Judicial guidance on time limits for challenges to post-arbitral awards

The question of whether challenges brought under section 72(1) of the Arbitration Act 1996 (the AA) can be made post-award has been a source of judicial and academic debate.

Section 72(1) of the AA provides a remedy for parties to arbitral proceedings who have taken no part in the proceedings to challenge the tribunal’s jurisdiction by seeking declaratory, injunctive or any other appropriate relief from an English court. There has however been uncertainty as to whether s 72(1) is available to a non-participating party both at the pre-and post-award stages, and if the latter, whether there is any time restriction for commencing such court proceedings.

In the recent English case of African Distribution Co SaRL v Aastar Trading Pte Ltd [2025] EWHC 2428, the High Court Judge made obiter remarks that the rights under section 72(1) may be exercised by a non-party both pre- and post-award, and section 72(1) is not subject to any time restrictions (for example, the 28-day limit for challenging awards under sections 67 and 68 of the AA).

The obiter remarks came in the context of an application by an Ivorian company to seek to set aside an arbitral award on grounds for lack of substantive jurisdiction under section 67 of the AA and/or procedural irregularities under section 68 of the AA, as well as seeking an extension of time to apply for relief under section 72(1). 

The Ivorian company was the Respondent to GAFTA arbitral proceedings in London issued by a Singaporean company. The Ivorian company had not participated in the arbitral proceedings at all (claiming that it had not been validly served the proceedings (which he been sent to a generic, but previously used, email address) and therefore had no notice of the proceedings until some a number of months after the Award had been made in favour of the Claimant Singaporean company).

The High Court judge dismissed the Ivorian company's section 67 (lack of substantive jurisdiction) and section 68 (serious irregularity) challenges as these were out of time but left alive the challenge under s 72(1) alive which is to be determined at a later date.

The wording of s.72(1) states that "a person alleged to be a party to arbitral proceedings but who takes no part in the proceedings may question (a) whether there is a valid arbitration agreement, (b) whether the tribunal is properly constituted, or (c) what matters have been submitted to arbitration...by proceedings in the court for a declaration or injunction or other appropriate relief."

The Judge considered that section 72(1) could be used to "question" and give declaratory and injunctive relief about arbitral awards, not just pre-award applications, and potentially even set them aside. In reaching this view, the Judge (amongst other things) considered:

(i) the language of section 72(1) (ie, the present tense used in sub-paragraphs (a) and (c)) suggested that it was open to applications after the Award has been issued.

(ii) the "targets" of section 72(1) as against section 72(2): the latter was "targeted" at arbitral awards, whereas the former was "targeted" at the whole arbitration, including the award, which made section 72(2) more "flexible" and could be used by a non-participating party earlier than section 72(2) (which was post-award only).

The Judge noted that there was no time limit in section 72(1) as there was not point of the process from which the time "runs". He also considered that the purpose of the provision was to encompass post-award applications so should be construed accordingly.

This judgment is a significant development in the interpretation of section 72(1) and the remarks made by the Judge, in obiter, as to (amongst other things) the "flexibility" of s 72(1) reflects a recognition of the unique position of a non-participating party in arbitral proceedings, and the need to balance finality of the award against access to justice.