KluwerArbitration
Document information
Publication
Journal of International
Arbitration
Jurisdiction
United Kingdom
Bibliographic
reference
Georgios I. Zekos, 'The Role
of Courts in Commercial
and Maritime Arbitration
Under English Law', Journal
of International Arbitration,
(© Kluwer Law
International; Kluwer Law
International 1998, Volume
15 Issue 1) pp. 51 - 74
P 52 The Act came into force on 31 January 1997 and applies to arbitrations commenced on
P 53
© 2021 Kluwer Law International, a Wolters Kluwer Company. All rights reserved.
The Role of Courts in Commercial and Maritime
Arbitration Under English Law
Georgios I. Zekos
(*)
I. Introduction
The private resolution of disputes by experts has long been favoured as an alternative to
determination by the courts. Many international contracts provide for arbitration in
London and the majority of maritime disputes are resolved in London. Arbitration is a
contractual means of settling disputes and must originate in an agreement between the
parties. Maritime arbitration, like commercial arbitration out of which it arose, is a
creature of contract. A party entering into a contract has a free choice between
arbitration and judicial litigation. Arbitration is achieving widespread recognition as a
private mechanism for adjudicating transnational maritime disputes. Most contracts such
as bills of lading include a clause providing that any dispute arising thereunder shall be
referred to arbitration. An arbitration agreement can be framed in such a manner so as to
prevent any right to court proceedings accruing under the contract until an award has
been made (Scott v. Avery clause). Arbitration is essentially a consensual process in
contrast with the jurisdiction of the courts which stems from the sovereign power of the
State. An arbitrator's authority to determine disputes is founded on the parties’
agreement. The question is, has the legislator abolished the sovereign power of the State
by creating a fully independent legal process, such as arbitration, which is used as an
alternative to litigation? The power and the alternative of arbitration versus litigation as
it is expressed by the Arbitration Act 1996 will be investigated in this article. It will be
examined if, according to the legislator, arbitration or litigation is the last means of
reference in resolving disputes in which the parties are relying upon. In other words, the
point at which it needs to be determined whether an arbitral tribunal or a court (1) has
the final saying upon parties’ differences will be discussed. The Arbitration Act 1950 (the
1950 Act), the Arbitration Act 1975 (the 1975 Act), the Arbitration Act 1979 (the 1979 Act) and
the Consumer Arbitration Agreements Act 1988 along with other provisions relating to
arbitration have been repealed and replaced by the Arbitration Act 1996 (the 1996 Act).
and after that date, irrespective of the date of the arbitration agreement. The aim of the
1996 Act is to provide a comprehensive restatement of the principles and practice of
arbitration. It also introduces a number of important changes. The Act not only restates
the previous legislation on arbitration but also improves the law in order to increase the
efficacy of arbitration as a more complete method of dispute resolution. It also
reinstates London as the centre of arbitration. Therefore, the first goal of the Act is to
ensure that arbitration is a desirable alternative to litigation. The Act is divided into four
Parts: PartI sets out the law of arbitration in its new form. PartII deals with consumer
arbitration agreements, county court small claims and judge-arbitrators and statutory
arbitrations. PartIII re-enacts the provisions on the recognition and enforcement of
foreign arbitral awards contained in the 1950 and 1975 Acts. Part iv contains general
provisions.
The 1950 Act was the principal Act which provided the broad legislative framework under
which the system of arbitration existed in England. The 1975 Act was concerned with the
enforcement of foreign arbitral awards and followed the ratification by the United
Kingdom of the New York Convention on the Recognition and Enforcement of Foreign
Arbitral Awards of 1958. The main purpose of the 1979 Act was to abolish the “case stated
procedure” for judicial review of arbitral awards contained in the 1950 Act and the power
of the court to set aside or remit an arbitral award for errors of fact or law on the face of
the award and to substitute a limited right of appeal. Such right of appeal existed on
points of law. The investigation of the prevailing views under the old Acts, as expressed
by courts’ decisions, is necessary in order to show the legal background upon which the
1996 Act is drafted and will be implemented.
II. The Courts’ Intervention Prior to the 1996 Act
A brief presentation of the courts’ intervention in the different steps of an arbitral
process will show the depth of the courts’ involvement and their role.
A. Arbitration Agreements
The agreement of the parties is in practice almost invariably in writing. Arbitrations
based on oral agreements are governed by common law and are not subject to the
provision of the Arbitration Acts which apply to arbitrations based on written agreement
only. The parties’ agreement may confer the right to require arbitration on only one
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party. (2) The requirement of writing is satisfied where there is a document (3) which
recognizes, incorporates or confirms the arbitration agreement. The document does not
need to be signed by either party. (4) The incorporation in a bill of lading of all the
“conditions” or “terms and conditions” of a charter party does not extend to the
arbitration clause in the charter party. (5) Contrast the exceptional case where the
arbitration clause was expressed to apply to disputes under both the charter party and
any bill of lading. (6) It seems that courts have defined the existence of the written
agreement to arbitrate.

B. Parties Bound by the Arbitration Agreement

An arbitration agreement is binding on the parties thereto and parties claiming through
or under them. An assignee or successor by operation of law are included in the definition
of parties bound by the arbitration agreement. (7)

C. Scope of the Arbitration Agreement

An arbitration agreement which provides for the reference of disputes “arising out of” the
contract is widely drafted and has been said to cover every dispute. (8) Additionally, an
arbitration agreement in these words is wider in its scope than one which provides for the
reference of disputes “arising under” the contract. (9) Lord Salmon expressed difficulty in
understanding the difference between the two forms of wording. (10) According to the
court, a dispute as to whether there has ever been a binding contract between the
parties is not within the scope of an arbitration agreement and so an arbitrator does not
have jurisdiction to make a binding award on the reference of such a dispute. (11) This is
the only type of dispute which cannot be referred to arbitration—dealing with the legality
of a contract and matters of interpretation of rules of law is the court's role. Thus, the
creation and interpretation of rules of law belongs to the courts and the legislator.
Arbitration is suitable for resolving factual disputes. Thus, a dispute as to whether a
contract was void ab initio for illegality does not fall within the scope of an arbitration
agreement. (12) On the other hand, the initial illegality of a contract does not invalidate
P 54 the arbitration claim. (13) Whether a particular dispute falls within the scope of an
arbitration agreement is a question of construction and the court gives the words
contained in the arbitration clause their natural and proper meaning according to the
circumstances of the case. (14) The court is not bound by the doctrine of precedent in
construing a particular form of words in an arbitration clause in the same way as that
form of words has been construed in earlier cases. The persuasive authority of the
meaning of a word depends upon the similarity between the contracts and the
surrounding circumstances of the relevant cases. A dispute or difference between the
parties about a subject covered by the arbitration agreement is a precondition of the
right to arbitrate. “Dispute”, and “Difference” should be regarded as the same, although
“differences” have been held to have a wider meaning. (15) The dispute or difference
must relate to a matter capable of being decided in civil proceedings between the
parties. The mere making of a claim does not necessarily constitute a dispute or
difference. (16) In the absence of a dispute a court will not order the stay of court
proceedings which raises a claim covered by the arbitration agreement.

