The P v D judgment and the delicate balance in cross-examination: new developments six years on

This case comment examines P v D ([2019] EWHC 1277 (Comm)), in which the English Commercial Court set aside an arbitral award under section 68(2)(a) of the Arbitration Act 1996—on the ground that the tribunal had breached its duty of procedural fairness under section 33—by making adverse credibility findings against a witness who had not been cross-examined on the core issue in dispute. The comment then traces how three subsequent decisions—Obrascon (2019), Tenke Fungurume (2021), and BPY v MXV (2023)—have treated the precedent, finding a consistent pattern of factual distinction rather than legal rejection. Most significantly, BPY v MXV explicitly endorsed the fairness principle as uncontroversial. The comment concludes that P v D is emerging as binding good law, establishing that arbitrators seated in England breach their section 33 duty—with the consequence of annulment under section 68—when they base adverse credibility findings on matters never put to the witness in cross-examination, a principle with potential reach beyond UK-seated proceedings.