This chapter discusses arbitration, which is an adjudicative dispute resolution process. It is based on an agreement between the parties to refer a dispute or difference between them to impartial arbitrators for a decision. As a consequence of the contractual basis of arbitration, it is not every dispute that can go to arbitration. The chapter considers the requirements for an effective reference to arbitration, but it should be noted that the agreement to arbitrate may be made before or after the relevant dispute has arisen. This means that there may be a pre-existing arbitration agreement which, when a dispute arises, one of the parties wishes to evade. There is a strong public policy in favour of upholding arbitration agreements; this is supported by the idea that an arbitration clause in a contract is separable from the rest of the substantive contract. Arbitrations in England and Wales are governed by the Arbitration Act 1996, which lays down a highly developed set of procedures for arbitrations.
27. Arbitral Tribunals
This chapter examines how arbitrations are commenced with a notice of arbitration and the appointment of arbitral tribunals. Typically, arbitral tribunals will have either a sole arbitrator or a panel of three arbitrators. There are a number of variations on this theme. Examples include tribunals with a chairperson or an umpire, and the use of judge-arbitrators. The chapter then describes the contractual basis of the appointment of arbitrators, and the procedures dealing with the removal, resignation, or death of an arbitrator. The Arbitration Act 1996 seeks to give effect to the parties' agreements (between themselves or with the arbitrators) if it becomes necessary for an arbitrator to resign or be removed, but there are fall-back provisions allowing applications to the court because it is recognized that agreement may not be possible given the possibly contentious nature of these situations.
28. The Commercial Arbitration Process
This chapter details the procedures followed in commercial arbitrations involving parties who are all located within England and Wales. Arbitration is intended to be private and confidential, concepts that flow from the private agreement of the parties to refer the matter to arbitration rather than the courts. There are many arbitral institutions, which may have their own institutional rules for arbitration, and they may also administer arbitrations. The chapter then considers how the procedural rules in the Arbitration Act 1996 are subject to contrary agreement by the parties. If institutional rules are silent on a procedural matter, the default provisions in the Arbitration Act 1996 apply. The chapter also looks at the role of legal representatives in arbitration, before discussing ‘look-sniff’ arbitrations and short-form arbitrations.
31. High Court Jurisdiction in Arbitration Claims
This chapter addresses High Court jurisdiction in arbitration claims. Intervention by the courts in arbitrations is restricted to those situations allowed by the Arbitration Act 1996. These include situations where the judicial system can offer support to the arbitral process to make it effective and to correct obvious injustices. Applications in support of the arbitral process include applications relating to the appointment of arbitrators and procedural orders to secure evidence for use in arbitrations. Ultimately, judicial review of arbitral awards is strictly restricted. The main provisions deal with serious irregularities and appeals on points of law. Appeals to the Court of Appeal are (with minor exceptions) only available with the permission of the High Court judge.