New Age Alzarooni 2 Ltd & Anor v Range Energy Natural Resources Inc

The Claimants bring an application under Section 68 of the Arbitration Act 1996 challenging a Final Arbitration Award dated 22 May 2014 on the ground of “serious irregularity which has caused or will cause substantial injustice” to them. I shall refer to the first and second Claimants as New Age 2 and Black Gold respectively.

I need not set out in great detail the structure of the contractual and shareholding arrangements between New Age 2, Black Gold and the Defendant to this application (to whom I shall refer as ‘Range’). It is sufficient for current purposes to state the following, as appears in the skeleton argument of Range which was the Claimant in the Arbitration.

Range and Black Gold are, respectively, the 49.9% and 50.1% shareholders in New Age 2, a company incorporated under Jersey law, Range, Black Gold and New Age 2 are all parties to a shareholders’ agreement dated 17 November 2009 (the “New Age SHA”). It was pursuant to an arbitration agreement, contained at clause 17.2 of the New Age SHA, that the Arbitration was brought.

New Age 2 is, in turn, the 50% shareholder in a company called Gas Plus Khalakan Limited (“Gas Plus”). The other 50% shareholder in Gas Plus is New Age (African Global Energy) Limited (“New Age African”), New Age 2, New Age African and Gas Plus are all parties to a shareholders’ agreement dated 10 June 2009 (the “Gas Plus SHA”). The Gas Plus SHA is framed in materially similar terms to the New Age SHA.

Gas Plus is a party (by assignment) to a Production Sharing Contract (the “PSC”) with the Kurdistan Regional Government (the “KRG”) for the exploration and development of an oil and gas field (known as the Khalakan Block) in Kurdistan, Iraq, New Age African is engaged by Gas Plus, pursuant to a Management Services Agreement concluded on or about 27 May 2009, to perform a wide range of day-to-day management in respect of the Khalakan Block. In addition to being Gas Plus’ 50% shareholder, New Age African was, by the time of the arbitration hearing, the 100% shareholder in Black Gold.

Gas Plus raises money to fund its operations in the Khalakan Block by making cash calls upon its shareholders (New Age African and New Age 2), New Age 2 raises funds by, in turn, making cash calls upon its shareholders (Range and Black Gold). If a shareholder does not meet its share of a cash call, then, pursuant to the terms of the Gas Plus and New Age SHAs, that shareholder’s interest can be diluted, or made subject to a forced buy-out.

The Arbitration Agreement contained in the New Age SHA provided for ICC arbitration in London under the ICC Rules. The dispute as described in paragraphs 8-11 of the Particulars of Claim annexed to the Arbitration Claim Form, related to the failure of New Age 2 to supply Range with information to which the latter considered it was entitled as a shareholder under the New Age SHA in order for it to make informed investment decisions, Black Gold did not receive such information itself, as the majority shareholder in New Age 2, but its parent company, New Age African, which managed the Khalakan Block operations under the Gas Plus Management Services Agreement, had all the information in question and as the 100% beneficial owner of Black Gold could effectively give informed direction to Black Gold as to the steps it should take in responding to cash calls made by New Age 2 for more working capital in circumstances where similar calls had been made by Gas Plus to New Age 2.

As explained by the Arbitrators, under the terms of the New Age SHA, Black Gold was entitled to appoint four directors and Range one director to the Board of New Age 2, but Range was obliged to procure that the director appointed by it should sign such written resolutions as Black Gold should require, as long as doing so did not amount to a breach of the director’s fiduciary duty to New Age 2. All directors appointed to New Age 2 were required to enter into a deed with New Age 2 and both shareholders, undertaking to comply with the terms of the New Age SHA.

Because I have come to the clear conclusion that the Section 68 application is groundless and misconceived, I need not set out full details of the Arbitrators’ findings in a 168 page reasoned Award in which they examined the terms of the contracts and the obligations of the parties under English law which governed the contracts and under Jersey law which governed the question of minority shareholder relief available to Range in respect of its shareholding in New Age 2, Range was being asked to contribute millions of US dollars in response to cash calls for the exploration/ development of the Khalakan Block where it was hoped that significant quantities of oil/gas would be found.

Both under the express terms of the Arbitration Agreement to be found in the New Age SHA and under the ICC Rules of Arbitration, all rights of appeal were excluded. Consequently New Age 2 and Black Gold have made contrived attempts to mount a Section 68 challenge to the findings of the Arbitrators on the basis of alleged serious irregularity affecting the Tribunal, the proceedings or the Award.

The relevant provisions of the 1996 Arbitration Act, for present purposes, are as follows:

New Age 2 and Black Gold rely specifically on the terms of Section 68 (2) (a), (b) and (f) of the 1996 Act. There is a multiplicity of authority which shows the narrow compass in which Section 68 operates and the heavy burden which rests upon a party which seeks to challenge an award on the grounds there set out.

In the recent decision of Flaux J in Primera Maritime (Hellas) Ltd v Jiangsu Eastern Heavy Industry Co Ltd [2013] EWHC 3066 (Comm); [2014] 1 All ER (Comm) 813, the Judge at paragraph 6 summarised the requirements thus:

The DAC Report, to which many of the relevant authorities refer, stated that it was “only in those cases where it could be said that what had happened was so far removed from what could reasonably be expected of the arbitral process” that the court would be expected to take action. Section 68 was only to be available in extreme cases where the Tribunal had gone so far wrong in its conduct of the arbitration that justice called for it to be corrected. None of the grounds in Section 68 which are relied on by New Age 2 and Black Gold allow for a challenge to an arbitration award on the basis of the Tribunal’s view of the evidence, the weight it accorded to any evidence, its findings of fact or its conclusions of law. Moreover, the assertion that a decision is contrary to the weight of the evidence could not begin to meet the requirements of Section 68 (2)(a) since that would be no more than a challenge to the Arbitrators’ findings of fact. A failure to refer to any particular piece of evidence in the Award or Reasons is likewise no basis for attacking an award or contending that the evidence in question was not taken into account. Any contention that the Tribunal had overlooked or misunderstood any particular piece of evidence would necessarily involve a review and evaluation of all the evidence considered by the Tribunal which would be an unjustified and unauthorised interference with the function of the Arbitrators and the agreement of the parties to refer their dispute to them for determination.

