The English High Court clarifies the scope of application of Section 45 of the Arbitration Act in practice

In The Republic of India v CC Devas (Mauritius) Ltd (in administration) and other companies (CC Devas (Mauritius) Ltd and others intervening), the English High Court considered the extent to which the court may be asked to determine questions of English law during the life of an arbitration under section 45 of the Arbitration Act 1996 (the Act). In an arbitration under the India-Mauritius BIT, India commenced a section 45 application, seeking a determination that the tribunal was required to decide questions of authority exclusively by reference to Mauritian law as the law of the counterparty companies' place of incorporation.

In dismissing four threshold challenges to India’s application, the Court addressed a series of connected issues going to the heart of the court’s jurisdiction under section 45:

1. who is entitled to give the necessary consent to an application under section 45 on behalf of a corporate party;
2. whether section 45 is confined to prospective questions of law;
3. whether a tribunal’s prior ruling in a procedural order precludes a section 45 reference; and
4. whether the parties' choice of international law to govern the substantive dispute displaces English procedural law in an English‑seated arbitration.

In summary, the judgment provides guidance on the boundaries between arbitral autonomy and judicial support, with significance for all English‑seated arbitrations, not only investment treaty disputes.

Background

This application arose out of a second investment treaty arbitration under the India-Mauritius BIT (BIT-2) seated in London brought by Devas India’s Mauritian shareholder companies (the Mauritian Companies), following the commencement of the winding up of Devas India. During BIT-2, the Mauritian Supreme Court appointed Mr Thacoor as administrator of the Mauritian Companies. However, by Procedural Order No 6 (PO6), the Tribunal declined by majority to recognise Mr Thacoor as the Mauritian Companies' representative for the purposes of the arbitration, and continued to recognise Gibson Dunn (their counsel) as their representatives.

India applied to the English court under section 45 of the Act, which permits the court to determine a preliminary question of English law arising in the course of arbitral proceedings. India sought a ruling that, as a matter of English law, the tribunal was required to apply Mauritian law alone to determine who could instruct lawyers for the Mauritian Companies. An application under section 45 requires the agreement of (i) all the parties to the arbitration or (ii) the tribunal. India relied on Mr Thacoor's consent to the application. That consent was disputed by the Mauritian Companies' directors and shareholders, who were joined to the application (the Interveners), who argued that Mr Thacoor lacked the authority to give it.

The Court dismissed four threshold challenges to the application, confirming the Court’s jurisdiction to proceed with India’s application.

Issue 1: Does the court have jurisdiction when the Interveners did not consent to the s45 application?

The Court held that an application under section 45(2)(a) requires the agreement of the parties to the arbitration, not the agreement of those who represent the parties. The Interveners' argument that only tribunal-recognised representatives could consent was rejected. Whether Mr Thacoor had authority to consent on their behalf was a separate question, determined by English private international law and, applying that, on the law of the place of incorporation. The Tribunal's decision in PO6, which recognised Gibson Dunn and not Mr Thacoor as representatives was limited to representation within the arbitration and did not purport to determine who could consent to a section 45 application. Procedural orders are not final, so PO6 did not give rise to an issue estoppel. The Court therefore had to determine for itself whether the Mauritian Companies had validly agreed to the application, a question ultimately governed by Mauritian law.

Issues 2 and 3: Is this an impermissible challenge to PO6? Is section 45 limited to prospective questions only (i.e. not decided by the tribunal)?

The Interveners argued that section 45 could not be used to re-open a point already resolved by the Tribunal in a procedural order.

However, the Court found that the statutory language of section 45 is not confined to prospective questions. While section 45 is not a challenge mechanism and does not permit the court to review, correct or set aside a tribunal's procedural rulings, it empowers the court to answer a question of English law arising in the course of an arbitration and leaves it to the tribunal to determine how to proceed in light of that answer. The Court also emphasised that section 45 is deliberately narrow, given it requires party agreement or tribunal permission before an application can be made, and that no additional limitations should be implied.

Issue 4: Is section 45 ousted because the parties chose international law and tribunal discretion as to the applicable conflicts of law rules?

The Interveners argued that the application did not raise a question of English law within the scope of section 45: the parties had agreed to apply international law to the substance of their dispute, and agreed to the Tribunal having discretion as to the conflict of law rules to be applied pursuant to section 46(3) of the 1996 Act and Article 33 of the UNCITRAL Rules 1976, and exercising that discretion had decided not to apply English law.

Relying on Union of India v Reliance Industries Ltd EWHC 1407(Comm), the Court confirmed that the parties' agreement to apply international law to the substance of the dispute did not displace the application of section 45 or English procedural law in an English seated arbitration. Section 46(3) of the Act, which confers flexibility on the tribunal to select conflicts of law rules for the substance of the dispute, has no application to non-substantive matters. For such questions, English private international law applies by default.

Comment

The judgment provides important clarification on how section 45 operates in practice.

It confirms that section 45 may be invoked even where a tribunal has already addressed the relevant legal issue in a procedural order. In doing so, it resolves a genuine ambiguity as to whether a question of English law becomes non-justiciable once a tribunal has expressed a provisional view on it.

The Court also made clear that whether there was consent to a section 45 application is a matter for the English court to determine under English law and does not depend on whom the tribunal recognises as a party's representative for the purposes of the arbitration.

The decision also reinforces the limited legal effect of procedural orders. As the Court emphasised, such orders generally lack the finality required to bind a court or give rise to issue estoppel and may be revisited by the tribunal itself. In this respect, the Court drew a clear boundary between section 45, which confers a supportive jurisdiction, and the challenge routes under section 67-69 of the Act, which apply only to awards.

The judgment further delineates the proper limits of court involvement in arbitral procedure. The court rejected the suggestion that a section 45 application amounts to impermissible judicial intervention. Instead, section 45 enables the court to determine a point of English law while leaving control of the arbitration firmly with the tribunal, which remains free to decide whether, and if so how, to act on the court’s determination. In that way, section 45 facilitates judicial support for arbitration without encroaching on tribunal autonomy.

Finally, the judgment reinforces that selecting London as an arbitral seat carries meaningful procedural consequences: even where another law (in this case, international law) governs the substantive merits of a dispute, procedural issues in an English-seated arbitration remain governed by English law. This would be the case unless the parties agreed otherwise (and in any case, mandatory aspects of English procedural law would still apply).

The authors would like to thank Mia Aroha Clifford for her contribution to this post.