A Critical Analysis of Arbitral Provisional Measures In

Total Page:16

File Type:pdf, Size:1020Kb

A Critical Analysis of Arbitral Provisional Measures In A CRITICAL ANALYSIS OF ARBITRAL PROVISIONAL MEASURES IN ENGLAND AND WALES A Thesis Submitted for the Degree of Doctor of Philosophy in Law by ShadatMohmeded School of Law Brunel University 17th Jan 2014 ABSTRACT Arbitral provisional measures are of great importance in protecting the rights of the parties to an arbitration agreement. Arbitration as a dispute mechanism is becoming increasingly powerful due to the ability of tribunals and courts to grant and enforce provisional measures which make the final award meaningful. The importance of provisional measures has increased in recent years as more parties are seeking them,1 and is likely to grow still more in the coming years.2 This project examines the problems surrounding arbitral provisional measures in England and Wales; as such problems constitute a threat to current and future arbitration. The thesis aims to identify, analyse and offer solutions to those problems that impede arbitral proceedings. This thesis initially examines the roots and the legislative development of the powers of arbitral tribunals to grant provisional measures and the role of the courts in arbitral proceedings in England. The examination highlights the roots of the problems and demonstrates how the approach towards provisional measures in England has shifted in due course from judicial dominance to arbitral competence, and how the role of the courts has become subsidiary. Further, the analysis highlights the problem of arbitrators in the granting and enforcement of provisional measures across borders, due to the inadequacy of the current Arbitration Act 1996, which provides very limited power to tribunals under its S.38,39 and 48. Additionally, the research aims to demonstrate that arbitral tribunals should be given effective and actual authority to grant arbitral provisional measures in order to comply with the arbitration agreement (party autonomy). Since no dispute mechanism can stand alone as an island, the courts should only become involved in support of the process – subject to the arbitral Acts that provide them with exclusive jurisdiction –where this is necessary in order to avoid conflicting decisions. However, the power of the courts to aid arbitration in granting such measures is limited by Council Regulation (EC) 44/2001 of the European Union, of which England is a member. 1See Werbick RJ, 'Arbitral Measures: fact or fiction?' (2002-2003) Dispute Resolution Journal at 57-64. 2 See Ferguson SM, 'Interim Measures of protection in international commercial arbitration: problems, proposed solutions and anticipated results', (2003) Current International Trade Law Journal 12:15. ii In international arbitration, timely application and enforcement of interim measures have a substantial effect on the possibility of the enforcement of a final arbitration award, especially when issues relating to the protection of assets or evidence arise before or during the course of proceedings. Hence the purpose of this project is to provide a brief analysis of the international practice regarding the enforcement of provisional measures in international arbitration. iii ACKNOWLEDGEMENTS All praise and thanks be to Allah, the Almighty, who has enabled me to accomplish this academic milestone. First and foremost, the author is grateful to the Vice president of Uganda RT Hon Edward SSekandi, Rector of Islamic University in Uganda Dr.Ahmed Kawesa Ssengendo, Dr. Lukwago Nassali (Permanent secretary ministry of Education in Uganda)Hajji Lubega Swaibu Wagwa (Chairman Education Service Commission) Ambassador Isaac SSebulime for their support during the research period. Special thanks are due to Professor Chigara Ben (Assistant Head of Brunel Law School), Professor Abimbola Olowofoyeku (Head of Brunel Law School), professor Mansour Ssenyonjo, Dr. Tony Cole, Dr. OlufemiAmao, Dr. Koratana Muhammad (Director of PhD research),Professor Mathews J Humphreys ( Dean Faculty of Law & Business Kingston University), Professor Robert Merkin, Professor Peter Jaffey, Dr. Akalemwa Ngenda, Professor Christine Piper, Professor Javaid Rehman,Professor Gwyneth Pitt(Kingston University London) Dr.Trauxal Steve ( Head of LLM City University), Professor Micheal Wyn ( Kingston University), Barrister Associate Professor Pamela Selman (Kingston University London) Dr Alexandra Xanthaki, Dr. Rebecca Bates, Dr. Ayesha Shahid, Professor Ilias Bantekas, Dr. Ibrahim Matovu, Mr.Bbale, Hajji Gaynamungu Abubaker Kasekende,Dr.Kasato Rashid, Mr Adam Mugga,Ms Faridah Namata Gaynamungu, Yusuf, Mr.Kassimu Muguluma,Haji Bisaso Muhamed, Late Hajji Bisegerwa Authman, Hajji Jamiru Nsubuga, Mr.Kanyoro iv Frank,Mr.Lusoke Sam,Mrs Hadjah Nabwami,Mr.Farouk Manawa, Hajji Ayub Kasujja Kasule, Dr. Faridah Ssekalala Mirembe,Mrs Helen Odele ( Rose Samuel and Partner Solicitors), Hajji Muhammad Mubiru and Mr. Bazira Kagimu. The author wishes to express his deepest indebtedness to his supervisor Dr. Mihail Danov for the enthusiasm, patience, guidance