Similarly, the assertion that a Tribunal has made orders that it should not have made, where based on the Arbitrators’ findings of fact, holdings of law or the reasoning advanced by them does not fall within Section 68(2)(b) of the Act. In Lesotho Highlands Development Authority v Impregilo SpA [2006] 1 AC 221 at paragraphs 31 and 32, Lord Steyn stated expressly that Section 68 (2)(b) does not permit a challenge on the basis that the Tribunal arrived at a wrong conclusion as a matter of law or fact. The erroneous exercise of an available power could not of itself amount to an excess of power. Section 68 (2)(b) is only engaged where there is no power at all under the Arbitration Agreement, the terms of reference or the 1996 Act to do what the Arbitrators did. Lord Steyn put the matter in this way:

Moreover, Section 73(1) of the 1996 Act which is set out earlier in this judgment comes into play whenever it is later suggested that there has been some irregularity or that the Arbitrators have failed in some way, have exceeded their powers or improperly conducted the Arbitration. Section 73 provides for the loss of the right to make any objection on these grounds unless the applicant shows that when it took part in the arbitration it did not know, and could not with reasonable diligence have discovered, the grounds for objection. Article 39 of the ICC Rules contains a provision to the same effect in relation to any later alleged failure to comply with the ICC Rules or any other applicable rules relating to the conduct of the arbitration.

In the present case, New Age 2 and Black Gold put forward arguments objecting to the orders which were ultimately made by the Tribunal, but which reflected the orders sought by Range in the Arbitration, New Age 2 and Black Gold were fully aware of the relief that Range was seeking throughout the Arbitration and opposed them on a number of different grounds but raised no objection on the basis of those which are now put forward. It was never suggested to the Arbitrators that they lacked the power to do what it was they were being asked to do nor that there was any uncertainty or ambiguity in what was proposed, New Age 2 and Black Gold knew exactly what it was that was being sought by Range but never suggested that the Arbitrators would be acting beyond their powers in making the orders sought. They resisted the granting of the orders on substantive grounds only, founding themselves on arguments of construction, arguments of law and arguments based on the facts as they contended them to be.

If there is uncertainty or ambiguity in an award, there is power under Section 57(3) for a Tribunal, whether on the application of a party or otherwise “to clarify, or remove any ambiguity in the award”. Section 70(2)(b) of the Act requires a party to exhaust its rights of recourse under Section 57 before making any application to the court under Section 68. Furthermore, under article 35(3) of the ICC Rules, there is express provision for a party to apply to the Tribunal for interpretation of an award within 30 days of its receipt. This would be an obvious course to adopt if there was any uncertainty or ambiguity in any award made. No application was made by New Age 2 or Black Gold to the Arbitrators for any clarification or for the removal of any ambiguity in the award, or for any interpretation of it. In Torch Offshore LLC v Cable Shipping Inc [2004] 2 All ER (Comm) 366, at paragraph 28 I said:

The length of the Particulars of Claim incorporated into the Arbitration Claim Form (21 Pages) cannot disguise the artificial basis upon which New Age 2 and Black Gold bring their application. At paragraph 35 it is contended that a number of orders made by the Tribunal (which consisted of two experienced English lawyers and one experienced US lawyer) exceeded its powers and/or were too uncertain or ambiguous to be the subject matter of relief. It was also contended that the Tribunal adopted a seriously irregular procedure in reaching a number of key findings without having regard to the uncontested evidence of Canadian Law which was before it.

These complaints are then amplified from paragraph 37 onwards of the Particulars of Claim, but, in essence, it is said that the Tribunal exceeded its powers:

Because it had no powers to determine that Range would be contractually entitled to receive the Requested Information at all points in the future and regardless of the factual position then pertaining (paragraphs 40, 41 and 48).

Because it had no power to order New Age 2 to take steps which would involve it acting unlawfully by breaching the terms of the Gas Plus SHA or infringing the KRG’s proprietary rights in the information obtained by Gas Plus pursuant to the PSC or infringing Kurdistan Law (paragraph 45).

Because it had no power to order specific performance, having found that damages were an adequate remedy (paragraph 46). This argument was abandoned prior to the Section 68 hearing.

Because it had no power to order the Directors of New Age 2 to take steps which would be inconsistent with their fiduciary duties to New Age 2, which an order for the future disclosure of information at all points in the future, without regard to the factual situation then pertaining would or might do (paragraphs 47-48).

Because it had no power to order by way of specific performance that New Age 2 should pursue and arbitration against Gas Plus (paragraph 64(1)).

Because it had no power to order New Age 2 to use its rights under the Gas Plus SHA to procure the Requested Information from Gas Plus, as an action for damages was available to Range (64(2)), I understood this point also to have been abandoned.

Because it had no power to order the Directors of New Age 2 to act contrary to their fiduciary duties in bringing proceedings against Gas Plus, whatever the circumstances (paragraph 64(3)).

Because it had no power to make an order to bring Arbitration proceedings, the effect of which was wholly uncertain (paragraph 65).

