This is the hearing of a challenge by the claimant ("TRK") under s.68 of the Arbitration Act 1996 ("AA") to an award entitled "Final Award on Merits" ("Award") founded on an assertion by TRK that the Tribunal awarded damages to the defendants by reference to an argument that the defendants had not advanced during the hearing or prior written procedure leading to the Award and in respect of which it did not have any or any fair opportunity to respond. TRK maintains that by acting in this manner the Tribunal breached its duty under AA, s.33 resulting in a serious irregularity within the meaning of AA, s.68(2)(a).
Most of the relevant background is not in dispute. The first defendant is a publicly traded Canadian corporation whose primary business was to identify and demonstrate the viability of natural resource deposits, and the second defendant was at all material times a director of the first defendant and its President and Chief Executive Officer (together, "WWM" or "the defendants"). The arbitration with which this claim is concerned ("Arbitration") was a London arbitration instituted by a reference by WWM made pursuant to a bilateral investment treaty concluded between Canada and the USSR in 1989 ("BIT").