D. Control by the court of arbitral proceedings

The High Court has inherent supervisory powers over arbitration. Such control is
exercised in a variety of ways. The parties to an arbitration agreement cannot oust the
court's jurisdiction and any agreement which purports to do so is void as being contrary
to public policy. The standard phrase that an arbitrator's award shall be “final and
binding” does not oust the court's jurisdiction. (17)
1. Stay of Court Proceedings
If any party to an arbitration agreement commences any legal proceedings in any court
against another party to the agreement, in respect of any matter agreed to be referred, it
can at any time after acknowledgement of service, but before taking any other steps in
the proceedings, apply to that court to stay the proceedings. If the arbitration agreement
is a domestic arbitration the court has a discretion to make an order staying the
proceedings. (18) If the arbitration is a non-domestic arbitration agreement the court
must grant a mandatory stay, unless it is satisfied either that the agreement is null and
void or that there is not in fact a dispute. If a stay is granted the usual order is that the
defendant be awarded the costs of the action—such losts not being at the discretion of
the arbitrator. (19) Additionally, where proceedings have been brought but no application
P 55 for a stay has been made, or a stay has been refused, the arbitrator cannot proceed,
against the plaintiff's will, with an arbitration in respect of the same matter, and any
award made by him will be ineffective. (20)
2. Injunction and Declaration
The court has inherent jurisdiction to restrain arbitration proceedings by injunction,
where it is necessary to protect a legal or equitable right. (21) Arbitration proceedings
have been restrained in the following circumstances:
– The contract is invalid or there is a challenge to its validity. (22)

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 – The point at issue is not clearly regarded as a dispute.
– There is termination of the arbitration agreement.
– The arbitration agreement refers to a specific arbitrator who is disqualified by
reason of corruption or bias.
– The underlying contract is terminated by repudiation or where illegality prevents
performance. (23)
The court has the power to declare that an arbitrator has no jurisdiction to hear or
determine any claim or that a reference has been terminated by agreement. (24) In the
case of a judge-arbitrator the power to make a declaration can be exercised only by the
Court of Appeal. A provision in an arbitration agreement known as a “Scott v. Avery
clause” does not oust the jurisdiction of the court. A party who relies on the clause cannot
subsequently resist enforcement of the award on the basis that the arbitrator had no
jurisdiction. The court can order that the provision making an award a condition should
cease to have effect as regards the specific dispute. (25)
3. The Appointment of Arbitrators
It is open to the parties to an arbitration agreement to agree to the form of tribunal.
Reference to a foreign court rather than a foreign arbitral tribunal is not a reference to
arbitration. (26) The court has no inherent jurisdiction to appoint an arbitrator or to
compel any party to the agreement to do so. Leave to revoke the authority of an
arbitrator is an extreme remedy by the court and it is given in the following
P 56 circumstances:
– Serious irreparable misconduct. (27)
– Actual or potential bias.
– Deficiencies in capability or performance from which the Arbitration Acts do not
provide a remedy. (28)
– Where justice requires that the proceeding should be halted and no other method
of doing so is available to the court. (29)
On the other hand, the High Court may make an order extending the powers of the
arbitrator (Section 5 of the 1979 Act).
The court can intervene under Section 10(2) of the 1950 Act and appoint an arbitrator
when there is reference to a single arbitrator and all parties do not agree on the
appointment or a third party fails to appoint an arbitrator. (30) The court can appoint an
arbitrator if an appointed arbitrator refuses to act or is incapable of acting and the
parties do not fill the vacancy themselves. The High Court may appoint a person to act as
arbitrator in place of an arbitrator who has been removed by the High Court (Section 25(1)
of the 1950 Act). In the case of a judge-arbitrator who has been removed by the Court of
Appeal the application must be made to the Court of Appeal (Section 25(2)). Where the
court exercises its power to order that the arbitration agreement shall cease to have
effect, the whole tribunal is divested of its authority. The court has the power to appoint
a sole arbitrator to replace it.

E. Delay in Prosecuting the Claim

Courts can strike out a claim in arbitration on the ground of undue delay in its
prosecution. (31) In appropriate circumstances inordinate delay might be considered by
the court as amounting to an implied abandonment of the claim. For example in The
Splendid Sun (32) case eight years of silence following the appointment of arbitrators was
held to justify the respondent in assuming that any claim had been abandoned. (33)

F. The Powers of the High Court

The High Court has certain powers to ensure that the arbitration is brought to a final
P 57 conclusion even in the absence of co-operation of one of the parties. It has the same
power of making orders as it has for the purposes of and in relation to an action or matter
in the High Court in respect of the following:
– Security for costs. (34)
– The giving of evidence by affidavit.
– The examination on oath of any witness.
– The preservation or sale of any goods which are the subject of the arbitration.
– Securing the amount in dispute in the arbitration agreement. (35)
– The detention, preservation or inspection of any property or thing which is the
subject of the reference.
– Interim injunctions or the appointment of a receiver.
The court may grant a mareva injunction, Anton Pillar orders and the like. Could all these
actions taken by the High Court be regarded as merely an assistance to the arbitral
tribunal? There is no need to analyse bit by bit all the specific matters such as the extent
of time for commencing arbitration proceedings outside the limitation period, upon
which the High Court has the power to make an order. It becomes clear that the role of

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 the court is not only supportive but essential in the whole arbitral process.

G. The award
The award must be complete and determine all disputes which the parties referred to
arbitration. An incomplete award is invalid and unenforceable and will be remitted by
the court to the arbitrator. Traditionally, English courts had the power to set aside or
remit an arbitration award if they found an error of fact or law. The only exception to this
case was the “case stated” procedure under Section 21 of 1950 Act, under which either
party could request the arbitrator to state a “special case for the decision of the High
Court”. The parties then had the option of either accepting the arbitrator's award or,
within six weeks, setting the matter down for argument in the High Court on the question
of law involved.
According to the 1979 Act, the arbitrator is under no obligation to provide reasons for his
award unless requested to do so in advance by the parties. (36) On the other hand, the
court may require the arbitrator to state his reasons in sufficient detail to enable it to
consider any question of law in the award which may arise on appeal. (37) Under the 1979
P 58 Act an appeal may lie to the High Court on any question of law arising out of an
arbitration award, but only if the appeal is brought with the consent of all parties or with
the leave of the court. The court will grant a leave if it is satisfied that, “having” regard to
all the circumstances, the determination of the question of law concerned could
substantially affect the rights of one or more of the parties to the arbitration agreement.
The court is empowered to impose such condition as it thinks fit as, for example, making
an order in respect of security for costs. (38) The High Court may confirm, vary or set aside
the award or may remit it for consideration by the arbitrator having given the court's
opinion on the point of law involved. No appeal will lie from the decision of a court of
first instance except with the leave of the High Court or the Court of Appeal, and if the
court certifies that the question is one of general public importance or is one which for
some special reason should be considered by the Court of Appeal. The decision of the
Court of Appeal to grant or refuse leave is final and no appeal will lie to the House of
Lords. (39) Although the 1979 Act was designed to promote a greater finality in arbitration
awards, some judges exercised their discretion in favour of granting leave to appeal
whenever a question of law was involved. The House of Lords intervened in The Nema (40)
case, which outlined the factors a court should take into consideration in exercising its
discretion. So, leave to appeal should not be granted unless the court is satisfied that a
strong prima facie case has been made that the arbitrator's construction was wrong.
Despite these guidelines, the ultimate discretion as to whether or not to grant leave to
appeal rests with the individual court. (41) The Court of Appeal has expressed the view
that the criteria are not applicable to applications for leave to appeal from a decision of
the High Court to the Court of Appeal. Leave to appeal has been refused in cases
involving the interpretation of one-off clauses in bills of lading and charter parties. (42)
On the other hand, leave was granted where a question of EEC law was relevant. (43) The
court's jurisdiction derives from statute and there is no inherent general supervisory
jurisdiction. (44) The court has no power to make orders of certiorari or prohibition
addressed to an arbitrator unless he is acting under statutory powers. (45) The party who
has taken advantage of an award cannot thereafter apply to set it aside. (46)

H. When a Court Will Set Aside or Remit an Award

The following are the five broad grounds on which awards have been remitted:
P 59 – The arbitrator has misconducted himself or the proceedings.
– There is some defect or error on the face of the award, for example the award is
unclear or incomplete. (47)
– The arbitrator admitted to having made a mistake and wants the award to be
remitted. (48)
– The material evidence, which could not with reasonable diligence have been
discovered before the award was made, has since been obtained. (49)
– Without a misconduct, a misunderstanding has caused an aspect of the dispute
which has been the subject of the arbitration agreement not to be considered and
adjudicated upon as fully as the parties were entitled to expect and it would be
inequitable to allow the award to take effect without further consideration by the
arbitrator. (50)
On the application the High Court has jurisdiction to determine any question of law
arising in the course of the arbitral process. Where an error of law causes the arbitrator to
refuse to allow a prospective party to take part in the proceedings the proper course is
an application to remit not an appeal. (51) An award will be set aside where there has
been a serious miscarriage of justice, such as in the case of misconduct. Moreover, if the
conduct of the arbitrator was such that he could not fairly determine the issues on the
basis of the evidence, the award should be set aside. (52) In addition, an award may be
set aside on the grounds of public policy.