Because it had no power to determine Black Gold’s future contractual rights in future circumstances that could not be currently known.

On even a cursory analysis of these complaints, without regard to any questions of accuracy or inaccuracy in the presentation of the Arbitrators’ decisions and orders, it is clear that New Age 2 and Black Gold are in reality not seeking to mount a challenge to the powers of the Arbitrators to make orders of the kind which they did make but to mount a challenge to the content of the orders made, whether on points of law, points of fact or arguments as to the reasoning or justification put forward for the discretion exercised in making those orders.

New Age 2 and Black Gold also maintained that the Tribunal followed an unfair procedure by failing to take into account evidence which was highly relevant and uncontested, namely the extent of Range’s reporting obligations under Canadian law, as set out in a legal memorandum submitted on behalf of Range by Ms Claudia Losie of Boughton Law Corporation which was not challenged by the other parties to the arbitration (paragraphs 49-61).

This complaint is without any foundation whatsoever and appears in circumstances where neither New Age 2 nor Black Gold ever relied on any part of this Law Memorandum and the only reference made to it by either was New Age 2’s submission that it was irrelevant to the question of entitlement to information under the contracts, a submission which the Arbitrators accepted whilst saying it was relevant to what Range could do with the information once received. The final complaint was that the Tribunal adopted an unfair procedure by purporting to determine the parties’ rights and obligations in unspecified future circumstances. This is no more than a variant on the complaint made as to the excess of power in so doing.

The orders to which objection was taken by New Age 2 and Black Gold in its Particulars of Claim are those which appear at paragraph 685(b)(ii), 685(b)(iii), 685(e), 685(f) and 686 of the Award. The relief sought from this court is for these orders to be set aside, rather than remitting them to the Arbitrators for reconsideration which is the default remedy for which Section 68(3) of the Act provides unless the court is satisfied that it would be inappropriate to take such a step.

I set out the orders made by the Tribunal in full at paragraph 685, but not paragraph 686 which solely determines the question of costs and to which no separate point applies.

In their written submissions to the court, New Age 2 and Black Gold also sought, unjustifiably, and with no prior notice, to challenge paragraph 685(a), There were a number of formal deficiencies in the form of the application made by New Age 2 and Black Gold, details of which appear in Range’s skeleton argument, including the lack of evidence in support of the complaints that the effect of the award would be to cause the directors of New Age 2 to breach their fiduciary duties, the proprietary rights of the KRG or Kurdistan law, but as the application fails for other reasons, I need not dwell upon these, There is good reason for requiring compliance with the rules as to what is to be done within the 28 day time limit when pursuing a challenge under Section 68 – see e.g. Leibinger v Stryker Trauma GmbH [2006] EWHC 690 (Comm) and paragraphs 27-36 of my judgment.

As is clear from paragraphs 380-382 of the Reasoned Award and the witness statement of Ms Georgina Barlow at paragraphs 50-59, the orders made by the Tribunal were those sought by Range in the Arbitration and were within the scope of Range’s Request for Arbitration, the Terms of Reference settled by the Tribunal and the List of Issues agreed between the parties. The last of the issues set out in the Agreed List of Issues was: “Is Range entitled to any or all of the relief claimed and are there any valid reasons why such relief should not be granted?”.

None of the complaints now made about excess of powers or ambiguity or uncertainty in any order sought by Range was raised in the Arbitration at all. Entirely different arguments were put forward as to why such orders should not be made. None were put forward to say that the orders could not be made because the Arbitrators had no power to do so. The grounds put forward by New Age 2 and Black Gold were set out at paragraphs 383-400 of the Reasoned Award. The issues to be determined by the Tribunal appeared at paragraphs 441-444. At paragraphs 644-657 the Tribunal set out the relief it was prepared to grant in the light of the submissions made by the parties and its conclusions on the facts and the law, including its construction of the various contracts and the law of Jersey in relation to unfair prejudice to a minority shareholder.

Paragraph 685(b)(ii) and (iii) of the Award correlate directly to the relief sought at paragraph 68(b)(ii) and 68(b)(iii) of Range’s pre-hearing written submissions, although the orders gave Range slightly less relief than it had actually requested. Paragraph 685(e) of the Award correlates directly with the relief claimed at paragraph 69(a) of those submissions. Paragraph 685(f) of the Award correlates directly with paragraph 70 of the submissions. The relief given was expressed to be a direct consequence of the determination by the Tribunal of Issues 1-6 of the Agreed List of Issues.

In these circumstances this is a paradigm case for the operation of Section 73 and Section 70(2) of the Act. Each of the orders made were specifically sought and known to be sought during the course of the arbitration, though sometimes in wider terms than that given and was the subject of submissions by the parties, without any objection being raised by New Age 2 or Black Gold on the basis that the Arbitrators had no power to make such orders.

It is submitted on behalf of New Age 2 and Black Gold that, until the publication of the award, there was nothing which fell within the terms of section 73 that could have been the subject of objection but I do not accept this submission: nor is it right to say, that when there is an excess of power by the Arbitrators, section 73 cannot apply. It was submitted that if the Arbitrators exceeded the powers available to them, no waiver was possible. There was either an excess of power or there was not. That was a binary question and if answered in the affirmative, it followed that the award was a nullity. On the wording of sections 68 and 73, that cannot be so.

