Final means final: Court of Appeal strikes down perpetual amendment clause

The Background

A dispute arose from a share purchase agreement (the SPA), whereby Mr Gluck sold a 50% shareholding in a company to Evertop, with Mr Endzweig acting as guarantor. The arrangements were such that Mr Endzweig was effectively the buyer. The dispute centred around whether reductions should be made to the purchase price under a provision in the SPA which allowed for such a reduction if profits fell below a certain level (the Price Reduction Clause).  

Mr Endzweig claimed that the Price Reduction Clause applied and there should be a reduction in the purchase price. Mr Gluck disagreed. To resolve the dispute, the parties entered into an arbitration agreement appointing Rabbis of the Beth Din (an orthodox Jewish court for civil and financial disputes) as arbitrators. 

The arbitration agreement contained two key provisions: 

(1) it stated that the agreement “will be valid according to the Arbitration Act”; and
(2) it gave the tribunal authority “to amend and add to and change the Judgment they have given at any time” (the Amendment Clause).

The arbitration resulted in an award in May 2024 that would require Evertop and Mr Endzweig to pay a reduced sum to Mr Gluck. Evertop and Mr Endzweig alleged that this award included calculation errors and in June 2024, the tribunal stated that it would clarify the award. By October 2024, no clarification had been provided, so Mr Gluck sought and obtained an order to enforce the original award in the English court under section 66 of the AA. 

This decision arose out of an appeal by Mr Gluck against an order to set aside the enforcement order. By this point, the tribunal had issued a new award, reducing the sum payable to Mr Gluck by over £200,000.

Finality of the award is necessary

The Court of Appeal allowed the appeal and restored the original enforcement order – enforcing the first award despite the second award purporting to reduce the quantum.

The appeal turned on whether section 57 of the AA had been disapplied. Section 57 of the AA is a default provision that applies if the parties do not agree otherwise. It provides that any request for correction to an arbitral award has to be made within 28 days of the award (subject to certain extensions) and that the tribunal then has 28 days to make the amendment. 

Mr Gluck argued that section 57 of the AA did apply and that since the tribunal’s amendment was after the 28-day deadline, the first award was final and enforceable. Mr Endzweig’s position was that section 57 of the AA had been disapplied by the Amendment Clause so there was no deadline to request a correction to the award. 

The Court of Appeal rejected Mr Endzweig’s position. It held that an arbitration agreement cannot allow awards to be amended indefinitely. If arbitrators could change awards “at any time”, no award would ever become final or enforceable. 

The Court of Appeal rejected the High Court’s suggestion that arbitrators could resolve the problem of indefinite amendments by declaring themselves functus officio (i.e. decide when their role in deciding the award had come to an end). This was because, if the arbitrators could review an award at any time, they could also conceivably review their decision that they were functus officio. 

The Amendment Clause was found to be “repugnant” to the arbitration agreement itself. The parties’ agreement was to have disputes “finally resolved by arbitration”. A clause preventing finality was inconsistent with the overall purpose of the arbitration. The Court of Appeal therefore relied upon the principle that clauses which are inconsistent or repugnant to the purpose of the contract are void. 

With the Amendment Clause voided, the default 28-day time limits under section 57 of the AA applied. Since the relevant time limit had not been complied with, the first award was enforceable on its terms.

Commentary

This interesting and unusual case shows that, while party autonomy is fundamental to arbitration, it has its limits. Parties cannot agree to provisions that would prevent awards from ever becoming final because this contradicts one of the basic principles of arbitration that it delivers a final outcome to a dispute. Without a clear endpoint, there is no finality, and enforcement becomes impossible. 

It remains possible for parties to amend the short time limit in section 57 of the AA (replicated in many sets of arbitration rules) for an application for correction of an award. If parties wish to provide for longer periods, there should be clear drafting and defined time limits. 

Judgment: Gluck v Endzweig & Anor [2026] EWCA Civ 145