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Construction Disputes: Avoidance and Resolution

A Specimen Chapter

Whittles Publishing 1997

Arbitration - G. M. Beresford Hartwell

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Arbitration*1 is unique as a method of dispute closure. It does not use the Courts or the methods of the legal system. Unlike other alternatives to the Court, it is final in disposing of the dispute*2.

Recognised and enforceable at law, it is nevertheless not a process at law, but a private arrangement between the disputing parties and their chosen arbitrator, who may be a friend, a peer in their own field of business, a lawyer or an expert in the field of the dispute.

It may be helpful to begin this chapter with a definition from the Shorter Oxford English Dictionary:

1. Uncontrolled decision 1651.
2. The settlement of a matter at issue by one to whom the parties agree to refer their claims in order to obtain an equitable decision 1634.

It is the second meaning which concerns us here. The keyword in the definition is "agree".

The parties to an arbitration agree to refer their differences to someone of their own choice, whom they appoint as their arbitrator. In most countries, there is legislation which enables the decision of an arbitrator to be enforced more or less in the same way as a judgement of the Court, but that should not be allowed to obscure the fact that arbitration takes place only by agreement and, ultimately, becomes enforceable because of the promises exchanged in the agreement to arbitrate.

The legislation for England, Wales and Northern Ireland, the Arbitration Act 1996, provides for arbitration agreements in writing*3. That is not to say that oral arbitration agreements are in any way invalid. It is merely that the legislation applies only to written agreements. The award of an arbitrator whose appointment was under a purely oral agreement would be enforceable, but only if the agreement and the circumstances of the award were fully proved as a contract*4; the legislation simplifies that task for what it treats as written agreements.

The concept of Arbitration is perfectly simple. Two (or more) parties who are unable to agree upon a decision appoint another of their own choice to make their decision for them and agree to be bound by it. That is a simple contractual agreement. There is no fixed procedure; arbitrations range from a simple "look-sniff" quality decision made, perhaps in a moment, by an arbitrator who is a trader in beans, to a very formal process between buyers and sellers of different nationalities, conducted in a neutral country by an arbitral tribunal which may be composed of professionals of different expertise, commerce, technology or law, and themselves of different nationality.

The only absolute requirements are that, for a reference to arbitration to bind the parties, first there must be no doubt that they all have agreed to it*5, then there must be no doubt about the authority conferred on the arbitrator by the parties and finally, the reference must be conducted openly and fairly.

It is this last requirement, that a reference to arbitration must be conducted openly and fairly, that is the moral and practical justification for arbitration. It is also one reason why arbitration is not universally popular; it tends to treat all parties equally, rather than defer to their negotiating power, as do other ADR processes, and if properly conducted, does not allow the same scope for forensic manoeuvring and the penalties of high costs, as sometimes can be found in proceedings in the Courts.

The parties to an arbitration agreement pledge themselves to a fair determination of their disputes and that often provides comfort in commercial dealing, as well as being an earnest of an intention to deal fairly with one another.

The requirement of fair and open arbitration is sometimes described as "Natural Justice". "Natural Justice" is sometimes thought of as if it were a legal term of art, but it is not. It might more correctly be called "Intuitive Justice" and is customarily summarised as requiring the arbitrator to hear both sides of the dispute and forbidding any one to act as a judge in his or her own cause.

In practice, there is a further qualification. For complete openness, not only must the arbitrator hear both sides, each party must also have an opportunity of seeing what the other has said and of dealing with it. That means that correspondence and documents, seen by the arbitrator, have to be seen by both parties, while any oral hearing is conducted openly with both parties present*6. It is suggested that Natural Justice is no more and no less than common-sense*7.

Although Arbitration is a contractual and not a legal process (in the sense that it is not a process of the Courts or of a subordinate tribunal of the State), like many contractual matters it is subject to a measure of legal regulation. In England and Wales (and in Northern Ireland), that regulation is now set out in the Arbitration Act 1996. In Scotland, where there has been rather less involvement of the Courts in arbitration*8, the relevant statutes are the Arbitration Act 1894 , the Administration of Justice (Scotland) Act 1972 and the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 - Section 66 and part of Schedule 7*9. The latter makes available in Scotland an internationally developed system of arbitration law, the UNCITRAL*10 Model Law.

