XSTRATA COAL QUEENSLAND PTY LTD AND OTHERS V BENXI IRON & STEEL (GROUP) INTERNATIONAL ECONOMIC & TRADING CO LTD

[2016] EWHC 2022 (Comm), Queen's Bench Division, Commercial Court, Mr Justice Knowles, 5 August 2016

Arbitration - Award failing to clarify identity of parties - Correction of award - Extension of time under arbitration agreement - Arbitration Act 1996, sections 57 and 79

Benxi agreed to purchase coal from four companies, the Oaky Creek Joint Venturers, identified in the contract as Sumisho, Xstrata, Itochu and ICRA NCA. In fact there was a mistake, and the fourth company was not ICRA NCA but ICRA OC. A dispute arose in due course, and was referred to LCIA arbitration in London. The claimants were Sumisho, Xstrata, Itochu and ICRA OC. Benxi participated without objection. On 23 August 2010 the arbitral tribunal issued an award under which Benxi was to pay to the sellers US$27,846,000 together with interest and costs. ICRA OC was treated as a party. The award did not seek to deal with the point that the Oaky contract referred to ICRA NCA and not ICRA OC. Benxi failed to pay, and the sellers sought to enforce the award against Benxi in China under the New York Convention. The Shenyang Intermediate People's Court rejected the application on the ground that ICRA OC was not a party. The four sellers requested the tribunal to make an additional award or to correct the award under its powers in article 27 of the LCIA Rules. On 11 June 2014 the application was rejected on the basis that any application had to be made within 30 days. The sellers applied to the Commercial Court for an extension of time under section 79 of the Arbitration Act 1996.