The terms of section 68(2)(b) refer to a Tribunal “exceeding its powers (otherwise than by exceeding its substantive jurisdiction)” with a direct reference to section 67 which provides for challenging the award on the basis of “substantive jurisdiction”. “Substantive jurisdiction” is defined in section 82 as referring to the matters specified in section 30(1)(a)-(c). Section 30 (1) gives power to a Tribunal to rule on three questions which are said to constitute matters of “substantive jurisdiction”. Those questions are, first, whether there is a valid arbitration agreement; secondly, whether the Tribunal is properly constituted; and, thirdly, whether matters have been submitted to arbitration in accordance with the arbitration agreement. It is thus plain that when section 68(2)(b) refers to a Tribunal exceeding its powers otherwise than by exceeding its substantive jurisdiction, reference is being made, as Lord Steyn pointed out in Lesotho (ibid), to an excess of powers given by the arbitration agreement, the terms of reference or the 1996 Act.

Although, for reasons to which I will come, New Age 2 and Black Gold’s application is misconceived, because it challenges the way in which powers were exercised rather than exceeding any powers granted, the manner in which the challenges have been framed, by reference to section 68(2)(b), means that section 73 is directly applicable in the event of a failure to raise the point during the course of the arbitration once it is plain that the Arbitrators are being asked to exercise a power which it is said they do not have.

It is clear, in relation to all the complaints now made, that New Age 2 and Black Gold took part in the Arbitration proceedings without making any objection that the Tribunal lacked the powers in question, without suggesting that it would be improper conduct for the Arbitrators to purport to exercise such powers or that it would amount to an irregularity affecting the proceedings were they to seek to make an award in the form which was sought. It would be an unduly narrow construction of section 73, which failed to take account of its purpose, to say that it did not apply where one party asked the Arbitrators to exceed their powers and the other made no objection on that basis, simply because the irregularity or improper conduct of the Arbitrators did not occur until the publication of the award when the illegitimate powers were purportedly exercised. In reality, a Tribunal would be improperly conducting the arbitration and there would be irregularity affecting the proceedings, within the meaning of sections 68 and 73, particularly where an agreed list of issues included the relief sought which involved the Arbitrators exceeding their powers. The consideration by the Arbitrators of the exercise of illegitimate powers in the context of the arbitration and the issue of the award itself in due course would both amount to irregularity and improper conduct affecting the proceedings within the meaning of the Act.

It is equally futile for New Age 2 and Black Gold to complain about the orders made on the basis of ambiguity and lack of clarity when, once again, the terms in which they were sought were known throughout the arbitration hearing and for sometime before that. If there had been any lack of clarity about what was sought, this too was a point which should have been raised at the arbitration hearing but, in any event, under section 57(3) of the Act, a party may apply to the Arbitrators for clarification or removal of any ambiguity in the award and, in the absence of recourse to that power, by section 70 (2), it cannot apply to the court under section 68.

In these circumstances, New Age 2 and Black Gold are debarred by the terms of the Act from bringing forward all the complaints that they make, both as to excess of powers and uncertainty or ambiguity in the award. As will become apparent later in this judgment, there is in any event, nothing to the points raised.

I need to set out, in summary form, the conclusions of the Arbitrators on the facts and the law in order that the challenges made can be understood in context. The Arbitrators found or held that:

New Age 2 was contractually bound to Range under the New Age SHA to provide the Requested Information to Range, if it was in its possession- paragraphs 479, 482, 488 and 490.

Black Gold was contractually bound to Range to procure New Age 2 to obtain and provide the Requested Information to Range - paragraph 491.

Gas Plus was contractually obliged to New Age 2 under the Gas Plus SHA to provide the Requested Information to New Age 2, if it was in its possession - paragraph 502-503

New Age 2 and New Age African were contractually obliged under the Gas Plus SHA to procure Gas Plus to obtain and provide the Requested Information to New Age 2 - paragraph 507.

All the Requested Information save for high level summaries of it was prima facie covered by the confidentiality restrictions in the PSC -paragraph 514 - but disclosure could be made with the consent of the KRG which it was contractually bound not to withhold such consent unreasonably - paragraph 527.

Gas Plus faced a potential conflict between the provisions of the PSC and the Gas Plus SHA, since it was obliged to provide the Requested Information to New Age 2 under the Gas Plus SHA but was bound to the KRG by the confidentiality provisions in the PSC, unless the KRG consented or unreasonably refused its consent to the provision of such information - paragraph 531.

Gas Plus was obliged to provide the Requested Information to New Age 2 whether it put it in breach of the PSC or not, but it was bound to seek the consent of the KRG if it wished to avoid such conflict – paragraph 531.

There was a similar potential conflict for New Age 2 between its contractual obligation to Range to provide the Requested Information under the New Age SHA and its duty of confidentiality to Gas Plus under the Gas Plus SHA, which was likewise avoidable by obtaining the consent of Gas Plus to such disclosure - paragraph 536.

New Age 2 was obliged to provide the Requested Information to Range, regardless of such conflict but should seek the consent of Gas Plus to such disclosure and press Gas Plus to seek the consent of the KRG, if necessary - paragraph 536.

Range was bound by the confidentiality provisions of clause 10.1 of the New Age SHA and could not disclose the Requested Information in its possession to its investors- all it could disclose was a high level summary - paragraphs 539 and 544.

Range had informed the Tribunal that it would not disclose the Requested Information to its investors or others- only a headline (high level) summary, which (as the Tribunal found) was permissible under the confidentiality provisions – paragraph 540.

The failure by New Age 2 to provide the Requested Information to Range was a breach of the New Age SHA - paragraph 545.

Black Gold and New Age 2 were contractually bound under the New Age SHA to make every effort to obtain the Requested Information from Gas Plus and provide it to Range - paragraph 550.

