The Interaction of Courts and Arbitrators in England: the 1996 Act as a Model for the United States?

Document Type

Article

Publication Date

1998

ISSN

1367-8272

Publisher

Sweet & Maxwell

Language

en-US

Abstract

Replacing several centuries of piecemeal legislation and random judicial decisions, the 1996 English Arbitration Act provides the first truly systematic and comprehensive legal framework for arbitration of commercial disputes in England. The legislation caps almost two decades of flirting with (and skirmishing around) arbitration law reform, beginning with the abolition in 1979 of the procedure by which awards had been subject to systematic review on their legal merits. Some had felt that these statutory changes did not go far enough, and so a committee was appointed to consider adoption of the Model Arbitration Law drafted by the United Nations Commission on International Trade Law. Although a decision was made not to import into England the Model Law, its language and structure did exert a strong influence on the legislation that ultimately emerged from this reform process.   The Act brings no radical departures from the sound basic principles that have governed arbitration in England since 1979. England's split-level approach to judicial review of awards continues to offer an optional right to appeal points of English law, coupled with a non-waivable opportunity to seek judicial review of an arbitration's fundamental procedural regularity. Rather, the Act's most significant achievement relates to form instead of substance, having put old wine into new and more userfriendly wineskins. This repackaging is no small feat, since the practical application of even the best norms and traditions will depend on matters of language, organisation and structure.   The Act does introduce several important substantive innovations, however. Most notably, challenge of arbitrator misbehaviour on the broad basis of "misconduct" has been replaced by detailed provisions for judicial review of arbitral excess of jurisdiction and lack of procedural integrity. In addition, the Act ends restrictions on the right to exclude judicial review of awards in admiralty, insurance and commodity market disputes. Finally, under the Act judges may no longer order security for costs in arbitration.   Measured by the plumb lines of both efficiency and justice, the syncretistic legislation offers an optimal balance of finality and fairness in private dispute resolution. Contemplating this impressive achievement, thoughtful American lawyers are likely to ask whether English-style arbitration reform would succeed in the United States. The answer implicates the paradoxical interaction of national arbitration law with a dispute resolution process that aspires to be free from court intervention. After taking a general look at the role of national arbitration law, the article goes on to examine the Act's statutory framework and key provisions. The article then examines the potential effect of English-style reform in the United States, concluding that a more piecemeal approach to improving the Federal Arbitration Act would be preferable at this time.

Comments

Reprinted in 13:6 International Arbitration Report 14 (Jun. 1998) as The New English Arbitration Act.

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