Arbitration is the supreme method, perhaps the only effective method for determining international disputes, that is to say disputes between nationals of different countries. That is because, although foreign judgements to be effective outside the country in which they are made, have either to attract enforcement as a matter of policy and the comity of nations (difficult to argue in a private dispute) or to be enforceable under some reciprocal judgement treaty; not many nations have effective judgement treaties.

Foreign arbitration awards, however, are the subject of the 1958 New York Convention on the Enforcement of Foreign Arbitral Awards , which provides for arbitration agreements to prevail over actions in the Court and for arbitral awards to be enforced in over one hundred countries throughout the world, including the major trading nations.

The arbitrator or arbitrators have to be paid by the parties for performing their service; the Courts, at least at the present time, are not fully paid for. The commercial advantage of arbitration lies first in the use that can be made of an arbitrator or arbitrators of appropriate skill and understanding, to do away with a great deal of unnecessary time and expense, and second in the fact that there is no need for a party to engage specialist representatives to argue the issues before an arbitrator. (Although there may be references in which the skills of, for example, counsel are especially valuable. Even then, it is not necessary to adopt the full procedure one would use in a Court.)

There is a danger, however, that lack of care in the early stages of a reference to arbitration may result in the potential savings being lost. Arbitrators have the duty of controlling the costs of their procedures, but some cooperation from at least one of the parties may be necessary for the best results to be obtained.

The Practice of Arbitration

Arbitration may be provided for in one of two ways. By far the most common basis for arbitration is a clause, within a contract between two parties, which provides that differences between them will be referred to a sole arbitrator or to an arbitral tribunal of more than one person, generally three. If a decision is sought, there are obvious advantages in having an odd number in the tribunal. It is perfectly practical, however, for any two persons, or companies, or any other kind of group, in conflict, whether or not they are in a contractual relationship, to agree to have their differences determined by arbitration and, once the agreement is made, they will be bound by it. It needs to be an agreement in writing, but we have seen that writing is defined widely, at least in the English legislation.

Commonly, arbitration clauses and agreements provide for the parties to agree upon an arbitrator. If agreement cannot be achieved, then it is usual for an appointing body to be designated. In many UK construction contracts (and manufacturing contracts), that is likely to be one of the major technical institutions*11. In overseas contracts, an administering authority, such as the ICC Court of Arbitration in Paris, or the London Court of International Arbitration may be named. "Court" is perhaps an unfortunate misnomer. Some of these bodies may have some state connections and some not. The London Court of International Arbitration is in fact a private company, with contacts in a world-wide arbitral community.

The precise method whereby one party, usually the party who has made a claim that has not been met, invokes the arbitration provision of a contract, is likely to be set out in the contract itself (or in a set of arbitration rules, if rules have been adopted in the contract). Where there is no specific arrangement, the Claimant may write to the other party, the Respondent, simply stating what is claimed, giving notice that, as there has been no satisfactory answer, a dispute exists and requiring the Respondent to go to arbitration. The Claimant may suggest the name of one or more arbitrators, if a sole arbitrator is to be chosen. The Claimant may nominate his arbitrator if a three-arbitrator tribunal is required. Ideally, the Claimant should give consideration to inviting the Respondent to discuss a tribunal that will suit both of them. Three arbitrators of different skills may well be the best team to approach some complex problems. Unfortunately, however, relationships are sometimes allowed to sour, so that such cooperation becomes impracticable.

Even if there is no contract, as where there is a dispute about a tortious issue, or where a contract has no arbitration agreement, the Claimant still may suggest arbitration by giving notice of the dispute and offering to go to arbitration. If the offer is accepted, arbitration may proceed on the basis of a specific and new agreement. If it is not, then an action may have to be commenced in the Court, but there may be a possibility of suggesting arbitration or some other method of solution during the early stages.

Where there is an appointing authority named in the contract, then the notice may advise the Respondent of the intention of the Claimant to go to that appointing authority. An application for the appointment of an arbitrator usually is made without any specific suggestion on the part of the Claimant, but there is no reason, in principle, why a Claimant should not put forward the name of a putative arbitrator, although the choice of whether or not to appoint that person remains in the discretion of the appointer. In such an instance, the appointer, having ascertained that the nominee is prepared to act, would advise the Respondent of an intention to make the appointment, so that the Respondent would have an opportunity to object or suggest an alternative.

