Sea Containers Limited v ICT Pty Limited

Sea Containers Limited (the appellant) appealed to the Supreme Court of New South Wales against a determination of a Board of Arbitrators concerning a dispute with ICT Pty Limited (the respondent). The appeal sought to challenge the arbitration award on several grounds.

The primary legal issues before the Court of Appeal were whether leave to appeal could be granted under section 38(5) of the *Commercial Arbitration Act 1984* (NSW) if a single error of law met the statutory criteria, and if so, whether other questions of law could then be pursued on appeal. Specifically, the Court considered whether the delay in delivering the arbitration award constituted a denial of procedural fairness and a reviewable error of law, and whether the award contained manifest errors on its face. Furthermore, the Court had to determine if resolving the questions raised by these alleged errors would substantially add to the certainty of commercial law, as required by section 38(5)(b)(ii).

The Court of Appeal held that section 38(5) of the *Commercial Arbitration Act 1984* (NSW) requires that *all* questions of law sought to be appealed must satisfy the criteria set out in the section, not just the initial question that grants leave. The Court found that the delay in delivering the award did not amount to a denial of procedural fairness or a manifest error on the face of the award. Consequently, the Court concluded that the grounds for appeal did not meet the threshold for granting leave under section 38(5), as the questions raised would not substantially add to the certainty of commercial law.

The application for leave to appeal was dismissed with costs.