Statutes

AuthorMichael Kerr.
Publication Date01 Jan 1980
DOIhttp://doi.org/10.1111/j.1468-2230.1980.tb01582.x
STATUTES
THE
ARBITRATION ACT
1979
Zntroduction
THIS
Act, which came into force
on
August
1,
1979,’
has transformed
the relationship between the courts and arbitrations
in
England and
Wales.2 For well over a century our courts have exercised control over
issues
of
law arising in arbitrations by means
of
the
Special Case
or
‘‘
Case Stated
procedure.s The Act abolishes this and substitutes
for it what may be described as a system
of
filtered appeals on points
of
law. Moreover, in a large number of cases, as discussed below, the
Act permits the parties to contract out
of
any appeal by means of
exclusion agreements,” with the result that arbitral tribunals are
then wholly unfettered in their decisions except in relation to allega-
tions of
misconduct,” which remain unaffected
by
the Act.’ It also
contains provisions designed
to
simplify the procedure
in
arbitrations
and the appointment and constitution of arbitral tribunals.
The Act has rightly been described as a “pragmatic com-
promise.” Before discussing its provisions, and in order to explain
the balance which it strikes between conflicting policies about the
“pros” and “cons”
of
control by the courts over legal issues in
arbitrations, it
is
necessary shortly
to
refer to the Special Case proce-
dure and to some recent developments which provided the impetus
for this legislation.
The Special Case procedure has no counterpart in the United States
or in civil law systems, and it has always been recognised that it has
advantages and disadvantages.’ It is more popular with judges, and to
some extent with practitioners, than with businessmen and arbitral
organisations. Its main advantage, first and foremost, is that it ensures
that arbitrators apply the law
of
the land and not their own private
notions
of
justice;
so
much
so
that any agreement excluding resort
to
the
courts has always been regarded as contrary to public policy and
1
Arbitration Act 1979 (Commencement) Order;
S.I.
1979 No. 750. It does not
apply to arbitrations commenced before this date
y~less
the parties
so
agree
in
writing:
ibid.,
S.
2.
But
it applies
to
preexisting exclusion agreements
”:
see
s.
3 (2)
of
the Act and the text below.
For
commencement
of
an arbitration
see Limitation Act 1939
S.
27,
Neu Agrex S.A.
v.
Baltic Shipping
Co.
Ltd.
[
19761
Q.B.
933 and
Surrendra Overseas
Lrd.
v.
Government
of
Sri Lanku
[1977] 1
W.L.R.
565 and
s.
7 (2)
of
the present Act.
2
The Act does
not
apply to Scotland
or
Northern Ireland:
s.
8
(4).
See
also
note 7 below
for
a comparison with Scots law.
3
Under
s.
21
of
the Arbitration Act 1950, which had rc-enacted provisions going
back
to
the Common Law Procedure Act 1854 and is
repealed
by
s.
1 (1)
of
the Ad.
4
Arbitration Act 1950,
s.
23.
5
Christopher Staughton,
Q.C.,
(1979) 129 N.L.J.
921.
6
See “The English Courts and Arbitration
by the author
in
International
Commercial Arbitration,
1974/75, Oceana Publications Inc. 199 at pp. 214424.
The
present article will appear in a modified
form
as a Supplement
in
a new edition
this
year.
45
-
.___

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