It is not uncommon for so-called questions of jurisdiction to arise at this stage. In this context, jurisdiction means no more than the entitlement of an arbitrator to act. There may be a question about the contract, or about the arbitration provision itself, that could lead to a conclusion, either that there was no arbitration agreement or that there are preconditions that have not been satisfied.

In England*12, the Arbitration Act 1996 provides for an arbitrator to deal with questions of his own jurisdiction, but an arbitrator's powers are somewhat more clear that those of an appointer. Consequently, most appointers do no more than satisfy themselves that there is some prima facie basis for making the appointment, leaving the arbitrator so appointed to make the necessary investigation into his own jurisdiction. That is a necessary course to take, as any other approach might stifle the process at birth, defeating the likely intentions, or what must be presumed to have been the original intentions, of the parties themselves.

To proceed, the arbitrator needs to be satisfied that, at least on the face of it, there is an arbitration agreement of some kind, there are differences between the parties and he has been appointed, either in accordance with the arrangements set out in the agreement or else, if there are no clear arrangements, in the manner set out in the Arbitration Act 1996*13.

Often nothing complicated is required; all that is needed is an agreement to invite the arbitrator to act and a letter by one or other party, on behalf of both, giving the invitation. That in itself serves the purpose both of an arbitration agreement and, if accepted, the arbitrator's appointment. The letter may say no more than "Dear Mr Jones, There are differences between ourselves and Messrs. Company Ltd. We have agreed that you should be asked to accept appointment as Arbitrator to determine those differences and would be grateful if you would indicate your terms for doing so."

Once the terms are agreed, the reference is under way. Once appointed, or perhaps as a condition of his acceptance, the arbitrator will decide upon a reasonably practical procedure for the reference. The parties are at liberty to make their own agreement about this, but even so, they would be well advised to consider what the arbitrator has to say. He or she is likely to be an expert in the subject matter of the dispute, as well as a specialist in the resolution of disputes. It is probable, therefore, that the arbitrator may be able to guide the parties along the most efficient practicable route to a fair result.

If the parties, or their professional advisers, try to compel the arbitrator to adopt some unsuitable course, they may run the risk of losing the services of that arbitrator*14. They certainly will run the risk of a penalty as to costs. *15

Once the Arbitrator has been appointed, it will be necessary first for him to know what the dispute is about and then to be given the information he needs to enable him to resolve it. That may be very simply done. It may require no more than a single letter from each party, setting out that party's case, following which the arbitrator can decide and write his award.

More commonly, each party may prepare a more or less formal statement setting out the facts that party asserts together with the relief sought and the reasons, which may be factual or legal, why the party considers that relief to be justified. Relief may be an award that either sums found due or damages be paid, that an extension of time be given (that often also involves a payment); it may also be in the form of a declaration or, in appropriate cases, an award of specific performance*16 (the handing over of disputed goods, for example). In some major cases, it may be appropriate for the parties to submit full statements of case, similar to those used in Court proceedings, but it should be emphasised that no special form is required and that the method of the Court often will not be well suited to the task of the Arbitrator.

Several systems of Rules provide for the exchange of statements in terms generally as follows: "Within 21 days, the Claimant shall send to the Arbitrator and to the other parties a statement of Points of Claim setting out in sufficient detail the facts and contentions of law on which he relies and the relief that he claims." That may be followed by a statement of Points of Defence and any Counterclaim and a further round of Defence to Counterclaim and reply.

The time allowed may vary, some international rules allow longer periods some rules shorter periods. It may depend upon the system of Rules it may depend upon the nature of the matters in issue. What is necessary is that a fair opportunity be given. Often the submitted statements of case will be accompanied by copies of the documents upon which a party relies (and particularly those that are mentioned in the statements). They may also be accompanied by witness statements of principal witnesses. Sometimes, the original application for arbitration may be in the form of a statement of case, with all its attachments.

There is now no right of discovery of documents in English arbitration*17 but the arbitrator has power*18 to ask for documents he needs or to which a party has drawn attention.

It should be noted that the arbitrator in an English reference has power to control the recoverable costs of a reference*19. He or she will take into account the most appropriate method of conducting the reference in making any decision about a limit to the recoverable costs.

Obviously, parties should be particularly careful to make sure that it is their own point of view, and not merely that of any professional team they may have employed, which the arbitrator has in mind when considering any possible limits. Otherwise, there would be a possibility that the professional teams for each side, both anxious to do as complete a job as possible, might agree among themselves upon amounts which would not be appropriate.