I. Challenging the Validity of An Award

If there exist grounds upon which an award ought to be remitted or set aside, it may

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 either be void or voidable. Unless a defect in an award is of such a character as to render
the award void or unenforceable, no party rely upon that defect without first successfully
applying to have the award set aside or remitted. (53) Additionally, where an award is
void, a party may apply to the court for a declaration that he is not bound by the award.
(54) The application for a declaration may be combined with proceedings to set aside or
remit the award which cannot stand as a counterclaim in an application to enforce it. The
Court of Appeal has jurisdiction to hear appeals from decisions of the High Court granting
P 60 or refusing leave to appeal an award.

J. The Enforcement of Arbitral Awards

Any enforcement of the award is subject to certain safeguards designed to protect the
party against whom it is invoked. Any award may be enforced by action or by leave of the
High Court in the same manner as a judgment. A court refused to grant leave to enforce an
award which required payment in a foreign currency. The court will grant leave to enforce
an award unless the award is invalid or not in a form in which it can be enforced. (55) If a
party to an arbitration agreement fails to comply with the award, the other party may
bring an action to enforce the award in a court of competent jurisdiction. (56) On the
other hand, parties can use an exclusion agreement to exclude the right to appeal under
the 1979 Act or the jurisdiction of the High Court to determine a preliminary point of law.
An analysis of the role of the courts shows that arbitral tribunals might not be able to
finish an arbitral process without the substantial intervention of the courts. It seems that
every step of the process is supported by the courts’ rulings, which means the process is
less independent, more time-consuming, more costly and less effective. The scope of the
earlier Acts, as described above, shows how the 1996 Act can add to the independence of
the arbitral tribunal and the courts’ involvement. Has the legislator created a first and
second degree fully independent arbitral tribunal?

III. The Arbitration Act 1996

An analysis of the 1996 Act concerning the role of the courts will be based on the
interpretation of the content of the Act itself, not on case law. The 1996 Act seeks to
establish the general principles on which arbitration law should be based. Have all the
problems caused by a court's power to intervene in the arbitral process been solved by
the introduction of the new Act? The context of the Act might suggest that many questions
are left to be decided by the courts and certain provisions have been drafted against the
background of existing judicial decisions.
The introduction to the Act sets out the principles upon which it is based by defining the
objects of arbitration. Section 1 states that the court's intervention should be kept to a
minimum and limited to when the arbitral process needs assistance or where there has
been a clear denial of justice. The minimum intervention of the courts has not been
defined by the Act and, therefore, it is open to interpretation. This means that each case
has to be considered individually. The previous system of courts’ involvement is not a
good sign for minimum intervention. The fundamental point here is that in the case of a
denial of justice intervention must come from a court, not an arbitral tribunal. Is there a
need for assistance by the courts? Why is litigation not assisted by an arbitral tribunal?
An alternative dispute resolution system has to be autonomous in contacting the whole
P 61 dispute process. Arbitrators, like judges, should have the full power and trust to deal
with all matters from the commencement of the arbitration to the enforcement of the
award.
The Arbitration Act 1996 introduces certain changes in the law which are designed to
improve arbitration and which reflect the format of the United Nations Commission on
International Trade Law (UNCITRAL) model law on international commercial arbitration.
Parties can agree on the procedural rules of a particular arbitral institution, which might
prescribe different procedures and time-limits. However, only the non-mandatory
provisions may be displaced by institutional rules such as the ICC, ICIA, the London
Maritime Association or even the arbitration law or another State. In matters governed by
PartI of the Act and referred to arbitration pursuant to an arbitration agreement, the
court cannot intervene except in the cases specifically provided for by PartI. Parties must
have the maximum freedom to decide how their arbitrations are to be conducted without
the court interfering. On the other hand the Act, in order to safeguard the public interest,
contains mandatory provisions referred to in Section 4 which cannot be contracted out
of. The problem is that most of the mandatory provisions involve the court's intervention.
Once again, the court is regarded as the means of safeguarding and avoiding denial of
justice in accordance with the definition and interpretation of “public interest” as it has
been established by the courts. So, the last point of reference has become the court
(instead of a tribunal acting as a court of appeal), which will apply concise rules of
appeal and so avoid the lengthy litigation with its rules of appeal.

A. The Arbitration Agreement

Can all parties be compelled to arbitrate their disputes? Under the 1996 Act, parties
cannot be compelled to do so, unless they have agreed to. In line with that, the Federal
Arbitration Act (FAA) under US law demands the parties’ agreement to arbitrate. (57) An
assignee of a party's rights under a contract containing an arbitration clause can become

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 party to an arbitration which has already commenced after he notifies the other party at
the tribunal. (58) The validity, existence and effectiveness of an arbitration agreement is
not dependent upon the validity of the underlying contract. (59) An oral arbitration
agreement is not ineffective, as the common law recognises such agreement (Section
81(1)(b)). An arbitration agreement is defined as an agreement to submit to arbitration
present or future disputes (Section 6(1)). Disputes include not only differences of a
P 62 contractual nature, but also those founded in tort. (60) According to the 1996 Act, the
arbitration agreement must be in writing. It appears that an oral acceptance of a written
proposal to arbitrate qualifies as an agreement in writing. This is the view which has been
expressed by the court in Zambia Steel & Building Supplies Ltd. v. James Clark & Eaton Ltd.
(61) under the previous arbitral system. Additionally, any agreement evidenced in writing
or made by exchange of communications in writing meets the requirement of writing.
Exchange of written submissions in court proceedings in which an oral agreement is
alleged by one party and not denied by the other party in his response constitutes an
agreement in writing. (62) The wording of Section 6(2) does not resolve the conflict
between various charter party cases, in which it has been stated that it is sufficient for
the incorporation of an arbitration clause by reference if there is reference to a
document containing an arbitration clause. (63) The Development Assistance Committee
(DAC) report clearly states that this kind of conflict was a matter for the courts to resolve.
Thus, the court will decide whether there exists a valid contractual agreement to
arbitrate. In fact, the Dac refers to the court construing various provisions of the Act and
in accordance with the decision in Pepper v. Hart. (64) In Roche Products v. Freeman
Process Systems the test of intention was relevant in deciding the inclusion of the clause.
(65)

