Summary

This is an application by the Claimant, the Republic of Kazakhstan ("Kazakhstan"), under section 68(2)(d) of the Arbitration Act 1996 (the "Arbitration Act") challenging operative paragraphs of an award (the "Award") rendered on 26 March 2024 by Sir Franklin Berman and Professor John Crook (the "Tribunal") in an UNCITRAL arbitration in relation to causation and loss in a long-running Investor-State arbitration seated in London, on the ground of serious irregularity, on the basis that the Tribunal failed to deal with all the issues that were remitted back to it (following a previous successful section 68 challenge by Kazakhstan under section 68(2)(a)) and that this has caused Kazakhstan substantial injustice.

In short, Kazakhstan alleges that the Tribunal failed to deal with Kazakhstan's central argument on causation and loss at the remitted hearing, which would (per Kazakhstan's case) have provided a complete defence to the claim, with the result that the Defendants, World Wide Minerals Ltd ("WWM") and its CEO, President and shareholder Mr Paul A Carroll QC (jointly, the "WWM Parties") would have suffered no loss (whereas the Tribunal in fact found that Kazakhstan was liable to the WWM Parties in an amount of some US$13.7 million, which together with interest, stood at over US$54.5 million by September 2020).

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CONCLUSION

If ever there was a case where there was a failure to comply with the due process of the arbitral proceedings by a tribunal failing to deal with a central issue that was put to it, then this was it, with the failure of the Tribunal to deal with the Counterfactual Case. In such circumstances, justice calls out for that serious irregularity to be corrected.

Accordingly, Kazakhstan's challenge to the Award under section 68(2)(d) succeeds, and is upheld.

The parties were in agreement that if the section 68 challenge succeeded, as it has, they would each wish to address me as to the appropriate relief that should be ordered, and it was agreed that I should reserve such matters to be dealt with upon the handing down of judgment at which such consequential matters will be dealt with. I accordingly reserve the question as to the appropriate relief to be granted until that time.