JULY 1983] Book Reviews 111

leading in the main to the sharp distinction between civil law and common law as conflicting law
traditions, should, according to Gorla's views, be reconsidered in order to get rid of its regressive
(nationalistic) character while enhancing instead the progressive (cosmopolitan) spirit of the ancient
comparative law practice. Such a "revisiting" of the comparison between civil law and common
law finds its explanation in the respective historical developments of the two law traditions when
properly considered with regard to the many institutional traits as well as principles and rules shared
in common by them in the past centuries (see on this point the remark about the "sisterhood"
between the two traditions made by Professor Kiralfy in reviewing Gorla's previous work; (1982) 31
I.C.L.Q. 597). But, far from being only retrospectively oriented, the "revisiting" aims at a
prospective development of comparative law as a major connecting factor in the "Western legal
family".

IJJIGI MOCCIA

Commercial Arbitration. By MICHAEL J. MUSTILL and STEWART C. BOYD. [London: Butterworths.

1982. bociv + 727 pages. £561

THIS is a brilliant work and, unlike most legal textbooks, readable. Its period of gestation has been
lengthy, its arrival long promised and delayed, as the enchanting quotation from Trollope which
precedes the preface acknowledges, but eagerly awaited. One can only marvel that a busy Queen's
Counsel, now a busy judge, aided in the later stages by a busy junior, now another busy Queen's
Counsel, can have found the time and opportunity for the research which has resulted in a book
which will be foremost in its field for many years to come.
The relationship between the judicial and arbitral processes is one of the most fascinating in our
legal history. Throughout the last century, and indeed well into the present, the judicial attitude
towards the arbitral process was one of hostility. Arbitrator! were not to be trusted. Parties in
dispute were foolish to entrust their cause to arbitrators. Hence the refusal of the courts to enforce
an agreement that no special case would be asked for. A sensible agreement between parties to a
contract that any award of arbitrators should be final and binding and not subject to appeal became,
thanks to nineteenth century decisions, a wholly meaningless phrase. The dramatic change in the
judicial attitude dates from the end of the Second World War and recognition, at least by more
enlightened judges, that in many cases the arbitral process was preferable to the judicial — absence
of publicity was an important factor — and that the post-war standard of arbitration and the quality
of arbitrators in this country, especially in the field of maritime law, deserved help and not hostility
from the courts. Today both judges and arbitrators regard their respective processes as
complementary and not as antipathetic to one another. The turning point came, first, with the
Arbitration Act 1979 which could never have reached the Statute Book without strong judicial
inspiration and support, derived, in part at least, from increasing abuse of the special case
procedure, and, secondly, with the recent decision of the House of Lords in The Nema which
defined and restricted the circumstances in which leave to appeal from an arbitral tribunal might be
given.
This history and these changes and their implications will be found fully discussed in Chapter 36.
One of the book's most valuable chapters is the first — that entitled "Descriptive Introduction".
Between the first and the last chapters, arranged in a logical order which can only command
admiration, is information on every point upon which an arbitrator or a practitioner may require
help, coupled with a massive citation of relevant authority.
Though London is the centre where much arbitration work takes place, there are other centres as
well, some in countries where there is tittle or no judicial control over the arbitral process. Many
countries prefer that this should be so, perhaps through distrust of their judiciary or fear of its
inexperience in the relevant respects. This leads to pressure for further freedom from judicial
control and the adoption by parties or by arbitrators of a' 'curial law" which owes allegiance to no
country and to no particular system of law. It is difficult to believe that, at least in the foreseeable
future, this country would agree wholly to abolish judicial control, and the adoption of such a

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 778 International and Comparative Law Quarterly [VOL. 32

"curia! law" is fraught with obvious difficulties. These and related problems are all discussed in the
book. But they are mainly for the future. This book is principally concerned with the present, and
with the past, so far as the past is necessary to explain and understand the present. Its authors have
done both the judicial and arbitral world and the legal profession a great service by their labours.

ROSKILL

Compensation for Criminal Damage to Property. By D. S. GREER and V. A. MITCHELL. IBelfast:

S.L.S. Publications (N.I.). 1982.xxxviii + 345 pp. £19.75/1R£24I

COMPENSATION for criminal damage to property is not normally one of the most fascinating areas of
the law, but the recent kidnapping of the famous stallion, Shergar, followed as it was by the lodging
of a malicious damage claim for £20m. against Kildare County Council, generated a sudden interest
in this curiously Irish phenomenon. I say curiously Irish because, although public compensation for
criminal damage is not unknown elsewhere, the extensive scope of such compensation in Ireland
makes the codes in Northern Ireland and the Republic of Ireland quite unique. Lawyers working in
jurisdictions with narrowly based public liability for criminal damage, such as exists for example in
England, and those working in jurisdictions where the notion of public liability has yet to be
accepted, will find Greer and Mitchell's account intriguing.
The preface to the text indicates that it is concerned with the statutory compensation f.hemes
which operate in both Irish jurisdictions and with their judicial interpretation. I was thus led to
believe that both jurisdictions would receive equally detailed treatment and that I could justifiably
regard this text as a comprehensive reference text for both Northern Ireland and the Republic. This
is not in fact the case. Even allowing for the fact that the Republic's scheme is the newer and its
accompanying jurisprudence the smaller, and allowing too for the fact that for obvious reasons the
Northern Irish case law is much greater, this book is primarily and almost exclusively concerned
with the operation of the criminal damage code in Northern Ireland — a worthy topic in its own
right, highlighting as it does the inevitable push towards public compensation for criminal damage
which follows from serious civil unrest resulting in widespread damage and destruction of property.
But to the extent that the Republic's scheme is only barely covered, this text is disappointing.
Chapter 2, for example, which deals with entitlement to compensation for criminal damage, opens
by detailing, at some length, the provisions of the Criminal Damage (Compensation) (N.I.) Order
1977. The corresponding provisions of the Republic's Malicious Injuries Act 1981 are briefly
synopsised in three lines. In Chapter 7 the Northern Irish provisions governing who is entitled to
compensation are again set out in detail, but this time the Republic'! provisions are set out in an
obscure footnote. In fairness it should be said that throughout the text there is excellent analysis and
discussion of the Republic's case law where it is relevant, though here again its use is generally in the
context of shedding light on the interpretation of the Northern Irish provisions. Overall, however,
the authors fail to deliver that which the preface promises, namely a text covering the criminal
damage codes of both Irish jurisdictions.
That said, however, there is no doubt that this book will be a valuable guide to practitioners in the
field, and its insights will be useful to other jurisdictions which may in the not too distant future be
forced to contemplate the introduction of similar schemes. There are valuable lessons to be learned
from the experiences of both jurisdictions. When in 1963 the Republic's Interdepartmental
Committee Report recommended retention of public liability for criminal damage to property, they
did so for two reasons: (a) there was an established necessity for some such protection, and (b) it
could be provided at negligible cost to the citizen. Twenty years later, (b) rings a little hollow, and (a)
serves as a warning that it is easier to establish arightof action than it is to disestablish it. The lesson
to other jurisdictions is to tread carefully, because, as is so ably pointed out in Chapter 8 (which
covers alternative sources of compensation), the intervention by the legislature in this field in
Ireland has to a large extent let private liability (the insurance companies especially) off the hook.
Thus a burden which was once shared is now borne almost entirely by the taxpayer.

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