B. The Jurisdiction of the Arbitral Tribunal

Although the 1996 Act maintains the distinction between domestic and international
arbitration, this distinction has been abandoned in a recent case, because the court
found that it does not fall into line with European Union and international law. (66)
The first question concerns the extent of the court's powers of supervision and support in
relation to arbitrations which are conducted in England and abroad. The 1996 Act applies
regardless of whether the arbitration agreement is domestic or international. (67) The
DAC issued a consultation document with a view to repealing the domestic arbitration
rules (Section 88). A consultation document on the commencement of the 1996 Act has
P 63 been published (SI 1996/3146). The High Court and County Courts Order 1996 (SI
1996/3215) specifies the courts in which proceedings under the 1996 Act may be
commenced and allocates proceedings between the High Court and the Central London
County Court. Order 73 of the Rules of the Supreme Court has been substituted by the
Rules of the Supreme Court (Amendment) Order 1996 (SI 1996/3219).
The court's decision has caused the change of view which is reflected in the approach
taken into the implementation of the legislation against the wording of the 1996 Act. It
seems that, again, the courts, not arbitrators, will shape the application of the Act and
construe all the vague terminology contained in it.
The second question is whether the court has the power to hear and determine the
substance of a dispute regardless of the fact that there is an arbitration agreement. The
tribunal can rule on its own jurisdiction, but the court on the application of a party has
the power to determine the preliminary point of jurisdiction. Thus, the arbitrator has the
power to decide the validity of the arbitration agreement and the arbitrability of the
dispute (Section 30). On the other hand, where legal proceedings are commenced in
breach of the terms of an arbitration agreement, the party can ask the court to decline
jurisdiction. The issue of substantive arbitrability is a matter of contract interpretation.
Substantive arbitrability refers to the issue of whether a dispute falls within the scope of
a valid arbitration agreement. The 1996 Act retains the common law rules as to which
matters are capable of settlement by arbitration (Section 81(1)(a)). The arbitrability of a
dispute is examined after the court is satisfied that an arbitration agreement is valid. In
line with this, the FAA in the US law confers power to the court to investigate the validity
of an arbitration agreement and the arbitrability of the dispute. (68)
The parties can deprive the tribunal of its power to determine its own jurisdiction. In US
law the court will determine that a valid agreement to arbitrate exists between the
parties, (69) but the parties retain the ability to agree to submit the arbitrability
question itself to arbitration, thereby allowing the arbitrator to decide the scope of his
power under the agreement. (70) An arbitration clause can impose a limit on the
tribunal's jurisdiction. The power of the courts to decide on jurisdiction is supposed to be
permitted in exceptional cases. However, without a list of occasions on which this is
permitted, it is open to the parties’ and court's choice. Additionally, the court's power to
decide on the validity of the arbitration agreement is mandatory and cannot be waived.
Therefore, it is proper for the court to determine the question of jurisdiction. Moreover, it
is left to the court to decide the circumstances under which the court's jurisdiction
prevails. If the parties agree the tribunal may stay proceedings whilst an application is
P 64 made to the court under Section 32. The decision of the court concerning jurisdiction is
regarded as a judgment of the court. The court needs to grant leave for a decision to be
appealed. Leave will be granted if there is a question involving a point of law of general

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 importance. The definition of the term “general importance” seems to be left to the
interpretation of the court. Any ruling which arbitrators might make on their own
jurisdiction would raise the question of whether they had any right to make it in the first
place. Accordingly, a party has the right to apply to the court to challenge any award
which the tribunal makes on its jurisdiction under Section 67. Any application to the court
may be made under Section 32 before an award is issued. If the court is satisfied that its
dealing with the matter is likely to substantially reduce costs, the application will be
made without delay and there would be good reason why the court should decide the
issue. If the objection to the jurisdiction is handled by the court, then unless the parties
agree otherwise, the tribunal will still proceed and make an award while the court
application is pending. This measure will prevent unnecessary delays in arbitration.
There is a possibility that the tribunal might issue an award and a court to rule out the
tribunal jurisdiction—thus doubling cost and being time-consuming. Additionally, the
problem of liability of a party who persuades the tribunal or the court that it lacks
substantive jurisdiction has not been answered by the 1996 Act (Sections 30-32, 67).

C. The Staying of Actions

Has the 1996 Act introduced something new regarding the staying of actions? An
application for a stay of court proceedings can be made even where the dispute cannot
be referred to arbitration immediately, because the parties have agreed first to use
other dispute resolution procedures. The 1996 Act reflects the pre-existing law concerning
the staying of actions brought in breach of the terms of an arbitration agreement (Section
9). The difference with the old law is that only a party to an arbitration agreement against
whom legal proceedings are brought can apply for a stay of proceedings. In fact, the court
can refuse a stay of proceedings if it is satisfied that the arbitration agreement is null
and void. The obligation to grant a stay of proceedings under the 1975 Act was not
dependent on there being any connection with England and the agreement, the situation
or the parties. (71) Under the 1996 Act, a stay can no longer be refused on the basis that
the court is satisfied that there is no dispute between the parties. (72) Furthermore, the
ground for refusing a stay contained in the 1975 Act, namely where the court was satisfied
“that there was not in fact any dispute between the parties with regard to the matter
agreed to be referred”, has been omitted. As the courts of one country may make a
contribution to proceedings being conducted in another country, it is legitimate for the
court to exercise certain types of power to support foreign arbitral proceedings, such as
P 65 interim relief. Of course, the value of assistance rendered by the courts of one country
to the resolution of a difference in another country has been recognized in international
litigation. Article 24 of the Brussels and Lugano Convention enables the courts to grant
provisional measures in support of legal proceedings. If the substantive proceedings are
being conducted in a non-contracting State, the powers of the court are limited. (73) The
1996 Act provides the courts with the possibility to refuse to exercise any power if the fact
that the seat of arbitration is outside England makes it inappropriate to exercise any
power. Thus, the interpretation of the offer of assistance and the nature of it has been left
to the individual court to decide according to the specific circumstances of each
individual case. It seems that the absence of adequate arbitral background as the
alternative means of dispute resolution establishes the court as the cornerstone of
dispute resolution. The wording of the 1996 Act and the views of the court expressed in
previous Acts regarding the same matter are in tandem. Have the prevailing views of the
courts been implanted in the drafting of the 1996 Act and will be the court's approach
under the new Act? Section 10 deals with the concept of interpleader issues, despite the
fact that there is no definition of the term itself. The court granting the relief must direct
that the issue has to be determined in accordance with the arbitration agreement.
Furthermore, the court, where the property concerned has been arrested or bailed, or
where other security has been given to obtain release from arrest, can stay admiralty
proceedings in order to enforce an arbitration agreement (Section 11).

D. The Applicable Law in an Arbitral Agreement

The courts were never decided about whether primacy should be given to the chosen law
or the law of the seat of arbitration and the only discussion in the cases were obiter. (74) A
number of different laws relevant to an arbitration can apply:
– The governing law of the underlying agreement.
– The proper law of the arbitration agreement.
– The procedural law of the arbitration.
– The law in the jurisdiction other than the seat of the arbitration which gives
certain powers to the courts to support foreign arbitrations by ordering injunctive
relief or to enforce an award.
The parties are free to agree the procedural law of the arbitration, but such agreement is
subject to the mandatory arbitration law of the seat of the arbitration (Section 4). In this
respect, the 1996 Act follows the UNCITRAL model law by adopting the territorial
criterion. The arbitral tribunal must decide the dispute according to the choice of law of
the parties applicable to the substance of the dispute. The choice of laws of a State
refers to the substantive laws of that country and not its conflict of laws rules.
P 66 Furthermore, where there is no choice of law or agreement, the tribunal has to choose

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 the applicable rules on conflict of laws and guidance may be obtained from the Contracts
(Applicable Law) Act 1990. The parties can agree that their dispute is to be decided in
accordance with “equity clauses”. This establishes their validity in English law. (75) On the
other hand, the parties, by agreeing that their dispute should be resolved in this way,
exclude any right of appeal to the courts. The 1996 Act does not define the term
“objectively determined” in Section 4(5), which means that the court has to apply a test
of “closest and most real connection”. This gives the court the opportunity to estimate the
factors of the real connection in each individual case. The extent that the court's powers
of supervision are discretionary in relation to the parties’ choice of foreign law is a factor
which should be considered. The court can choose not to exercise its powers, regardless
of the fact that the seat of arbitration is in England. (76) The seat is the judicial place
where the arbitration is said to take place, (77) and is important in deciding the
application of the Act and for purposes of enforcement.

