Lord Saville: 15 Years of the English Arbitration Act

The UKSC Blog has
highlighted
a speech by Lord Saville, “Reflections on the English Arbitration Act 1996 after fifteen years”. Lord
Saville, who was intimately connected with the drafting of the English Act,
makes several interesting points.

He deals with the narrow right of appeal on
questions of law u/s 69 of the English Act. In does so, he addresses the
argument that having a narrow right of appeal hinders the orderly development
of principles of commercial law. Hence (the argument goes), there ought to be a
wide review of an arbitrator’s decision on pure questions of law. Lord Saville
addresses the argument thus: “The fear
has been expressed that by this means, English commercial law runs the risk of
atrophying and losing its world-wide reputation as about the most developed
system of laws governing international trade and commerce. There is undoubtedly
force in this point, at least from the point of view of the development of
English commercial law. But from the point of view of the majority of those using
arbitration, I believe things look rather different. Commercial entities do not
generally choose to resolve their disputes by arbitrating in order, at of
course their expense and with added delay, to contribute to the body of English
commercial law. They have chosen arbitration, as Michael Moser put it, because
they do not want to go to court. I do find some difficulty (as did Lord Devlin
many years ago) in accepting the proposition that those seeking a resolution of
their disputes by arbitration rather than litigation should somehow be obliged nonetheless
to finance the development of English commercial law by dragging their dispute from
their chosen tribunal to the court…

Next, on the
issue of independence and impartiality of arbitrators, Lord Saville questions “with great temerity… the need for
independence as well as impartiality…
” Undoubtedly, he says, a judicial
officer and an arbitrator must be impartial and must have the appearance of
impartiality. Given this, what is the additional need for “independence”? “Independence and impartiality are
fine-sounding words. They form a phrase that sounds good. It has a ringing
tone. But to my mind the phrase creates serious problems, because it contains
two words where one would do on its own. The object is to ensure that arbitrators
act fairly and even-handedly between the parties. The object is met by requiring
impartiality and the appearance of impartiality. Independence adds nothing of
value…
” 

Lord Saville also deals with the issue of whether
arbitrators should have the power of granting
ex parte interim measures. He is convinced that they should not. On
consolidation of connected arbitrations, he is of the view that consolidation
is dealt with best by means of appropriate contractual drafting and not be
means of external legal imposition. He also touches on issues of privacy and
confidentiality. The text of the speech is
available here.

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Mihir Naniwadekar

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