Black Gold had acted in breach of Clause 5.11 of the New Age SHA because it had not used all reasonable endeavours to agree, in good faith in the interests of itself and Range as the two shareholders of New Age 2 on the position to be adopted by New Age 2 in seeking the Requested Information from Gas Plus - paragraph 570 and 583-4.

The decision by Black Gold (not to cause New Age 2 to seek the Requested Information from Gas Plus or to press for Gas Plus to seek the consent of the KRG for such disclosure or to go to arbitration if necessary to compel Gas Plus to fulfil its obligations) was not a decision made in good faith, nor one made genuinely nor reasonably in the Wednesbury sense of the word - paragraph 594.

The Directors of New Age 2 (of whom 4 were Black Gold nominees) had not taken all relevant considerations into account when deciding on the course New Age 2 should adopt in relation to the Requested Information and in particular had failed to take account of the contractual obligations owed to Range - paragraphs 606-607.

Range had been unfairly prejudiced as a minority shareholder in New Age 2 by the restricted flow of information to it, even if there was, contrary to the Tribunal’s conclusions, no breach of the New Age SHA - paragraphs 625 and 638.

On both grounds Range was entitled to receive the Requested Information.

The Tribunal was entitled to exercise the powers available to the Jersey Court (save for such remedies as winding up) under section 143 of the Companies (Jersey) Law (as amended) – paragraph 642.

Range was entitled to a declaration of entitlement to receive the Requested Information, an order for specific performance of parts of clauses 6.1 of the New Age SHA – namely an order for the provision by New Age 2 of the Requested Information, an order that New Age 2 use its rights under the Gas Plus SHA to procure such information to the extent that New Age 2 did not have it, including proceeding to arbitration to enforce its rights - paragraphs 646-648.

Range was entitled to pursue a claim for breach of the New Age SHA, if New Age 2 proved unable or unwilling to obtain the Requested Information from Gas Plus, which might include a claim for damages, even though this could necessitate another arbitration - paragraph 653.

Range was entitled to an order that Black Gold and the Board of Directors of New Age 2 should procure that New Age 2 complied with the Award - paragraph 655.

Range was entitled to a declaration as to the effect of non- compliance with the preconditions of Clause 5.11 of the New Age SHA on the purported exercise of majority directions by Black Gold to New Age 2 as to the course of action to be adopted by it - paragraphs 656 and 685(e).

Section 48 of the Act sets out the remedies available to Arbitrators. Sub-section 1 provides that the parties are free to agree on the powers exercisable by the arbitral Tribunal as regards remedies, whilst sub-section 2 states that “unless otherwise agreed by the parties”, the Tribunal has the powers set out in the rest of the section. These include the “power to both make a declaration as to any matter to be determined in the proceedings”, the power to order the payment of a sum of money in any currency, and “the same powers as the court to order the party to do or refrain from doing anything, to order specific performance of a contract ...”.

It was common ground that the Arbitrators had the powers of a court operating under Jersey law to grant minority shareholder relief, which classically involves orders as to the way in which the parties should conduct themselves in the future in relation to the affairs of the company.

In addition to the powers available to the Arbitrators under the terms of section 48 of the Act, there is authority that allegations of unfair prejudice (in the context of minority shareholders complaints) can be determined in arbitral proceedings – see Fulham Football Club (1987) Limited v Richards [2012] Ch 333. It is clear from Ms Barlow’s witness statement and the terms of paragraphs 615 -618 of the Award that the two Jersey lawyers engaged by the parties who made submissions to the Tribunal were agreed that the question of unfair prejudice was arbitrable and that the Jersey court had very wide ranging powers that were available to the Arbitrators. Their reports made it plain that Article 143(1) of the Companies (Jersey) Law 1991 (as amended) gave the Jersey court discretionary power to make such orders as it thought fit for giving relief in respect of the matters complained of whilst Article 143(2) set out examples of what the court could do. The question, so far as the Jersey lawyers were concerned was not whether the Arbitrators could do what they were being asked to do but whether they should do it in the circumstances.

Article 143(2) sets out examples of the court’s broad discretionary power to make such order as it thinks fit for giving relief and specifically provides that the court may:

Regulate the conduct of the company’s affairs or in the future;

Require the company to refrain from doing or continuing an act complained of by the applicant or to do an act which the applicant has complained it has omitted to do.

There is nothing in the ICC Rules nor in any agreement between the parties which cuts down on the powers given by Section 48 and there was agreement that the Arbitrators could exercise the article 143 powers referred to above. It was therefore open to the Tribunal to make declarations and order specific performance in relation to the New Age SHA and to grant very wide relief for a minority shareholder where unfair prejudice was established. In making the orders that it did, the Tribunal did not exceed its powers but exercised the powers it undoubtedly had, albeit in a manner which has not found favour with New Age 2 and Black Gold, because they disagree with the Arbitrators’ reasons for doing what they did. This however creates no ground under section 68 at all. Any error of law or fact, or error of reasoning by a Tribunal when making a declaration, an order for specific performance, any other mandatory order, or when granting other relief does not involve an exercise of powers which the Tribunal does not possess. As Lord Steyn said in Lesotho (ibid), “the erroneous exercise of an available power cannot by itself amount to an excess of power” and “ a mere error of law will not amount to an excess of power under section 68(2)(b).” All the grounds for challenge, therefore, which are based on excess of powers fail in limine.

I turn then to the particular points raised in relation to the exercise of powers, not because it is necessary to my decision but because it is illustrative of the contrived nature of the application.

