S.68 of the Arbitration Act 1996 provides that an award may be challenged on grounds of serious irregularity giving rise to substantial injustice. The grounds of serious irregularity are set out in s.68(2), and include:
Generally, the courts have held that a failure to address or to take account of particular items of evidence in the reasons for the award will not amount to a serious irregularity: see, for example, Lesotho Highlands v Impregilo  (HL) where Lord Steyn said: “nowhere in section 68 is there any hint that a failure by the tribunal to arrive at the correct decision could afford a ground for challenge”; in World Trade v Czarnikow Sugar  Colman J said: “That the arbitrators failed to take into account evidence or a document said to be relevant to that issue is not properly to be regarded as a failure to deal with an issue. It is, in truth, a criticism which goes no further than asserting that the arbitrators made mistakes in their findings of primary fact or drew from the primary facts unsustainable inferences.” and in Sonotrach v Statoil  Flaux J said “ …section 68 is about whether there has been due process, not whether the tribunal “got it right””. He said that a complaint that the tribunal reached the wrong result is not a matter susceptible of challenge under section 68.
However, in two cases – Arduina v Celtic Resources Holdings plc  and Schwebel v Schwebel , Toulson J and Aikenhead J respectively opined (obiter) that, in principle, a failure to take account of evidence could exceptionally give rise to a s.68 challenge.
The opportunity to reconsider whether “ignoring” evidence could amount to a serious irregularity arose in UMS Holding v Great Station Properties . It concerned a dispute between the parties over a joint venture agreement and an option agreement. The claimants alleged that the respondents had diverted profits and opportunities away from the joint venture and, further, that they were entitled to exercise a put option relating to shares. They commenced arbitration proceedings and the tribunal awarded damages against the respondents.
The respondents challenged the award under s.68. The challenge comprised 16 alleged serious irregularities, said to fall within either the general duty of the tribunal or failing to deal with the issues put to it. The principal complaint was that there had been, it was said, a wholesale and exceptional failure by the tribunal to consider or address large chunks of crucial evidence on central points of the case.
Teare J first considered the question of whether s.68 permitted the court to intervene on grounds of a failure to address or take into account evidence. In his view, it did not, for four main reasons:
Further, having considered the authorities, he considered that he was not constrained to adopt the obiter views of Toulson and Akenhead JJ to the effect that such a failure might exceptionally fall within section 68.
Teare J further noted that:
Applying these principles to the facts, Teare J found that no serious irregularity was established. His reasons included:
Teare J’s judgment includes some important and helpful guidance on the proper scope and effect of s.68. The decision clarifies that a failure to take into account or to address individual pieces of evidence will not amount to a serious irregularity. The principal reason is it would involve the court in an extensive inquiry into the evidence before the tribunal, which would amount to trespassing onto areas within the tribunal’s exclusive remit.
It will be of comfort to arbitrators that their awards will not be picked over by the Court to find inadequate citation of evidence on the record that might indicate that that evidence had not been properly considered. With that latitude comes responsibility: whilst the Court will strive to uphold awards, increased challenges that expose potentially inadequate reasoning does nothing to further the reputation of international arbitration. Tribunals must ensure that their awards are fully and properly reasoned and deal with the evidence and submissions of the parties.
Only where the tribunal admits a failure to take into account evidence might grounds to intervene arise under s.68(2)(i) (irregularity in the conduct of the proceedings, which is admitted by the tribunal).
The decision also confirms that matters that do not, individually, constitute serious irregularities cannot be aggregated to make up a composite serious irregularity. Furthermore, the fact that the tribunal consists of former judges does not mean that the courts will expect the award to be written or reasoned in the same manner as a judgment, nor that a “higher” standard is expected. The policy of upholding awards will be applied whatever the composition of the tribunal.
 One study of s.68 challenges found that in 2012, there was a total of 7 challenges all of which were rejected; in 2013, there was (again) a total of 7 challenges of which only 1 was allowed and the remaining 6 were rejected; in 2014, there was a total of 8 challenges of which 2 were allowed and the remaining 6 were rejected.
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