E. The Arbitral Tribunal

Default provisions to appoint a sole arbitrator, in the absence of either party doing so, is
provided for in Section 17. However, it is left to the courts to specify the grounds and
factors upon which the discretion in Section 17(3) should be exercised. The defaulting
party has a right to apply to the court, which can then make an order setting aside the
appointment. The leave of the court is needed for an appeal against the decision of the
court under this Section. The court intervenes where there is a failure to appoint
arbitrators and any party, upon notice to the other parties, can apply to the court to
exercise specific powers mentioned in Section 18. These powers are:
– To give directions as to the making of any necessary appointments.
– To direct that the tribunal shall be constituted by such appointments (or any one
or more of them) as have been made.
– To revoke any appointments already made.
– To make any necessary appointments itself (Section 18(3)).
An arbitrator who resigns can apply to the court for relief from any liability which incurs
as a result and for an order to be made with respect to his entitlement to fees or
expenses. Thus, the arbitrator concerned is entitled to appear and be heard by the court
(Section 24(5)). This power is given to the court, instead of to an arbitral tribunal hearing,
in a second degree process. The court has the power to relieve the arbitrator from that
liability if it is satisfied that it was reasonable for him to resign (Section 25). The 1996 Act
does not require an arbitrator to disclose any circumstances likely to give rise to
justifiable doubts as to his impartiality or independence which is not a ground of removal
as well. In contrast to this, at the start of an arbitration process in US law, the arbitrators
P 67 make what are known as their “disclosures”. A disclosure is a statement by each
arbitrator setting forth any personal relationship with the participants in their arbitration
and their counsel. (78) The award would be voided by the courts because of the partiality
of the arbitrator.
Appointments made by the court are regarded as the parties’ appointments. The leave of
the court is required to appeal against the court's decision. The court, in exercising its
powers under Sections 16 and 18, is to have due regard to any agreement of the parties as
to the qualifications required of the arbitrators. The powers of the court to revoke an
appointment (Section 18) or to remove an arbitrator (Section 24) are not diminished by
Section 23 concerning the revocation of an arbitrator's authority. Thus, the court has the
power to remove an arbitrator and the grounds of its decision are specified in the
provisions of the Act (Section 24). The grounds on which a party can ask the court to
remove (79) an arbitrator are:
– Lack of impartiality.
– Lack of qualifications required under the arbitration agreement.
– Physical or mental incapacity.
– Refusal, or failure, to conduct the proceedings properly or with all reasonable
despatch.
– Substantial injustice has been, or will be, caused to the applicant. (80)
As mentioned above, the 1996 Act does not demand disclosures at the start of arbitration
proceedings. Yet impartiality is regarded as a reason for the court to remove the
arbitrator concerned. The court will revoke an appointment if it is considered unfair for
one party to have its chosen arbitrator and the other party to have had an arbitrator
imposed upon it. An agreed procedure for the removal of an arbitrator must be
exhausted before the court will intervene. In the absence of an agreed procedure, on
application, the court can issue an appropriate order. An application for removal need
not delay the proceedings, because the tribunal may continue with the arbitration and
make an award. This is intended to avoid the delay that can be caused by a party making
an application which is subsequently dismissed. Some power seems to return to the
hands of the arbitrators. Leave of the court is needed in order to appeal against the
decision of the court. Additionally, the court, after the application of a party and upon
notice to the other parties, can order that the fee and expenses shall be adjusted
according to its view. The tribunal can order the claimant to provide security for costs. In

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 contrast with earlier Acts where the court had that power, the court's power has been
removed by the 1996 Act. (81) Section 34 lists the various procedural and evidential
matters which the tribunal can decide. In practice, it will no longer be possible to attack
P 68 arbitration awards on the basis that the sort of rules of procedure and evidence
applicable to court proceedings have not been followed. Basically, the tribunal has no
power, unless the parties agree, to order consolidation or concurrent hearings in respect
of separate arbitration proceedings (Section 35). On the other hand, the London Maritime
Arbitrators Association Terms 1997 give the tribunal power to direct that two or more
arbitrations be heard concurrently.

F. The Powers of the Court in Relation to Arbitral Proceedings

Section 38 contains general powers exercisable by the tribunal which were previously
only exercisable by the court under the 1950 Act. Provisions contained in Section 44
provide court support for some of the provisions of Section 38(3)–(6). Thus, the court's
intervention is needed even for the implementation of the new powers given to the
arbitral tribunal. It seems that, taking into consideration the previous practice, without
the court's involvement the arbitral tribunal would not be able to exercise its powers.
The provisions of Section 44 apply even if the seat of the arbitration is outside England,
except when the court by itself refuses to exercise its power. The tribunal may, if the
court so orders, decide whether or not a court order should cease to have effect in whole
or in part (Section 44(6)). The court has the power to make orders about matters listed in
Paragraph 2 of Section 44 as it has for the purposes of and in relation to legal
proceedings. The example of litigation is followed again, taking into account
compatibility of proceedings. The list contains very important matters, such as the
collection and presentation of evidence, the granting of an interim injunction or the
appointment of a receiver, which shows the depth of the involvement of the court in the
whole arbitral process. Section 33 highlights the duty of the tribunal to conclude an
arbitration in a manner which best suits the nature of the dispute. However, the
generality of its wording invites unsuccessful parties to attack the procedural decisions of
the tribunal or the award. It is stated that parties should have a “reasonable opportunity”
of putting their case, which allows tribunals to exercise discipline over the parties. The
term needs to be interpreted in order to comply with the doctrine of fairness and the
freedom of the parties to determine how their dispute will be resolved. Thus, it is an
open invitation for the courts to interpret the term. The court has the power to enforce
peremptory orders of the tribunal. Additionally, a party can use the court's legal
proceedings to secure witnesses’ attendance before the tribunal in order to give oral
testimony or to produce documents.
A party can request that the court determine a question of law arising during the course
of the proceedings. The question of law must be one which substantially affects the rights
of one or more of the parties (Section 44). A decision of the court is to be treated as a
judgment of the court for the purposes of an appeal. No leave to appeal will be allowed
unless the court is satisfied that the question of law is one of general importance or is
P 69 one which, for special reasons, should be considered by the Court of Appeal. The
parties in an arbitration agreement can agree otherwise regarding the power of the court
under Sections 44 and 45.

G. Commencement of Arbitral Proceedings

The 1996 Act gives the court, in certain circumstances, the power to extend a time-limit
imposed by an arbitration agreement for the commencement of the arbitration (Section
12). The changes in the law mainly concern the test that the court applies before
extending the time-limit. Any party to an arbitration agreement can apply for an order,
provided notice is given to the other parties, but only after a claim has arisen. Of course,
the parties should have exhausted any available arbitral process for obtaining an
extension of the time-limit. The court will extend the time-limit if circumstances have
arisen which were outside the reasonable contemplation of the parties when they agreed
the time-limit and it would be fair to extend the time, or if the conduct of one of the
parties makes it unfair to hold the other to the original terms of the bargain. However, the
new requirement to show in typical cases that the circumstances are unexpected will
make it more difficult to obtain an extension (previously it was necessary to show “undue
hardship”). Statutory time-limits, such as the one year limit of the Carriage of Goods by
Sea Act 1971, cannot be extended under the 1996 Act. However, it is up to the court to
interpret the term of the unexpected circumstances and its appliance to specific facts of
any case.