It is sometimes though that arbitration procedure should imitate that of the Courts. That is not right and there is no legal or logical justification for such a view. Indeed, there is a clear justification for the view that arbitration procedure should not mimic that of the Courts.

The distinguished author Mr Stewart Boyd QC*20, in one of the Bernstein Lectures of 1989, suggested that, if a member of the public was asked if an arbitrator was entitled to disregard strict rules of law if satisfied hat they would lead to a wholly unjust result, his answer would be that this was the whole purpose of going to arbitration.

Commenting on this proposition, Mr Fali Nariman, a distinguished senior lawyer and President of the World's leading arbitral association, the International Council on Commercial Arbitration (ICCA), observed*21 "The general feeling is that, in arbitration, devotion to law is less admired by the public that a willingness to strain it."

That must be right and, although it applies also to the arbitrator's substantive decisions, it applies with particular force to decisions about how to proceed.

Now, in a brief overview, would not be the time to discuss the entire range of options open to the arbitrators and the parties in a reference to arbitration, even if to define such a range were possible. It is not possible to set limits to the possibilities. Provided the procedure is fair and open, and compliant with the mandatory rules of the place where the arbitration is held*22, there are no limits to what may be done.

At one extreme, the procedure may not merely approximate to the proceedings of a court but may go beyond that, particularly where both parties are anxious to canvass aspects which ordinarily would be thought of peripheral relevance in the Court. Such references arise where the parties are peculiarly embittered and wish to thrash out, before a sympathetic third party, every detail of what has gone between them. It is not the most efficient way of resolving issues, but the parties may have decided that the expense of a complete catharsis is justified.

Arbitration can provide that solution if required to do so, in a way that the Court may not, but most arbitrators would wish to be quite satisfied that such a long-drawn out process is actually what the parties require. The duty of the arbitrator is to seek an efficient answer to the parties' problems. Unfortunately, these "theatrical" arbitrations are what sometimes attract attention and criticism, particularly as they are especially likely to go on to appeal in Court if the parties' bitterness is not fully expunged.

More conventionally, an arbitral hearing, following the exchange of statements, is likely to involve evidence from a small number of witnesses, much of which will be taken from the written material, together with some argument on behalf of the parties, following which the arbitrator will make his or her award.

The hearing will be set down for an agreed date, if possible and, because the arbitrator's task is to deal with the one reference (unlike that of the Court which may have a more or less full daily case list), that date will remain fixed and the reference heard as arranged, other than in wholly exceptional circumstances.

At the other extreme, an arbitration concerning the quality of some product or some construction may involve no more than a letter from each party to the arbitrator (copied, of course to the other party) and a brief visit to the site or a brief examination of a sample, followed by a decision.

Among the other notable choices are two alternatives provided in Civil Engineering practice*23, although not by any means limited to that field.

One is a procedure using experts for each side. They need not be independent experts; provided they adopt a professional approach, they may be appropriately expert members of the staff of one or both parties. In the procedure*24 each party provides the arbitrator with a file or dossier, including a signed report from an expert upon whom that party relies. The arbitrator may then have a look at the subject of the arbitration, perhaps a machine or a building, and arrange for a meeting at which he or she will discuss the reports with the two experts together. The arbitrator's decision, based on that discussion, may deal with the whole reference; if the expert procedure has been restricted to particular issues, then the issues will be decided so that the rest of the reference may continue in the light of the answers found in the expert procedure. It is a process well suited to deal with technical issues and matters of opinion.

Another method encouraged by the Institution of Civil Engineers is the so-called "Short Procedure"*25. There is nothing about this simple procedure which limits it to engineering, or indeed any field. It is eminently well suited to most commercial disputes and is perhaps the most archetypical form of commercial arbitration as understood by the commercial world. Again, the parties deliver a file or dossier to the arbitrator, saying what they seek, and why they consider themselves entitled to the decision they seek. Those dossiers are complete, they may be the only submissions the parties need to make. With them are included any documents or statements to which the parties wish to draw the arbitrator's attention. Within a month the arbitrator fixes a day on which the parties may attend to make oral submissions or to answer the arbitrator's questions. He or she tells the parties whom they should bring*26. Within a month after that, the arbitrator makes his award.

