28 Days Later? Jurisdictional lifeline for non-participants looking to challenge arbitral award

Why should I read this?

s.72 offers provides certain rights for non-parties to bring challenges in respect of arbitral proceedings. There has been judicial and academic debate on the provision for some time, including as to whether s72(1) allows challenge of an award by a non-party after the expiry of the 28 day deadline generally applicable to challenges.

The English High Court has now addressed that debate, concluding that it does provide a freestanding right to challenge outside of the 28 day time limit, potentially offering a valuable route for where entities have failed to participate in arbitration proceedings to assert jurisdictional objections post-award.

For non-participants who wish to challenge an award, this ruling could significantly impact the strategy and timing of their approach.

What has happened?

In African Distribution Company v Aastar Trading Pte Ltd [2025] EWHC 2428 (Comm), AAStar sent a notice of arbitration to ADC using two generic email which ADC had previously used to communicate with AAStar during the performance of the sale contracts. ADC did not respond to this notice or participate in the subsequent GAFTA arbitration. An award was subsequently issued in favour of AAStar in the sum of approximately US$3 million and sent to both parties.  ADC claimed that it was not properly notified of the proceedings and sought an extension of time to challenge the arbitration award under sections 67 and 68 of the AA, together with declaratory relief under s.72(1).

HHJ Tindal (sitting as a High Court Judge) dismissed the application for an extension of time under ss.67 and 68 on the grounds that there had been no justification for ADCs ‘significant delay’ in applying beyond the 28-day time limit, and that it had failed to show that refusal of relief would result in a sufficient risk of unfairness.

In reaching his decision, he made important obiter remarks that ADC had access to an alternative remedy in section 72(1).  Crucially, the judge sought to resolve an ongoing academic debate as to whether s72(1) applied only at the pre-award stage, or whether it could be used to as a free standing right of challenge once an award had been issued. He concluded that it was a free standing right for entities which had not taken place in the arbitration and that that no time limit applies to post-award applications under s.72(1). Interestingly his view of the availability of s.72 relief influenced the decision to refuse the extension under ss.67 and 68, as it reduced potential prejudice to the applicant.

What should I do?

If HHJ Tindal’s comments are correct, non-participants to arbitration proceedings may still challenge jurisdiction under s.72(1) of the Arbitration Act 1996, even after the 28-day time limit set out in s.70(3) has passed. As ever, the Court is reluctant to interfere in decisions taken by arbitral tribunals, meaning that success under s.72(1) is not guaranteed. It will depend on the court’s assessment of factors such as delay, fairness and prejudice.

Following this decision, parties who have not taken part in arbitration but wish to bring a challenge under s.67 or s.68 will need to carefully consider whether to proceed under s.72(1) instead. The availability of s.72(1) may now weigh against granting extensions for s.67/s.68 applications, particularly in light of the Kalmneft fairness factors. Courts may also question why a party is not using the s.72(1) route if they qualify to do so.

This ruling reinforces the importance of strategic decision-making in relation to post-award jurisdictional challenges. Parties and their advisors should:

• Review arbitration clauses carefully – ensure you understand the implications of not participating in proceedings, especially regarding jurisdictional objections.
• Time strategically – if a party has not taken part in arbitration, s.72 may offer a route to challenge jurisdiction post-award without being bound by the 28-day limit.
• Consider declaratory relief options – where appropriate, explore s.72 as a tool to obtain relief even after an award is made.
• Monitor future developments – this decision may influence how courts interpret procedural time limits in arbitration challenges. The section 72 application will proceed and is scheduled to be heard next year, when the above issues may receive further consideration.