1. Introduction
The decision in Indus Powertech Inc v Echjay Industries Private Limited [2026] EWHC 827 (Comm) addresses a challenge to an ICC arbitral award under section 68 of the Arbitration Act 1996. While reaffirming the high threshold and pro‑arbitration approach of the English courts, the judgment is an important illustration of how the English courts analyse alleged serious irregularities under section 68 , in particular where it is said that a tribunal failed to address key issues relevant to damages.
2. The Facts
The dispute arose out of a Master Supply Agreement (MSA) and subsequent Memorandum of Understanding between Indus Powertech Inc (a US-based sourcing company) and Echjay Industries Pvt Ltd (an Indian manufacturer of forged components).
Under the MSA, Echjay acted as the exclusive supplier of forged components to Indus. The agreement itself was governed by Indian law, with disputes subject to ICC arbitration seated in London.
The dispute emerged after Indus allegedly breached a non-compete / non-solicitation clause by sourcing components from a third-party supplier (RKFL).
The arbitral tribunal found Indus in breach of the MSA, awarded Echjay approx. USD 4,13 million in damages for loss of profit and limited the damages period to two years, despite a longer claim.
Indus challenged the award under section 68 (2) (d), alleging that the tribunal failed to address two essential causation issues:
- Whether Echjay had sufficient manufacturing capacity to produce certain components (Shafts 1 and 2).
- Whether required design and validation processes for certain gear components could be completed within the damages period.
Indus argued that these omissions constituted a serious irregularity causing substantial injustice.
3. The Legal Issues
(a) The Section 68 Framework
The court reaffirmed that section 68 is designed to address extreme cases of procedural unfairness, not errors of fact or law.
To succeed under section 68 (2) (d), an applicant must establish:
- The existence of an “issue” (not merely an argument).
- That the issue was put to the tribunal.
- That the tribunal failed to deal with it.
- That this failure caused substantial injustice.
The court emphasised the high threshold for intervention, the distinction between issues and arguments or evidential points and that the court must read awards fairly and commercially, not hypercritically.
(b) What Counts as an “Issue”?
A central aspect of the decision was clarifying the meaning of an “issue.”
The court held that an issue is a substantive question essential to the outcome, not every argument or evidential contention and that even sub-issues can qualify if they are critical to the result. However, matters such as weight of evidence or reasoning steps are not “issues.”
(c) Did the Tribunal Fail to Address Capacity?
Indus argued that Echjay lacked manufacturing capacity and that the tribunal failed to address this as a distinct issue. The court therefore undertook a detailed analysis of the award and the arbitral record to determine whether, on a fair and commercial reading, that issue had in fact been dealt with.
Although the award carefully summarised the parties’ submissions on capacity, the court found that the tribunal’s analysis section only addressed capacity explicitly in relation to Shaft 3 and was entirely silent on capacity for Shafts 1 and 2. Reading the award in a fair and commercial way, the judge examined whether the tribunal’s reasoning, which expressly addressed capacity in relation to Shaft 3 but not in terms to Shafts 1 and 2, revealed a gap in the decision-making or whether the issue had been dealt with implicitly.
The court then considered whether any failure to address the capacity issue, if established, would meet the high threshold for serious irregularity under section 68(2)(d) and justify remission.
(d) No Impermissible Inference of Omission
The court confirmed that silence or brevity is not automatically a failure to deal with an issue: tribunals are not required to respond to every argument in detail and may dispose of several issues in a composite way. At the same time, the judgment reiterates that parties must not be left guessing whether a crucial issue has been addressed. It is not sufficient to argue that a tribunal must have decided a point simply because of the result; there must be something in the award from which a decision can fairly be inferred.
(e) Substantial Injustice
The court reiterated that, even where a failure to deal with an issue is established, the applicant must still show “substantial injustice”: namely that its position on the issue was reasonably arguable and that, had the tribunal decided it in the applicant’s favour, the outcome of the arbitration might well have been different. The court reiterated that, if a failure to deal with an essential issue were established, the applicant would need to show that its position was reasonably arguable and that the outcome might have been different.
(f) Lead Time / Gear Components
Indus advanced a parallel argument in relation to the lead time and validation process for the gear rings and pinions, contending that this too was an essential issue which the tribunal had failed to address. The court therefore examined whether this question constituted an “issue” within the meaning of section 68(2)(d), whether it had been put to the tribunal, and whether the tribunal’s reasoning demonstrated that it had been addressed.
4. Conclusion
The decision in Indus v Echjay underscores that section 68 is not an appeal on the merits: it is aimed at correcting serious due‑process failures, not re‑arguing facts or law. At the same time, the case is a reminder that where a tribunal omits to decide essential issues – here, capacity and lead time with a potentially decisive impact on quantum – the English courts will intervene and remit those issues, even under a pro‑arbitration and high‑threshold framework.