H. The Award
The arbitral tribunal is required to give reasons for the award, unless the parties agree
otherwise. Thus, the 1996 Act adopts a more formal and written award. If a tribunal fails to
comply with the requirements, or if the reasoning is not appropriate, the award can be
challenged in court. Under the FAA, however, arbitration awards could not be set aside
merely because commercial arbitration chose not to provide parties with reasons for
their decision, (82) which does not mean that they disregarded the law. (83) Therefore, a
failure by the tribunal to comply with the requirements as to the form of the award is a
serious irregularity and a ground on which the award may be challenged. Moreover, the

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 court must consider if this irregularity has caused, or will cause, substantial injustice to
the applicant. The term “substantial injustice” also needs to be interpreted. Unless
otherwise agreed by the parties, a court can extend the time-limit for making an award.
This action will be taken in order to avoid a substantial injustice. The tribunal has the
power to withhold an award in the case of non-payment and, where there is an available
arbitral process for appeal, application to the court cannot be made. The parties have
P 70 the power to correct an award themselves, without recourse to the courts. The award
must be made within the prescribed time-limit, otherwise it would be a nullity because
the arbitrators would lack the appropriate jurisdiction. An award is regarded as being
made in the place of the seat of arbitration–thus avoiding disputes over where an award
is made. This view was expressed in Hiscox v. Outhwaite, (84) where it was held that the
belief that place of signature determined the place where the award was made was
nullified.
The parties have the power to agree on the remedies which the tribunal can grant and
they may give the tribunal powers which are not available to the courts. However, the
remedies must not be contrary to public policy. The tribunal can award compound
interest and its power is wider than that of the court. (85) In fact, the compound interest
is granted on a compensatory and not a punitive basis. (86) Thus, it emerges that only
courts can grant punitive measures. In the United States the state court vacated an
award of punitive damages under state law by claiming that only the state has the power
to assess penalties against wrongdoers. (87) The Supreme Court, however, held that
arbitrators would be equally empowered and, according to the FAA, may award any relief
that is within the scope of the matters the parties submit to the arbitrators. (88)

I. The Powers of the Court in Relation to the Award

The court has the power to enforce the award in the same manner as a judgment. Any
party to an arbitration agreement can, upon notice to the other parties and to the
tribunal, apply to the court and challenge any award on the ground of its substantive
jurisdiction. The court can confirm the award, vary it or set it aside. Furthermore, a person
alleged to be a party to arbitral proceedings has the right to challenge an award by an
application to the court under Section 67. In line with the previous Section, a party can
challenge an award on the ground of serious irregularity. The definition of irregularity is
found in Paragraph 2 of Section 68, which lists those occasions referred as “irregularities”.
Inevitably, there is a need for judicial interpretation of the term “irregularity”, therefore
reference to the test of misconduct as it has been established by previous case law will
probably be made. The court has to consider that the irregularity has caused, or will
cause, substantial injustice to the applicant. (89) The court has the power to remit the
award to the tribunal for reconsideration. As mentioned above, a party to arbitral
proceedings can appeal to the court on a question of law arising out of an award made in
the proceedings. In cases of appeal on a point of law, reference should be made to the
guidelines established by The Nema (90) and The Antaios, (91) because the 1996 Act does
P 71 not bring forward any other guidelines. The question of law must substantially affect
the rights of parties the tribunal was asked to determine; the tribunal's decision on the
question should be wrong; it is one of general public importance; and the decision is
open to serious doubts in order to leave to appeal to be given. (92) The court's decision is
a judgment. The 1996 Act has incorporated the principles upon which the English court
would grant leave to appeal, as endorsed by courts under the 1979 Act. (93) The term
“dispute” has been defined by the courts. (94) It is stated that a court which makes an
order for summary judgment, even though the dispute falls within the scope of an
arbitration agreement, subverts the principle of party autonomy. (95) There are
provisions enabling the court to require an applicant seeking to challenge an award to
provide security for costs. (96) This power is not to be exercised on the grounds that the
applicant or appellant is an individual or corporation based outside the United Kingdom.
Nothing in the 1996 Act prevents a party to an arbitration agreement from making an
application for summary judgment as well. Although the right to appeal on a point of law
may be simply excluded by the parties’ agreement, the court's setting aside jurisdiction
under Section 67 cannot. If the tribunal fails to respect the parties’ choice of law and
decides the case as amiable compositeur or by reference to lex mercatoria, the court can
set aside the award on the basis that the tribunal exceeded its powers. Thus, the court is
the guardian of the public interest and the means by which injustice is avoided. Under
the FAA, arbitrators exceed their authority by refusing to make findings of fact and
conclusions of law when the arbitrating parties’ contract calls for such findings and
conclusions to be made. (97) The court is given powers to provide means of ensuring
service where difficulties arise which cannot be dealt with by the arbitrator (Section 77).
Thus, the available arbitral process for resolving the matter has to be exhausted first.
This power did not exist previously. The 1996 Act does not revive any jurisdiction of the
court to set aside or remit an award on the grounds of errors of law (Section 81(2)). It is
recognized that arbitration is not fully equipped to be an independent and alternative
method of dispute resolution. Section 78 provides that notices may be served by any
effective means. The court has the power, where service is not reasonably practicable, to
direct how service is to be effected or to waive it completely. Any notice required in
respect of legal proceedings must comply with the relevant rules of the court. The court
has the power, under Section 79, to extend any time-limit agreed to relation to the
P 72 arbitration proceedings or any other time-limit specified in the Act, apart from time

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 limits for commencing such proceedings which are dealt with in Section 12. Where the
arbitration agreement stipulates a time by which the award must be made, Section 50
gives the court power to extend it, but only after all the available arbitral processes are
exhausted.

IV. Conclusions
The 1996 Act seeks to significantly narrow and delimit the role of the court, ensuring that
the court's role is one of support for the arbitral process, rather than interference in it.
Arbitrators have been given more powers. It seems that the 1996 Act contains some very
positive provisions which empower arbitrators and delimit the role of courts by cutting
back their powers. There is a shift of power away from the courts to the tribunal.
Previously, the judges alone had the power to order security for costs in an arbitration,
unless the parties agreed to endow their tribunal with such a power. Under the 1996 Act,
this power has been removed from the courts and given to arbitrators. (98) The powers
that remain with the court are spelled out and delimited (Sections 42-45). These powers
are regarded, at least theoretically, as supportive of the arbitral process. It remains to be
seen how supportive they are in practice, when the assistance of the court will be
decisive for the completion of the arbitration. For the first time, the tribunal may
discharge a court's order (Section 44(6)). Therefore, the tribunal can act as effectively as
the court. Arbitrators are empowered to continue proceedings, notwithstanding that a
person has made an application to the court (Sections 24(3), 32(4) and 45(4)). In this way,
court applications will not be a simple method of disrupting the arbitral process.
Appeals on points of law may be excluded at any time and further restrictions have been
enacted to limit such appeals (Section 69(3)). The court has lost the power to set aside a
condition as stated in Sections 25(1) and 25(4) of the 1950 Act, which are now repealed.
However the arbitral tribunal, unlike the courts, has no power to consolidate arbitrations,
which could lead to a situation where two arbitrations based on the same facts result in
different awards. Two basic features of English arbitration law which have not been
addressed by the Act are those of confidentiality and privacy. These are two of the main
advantages which arbitration has over court proceedings. (99) The advantage of the
arbitral procedure remains its confidential nature. Of course, appeals to the court
continue to exist under the 1996 Act (Section 69), unless the parties specifically remove
any right of appeal. Furthermore, an exception to the principles is when an award
becomes public in enforcement proceedings or is challenged and several non-parties
may have legitimate interests in being informed about the arbitration.
Certain provisions relating to the powers of the courts do apply if the seat of arbitration
P 73 is elsewhere. The courts have the power to grant interim relief in support of
arbitrations having a foreign seat, which means that the court receives new powers to
assist foreign arbitrations. The court still has jurisdiction to decide about the illegality of
the contract. As mentioned above, it is for the parties to decide how their arbitration
should be conducted, unless public interest dictates otherwise and subject also to the
mandatory provisions of the Act. Thus, the State intervenes and diminishes the parties’
will. The legislator, through these provisions, keeps the sovereign power of the State in
the hands of the courts. The arbitral tribunal is not regarded as a means of safeguarding
the principles of public order and policy.
It seems that, in practice, arbitration has been changed to reflect litigation more closely
by increasing written decisions. The 1996 Act demands that the award have a specific
format. Arbitration then loses the speed and efficiency that makes it such a useful
alternative to the judicial system and the safeguards contained in the 1996 Act enhance
the accuracy only slightly. Arbitration should result in the final resolution of disputes in a
substantially shorter time. Moreover, the arbitral process has lost much of its credibility
due to participants moulding it into a litigation format. The mandatory provisions of the
1996 Act are a setback to the principles of the supremacy of the arbitration agreement
and the notion of party autonomy. Many provisions of the 1996 Act are stated specifically
in adherence to court proceedings, rather than a concise, informal procedure. Thus,
flexibility of arbitration has been lost through the transposition of principles and
procedures used in litigation to arbitration. Arbitration can be seen as a mirror image of
litigation, with detailed pleadings, full discovery, oral hearings and trials. As a result, its
credibility as a real alternative to litigation is being questioned. An answer to the
complexity of commercial and maritime arbitrations is effective arbitration
management. It seems that the court, under the 1996 Act, will play a key role in
arbitration, taking into account the previous case law and the drafting of the Act in line
with the principles established by the court's decisions. The arbitral tribunal is first of all
unable to enforce its own award.
The absence of a process of appeal conducted by an arbitral tribunal is a serious
disadvantage. The need to use the court to confirm, review or void an arbitral award
shows that arbitration is not an autonomous mechanism for dealing with commercial and
maritime disputes. A better solution would be the creation of a second degree arbitral
process, which would substitute the Court of Appeal. This arbitral tribunal, following a
quick and concise process, would validate an arbitration agreement and authorize or
void an award. The authorization and enforcement of the award by the arbitral tribunal
would create a fully developed system. This system could be said to be an alternative to

