This is an application under s. 68 (2) of the Arbitration Act 1996 (“the Act”) to set aside a Partial Final arbitral Award dated 16 October 2013 and a Final arbitral Award dated 14 February 2014. Put shortly, the applicant (“Brockton”) contends: (1) that in breach of the duty arising under s. 33 of the Act, the tribunal acted unfairly in deciding that a contractual provision was unenforceable as a penalty under New York law when Brockton had had no opportunity to make submissions on this issue; and (2) ignored an important and obviously relevant part of the evidence in deciding a further issue of contractual construction.

Brockton is a limited liability partnership based in London that manages private equity real estate investments, principally in London. The respondent (“APC”) is a Delaware corporation based in Connecticut, USA, from where it carries on business as an independent placement agent assisting fund managers to raise capital for investment vehicles.

On 22 July 2008, APC and Brockton entered into an agreement (the “Placement Agreement”) appointing APC as the exclusive global placement agent with the role of raising capital for a Brockton real estate fund, Brockton Capital Fund II (“the Fund”). The Placement Agreement provided that Brockton should pay APC placement fees and that if a certain level of placement was achieved, APC would be appointed the exclusive placement agent for a subsequent fund and should be paid fees in respect of placements in that fund.

The largest investor in the Fund was the Teacher Retirement System of Texas (“TRS”). On 31 March 2010 TRS, Brockton and APC entered into an agreement (the “Tripartite Agreement”) which was principally intended to ensure that Brockton and APC did not engage in any objectionable practices, including the making of bribes and/or payments to political parties designed to induce the managers of state funds to make investments in funds managed by Brockton. Thus, in paragraph 2 (d) of the Tripartite Agreement, APC warranted to Brockton and TRS that it had not taken any actions prohibited by Rules to be implemented by the SEC to curtail “pay to play” activities “which could influence or could be deemed to have influenced any third party’s decision to invest in the Fund and/or any other investment vehicle whether managed or advised by [Brockton ] or otherwise.”

The Tripartite Agreement also provided that it was effective as an amendment to the Placement Agreement and that if any of its provisions was in conflict with any provisions of the Placement Agreement, those provisions would prevail as between the parties.

The Placement Agreement and Tripartite Agreement were each expressly governed by the law of New York. Each agreement also contained a clause by which the parties agreed that all disputes arising thereunder should be determined by binding arbitration in London in accordance with the Rules of the ICC.

By letter dated 12 May 2011, Brockton purported to terminate its relationship with APC on the ground that APC had breached the obligation under paragraph 2 (e) (ii) of the Tripartite Agreement to provide notification of APC personnel changes. In the ensuing arbitration Brockton also alleged that APC had breached the obligation contained in paragraph 2 (f) of the Tripartite Agreement to provide certificates on or before 31 December each year confirming that there had been no breaches of the disclosure obligations owed under the Tripartite Agreement. Paragraph 2 (g) of the Tripartite Agreement provides:

APC denied that Brockton had lawful cause to terminate the agreements and disputed Brockton’s right to withhold payment of placement fees. On 17 November 2011, it commenced ICC arbitration proceedings which to be determined by a tribunal consisting of 3 eminent US lawyers. Between 25 February and 4 March 2013 there was a hearing in London before the tribunal to determine a number of issues including whether APC was indeed in breach of paragraph 2 (f) of the Tripartite Agreement and, if so, whether Brockton was entitled by virtue of paragraph 2 (g) of the Tripartite Agreement to terminate the Placement Agreement.

Section 5 of the Placement Agreement provided that the agreement could be terminated “for Cause” and “Cause” was defined in terms of wilful or criminal misconduct or material or persistent breach resulting in a material adverse effect upon Brockton or the Fund.

At the conclusion of the hearing in London there was discussion between the tribunal and the parties’ counsel as to the service of post-hearing submissions. The tribunal said they had in mind simultaneous submissions limited to 25 pages in which the parties should not feel the need to repeat what they had already communicated in prior submissions. What was being looked for were ‘“take away” points, the evidence that ought to be looked at now as a result of the hearing’. Notice would be given by the tribunal of questions they had but the submissions did not have to be limited to these matters. Counsel for APC, Mr Gold, raised the question of ground rules for potential subsequent evidentiary submissions, to which the tribunal’s response was that there would be no new evidence except by leave for good cause. Following these discussions, the tribunal issued Procedural Order No 3 by which it set a date for the simultaneous service of Post-Hearing Memorials and Cost Submissions with no evidence to be submitted without leave, the hearing to remain open pending the filing of the Memorials and Cost Submissions.