In fact, of course, the arbitrator and the parties may agree to adopt shorter (or longer) intervals as the case may require. There is no reason why an arbitrator should not read brief dossiers one day and hear and decide the issues the next (or that afternoon). Similar procedures are available, and have been customary for years, under many other systems. One noted maritime arbitrator is recalled as having made his enquiry on-board ship and issued his decision orally before the turn of the tide, to allow the ship to sail.

A variant on the Expert procedure, mentioned above, is for the arbitrator to order and attend a test or trial of machinery, in the presence of representatives, perhaps experts, for each side. If the arbitrator oversees the trial and himself endorses the readings taken, for example, then that may eliminate a great deal of oral testimony and argument. If the test or trial is a part of a major reference in which lawyers and others are involved, it may have the merit of enabling them to see the issues more clearly.

The ICE*27 Procedures, mentioned above, incorporate their own provisions for costs. Those provisions may not be appropriate in another context, where the principle behind the Procedure is to be adopted but there has been no prior agreement to the ICE Procedure.

An important distinction between a reference to arbitration and an action in court is that an arbitrator, particularly a technical expert arbitrator, has a duty to use his own skill and experience. That is why an expert has been selected. This aspect of arbitration has been much misunderstood and misinterpreted over the years.

Put simply, there are two commonsense restraints on the use of an arbitrator's knowledge and experience in a reference.

First his appointment is to deal with such issues as the parties decide to put before him; he can explore those, but he cannot enquire into other matters.
Secondly, he should not use his knowledge secretly; if he is going to take his own experience into account, he should say so and say what he has in mind, so that the parties may take it into account in what they say.

Nevertheless, his task is to enquire, where enquiry is necessary*28, at least within those constraints.

After the hearing or hearings, which may be as formal or informal as the parties and the arbitrator agree, the arbitrator will prepare the Award. This is a document which sets out the final decision of the arbitral tribunal, usually saying what payment is due, as a matter of Contract or as restitution, from one party to the other. It will also make directions as to who shall pay the costs of the arbitration; that usually means that the loser pays the common costs of the arbitrator and the venue, together with the winner's costs (or such proportion of them as can be shown to have been reasonable and reasonably incurred). In that way, the party who has been in the right is fully recompensed, although it is in the interests of all concerned to ensure that money is not spent unnecessarily.

Sometimes the decision on costs may be reserved for argument after the substantive decision is made. If the costs cannot be agreed (they are usually agreed between the parties' solicitors or other representatives) then the arbitrator may be asked to determine the correct amount. An award may provide for interest (in jurisdictions where that is permissible).

Generally speaking an Award is enforceable as if it were a judgement of the Court*29. There is a special facility for the enforcement of foreign awards in countries that have subscribed to the New York Convention of 1958 (See the text of the NYC on this site) for the English provision, see the footnote*30. Nevertheless, the successful party may well prefer not to enforce the Award directly but to negotiate further with the other party, to produce some more constructive or creative solution, with the award itself available in the last resort.

The award is final*31, and there are very limited grounds upon which it may be appealed*32 or challenged*33. In some jurisdictions it cannot be appealed at all and the grounds for refusing execution of a foreign award under the New York Convention of 1958 are severely restricted *34.

It can be seen that arbitration, while flexible and capable of being conducted in a manner suited to the parties and the subject matter of their dispute, is nevertheless sufficiently precise and final to enable the parties to achieve a final and binding award, which Courts will recognise, subject to reasonable safe guards.

Once an award is made, the parties then have an opportunity, either to enforce its terms or to use it as the basis of an appropriate but creative settlement.

This chapter has been an overview. The philosophy of commercial arbitration is in continual development and the reader is encourage to look to specialist works if further reading is required.

Companies and persons who agree to arbitration demonstrate a willingness to have their differences determined by a common-sense method, using experts or others who understand their problems and will find a just and fair solution. The presence of an arbitration provision in a contract affirms the parties intentions to deal ethically and fairly with one another.