and invaluable assistance given throughout the meticulous reading of the earlier drafts of this thesis. The author also wishes to thank the management of the Law School for the their support ,especially Amanda, Rahena, Tracey Alexis and Vanessa. v DEDICATIONS To the source of pride who has illuminated my academic milestone, and who has influenced me to become who I am today; to the pure spirit of my beloved father, Al Hajji Mostapher Muhammed Ssemakula, May Allah the King of Majesty and the king of the day of reckoning bless him and may he rest in eternal peace. To the light of my eyes, who endured the pain of parting and waited patiently and who supported me with love and patience along each step of my academic milestone, my beloved mother, Hajat Faridah Bukenya Nyanzi, sisters and brothers. To my life companion and partner, Sheeb Nansukusa, the mother of my son Rian Ssemakula Mohmed, both of whom have suffered, missed me and waited; I ask God to guide me so that I may fulfil my obligation towards them, all my life. To those true friends who supported me emotionally, financially, spiritually and physically. To the Pearl of Africa and its suffering people. vi TABLE OF ABBREVIATIONS AAA American Arbitration Association AC Appeal Court (Law Reports, House of Lords Appeal Cases) AJC American Journal of Comparative Law AL ER All England Law Reports CA Court of Appeal of England and Wales CAS Court of Arbitration for Sports CCIG (Swiss Rules) CCP Code of Civil Procedure CIA Chartered Institute of Arbitrators CIArb Chartered Institute of Arbitrators in England Compromissoire An arbitration Clause CLJ Cambridge Law Journal CPR Civil Procedure Rules DAC Departmental Advisory Committee on Arbitration Bill February 1996 EAA English Arbitration Act 1996 ECHR European Convention on Human Rights ECJ European Court of Justice EU European Union vii EWCA England and Wales Court of Appeal Ex parte one side or part only F.2d The Federal Reporter Second Series F.3d The Federal Reporter Third Series FAA French Arbitration Association HKIAC Hong Kong International Arbitration Centre ICC International Chamber of Commerce ICCA International Council for Commercial Arbitration ICDR International Centre for Dispute Resolution ICSID International Centre for the Settlement of Investment Disputes Int’l.Ct.Arb.Bull. International Court of Arbitration Bulletin J.Int’l.Arb Journal of International Arbitration JBL Journal of Business Law KB King’s Bench Division LCIA London Court of International Arbitration Lex arbitri The Law governing arbitration Lex contractus law governing the contract Lex pendens A dispute or matter which is the subject of ongoing or pending litigation LMAA London Maritime Arbitrators Association LQR Law Quarterly Review MR Master of the Rolls viii QB Queen's Bench Division UKHL United Kingdom House of Lords UNCITRAL United Nations Commission on International Trade Law WIPO World Intellectual Property Organization WLR Weekly Law Report YCA Yearbook of Commercial Arbitration ZCC Zurich Chamber of Commerce ix National Legislation( Statutes) American Arbitration Act (AAA),at 53,62, 64,66, 68,146 Arbitration Act 1889 at 25. Arbitration Act 1934 at 26. Arbitration Act 1950 at 30, 31, 34 Arbitration Act 1979 at 33,34,36,37. Arbitration Act of Scotland 1996 at 224. Australian Arbitration Act 2005 at 135, 132. Belgian Code Civil 1999 at 217. Belgian Code Civil 1999 at 217. Civil Jurisdiction & Judgement Act 1982 (Interim Relief Order 1977) at 232, 111. Civil Jurisdiction Act and Judgement Act 1980 at 192. Civil Procedure Act 1833 at 22. Common Law procedure Act 1854 at 22,25, 27, 26 Companies Act 1985 at 173. English Arbitration Act 1996 at 47,220-225,127,135,125,55,94,74-78,92,126,162-165. English Supreme Court Act 1981 at 153. European Communities Act 1978 at 188. French Civil Code, at 64. German Arbitration Act 1998 at 76, 78,97, 155, 158. Hong Kong Arbitration ( Amendment Ordinance 1997) at 158. x Human Rights Act 1988 at 129-130. Ireland Arbitration Act 1998 at 127. Italian Arbitration Act 1994 at 208, 155. Japan Arbitration Act 1998 at 149. Kenya Arbitration Act 1995 at 220, 223. Lithuania Arbitration Act 1996 at 61, 180,161. New Zealand Arbitration Act at 223. Polish Arbitration Act 2005 at 77,135, 265,134. Polish CPP 1996 at 177 Spanish Ley de Arbitrage 2003 at 223. Supreme Court Act 1981 at 21,22, 121,113. The Netherlands Arbitration Act 1986 at 218. The Swiss Private International Law (PIL) Statute of 1987 at 64,66.149. Arbitral Rules and Conventions: Brussels Regulation 2012/2015 at 236,232. Brussels Regulation 42/2002 at 232. Brussels Regulation 44/2001 at 98,189. CAS Rules at 32, 132- 135. Civil Procedure Rules 1998 at 156, 158. Geneva Protocol & Geneva Convention 1927 at 6,22,24,80, 90. ICC Rules at 64,54,59,67,137,122, 116, 105,150. xi ICSID Rules at 4,5,53, 90, 165, 170,220. LCIA Rules at 55, 53, 62, 66,68,90,61,170. LMAA Rules of Gafta Arbitration at 129 New York Convention 1958 at 33,54,59,74, 57,71, 62,223, 225,228,34,94, 166,250,277. UNICTRAL Model Law at 17, 41,49,56,62,74,78,92,90,95, 123,137,154.133,130,129,123,120,109,225.257, 258,259,260.
