Lesotho Highlands Development Authority v Impregilo SpA
An error of law by a tribunal in deciding the currency of the award is not an excess of power within section 68 of the Arbitration Act 1996, which is reserved for extreme cases of serious irregularity.
Facts
A consortium of contractors, led by Impregilo, built a dam in Lesotho under a contract which provided for payment in various currencies. In an arbitration in London, the tribunal awarded sums to the contractors, expressing them in European currencies rather than in the currency of Lesotho, and awarded interest. The employer applied to set aside the award under section 68 of the Arbitration Act 1996, arguing that the tribunal had exceeded its powers by awarding the sums in the wrong currency, which was a serious irregularity.
Legal principle
The House of Lords held that there was no excess of power. Lord Steyn said that section 68 was designed as a longstop, only available in extreme cases where the tribunal has gone so wrong in its conduct of the arbitration that justice calls out for it to be corrected. An error of law in the exercise of a power which the tribunal had, even if it was wrong, was not an excess of power. The question was not whether the tribunal had erred, but whether it had exceeded its powers, and the tribunal had power under section 48 to decide in which currency to make the award. The parties had excluded the right of appeal on a point of law, so the error could not be corrected.
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