Dispute Resolution analysis: In a rare successful application to set aside an arbitral award made in an ad hoc arbitration for serious irregularity under section 68(2) of the Arbitration Act 1996 (AA 1996), the High Court found that a failure to cross-examine a witness on a ‘core issue’ left the tribunal unable to reject the witness’s evidence. Further, it was not open for the tribunal to base its decision on a factual and legal theory of the case that had not been ventilated or addressed by the parties. The decision is a warning to counsel in London-seated arbitrations that a strategy of indirectly undermining a witness’s credibility on a ‘core issue’ may not be sufficient. It is also a warning to arbitrators that the scope of their power to assess evidence, and their power to ascertain the facts and the law (iura novit arbiter) is not unlimited, and may be affected by English judicial approaches to these...
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