Arbitration - Should courts get involved?

AuthorRoy Goode
PositionEmeritus Professor of Law in the University of Oxford, Emeritus Fellow of St. John's College, Oxford
The relationship between arbitral tribunals and courts
is one that has generated intense debate around the world.
Courts have a fourfold role in the arbitral process: to prevent
a party who has agreed to arbitrate from pursuing his claim
by litigation; to provide judicial assistance to arbitral
tribunals and the parties in the course of a reference; to
exercise powers of review of arbitral awards in defined
conditions; and to provide the necessary machinery for the
enforcement of awards. This paper is concerned solely with
the third of these, the power of judicial review. I should like
in particular to explore the differences in approach between
the Irish Arbitration statutes, and in particular the Arbitration
(International Commercial) Act, 1998 (referred to hereafter
as the Arbitration Act, 1998), and the English Arbitration
Act, 1996.1 My paper is limited to commercial arbitration;
consumer disputes raise distinct policy questions which I
shall not address.
For a long time English courts, as well as courts
overseas, were quite hostile to the arbitration process, seeing
33 Judicial Studies Institute Journal [2:2
1 Technically the Arbitration Act, 1996 is a UK statute (Scotland did not
acquire a separate Parliament until after the enactment and
implementation of the Scotland Act, 1998). However it does not apply to
Scotland, for which separate legislation has been enacted adopting the
UNCITRAL Model Law on International Commercial Arbitration. So to
avoid confusion the 1996 Act is referred to hereafter as the English Act.
* Emeritus Professor of Law in the University of Oxford, Emeritus
Fellow of St. John’s College, Oxford. This is a slightly revised version of
a paper presented at the Irish Annual Circuit Court Conference at Adare
on 13th April 2002.
it as an attempt to oust their jurisdiction. In England in
particular, right up to the enactment of the Arbitration Act,
1979, the powers of judicial intervention were both wide and
extensively used. If a party ignored the arbitration agreement,
brought proceedings and applied for summary judgment on
the ground that there was no defence to the claim, the court
could grant the application and disregard the arbitration
clause on the ground that since there was no arguable defence
there was no dispute to be arbitrated! Under the Arbitration
Act, 1950 a party could at any time request the arbitrator to
state a special case asking for a ruling on a point of law
arising in the arbitration, a process causing a good deal of
delay and expense, and it was not competent to the parties to
exclude the case stated procedure by the terms of their
agreement. The High Court had power, after an award, to
remit to the reconsideration of the arbitrator any matters the
subject of the reference or to set aside the award for
“misconduct” by the arbitrator (a term far broader in meaning
than its popular significance) or error of law on the face of
the award.
The Arbitration Act, 1979 was the first serious
response to the concern that the breadth of judicial
intervention might be adversely affecting London’s position
as a leading centre for international commercial arbitration.
The case stated procedure was abolished, appeals required
leave of the High Court in the absence of consent by all the
parties, and the parties were given power, with certain
exceptions, to exclude appeals on a point of law. Yet this was
not enough. First, the 1979 Act did not affect the court’s
power to displace the arbitration mechanism where it
considered there was no arguable defence to the claim.
Secondly, the Act was in my view fundamentally flawed
because of its entirely open-ended statutory provision that the
High Court was not to grant leave to appeal “unless it
considers that, having regard to all the circumstances, the
determination of the question of law concerned could
2002] Arbitration 34

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