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  1. This chapter is intended as an overview. Anyone who finds himself involved in the determination of a dispute by arbitration should note that it is a method which has binding legal consequences and should seek appropriate advice. - back

  2. Except for some very limited grounds for appeal - back

  3. Although the definition of a written agreement is wide: S5 - (1) The provisions of this Part apply only where the arbitration agreement is in writing, and any other agreement between the parties as to any matter is effective for the purposes of this Part only if in writing.
    (2) There is an agreement in writing - (a) if the agreement is made in writing (whether or not it is signed by the parties) (b) if the agreement is made by exchange of communications in writing, or (c) if the agreement is evidenced in writing.
    (3) Where parties agree otherwise than in writing by reference to terms which are in writing, they make an agreement in writing
    (4) An agreement is evidenced in writing if an agreement made otherwise than in writing is recorded by one of the parties, or by a third party, with the authority of the parties to the agreement.
    (5) An exchange of written submissions in arbitral or legal proceedings in which the existence of an agreement otherwise than in writing is alleged by one party against another party and not denied by the other party in his response constitutes as between those parties an agreement in writing to the effect alleged.
    (6) References in this Part to anything being written or in writing include its being recorded by any means. - back

  4. There is an interesting and perhaps similar distinction in Italy where two forms of arbitration are recognised - arbitratio rituale, which follows a fairly strict procedure parallel to that of the Court and the award of which is enforceable when registered and arbitratio irrituale, which is more informal and may fill in lacunae in the contractual arrangements of the parties but requires to be enforced as a contract. - back

  5. Although in some circumstances it is possible that detailed rules or local legislation may allow a Court, or even the tribunal, to compel joinder of third parties without the consent of all concerned. - back

  6. On rare occasions, when one or other party refuses to take part, or fails to appear, proceedings may continue ex parte, that is to say in the absence of that party, provided adequate notice and opportunity has been given. That is exceptional, but necessary in fairness to the party whose grievance is to be heard. - back

  7. It is also suggested that "Natural", or Intuitive Justice, which necessarily is difficult of precise and formulaic definition, falls to be distinguished from "Unnatural Justice", that is to say the formal structure of man-made laws, although in practice the distinction may be narrow and of little import save in exceptional cases. - back

  8. At least since the Articles of Regulation 1695, which are still in force.
    Article 25 provides: "that for the cutting off of the groundless and expensive pleas and processes in time coming, the Lords of Session sustain no reduction (the Scots word for review) of any decree arbitral that shall be pronounced hereafter on a subscribed submission at the instance of the parties submitters, upon any cause whatever, unless that of corruption, bribery or falsehood, to be alleged against the judges-arbitrators who pronounced the same." (With acknowledgments to the Honourable Lord Dervaird). - back

  9. Although at the time of writing, a new Scottish Statute has been proposed and is in draft. That, if enacted, would bring the statutory positions of the legal districts of the United Kingdom more closely into line. - back

  10. United Nations Commission on International Trade Law. - back

  11. For example: The Institutions of Civil, of Mechanical, of Electrical and of Chemical Engineers, the Royal Institution of Chartered Surveyors, The Royal Institute of British Architects.
    Other bodies who may appoint arbitrators upon request are the Chartered Institute of Arbitrators and the Law Society.
    Arbitral Institutions such as the London Court of International Arbitration and the Court of Arbitration of the International Chamber of Commerce make appointments in the context of arbitrations to be carried out according to their special rules. - back

  12. More correctly England and Wales with Northern Ireland, but the point will be taken for granted hereinafter. - back

  13. In Sections 15 - 18 - back

  14. Because, for example, S33(1)(b) of the English Act makes it a mandatory duty of the arbitrator to adopt suitable procedures and to avoid unnecessary expense or delay, so as to provide a fair means for the resolution of the matters falling to be determined. The parties may not exclude that provision and semble may not prevent the arbitrator from abiding by it. - back

  15. In England, the arbitrator has a power - S65(1) - to limit the recoverable costs of the arbitration, unless the parties agree otherwise. Alternatively, and in most jurisdictions, arbitrators have power to direct what costs shall be paid and who shall pay them. - back

  16. AA 1996, Section 48(5)(b) but specific performance of an contract relating to land cannot be ordered. (It is suggested that is for two main reasons, one concerning the operation of ownership of land against others, including authorities, not party to the arbitration, and the other the close concern of the Court, throughout history, for matters concerning land).