Complaint is made about paragraph 685(b)(ii) of the award in which the Arbitrators ordered that “Range will be provided with (and shall continue to be provided with) the Requested Information as well as all other information that is sufficient to keep Range fully informed of all material developments relating to New Age 2’s financial and business affairs and all significant events which will or may affect New Age 2”. It is said that, while the Tribunal had the power to determine that Range was, on the facts as found in the award, contractually entitled to receive the information referred to, the Tribunal had no power to determine that Range would be contractually entitled to receive the same information at all points in the future, regardless of the factual position then pertaining. It is said that the Tribunal exceeded its remit by purporting to determine issues which were not before it, by providing that Range would always contractually be entitled to receive the information in question regardless of what might be the factual position then. In order to make the order for specific performance that was made, it was said that the Tribunal must therefore necessarily have decided that there could be no circumstances in the future in which New Age 2 would not be obliged under the terms of New Age SHA to disclose the information referred to. In doing this, the Tribunal is said to have exceeded the powers available to it and also adopted an unfair procedure by purporting to rule on the parties’ rights and obligations in unspecified future circumstances. This point applies, in similar fashion to the orders made in paragraph 685(a), (b)(iii), (e) and (f).

In particular it is said that the Tribunal ordered New Age 2 in paragraph 685(b)(ii), by way of specific performance of the New Age 2 SHA in the future, to disclose the specified information to Range regardless of the position of the KRG or Gas Plus under the relevant contracts between them, when all of the Requested Information was owned by the KRG, when there were confidentiality provisions in the PSC, Gas Plus SHA and New Age SHA and the consent of KRG was required for disclosure (albeit with the proviso that the KRG was not to unreasonably withhold such consent). It is said that no attack is made on the finding that consent had been unreasonably withheld on the facts before the Tribunal but that this could not hold good in all circumstances in the future where the issue would turn on the current position at any given time, which could not be known at the time of the award.

In contending that the making of this order involved the Arbitrators exceeding their powers, New Age 2 and Black Gold relied upon a decision of the High Court of Australia in University of New South Wales v Moorhouse (1975) 6 ALR 193. Particular reliance was placed upon the judgment of Jacobs J with whom McTiernan ACJ agreed. In that case, the claimant alleged that the University had authorised the reproduction of his book by students using copying facilities in the University library. The claimant sought (inter alia) a declaration that between the dates upon which the book was entered in the library system and the date of the summons, the University had authorised “such breaches of copyright as occurred by the photocopying of the whole or part of the Library copying of the said book”.

On appeal the High Court of Australia reversed the Judge’s decision granting the declaration sought, Jacobs J explained the defects in the granting of the declaration in these terms:

I am unable to see how this assists New Age 2 or Black Gold. It is clear both from the terms of this judgment and the judgment of Gibbs J that the court considered the injunction had been “wrongly made” but there is no suggestion that the court had no “power” to make the order. The Judge had erred in granting the order but this was no more than an error in his reasoning on the law and the facts. The judge had wrongly exercised the power that he undoubtedly had.

If the Arbitrators have erred in the manner suggested, that is not an excess of power. In reality however, although neither party wished to make any concession as to the effect of the award in the future, it is plain that the Arbitrators were well aware that there could be different circumstances which could affect the parties’ entitlement. At paragraphs 634-636 of the award they stated that Range’s entitlement to receive information was not absolute and would depend on the circumstances underlying New Age 2’s refusal to provide information. “It seems to us that in circumstances where Range was provided with substantial information to procure its initial and continuing investment and where such information is fundamental to continuing investment decisions which Range has to take as an investor, it is entitled to expect in the ordinary course [emphasis added] it will continue to receive the Requested Information. If circumstances change such that it becomes contrary to the interests of New Age 2 to provide the relevant information, then so also would Range’s entitlement be affected. It may be that such a change would require the Court/Tribunal to fashion a remedy involving, for example, Black Gold compensating Range in return for Range ceasing to be a shareholder …”.

In my judgment, it is plain that the Tribunal’s orders proceed on the basis of the facts as found by them and provide for the future, as specific performance and minority shareholder relief would be expected to do ceteris paribus, but, should there be a relevant change of circumstances which did affect the issues, it would be open to a party to apply to the Tribunal (if not functus), or to institute a new arbitration to determine the issues which newly arise. The parties would, of course, be bound by the award before the court absent any relevant and significant change of circumstances because the award was made on the basis of the circumstances and facts as the Arbitrators found them to be but the Arbitrators were not purporting to decide on the parties’ rights for all time in all circumstances.

The same point holds good in respect of the other orders to which objection has been taken on the same ground, but I turn specifically to the Clause 5.11 argument, where there is more to be said in response to the objection raised.

Complaint was made about paragraph 685(e) of the award on the basis that, whilst it was open to the Tribunal to declare that Black Gold’s historic invocation of clause 5.11 of the New Age SHA was flawed, it had no power to determine that any future use of its rights under that clause would always be ineffective. It is said that the effect of the Tribunal’s award is to fetter the parties’ agreed deadlock provision in clause 5.11 of the New Age SHA because the Tribunal has declared that, if in the future Black Gold and Range disagree as to the position which New Age 2 should take in relation to any of the Requested Information and its dealings with Gas Plus, then, even if the terms of clause 5.11 were met, and Black Gold acted in good faith, it could not rely upon clause 5.11.

I cannot see how this can be spelled out of the order made which specifically states that the pre-conditions of the clause in question have to be complied with before the deadlock provisions come into effect. The Arbitrators said that any majority direction given in circumstances where the conditions precedent had not been met, could not operate to justify the withholding of the Requested Information, or the failure to obtain it from Gas Plus.

Complaint is made that the Tribunal ordered New Age 2 to take steps which would involve it acting unlawfully by breaching the terms of the Gas Plus SHA, infringing the KRG’s proprietary rights in the information obtained pursuant to the terms of the PSC and/or infringing Kurdistan Law.