APC served its Post-Hearing Memorial on 12 April 2013. The submissions made therein were presented under 5 main headings. Heading II was Brockton Had No Grounds To Terminate APC, under which there were three sub-headings: A. There Was No Breach Regarding The Personnel Disclosures that Prompted the Putative Separation Letter. B. There Was No Breach After the Putative Separation Letter, and Any Such Breach Would Be of No Consequence; C. Paragraph 2 (g) Does Not Permit Brockton to Avoid Payment. It is necessary to set out paragraphs 28, 29 and 30 pleaded under sub-heading C.

Whilst it was open to the Tribunal to take them into account, (Footnote: ¹) these submissions were new. The tribunal in its Procedural Order No 1 had ordered, inter alia, that the parties’ respective Statements of Claim and Defense should contain their respective cases in chief setting out in numbered paragraphs all arguments of fact and law on which they relied. Nowhere in APC’s Statement of Claim is there any suggestion of a contention that paragraph 2 (g) is unenforceable on the grounds that it is a penalty.

Following receipt of APC’s Post-Hearing Memorial, Brockton’s counsel, Mr Cymrot of Baker & Hostetler LLP, wrote to the tribunal by letter dated 24 April 2013. This is an important document and it is necessary to recite the first two paragraphs in full:

(In the third paragraph complaint is made that APC had cited inapplicable and distinguishable cases and the fourth and last paragraph simply states that the cases cited in the letter are enclosed).

In a letter to the tribunal dated 26 April 2013, Mr Gold argued that Brockton’s letter of 24 April 2013 was outwith Procedural Order No. 3 and should be disregarded and he went on to contest Brockton’s late submissions as to rescission.

On 6 May 2013, the tribunal, acting by its chairman, Mr John J. Kerr Jr., sent an email to the parties’ counsel in these terms:

In paragraph 134 of its Partial Final Award, the tribunal found that APC had breached its obligation under paragraph 2 (f) of the Tripartite Agreement in that for 2010 and 2011 it had failed to provide Section 2 (f) Certificates by the 31 December deadline. The tribunal further held in paragraph 146 that any breach of the Tripartite Agreement by APC constitutes grounds for a “for Cause” termination and then went on to consider APC’s contention “that … §2(g) constitutes a penalty that is unenforceable under New York law…” Paragraphs 153 and 155 read:

Following the promulgation of the Partial Final Award, Brockton issued its s. 68 challenge now before the court and submitted to the tribunal that it should suspend the reference pending the determination of the s.68 challenge. The tribunal rejected Brockton’s submission for the reasons set out in their Procedural Order No 5 in which the tribunal observed that: (i) it was understood that new arguments could or would be made in the post-hearing submissions; (ii) although Brockton stated in the letter of 24 April 2013 that it was writing to ensure that Brockton did not waive any consideration of or objection to APC’s new arguments, Brockton did not actually object to those arguments but instead responded to them; and (iii) the tribunal considered the parties’ Post-Hearing Memorials as well as the letters of 24 and 26 April 2013 in its deliberations.

The tribunal proceeded to issue its Final Award which dealt with: (i) the quantum of fees and interest due to APC under Section 2 of the Placement Agreement; (ii) whether the tribunal should determine a question of construction of a provision in the Placement Agreement concerned with Introduced and Subsequent Investors; and (iii) costs. Brockton’s case in respect of the Final Award is that, since it is dependent on the Partial Final Award and since the latter award should be set aside under s. 68, the Final Award too should be set aside.

Section 68 (1) and (2) (a) provide:

Section 33 provides:

The applicable principles in s. 68 applications have been discussed in numerous authorities. The threshold of the test of a serious irregularity giving rise to a substantial injustice is set deliberately high because the purpose of the Act was to reduce drastically the extent of intervention by the courts in the arbitral process. Thus relief under s. 68 will only be appropriate where the tribunal has gone so wrong in its conduct of the arbitration that justice calls out for it to be corrected (Footnote: ²). There is also an important distinction between, on the one hand, a party having no opportunity to address a point, or his opponent’s case, and on the other hand, a party failing to recognise or take the opportunity which exists. The latter will not involve a breach of s. 33 or a serious irregularity. (Footnote: ³) Further, s. 33 has to be approached by reference to the conduct of the arbitrators; if the tribunal were entitled to conclude that a party had appreciated that a new submission had been advanced by the other side but had not addressed it, the tribunal will not be guilty of misconduct if it proceeds to decide an issue in the reference on the basis of the new submission. (Footnote: ⁴) On the other hand, there will generally be a breach of s. 33 where the tribunal decides the case on the basis of a point which one party had not had a fair opportunity to deal with. (Footnote: ⁵)

