Gluck v Endzweig & Anor

Factual and Procedural Background

The Appellant sold a 50% shareholding in Company A to Company B under a Share Purchase Agreement (SPA) dated June 2019. The guarantor of the purchase price was a third party. The SPA contained an arbitration clause referring disputes to a Religious Tribunal. A subsequent arbitration agreement appointed two members of the Religious Tribunal as arbitrators and included a clause permitting the Religious Tribunal to "amend and add to and change the Judgement they have given, at any time" (the "unlimited amendment clause"), and stated the deed "will be valid according to the Arbitration Act".

A dispute arose about reductions to deferred instalments under a Purchase Price Mechanism in schedule 7 of the SPA. The Religious Tribunal issued a partial award (First Award) on 15 March 2024 and a further award (Second Award) on 28 May 2024 directing payment to the Appellant of £459,228.03. After communications between the Religious Tribunal and representatives of Company B (and others), the Religious Tribunal indicated it was reviewing figures and later issued an amended award on 10 February 2025 (Third Award) reducing the sum to £258,974.85.

The Appellant made a without-notice application under section 66 of the Arbitration Act 1996 for permission to enforce the Second Award; permission was granted by Judge Pelling on 8 November 2024. Company B and the guarantor applied to set aside that order; Judge Keyser set aside the enforcement order on 21 February 2025, holding that the parties had conferred on the Religious Tribunal a power to amend awards "at any time" which was within the scope of section 57(1) of the Arbitration Act. The Appellant appealed; the appellate court restored Judge Pelling's order.

Legal Issues Presented

1. Whether an arbitration agreement permitting the tribunal to "amend and add to and change" an award "at any time" is compatible with the Arbitration Act 1996, in particular section 57(1) (powers to correct or make an additional award) and section 58(1) (finality of awards).
2. Whether any part of the arbitration agreement (notably the unlimited amendment clause) is repugnant to the arbitration agreement as a whole so that that part should be rejected and the remainder given effect.
3. Whether Judge Keyser was correct to set aside the enforcement order made by Judge Pelling in light of the tribunal's asserted review and the parties' conduct concerning disclosure and review requests.

Arguments of the Parties

Appellant's Arguments (Attorney Binney)

• The judge's construction would permit endless amendments to awards, making enforcement impossible; that cannot be the parties' intention where they expressly sought an arbitration under the Arbitration Act that would produce enforceable awards.
• Three remedial constructions were proposed: treat the unlimited clause as outside s57, construe it consistent with s57 limits, or reject the repugnant term; the judge's interpretation was wrong.

Appellees' Arguments (Attorney Randall)

• Parties may agree a clause wider than s57 giving a broad power of review without time limits; party autonomy should be respected unless mandatory Act provisions are breached.
• If the clause is incompatible with the Arbitration Act, the agreement may operate as a contract outside the Act and awards would be enforceable at common law; finality arises when the tribunal confirms it has exhausted jurisdiction.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began from the statutory objectives of the Arbitration Act: party autonomy balanced with finality and limited court intervention (sections 1 and 4). The arbitration agreement and SPA expressed the parties' intention that the dispute be resolved under the Arbitration Act.

The central difficulty was the unlimited amendment clause permitting amendment "at any time". The court held that s58(1)'s saving phrase "unless otherwise agreed" does not permit parties to agree that an award will never become final; an arbitration agreement must contemplate a binding decision. If awards could be amended at any time, there would be no point when enforcement under section 66 could be sought.

The court considered whether the unlimited amendment clause could be read down (e.g. limited to interim judgments) or saved by the default correction/addition regime in section 57. The court rejected those readings: the clause is not limited to interim awards on its wording; and although s57 is non-mandatory and permits parties to agree powers to correct or make additional awards, the clause's indefinite time horizon ("at any time") meant there was no agreed time limit and the s57 default time limits (28/56 days) could not be implied consistently.

Applying the contractual principle on repugnant clauses (Chitty), the court held the unlimited amendment clause was repugnant to the parties' evident bargain to have a final and enforceable arbitration under the Arbitration Act. Accordingly that clause must be rejected so that the remainder of the arbitration agreement (including agreement to arbitration under the Act) stands, bringing the default s57 regime into play.

It was common ground that the default s57 time limits had not been complied with in respect of the Second Award. Therefore the Second Award was final and enforceable when Judge Pelling granted permission under section 66, and Judge Keyser erred in setting aside that enforcement on the ground that the Religious Tribunal had an unfettered power to amend "at any time".

Holding and Implications

APPEAL ALLOWED; THE ORDER OF JUDGE PELLING GRANTING PERMISSION TO ENFORCE THE SECOND AWARD IS RESTORED.

Consequences for the parties: the court held the unlimited amendment clause repugnant and not enforceable; the default correction/addition regime of section 57 applies but its time limits were not met, rendering the Second Award final and enforceable. The setting aside of enforcement by Judge Keyser was therefore overturned and the enforcement order reinstated. The opinion records no broader novel precedent beyond applying established principles of arbitration finality, party autonomy, and contractual construction.