It was submitted that New Age 2 was not in any position to direct Gas Plus to consent or not to consent to the disclosure by New Age 2 of that which Gas Plus had disclosed to it. Compliance with the order could therefore put New Age 2 in breach of its agreement with Gas Plus. It is said that the Tribunal had no power to make such an order, relying on a passage in Merkin Arbitration Law (2004) paragraph 17.16 (d) to the effect that an award could not order a party in arbitration proceedings to break a contract with a third party or otherwise interfere with the rights of a third party nor direct the performance of impossible or illegal acts.

It is self evident that the Tribunal did not purport to make an award which bound third parties such as the KRG and Gas Plus and did not purport to determine the rights of the KRG and Gas Plus between themselves. The Arbitrators were concerned with the position between the parties to the arbitration and the fact that New Age 2 might have placed itself in a situation where obligations owed to Range conflicted with obligations owed to Gas Plus which could not give rise to a defence to a claim in contract by Range. What the Arbitrators ordered was performance of New Age 2’s and Black Gold’s obligations under the New Age SHA. For the reasons given above, there was power to do this, even if there was some error of law in so doing. Even if there was, it would not, despite the authorities cited, amount to Arbitrators acting outside the ambit of the powers given to them.

No doubt a Tribunal would need to take into account, when making an order for specific performance of a contract, the fact that the order would put the person ordered in breach of another contract, but whether or not an error of law is necessarily involved in making such an order is another matter. In fact, at paragraph 536 of the Award the Tribunal stated that when New Age 2 entered into the New Age SHA (and when doing so assumed the obligation to provide Range with the Requested Information) it was aware of the terms of the Gas Plus SHA and the PSC, (including the confidentiality provisions therein) and that, in such circumstances, New Age 2 could not hide behind those provisions. If it was concerned with finding itself in breach of its own obligations to Gas Plus it should make every effort to obtain whatever consents might be required to protect its own position, which might involve having Gas Plus seek the consent of the KRG or finding ways in which provision of the Requested Information could be brought within one or other of the exceptions described in the Gas Plus SHA. The Tribunal did not simply therefore make an order which would involve New Age acting unlawfully.

The complaint that was made in the Particulars of Claim that the Tribunal exceeded its powers in ordering specific performance when it found that damages were an available remedy was abandoned at the hearing.

Complaint was made that the Tribunal had no power to order New Age 2 and its directors to use its rights under the Gas Plus SHA to procure Gas Plus to provide the Requested Information, if necessary by taking arbitration proceedings to enforce its rights (paragraph 685(b)(iii)). It was submitted that a court will not order specific performance of an agreement to arbitrate although it would frequently stay proceedings where the parties had agreed to arbitrate or issue an injunction to prevent a party proceeding elsewhere where there was a valid and binding agreement to arbitrate.

Once again, the error alleged is one of law in making the order but this is misplaced in any event because of the terms of Article 143 of the Companies (Jersey) Law 1991 (as amended) which gives wide powers to grant relief, Article 143(2) sets out examples of the court’s broad discretionary power to make such order as it thinks fit for giving relief and specifically provides that the court may “authorise civil proceedings to be brought in the name and on behalf of the company by such person or persons and on such terms as the court may direct”.

Once the ambit of the court’s powers to give minority shareholder relief is appreciated, the point disappears. The ancillary argument that making such an order was too uncertain has again nothing to commend it, both because such an order is expressly permissible but also because, on any reading of the award it is plain that New Age 2 is to pursue arbitration against Gas Plus in the same way as Range has pursued it for the Requested Information, Paragraph 685(d) of the award then provides for the position where New Age 2 fails to pursue such an arbitration, gives up on the attempt or fails in the arbitration itself. In such circumstances it will be liable in damages to Range. I can see no difficulty of uncertainty arising here at all. New Age 2 knows what it is bound to do.

In the Particulars of Claim, New Age 2 and Black Gold contend that the Tribunal followed an unfair procedure at the arbitration by failing to take into account evidence which was highly relevant and uncontested. It is accepted that a failure to refer to a piece of evidence in an award is not a ground for challenge under section 68 but reliance is placed on a dictum of Flaux J at paragraph 18 of his judgment in Statoil v Sonatrach [2014] 2 EWHC 875 (Comm); [2014] 2 All ER (Comm) 857, where he said that it could be a breach of section 33 of the Act to ignore or overlook an agreed or admitted piece of evidence. He went on to say, however, that the contention that the tribunal has overlooked or misunderstood particular evidence necessarily involves interference with the evaluation of evidence by the tribunal, which is not permissible, as I have already stated earlier in this judgment. If the tribunal admitted that it had overlooked a matter then, depending on its significance, section 68(2)(i) might apply, but here there is no such admission and there is no basis for complaint on a proper reading of the award and appreciation of the situations to which section 68 applies – see paragraph 14 of this judgment.

Reference is made to the Boughton Law Memorandum which set out, in Section 1A, Range’s reporting obligations under CNSX Policy 5 and in Section 1B the reporting requirements imposed by Canadian Securities Regulators which were more extensive. The Arbitrators made express reference to the CNSX Policy 5 disclosure obligation but not to the wider reporting requirements set out in Section 1B. It is submitted that there was a serious irregularity because the Tribunal decided that the KRG could have no reasonable objection to the Requested Information being disclosed to Range, when the Tribunal failed to have regard to the uncontested evidence as to the wider scope of Range’s disclosure obligations. It is contended that if the Tribunal had properly considered the totality of the evidence before it, it could not have concluded that there were no reasonable grounds upon which the KRG could refuse to consent to the Requested Information being disclosed to Range. This is a clear challenge to a finding of fact on the basis of the evidence put before the Arbitrators.