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 P 73 litigation and not merely a support for it.

References
*) Attorney at Law and Economist, Amvrosia, Komotini, Greece.
1) The Commercial Court took the lead in 1993 by issuing a statement requiring parties
to tell the court at both the summons for directions and the pre-trial review stages
whether they had considered using ADR (alternative dispute resolution). In 1995 the
other divisions of the High Court introduced the same ADR questions into their
pretrial review questionnaires. The decision as to whether ADR might be appropriate
is at discretion of the judge. The judge has the power to adjourn the proceedings
while ADR steps are taken.
2) Pitfalis v. Sherefettin [1986] QBD 868.
3) The St Raphal [1985] 1 Lloyd's Rep 403.
4) Zambia Steel Ltd. v. James Clark and Eaton Ltd. [1986] 2 Lloyd's Rep 225. The Messiniaki
v. Berge [1983] 1 All ER 382. In the case of an agreement conferring an option to elect
for arbitration, the statutory requirement of a written agreement is satisfied when
both the option agreement and the exercise of the option are in writing.
5) The Federal Bulker [1989] 1 Lloyd's Rep 103.
6) The Merak [1964] 2 Lloyd's Rep 527.
7) The Jordan Nicolov [1990] 2 Lloyd's Rep 11. The Parde Island [1991] 2 AC 1. The Leage
[1984] 2 Lloyd's Rep 259 (the assignment can be limited to a particular claim arising
under the contract). The Felicie [1990] 2 Lloyd's Rep 21 (the derivative party is entitled
to arbitrate and defeat any time bar arising before assignment or transfer).
8) Mantovani v. Carapelli SA [1980] 1 Lloyd's Rep 375. Ethiopian Oilseeds v. Rio Del Mar
Foods Inc. [1990] 1 Lloyd's Rep 86.
9) The Antonis Lemos [1985] AC 711.
10) The Evje [1974] 2 Lloyd's Rep 57.
11) Asville Investments Ltd. v. Elmer Contractors Ltd. [1989] QBD 488.
12) Mackender v. Feldia [1967] 2 QBD 590. The Tradesman [1961] 3 All ER 661 (a dispute as
to whether there was consideration for the contract). Payne and Routh v. Hugh Baird
[1921] 9 LL. L. R. 167 (a dispute as to whether the contract was void for uncertainty).
13) Harbour Assurance Co Ltd. v. Kansa General International Insurance Ltd. [1993] QBD
701.
14) Overseas Union Insurance Ltd. v. AA Mutual International Insurance Ltd. [1988] 2 Lloyd's
Rep 63.
15) F & G Sykes Ltd. v. Fine Fare Ltd. [1967] 1 Lloyd's Rep 53.
16) Union of India v. Aaby's Rederi [1975] AC 797.
17) Ford v. Clarksons Holidays Ltd. [1971] 3 All ER 454.
18) Heyman v. Darwing Ltd. [1942] AC 356.
19) Belfield v. Bourne [1984] 1 Ch 521.
20) Dawson v. Wright [1983] QBD 1065. Doleman & Sons v Osett Corp. [1912] 3 KBD 257.
21) The Siskina [1978] 1 Lloyd's Rep 1.
22) The Choko Star [1987] 1 Lloyd's Rep 508.
23) Heyman v. Darwins Ltd. [1942] AC 356.
24) The Gladys [1990] 1 All ER 597. The Golden Bear [1987] 1 Lloyd's Rep 330.
25) The Fanti [1987] 2 Lloyd's Rep 299. The Felicie [1990] 2 Lloyd's Rep 21. The Parde Island
[1984] 2 Lloyd's Rep 408. The Parde Island No. 2 [1987] 2 Lloyd's Rep 529.
26) The Fehman [1958] 1 All ER 333.
27) City Centre Properties Ltd. v. Tersons Ltd. [1969] 2 All ER 1121. The concept of
misconduct is wide ranging, covering not only moral turpitude and incompetence,
but also failure to conduct the proceedings impartially and even technical
procedure irregularities. Pratt v. Swanmore Builders [1980] 2 Lloyd's Rep 504,
Interbulk Ltd. v. Aiden Shipping Co. [1984] 2 Lloyd's Rep 66. The arbitrator's conduct
which has forfeited the confidence of one or other of the parties is sufficient to
establish misconduct.
28) Burkett Sharp & Co. v. Eastcheap Dried Fruit [1962] 1 Lloyd's Rep 267.
29) Stockport Metropolitan Borough Council v. O'Reilly [1983] 2 Lloyd's Rep 70.
30) The Laertis [1982] 1 Lloyd's Rep 613.
31) Bremer Vulean v. South India Shipping Corp. [1981] 1 Lloyd's Rep 253.
32) [1981] 1 Lloyd's Rep 29.
33) The Leonidas [1983] 2 Lloyd's Rep 411. The Antclizo [1988] 2 Lloyd's Rep 93. The Golden
Bear [1987] 1 Lloyd's Rep 330. Unisys International v. Eastern Counties Newspapers
[1991] 1 Lloyd's Rep 538.