Mr Stafford QC for Brockton submits that Brockton was unfairly denied the opportunity to prepare, investigate and present a case against the contention that both paragraph 2 (g) (i) and paragraph 2 (g) (ii) were unenforceable by reason of being penalty clauses. He maintains that there had been no mention at all of a penalty clause argument in APC’s Statement of Case and Brockton’s reasonable expectation was that the parties’ post-hearing submissions would consist of an analysis of the evidence in terms of the existing pleadings. Brockton was therefore entitled to object to APC’s new case on penalty clauses pleaded in its Post-Hearing Memorial and the tribunal ought not to have decided that Section 2 (g) (ii) was in the nature of an unenforceable penalty in the face of Brockton’s objection and in the absence of any submissions from Brockton on that issue.

Mr Stafford’s alternative submission is that APC’s new case as pleaded in its Post-Hearing Memorial was addressed solely to the enforceability of paragraph 2 (g) (i), so that even if Brockton should be taken to have had an opportunity to address that case, it had not had a fair opportunity to address the point that the tribunal took in respect of paragraph 2 (g) (ii) which provision was concerned with termination and not, as is the case with 2 (g) (i), the loss of entitlement to earned fees.

Mr Smouha QC for APC submits: (1) that the penalty clause case made in APC’s Post-Hearing Memorial was not confined to paragraph 2 g (i) but went to the enforceability of paragraph 2 (g) as a whole, including 2 g (ii); and (2) Brockton was well aware of this new case and passed up the opportunity of dealing with it. In support of submission (1), Mr Smouha contends that 2 g (i) and 2 g (ii) are not separate and distinct provisions but are part of a single provision and APC’s argument that 2 g (i) is invalid because it applies to any breach of paragraph 2(e)(ii) or of the paragraph 2(d) warranties regardless of whether the breach causing any damage to Brockton applies as much to 2 g (ii) as it does to 2 g (i).

As to submission (2), Mr Smouha argues that in its letter of 24 April 2013 Brockton did not unequivocally object to APC’s new case but merely sought to reserve its right to advance unfairness contentions in the future and could have taken the opportunity but did not do so to make submissions rebutting the penalty clause case, as they did in respect of APC’s new claim that Brockton could not succeed on its Counterclaim because it had not suffered any financial injury. Mr Smouha also argues that it was open to Brockton, following the email from the tribunal dated 6 May 2013, to have applied for leave to make submissions on APC’s new penalty clause but again it passed up the opportunity to do so.

In my judgment, Brockton did have an opportunity to make submissions responsive to APC’s pleaded new penalty clause case when, acting by Mr Cymrot, it wrote to the tribunal on 24 April 2013, and the tribunal would have been entitled to conclude that it had decided not to take that opportunity. I say this because: (i) Brockton did not clearly state in the letter that it was objecting to the admission of the new case and wanted a ruling on their objection but instead it merely reserved its position as to the admission of the new case against the possibility it might decide at some future time to allege misconduct on the part of the tribunal; and (ii) Brockton went on to make submissions in respect of certain of APC’s new arguments as to which Brockton was reserving its position.

I am also of the view that Brockton had an opportunity to apply for leave to make submissions on the new penalty clause case following the tribunal’s email of 6 May 2013. Its failure to take that opportunity would, in my view, have reinforced the tribunal’s conclusion that Brockton had opted not to address APC’s penalty clause case.