It is further said in the Particulars of Claim that the Tribunal concluded that Range was not obliged by its reporting obligations to disclose more than a limited high level summary of the status of the exploration and/or development work on the Khalakan Block and must have overlooked Section B of the Boughton Law Memorandum. This Memorandum was produced by a Canadian lawyer engaged by Range which was not challenged, although as I have already indicated, it was considered irrelevant by New Age 2, at least for the purposes of construction, a point with which the Arbitrators agreed. The Arbitrators considered it relevant however to the use which Range might make of information which was disclosed. Contrary to the submissions of New Age 2 and Black Gold however, the Arbitrators did not make any findings as to the full extent of Range’s disclosure obligations and even if they had done so and made a mistake in that respect, that would not constitute a ground for challenge under section 68 of the Act.

In oral argument, complaint was made that the Arbitrators had relied upon Section 1A of the Boughton Law Memorandum and ignored Section 1B when considering the unreasonableness of the KRG’s failure to consent to disclosure of the Requested Information, without giving the parties any opportunity to address this question. This is not a point which is open to New Age 2 or Black Gold but both the pleaded point and this new point are groundless.

It is clear that the true nature of the complaint relates to the reasoning of the Tribunal and not to any lack of due process in the conduct of the arbitration. The contents of the Boughton Law Memorandum were available throughout the arbitration and it was open to the parties to make any representations they wished in relation to it, for whatever purpose they wished. It was likewise open to the Tribunal to rely on it in the context of the various arguments being put by the parties.

In fact, when dealing with the question of the KRG withholding its consent, the Tribunal stated that it was not aware of any good reason for the withholding of consent to the information being given to Range in circumstances where Range was funding 25% of the costs, had accepted confidentiality obligations consistent with those in the PSC and consent had been given by the KRG to New Age African to disclose information to third party private investors. Having recorded Range’s representations that it would only make Headline (High Level) announcements about drilling a well or finding oil and that it wished to see the Requested Information for assessment of its own investment and such limited disclosure, the Arbitrators noted that CNSX Policy 5 was an example of the type of information that should be disclosed, namely a high level summary. That would be permissible under the confidentiality exceptions in the contract but any further detail beyond that would not be a justified disclosure by Range.

The Arbitrators went on to say that Range would probably want to provide more than such a high level summary to its shareholders and advisors or to potential investors or buyers of the company, notwithstanding its representations as to what it would do with the detailed information it required for evaluating its investment. The Tribunal found that it would be reasonable for the KRG to permit Range to allow further dissemination of information to such shareholders, advisors, investors or buyers, even though Range was not permitted to do so without consent being given down the line of contracts.

The Tribunal found, additionally, regardless of that, that the fact that Range was listed on the CNSX and was required to disseminate some information publicly was not a reasonable ground for the KRG to refuse its consent to disclosure of the Requested Information to Range, because Range had represented that it would not disclose confidential information to the CNSX beyond the high level summary.

There is no basis for thinking that the Arbitrators overlooked the terms of the Boughton Law Memorandum. They made findings as to the contractual duties of confidentiality, what disclosure it would and would not be reasonable for the KRG to consent to and as to the representations made by Range as to the use to which it would put the Requested Information when given, regardless of any regulatory requirements for disclosure. The Tribunal had already found that none of the exceptions in clause 10.2 of the New Age 2 SHA would justify the provision of the Requested Information to investors or the CNSX beyond the high level summary of the status of the project.

This is not a case where it could be said that the Arbitrators overlooked a fundamental piece of evidence upon which New Age 2 or Black Gold relied. To the contrary, both of those parties eschewed any reliance on this evidence and there is no basis for thinking that the Arbitrators were unaware of it or that it would have made any difference to the reasoning which appears in the Award. It was open to any of the parties to rely on the Boughton Law Memorandum for any purposes they wished and for the Tribunal to take cognisance of such parts of it as it considered relevant in relation to each of the issues which fell for consideration.

There is no basis for saying that reference to this element of the evidence would have made any material difference to the Arbitrators’ conclusions. There is every reason to say that if New Age 2 and Black Gold failed to rely on something in the evidence, any omission by the Arbitrators to mention it was due to their own default – as in Indian Oil Corporation v Coastal Bermuda Ltd (1990) 2 Lloyd’s Rep 407 which, although decided prior to the 1996 Act, is informative in this context as paragraph 281 of the DAC Report illustrates.

For all these reasons, New Age 2 and Black Gold are unable to establish that there has been any serious irregularity affecting the Tribunal, the proceedings or the award, even if they had not lost their right to object by reason of the provisions of Section 73 and Section 70(2) of the Act.

Even if New Age 2 or Black Gold were able to establish some irregularity, they could not establish that injustice had been caused or would be caused to them as a result of any of the matters raised. In circumstances where it was open to them to take any and all of the points put forward now in the course of the arbitration, but failed to do so, no injustice arises on the ground of any irregularity. It is to my mind self evident in any event that, if any of the points had been well founded, they would have been raised at the time.

In truth, as is frequently the case with Section 68 applications, the objections now raised are objections to the Arbitrators’ conclusions on the facts, on the law or in their reasoning. There were no failures in due process in the course of a five day hearing at which the parties were represented and where their cases were fully argued. The arbitration agreement excluded any right of appeal on points of law, New Age 2 and Black Gold must accept the findings of the Arbitrators in the forum to which they agreed.

Costs must follow the event. If the parties wish to make submissions about the basis or extent of any order I make, these can be made on the handing down of the judgment.