    Specific performance is ordered only where damages are inappropriate. In building contracts, for example, specific performance will rarely, if ever, be ordered. That is because of the inherent difficulty of carrying out future work under supervision. Specific performance occasionally may be the subject of a consent award, an award agreed between the parties. - back

  17. See Section 34(2)AA 1996 - Procedural and evidential matters for the tribunal to decide (subject to the right of the parties to agree otherwise) include -
    . . . . . . . . . . . . . . .
    (d) whether any and if so which documents or classes of documents should be disclosed between and produced between the parties and at what stage; - back

  18. Under Section 34(2)(d) above (footnote 7) and also see Section 40 (1) - The parties shall do all things necessary for the proper and expeditious conduct of the arbitral proceedings. - back

  19. Section 65 - (1) Unless otherwise agreed by the parties, the tribunal may direct that the recoverable costs of the arbitration, or of any part of the arbitral proceedings, shall be limited to a specified amount. (2) Any direction may be made or varied at any stage, but this must be done sufficiently in advance of the incurring of costs to which it relates, or the taking of any steps in the proceedings which may be affected by it, for the limit to be taken into account. - back

  20. Co-Author with the Right Honourable the Lord Mustill of the leading textbook "Commercial Arbitration", Mustll and Boyd, Butterworths 1989 - back

  21. In his paper to a symposium at Boston University Law School, 25 September 1995. - back

  22. i.e in England the mandatory provisions of the Arbitration Act 1996 - back

  23. In the Institution of Civil Engineers' Arbitration Procedure (1983) - back

  24. Part G - Special Procedure for Experts - Rules 22 and 23 of the Institution of Civil Engineers' Arbitration Procedure (1983) qv - back

  25. Part F - Short Procedure - Rules 20 and 21 of the Institution of Civil Engineers' Arbitration Procedure (1983) qv - back

  26. Although the arbitrator cannot command attendance under these rules, logical inferences may be drawn if a requested person is absent without good reason. - back

  27. Institution of Civil Engineers - back

  28. See Section 34(2)AA 1996 - Procedural and evidential matters for the tribunal to decide (subject to the right of the parties to agree otherwise) include -
    (g) whether and to what extent the tribunal should itself take the initiative in ascertaining the facts and the law;
    (h) whether and to what extent there should be oral or written evidence or submissions. - back

  29. Section 66. Enforcement of the award.
    (1) An award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect.
    (2) Where leave is so given, judgment may be entered in terms of the award.
    (3) Leave to enforce an award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the tribunal lacked substantive jurisdiction to make the award. The right to raise such an objection may have been lost (see section 73).
    (4) Nothing in this section affects the recognition or enforcement of an award under any other enactment or rule of law, in particular under Part II of the Arbitration Act 1950 (enforcement of awards under Geneva Convention) or the provisions of Part III of this Act relating to the recognition and enforcement of awards under the New York Convention or by an action on the award. - back

  30. In England see Section 101 AA 1996:
    (1) A New York Convention award shall be recognised as binding on the persons as between whom it was made, and may accordingly be relied on by those persons by way of defence, set-off or otherwise in any legal proceedings in England and Wales or Northern Ireland.
    (2) A New York Convention award may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect. As to the meaning of "the court" see section 105.
    (3) Where leave is so given, judgment may be entered in terms of the award. - back

  31. Although interim awards may be, and often are, made during the course of a complex reference. - back

  32. In England see Section 69 AA 1996: - back

  33. In England only on the ground of a serious irregularity which has caused or will cause substantial injustice to a party - see Section 68 AA 1996: - back

  34. In England, see Sections 103 & 104, AA 1996 --
    (1) Recognition or enforcement of a New York Convention award shall not be refused except in the following cases.

    (2) Recognition or enforcement of the award may be refused if the person against whom it is invoked proves--
    (a) that a party to the arbitration agreement was (under the law applicable to him) under some incapacity;
    (b) that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made;
    (c) that he was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case;
    (d) that the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration (but see subsection (4));
    (e) that the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, with the law of the country in which the arbitration took place;
    (f) that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made.

    (3) Recognition or enforcement of the award may also be refused if the award is in respect of a matter which is not capable of settlement by arbitration, or if it would be contrary to public policy to recognise or enforce the award.

    (4) An award which contains decisions on matters not submitted to arbitration may be recognised or enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those on matters not so submitted.

    (5) Where an application for the setting aside or suspension of the award has been made to such a competent authority as is mentioned in subsection (2)(f), the court before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the recognition or enforcement of the award. It may also on the application of the party claiming recognition or enforcement of the award order the other party to give suitable security.

    Section 104 - Nothing in the preceding provisions of this Part affects any right to rely upon or enforce a New York Convention award at common law or under section 66 . - back

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