But what was APC’s penalty clause case as pleaded in its Post-Hearing Memorial? Was it directed solely to the question whether 2 (g) (i) was unenforceable on penalty clause grounds or was it that both 2 (g) (i) and 2 (g) (ii) were unenforceable penalty clauses? In other words, was Brockton knowingly passing up an opportunity to meet a case that not only was paragraph 2 (g) (i) unenforceable on penalty clause grounds, but so also was 2 (g) (ii)? In my judgment, APC’s pleaded penalty clause case was directed solely to the enforceability of 2 (g) (i) and accordingly Brockton did not have notice of the issue whether 2 (g) (ii) was inoperable on penalty clause grounds. This is clear from the wording of Heading C and paragraphs 28 – 31 of APC’s Post-Hearing Memorial which contain no reference to 2 (g) (ii) whatsoever but is concerned solely to answer Brockton’s contention that any breach of paragraph 2(e)(ii) and/or the warranties referred to in paragraph 2 (d) allows Brockton to suspend payment of fees due to APC. Paragraphs 2 (g) (i) and 2 (g) (ii) may be part of one overall paragraph but, given the wording deployed in Heading C and paragraphs 28 – 31 and given that the scope of 2 (g) (i) is quite distinct from the scope of 2 (g) (ii), this does not detract from the conclusion I have expressed.

Thus, whilst the tribunal were entitled to conclude that Brockton had passed up the opportunity of dealing with APC’s penalty clause case on 2 (g) (i), they were not, with respect, entitled to conclude that Brockton had notice of any penalty clause issue going to 2 (g) (ii) and had knowingly passed up an opportunity to deal with that issue. It follows that, in deciding that 2 (g) (ii) was an unenforceable penalty the tribunal dealt with an issue of which Brockton had had no notice and no opportunity to address, and in so doing the tribunal in my judgment acted in breach of s. 33 (1) (a).

In my opinion, this irregularity on the part of the tribunal has caused substantial injustice to Brockton. Mr Smouha submitted that even if Brockton had had notice of the paragraph 2 (g) (ii) and had made submissions thereon, it would have made no difference to the result since the fact remained that 2 (g) (ii) applied to all breaches of paragraph 2(e)(ii) and/or the paragraph 2(d) warranties and thus the tribunal would have been bound to reach the same conclusion they did in their Partial Final Award. I reject this submission. It is Brockton’s case that 2 (g) (ii) ought not to be construed as a penalty because it is a necessary provision given that TRS is entitled to withdraw from the Fund if there is any breach of paragraph 2 (e) (ii) and/or the paragraph 2 (d) warranties, and such a withdrawal would have catastrophic consequences for Brockton. In my judgment, such a submission is plainly arguable and might have persuaded the tribunal to reach a contrary conclusion on the issue, notwithstanding that the opposite conclusion is at least reasonably arguable (see Vee Networks Ltd v Econet Wireless International Ltd [2005] 1 All ER (Comm) 303, per Colman J at [90]).

Brockton also contends that, in deciding (Footnote: ⁶) that the words “or otherwise” in paragraph 2 (d) of the Tripartite Agreement meant the Fund or a Subsequent Fund and not all funds APC had an involvement in, the tribunal was in breach of s. 33 in that it ignored and made no mention of the evidence of Mr Manley, APC’s chief executive, as to his understanding of the meaning of those words and relied instead on an email sent in the course of negotiating the agreement by Mr Blank of Brockton in which, in answer to a question from Mr Bossone of APC: “What funds are being referred to by thee [sic] words ‘or any other fund managed or advised by BCLLP”’ Mr Blank replied: “The other funds referred to is basically ‘Brockton Capital Fund III”’.

I reject this contention. The duty to act fairly is distinct from the autonomous power of the arbitrators to make findings of fact (Footnote: ⁷) and it will only be in the most exceptional case, if ever, that a failure to refer to a particular part of the evidence will constitute a serious irregularity within s. 68. (Footnote: ⁸) Findings of fact were for the tribunal. Their reliance on the email from Mr Blank is beyond any challenge under s. 68; nor were they under any obligation to refer to the evidence of Mr Manley.

Adopting the language of the judgment in Miller Construction Ltd v James Moore Earthmoving [2001] 2 All ER (Comm) 598 at [7(4)], Mr Stafford argued that the court should vacate both awards rather than remitting them to the existing tribunal on the ground that a reasonable person would cease to have confidence in the tribunal’s ability to reach a fair and balanced conclusion on the issues if they were remitted. I have no hesitation in rejecting this submission. The members of the tribunal are distinguished lawyers and arbitrators of high reputation and albeit that I have found that they acted in breach of s. 33, I can see no grounds supporting an objective conclusion that confidence cannot be placed in the tribunal’s ability to reach a fair and balanced conclusion on the outstanding issues in the reference following this judgment.

Accordingly, I shall order remission to the existing tribunal on terms upon which I shall hear short submissions from Counsel.