In a judgment handed down 30 January 2026, the Commercial Court (Trower J) determined four threshold issues concerning an application by the Republic of India under section 45 Arbitration Act 1996 in relation to an English-seated investment treaty arbitration brought by Mauritian companies. The court considered whether the statutory gateway and jurisdictional constraints were satisfied so that the application could (in principle) proceed.
The section 45 question India wishes the court to determine is framed as a point about party representation. Whether the tribunal is required to apply Mauritian law (and only Mauritian law) to decide who has authority to instruct lawyers for the Mauritian claimant companies. The dispute over representation arose after the appointment in Mauritius of an administrator (Mr Thacoor). The arbitral tribunal, in procedural orders (PO6/PO7), declined (for the purposes of the arbitration) to recognise as the companies’ representative.
Issue 1 (consent under s.45(2)) addressed whether the section 45 application failed because the “Interveners” (the companies acting on directors’ instructions) had not consented and the tribunal had not given permission. The court held that, for s.45(2)(a), the relevant parties to the arbitration are India and the Mauritian companies. Questions about who can give instructions for the companies are distinct from party identity. The tribunal’s PO6/PO7 did not of themselves mean that the Interveners’ consent was required for the companies to be taken to have agreed.
Issues 2 and 3 addressed whether the application was an impermissible attempt to challenge the tribunal’s procedural orders, and whether section 45 is confined to prospective questions only. The court rejected both objections. It held the court has jurisdiction to determine a question of English law under section 45 even where it bears on a procedural order that is binding unless revisited by the tribunal. The court is not being asked to overturn PO6/PO7. Those orders remain effective unless and until the tribunal reconsiders them.
Issue 4 addressed whether section 45 was “ousted” because the arbitration’s substantive governing law is international law and because the tribunal has discretion under UNCITRAL Rules/section 46(3). The court held it was not: whatever the substantive law, procedural questions are ordinarily governed by the law of the seat. Section 45 is not excluded simply because the merits are governed by international law.
The judgment provides careful guidance on the scope of section 45 in modern international arbitration: (i) it separates questions of corporate authority/representation from party identity for s.45(2) purposes; (ii) it confirms section 45 is not automatically barred merely because the question relates to an existing procedural order; and (iii) it reinforces the seat-based approach to procedural law in UNCITRAL arbitrations.
Barnaby Hope acted for the Defendants, instructed by Raj Law.
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