date an arbitration award is made and when it is notified to the parties

Friedhelm Eronat -v- CPNC International (Chad) Ltd & Cliveden Petroleum Co. Ltd [2025] EWCA Civ 105

This case involved an application to the Court of Appeal for permission to appeal concerning the interpretation of a contractually agreed time limit for an appeal to the court under s.69 of the Arbitration Act 1996. The Commercial Court had dismissed an application to appeal a partial arbitration award and had refused to grant permission to appeal its decision to the Court of Appeal.

In dismissing the application, the Court of Appeal held that the first instance court was correct to conclude that time for an appeal ran from the date the arbitration award was made, rather than the date it was notified to the parties. 

A copy of our article on the Commercial Court decision can be found here: Take note of the date: Court emphasises distinction between the date of making an arbitral award and notifying it to parties | Hill Dickinson

The background facts

In short, the dispute between the parties arose out of a deed of indemnity entered into by the parties, together with a third party, in December 2003 that provided for Hong Kong law (Indemnity Deed).  The Indemnity Deed was part of a transaction involving certain oil and gas exploration rights in Chad and contained an LCIA arbitration clause. The parties engaged in LCIA arbitration where the arbitrators found in favour of the Defendants, awarding them US$324 million together with interest and costs. 

The arbitral tribunal eventually published a partial final award (Partial Award) which was dated 11 April 2024 and signed by the arbitrators on that day. However, the Partial Award was only sent to the parties on 16 April 2024 once the arbitral tribunal’s fees and expenses had been paid. The arbitration agreement between the parties provided that the parties were entitled to appeal the decision to the English Court “within 30 days after the decision is rendered” i.e. after the Partial Award was made.

The Claimant issued its arbitration claim form seeking to appeal the award on 16 May 2024, 30 days after the award had been received by the parties, but 35 days after the date of the Partial Award. 

The Commercial Court decision

At first instance, the Court held that the 30-day period ran from the date when the Partial Award was made (i.e. the date the arbitral tribunal made the award and dated it), not the date it was notified to the parties by the LCIA Secretariat. This was consistent with s.70(3) of the Arbitration Act 1996 (1996 Act) which provides that “any application or appeal must be brought within 28 days of the date of the award” (the parties had extended that to 30 days by agreement pursuant to clause 14.3(a) of the Indemnity Deed). 

The Court of Appeal decision

The Court of Appeal agreed with the Commercial Court: the time for appeal ran from the date of the Partial Award, not the date it was notified to the parties. 

The Court reasoned that the choice of the word “rendered” in the agreement between the parties meant that they had 30 days after the Partial Award was made to bring an appeal. This was on the basis that the arbitral tribunal makes an award by drafting a decision and signing it, but it is not the arbitral tribunal which provides the award to the parties under the LCIA Rules. After the award has been delivered to the LCIA Court, the LCIA Secretariat sends the certified award to the parties once any outstanding arbitration fees have been paid. 

The Court of Appeal did not see any inherent unfairness in there being a time limit within which the parties had to appeal after an award had been dated. There would inevitably be some delay whilst the costs were paid and the LCIA Secretariat transmitted the award to the parties. If the delay was of such a length that the time for appeal was at risk, the remedy of paying the costs lay in the hands of whichever party thought they might need to appeal. 

Therefore, the Court of Appeal agreed with the first instance decision that the arbitration claim form had been filed out of time such that the Partial Award could not be appealed to the courts. 

Finally, the Court of Appeal acknowledged that under s.79(1) of the 1996 Act the parties could agree or the Court could order the time for an appeal to be extended. However, in this case, the precise terms of the arbitration agreement excluded s.79(1) such that no extension of time could be ordered by the Court. 

The Arbitration Act 2025

Having entered into force on 1 August 2025, the Arbitration Act 2025 (2025 Act) amends s.70(3) of the 1996 Act to substitute “the date of the award” for “the applicable date”.

s.70(3A) includes the following definition of “the applicable date”:

1. In a case where there has been any arbitral process of appeal or review, the date when the applicant or appellant was notified of the result of that process; 

2. In a case where, the tribunal has made a material correction to the award under s.57 or made an additional award, the date of the correction or additional award;

3. In a case where a s.57 application has been made but declined, the date when the applicant or appellant was notified of that decision; or

4. In any other case, the date of the award. 

Therefore, the 2025 Act has made it clear when the time limit for appeal starts running and gives statutory effect to the decisions in Eronat -v- CPNC that (in the absence of sub-sections (a) to (c) above) the time for appeal under s.70 will run from the date of the award. 

Comment

Parties are reminded that, if there is any chance that an arbitration award might need to be appealed or corrected, the time for doing so runs from the date of award, not the date the parties receive it. Therefore, when the applicable arbitral institution or tribunal notifies the parties that an award is ready upon payment of outstanding fees, that award may already have been made and dated, and the time for appeal may have already started running.