High Court finds s.72(1) Arbitration Act 1996 Allows Post-Award Relief Outside s.70(3) 28-Day Cut-Off

On 24 September 2025, the High Court handed down judgment in the case of African Distribution Company v Aastar Trading Pte Ltd.

By his judgment, His Honor Judge Tindal (sitting as a Judge of the High Court), took the position, obiter, that there is no time limit for bringing post-award applications for relief under section 72(1) of the Arbitration Act 1996 (as amended by the Arbitration Act 2025) (the "Act").

In this Legal Update, we review this decision and its impact on applications for extensions of time under sections 67 and 68 of the Act. All sections ("s.") referred to in this Legal Update are to the Act.

BACKGROUND TO THE CHALLENGES

African Distribution Company (“ADC”) applied to set aside a GAFTA award seated in London in favour of AASTAR Trading ("AASTAR"). ADC had not participated in the underlying arbitration as it had not been properly notified of it until formally served with the award pursuant to Ivorian enforcement proceedings issued by AASTAR.

ADC's set-aside application comprised three grounds:

1. a jurisdictional challenge under s.67;
2. a s.68 challenge for serious procedural irregularity; and
3. a s.72(1) application for a declaration that the tribunal was not properly constituted.

EXTENSION OF TIME APPLICATIONS

Per s.70(3), the time limit for s.67 and 68 challenges is 28 days; however, the Court has a discretion to extend this period under s.80(5). In accordance with s.80(5) and CPR 62.9(1), ADC sought an extension of time for its challenges. This was met with resistance by AASTAR.

In determining whether time extensions should be granted under s.80(5), his Honor Judge Tindal noted that the availability of ADC's s.72(1) claim was relevant, and therefore addressed whether ADC's s.72(1) ground of challenge could be pursued even though it was issued after an award and outside the 28-day time limit.

COURT RULING

Ultimately, His Honor Judge Tindal refused the s.67 and 68 extension applications but left the s.72 claim alive (to be heard next year).

His key findings were as follows:  

1. Post-award reach of s.72(1) – s.72(1) is not confined to pre-award relief. A non‑participant in an arbitration may seek declaratory, injunctive, or other appropriate relief even after an award, and any such claims are not subject to the 28-day cut-off in s.70(3).

   This is a significant finding. His Honor Judge Tindal held that the language of s.72(1), its "fit" into the broader statutory setting, and the lack of alteration to s.72(1) during the 2025 Act amendment process supported his interpretation.

2. Difference between s.72(1) and s.72(2) – s.72(2) is targeted at challenging arbitral awards only, whereas s.72(1) is targeted at the whole arbitration, including the award. This means s.72(1) is more flexible and can be used earlier than s.72(2), with the latter section also being subject to the time-limits applicable to s.67 and s.68.
3. More flexible remedies than under s.67 - unlike s.67, s.72(1) permits injunctions on substantive jurisdiction otherwise unavailable to a non-participant post-award. It also enables a more calibrated and ‘bespoke’ declaration, for example one uniquely relevant to enforcement proceedings abroad.
4. Setting-aside possible but exceptional – following Sino Channel, the court accepted that, in rare cases, s.72(1) relief can extend to setting aside an award, although a high bar (“very unusual circumstances”) would apply. 
5. Discretion remains key – relief under s.72(1) is discretionary. Factors such as delay, prejudice, overlap in relief, all go to discretion rather than jurisdiction.

In short, s.72(1) operates as a 'safety valve'—a flexible and free-standing (i.e. not reliant on s.67-s.68) remedy for non-participants to question not just arbitral awards, but the substantive jurisdiction of the arbitral process itself, by seeking a declaration, injunction, or other appropriate relief from the court.  

Impact on Extension Applications under Sections 67 & 68

When assessing extensions of time, the English court considers the factors outlined in Kalmneft which include "whether in the broadest sense it would be unfair to the applicant for him to be denied the opportunity of having the application determined" and whether the "respondent… would by reason of the delay suffer irremediable prejudice" if the application were allowed. His Honor Judge Tindal held that whether ADC had an alternative remedy under s.72(1) was relevant to both factors.

In particular, where section s.72(1) potentially provided ADC with an alternative remedy that would not be out of time, and given the prejudice to AASTAR of an extension, it would not be “unfair” to refuse an extension for ADC's s.67 and s.68 applications.

Dismissing the s.67 and s.68 extension application, but leaving open the s.72(1) claim (which requires further submissions from counsel), His Honor Judge Tindal held that "whilst there is a risk that ... [ADC] might be 'stuck' with an Award unfairly made against it, that is mitigated to an extent by potential s72(1) relief, together with whatever arguments it can deploy to resist Ivorian enforcement."

PRACTICAL TAKEAWAYS

• Non-participants in arbitrations may attack jurisdiction even beyond the 28 day time limit in s.70(3), in accordance with s.72(1).
• Succeeding under s.72(1) is not automatic and will depend on the court's assessment of other relevant elements including delay and prejudice.
• Extension requests under s.67/s.68 may now be harder to achieve – going forward, parties who have taken no part in an arbitration but wish to bring a s.67/s.68 challenge will need to weigh up the pros and cons of bringing a s.72(1) application, knowing that (i) the availability of the s.72(1) route could weigh against extending time for s.67/s.68 applications, as it did in this case, based on the relevant Kalmneft factors (fairness and prejudice); and (ii) the court may question why they are not proceeding under s.72(1).

A copy of the judgment is available here.

Mayer Brown acts for the Claimant. Please contact any of the authors or your usual Mayer Brown contact if you would like to discuss this decision and how it may affect your current or future arbitration strategy.