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 34) This power cannot be ousted by an express contrary agreement between the parties.
Mavani v. Rallibros Ltd. [1973] 1 All ER 555. The security for costs was appropriate
where the proceedings were expensive and complex and the claimant's financial
position was precarious. Bani v. Korea Shipbuilding Corp. [1987] 2 Lloyd's Rep 445. The
court declined to make an order for security for costs where foreign parties had
agreed to arbitrate in England under the rules of the International Chamber of
Commerce. Flender Werlf Ag v. Aegean Maritime Ltd. [1990] 2 Lloyd's Rep 27.
Furthermore, an order for security for costs may be granted to a claimant advancing
a counterclaim. The Silver Fir [1980] 1 Lloyd's Rep 371. The court may order a
permanent stay of the arbitration proceedings in the event of failure by a party to
comply with an order to provide security. Dorvan Tankers Ltd. v. Two Arrows Maritime
Ltd. [1984] 2 Lloyd's Rep 563.
35) The court may order a permanent stay of the arbitration proceedings in the event of
failure by a party to comply with an order to pay the amount in dispute into court.
36) Bremer v. Westzucker [1981] 2 Lloyd's Rep 130.
37) The Gay Fidelity [1982] 1 Lloyd's Rep 469. The Niedersachsen [1986] 1 Lloyd's Rep 393.
The Dynashinsky [1986] 1 Lloyd's Rep 435.
38) The Alaskan Trader [1983] 1 Lloyd's Rep 315.
39) The Baleares [1991] 2 Lloyd's Rep 318.
40) [1981] 2 Lloyds Rep 239.
41) The Anataios No. 2 [1984] 2 Lloyds Rep 235. The Rio Sun [1981] 2 Lloyd's Rep 489.
42) The Kerman [1982] 1 Lloyd's Rep 62. The Sanko Honour [1985] 1 Lloyd's Rep 418.
43) Bulk Oil v. Sun International [1983] 1 Lloyd's Rep 655.
44) Exormisis Shipping SA v. Oonso [1975] 1 QBD 704.
45) R. v. National Joint Council [1953] 1 QBD 704.
46) European Gain & Shipping Ltd. v. Johnston [1983] QBD 520.
47) Bulk Oil AG v. Sun International Ltd. No. 2 [1984]1 Lloyd's Rep 531.
48) For example, by mistake the arbitrator omitted to give credit for payment which had
been duly proved or by an oversight directed payment of the sums awarded to the
wrong person. The Mello [1948] 8 Lloyd's Rep 230.
49) An award will not be remitted in order to discover evidence to develop a new
presentation of a case. Tsakiroglou & Son Ltd. v. Transgrains SA [1958] 1 Lloyd's Rep
562.
50) King v. Thomas Mckenna Ltd. [1991] 1 All ER 653. The Singapore Fortune [1987] 1 Lloyd's
Rep 270.
51) The Jordan Nicolov [1990] 2 Lloyd's Rep 11.
52) The Elisson [1984] 2 Lloyd's Rep 84.
53) The Dalny [1979] 2 Lloyd's Rep 439.
54) The Kelo [1985] 2 Lloyd's Rep 85.
55) Middlemiss and Gould v. Hartlepool Corp. [1973] 1 All ER 172.
56) The St Anna [1983] 2 All ER 691.
57) Manhattan Construction Company v. Protel Inc. [1995] 905 F Sup 971. Paine Webber Inc.
v. Charles M. Landy [1995] 903 F Sup 193. For a detailed view of the FAA, see G. Zekos,
Courts’ Intervention in Commercial and Maritime Arbitration Under U.S. Law, 14 J. Int.
Arb. 2, June 1997, at 99.
58) Bayfur SA v. Finagro Holdings SA [1992] 1 QBD 610.
59) Harbour Assurance v. Kansas General International Insurance [1993] QBD 701.
60) There appears to be no juridical difficulty about resolving a probate dispute by
arbitration. A possible way of enforcing an award in probate arbitration will be either
an application to be made in the probate registry for a grant of probate to be issued
in accordance with the award and the District Judge will refer to a Judge of the Family
Division or ask the Attorney General to be represented as amicus, or a probate action
can be brought in the Chancery Division by a writ after the parties have in fact
reached agreement.
61) [1986] 2 Lloyd's Rep 225.
62) See Dew Group Ltd. v. Costain Building and Civil Engineering Ltd., The Times, 20
December 1996. The court held that the parties had agreed upon a person who might
be approached to act. Once that had happened, the agreement was binding and the
declaration sought by the plaintiffs would accordingly be granted.
63) Aughton v. MF Kent Services [1991] 57 BLR 1.
64) [1993] AC 593.
65) Official Referees’ Business, 11 June 1996.
66) Phillip Alexander Securities v. Bamberger, The Times, 22 July 1996.
67) Cowan v. Tresor Public [1989] ECR 195. Commission v. Spain [1994] ECR I-911. Alpine
Investments [1995] ECR I-1141.
68) Hoffman v. Aaron Kamni In [1996] 927 F Sup 640. Svedala Industries Inc. v. The Home
Insurance Company [1995] 921 F Sup 576.
69) McPheeters v. McGin, Smith and Co. [1992] 953 F 2d 771. Determination of scope of
agreement falling within the ambit of the FAA is governed by federal law.
70) First Options of Chicago Inc. v. Kaplan [1995] 115 S. Ct 1920. Indocemex Fibres Ltd. v.
Cotton Co. 916 F Sup 721. Contracting parties may agree to subject any contract
dispute to binding arbitration and may also agree that a particular tribunal will
review the award.
71) Channel Tunnel Group Ltd. v. Balfour Beaty Construction Ltd. [1992] QBD 656.

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 72) SL Sethia Lines Ltd. v. State Trading Corporation of India Ltd. [1985] 1 WLR 1398.
73) Mercedes-Benz AG v. Leiduck [1996] 1 AC 284.
74) Navire Amazonica Peruana SA v. Compania International De Seguros del Peru [1988] 1
Lloyd's Rep 116.
75) Deutsche Schachtban v. Shell International Petroleum Co. [1987] 3 WLR 1023.
76) Union of India v. McDonnel Douglas Inc. [1993] 2 Lloyd's Rep 48.
77) Sumitomo Heavy Industries v. Oil and National Gas Commission [1994] 1 Lloyd's Rep 45.
78) Sanko Co. v. Cook Industries Inc. 495 F 2d 1260. International Produce Inc. v. A/S
Rosshavet, 638 F 2d 548.
79) Lovell Partnerships Ltd. v. AW Construction Plc [1997] BLR 83. The arbitrator had
proceeded in that way in spite of the contractor's insistence that further material
was needed before the issues could be fairly resolved.
80) Turner v. Stevenage Borough Council, The Times, 27 March 1997. The arbitrator made
requests to both parties for an interim payment of his fees and expenses. It was an
implied term of the arbitration agreement that the arbitrator might request an
interim payment. Therefore, the arbitrator's actions did not amount to misconduct
and he would not be removed.
81) Regia Antonima v. Gulf Petroleum [1996] 2 All ER 319. The Maria [1993] 3 All ER 748. The
court having jurisdiction to order security for costs.
82) Rayfheon Co. v. Automated Business Systems, 882 F 2d 6.
83) Merill Lynch v. Barke [1990] 741 F Sup 191.
84) [1992] 1 AC 562.
85) Westdeutsche Länderbank v. Islington LBC [1996] 2 WLR 802.
86) National Bank of Greece v. Pinios Shipping Co. [1989] 3 WLR 1330.
87) Garrity v. Lyle Stuart, 353 NE 2d 793.
88) Mastrobuono v. Shearson Lehman Hutton Inc. [1995] 115 S. Ct. 1212.
89) India Oil Corp. v. Coastal Bermuda [1990] 2 Lloyd's Rep 407.
90) [1982] AC 724.
91) [1985] AC 191.
92) Secretary of State for the Environment v. Euston Centre Investments Ltd. [1995] Ch 200.
Leave to appeal against an award on the grounds of delay caused by an
administrative error of Commercial Court staff.
93) Delta Civil Engineering Co. Ltd. v. London Docklands [1996] 81 BLR 19. The arbitration
clause of the contract was wide enough to give the arbitrator jurisdiction to make an
award of costs. There was no reason not to grant leave to enforce the award and the
appeal would be allowed.
94) The John Helmsing [1990] 2 Lloyd's Rep 290. Hayfer v. Nelson [1990] 2 Lloyd's Rep 265.
95) Sa Coppee Lavatin v. Ken Ren Chemicals & Fertilizers Ltd. [1994] 2 WLR 631.
96) Lexmar Corp. v. Nordisk [1977] 1 Lloyd's Rep 289. Proceeding to enforce a letter of
undertaking given by a third party pursuant to an order for security for costs made in
an arbitration under the 1950 Act. English courts had exclusive jurisdiction over
Lexmar's claim. Continental Bank v. Aeakos Compania Naviers [1994] 1 Lloyd's Rep
505, 2 All ER 540.
97) Columbia Aluminium Corporation v. United Workers of America [1995] 922 F Sup 412.
Western Employers Inc. v. Jefferies & Co. [1992] 958 F 2d 258.
98) Coppe Lavalin v. Ken-Ren Chemicals [19957] 1 AC 38. The decision of the House of Lords
has been reversed by the 1996 Act.
99) Esso/BHP v. Plowman [1995] 128 All ER 391.

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