Recommended publications
  • Arbitration Act 1996
    Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are currently no known outstanding effects for the Arbitration Act 1996. (See end of Document for details) Arbitration Act 1996 1996 CHAPTER 23 An Act to restate and improve the law relating to arbitration pursuant to an arbitration agreement; to make other provision relating to arbitration and arbitration awards; and for connected purposes. [17th June 1996] Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:— Extent Information E1 This Act extends to England, Wales and Northern Ireland; for exceptions see s.108 Modifications etc. (not altering text) C1 Act modified (11.11.1999) by 1999 c. 31, s. 8(1)(2) (with application as mentioned in s. 10(2)(3)) C2 Act excluded (31.1.1997) by 1966 c. 41, s. 3 (as substituted by 1996 c. 23, s. 107(1), Sch. 3 para. 24 (with s. 81(2)); S.I. 1996/3146, art. 3 (with transitional provisions in art. 4, Sch. 2) Act excluded (1.8.1998) by 1992 c. 52, s. 212A(6) (as inserted (1.8.1998) by 1998 c. 8, s. 7; S.I. 1998/1658, art. 2(1), Sch. 1 Act excluded (N.I.) (1.3.1999) by S.I. 1998/3162 (N.I. 21), art. 89(6); S.R. 1999/81, art. 3 Act excluded (31.3.2002) by The Dairy Produce Quotas Regulations 2002 (S.I.
    [Show full text]
  • Arbitration Procedures and Practice in the UK (England and Wales): Overview by Justin Williams, Hamish Lal and Richard Hornshaw, Akin Gump LLP
    Arbitration procedures and practice in the UK (England..., Practical Law Country... Arbitration procedures and practice in the UK (England and Wales): overview by Justin Williams, Hamish Lal and Richard Hornshaw, Akin Gump LLP Country Q&A | Law stated as at 01-Dec-2018 | England, Wales A Q&A guide to arbitration law and practice in the UK (England and Wales). The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A Tool. This Q&A is part of the global guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration- guide. Use of arbitration and recent trends 1. How is commercial arbitration used and what are the recent trends? Use of commercial arbitration and recent trends Commercial arbitration remains the preferred dispute resolution procedure for international transactions. The full implications of Brexit for arbitration in the UK are being closely monitored by practitioners, but it does not appear to have had any immediate impact. In fact, Queen Mary University of London's 2018 International Arbitration Survey (Survey) has reported a predominant view that the use of London as a seat is unlikely to be affected. This is unsurprising, given that the primary attractions of London should remain the same, namely the reliability of the neutrality and impartiality of the English judiciary; the support for the arbitral process offered by English courts and the Arbitration Act 1996; and the UK's position as a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention).
    [Show full text]
  • Arbitration Act 1996
    Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are currently no known outstanding effects for the Arbitration Act 1996. (See end of Document for details) Arbitration Act 1996 1996 CHAPTER 23 An Act to restate and improve the law relating to arbitration pursuant to an arbitration agreement; to make other provision relating to arbitration and arbitration awards; and for connected purposes. [17th June 1996] Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:— Extent Information E1 This Act extends to England, Wales and Northern Ireland; for exceptions see s.108 Modifications etc. (not altering text) C1 Act modified (11.11.1999) by 1999 c. 31, s. 8(1)(2) (with application as mentioned in s. 10(2)(3)) C2 Act excluded (31.1.1997) by 1966 c. 41, s. 3 (as substituted by 1996 c. 23, s. 107(1), Sch. 3 para. 24 (with s. 81(2)); S.I. 1996/3146, art. 3 (with transitional provisions in art. 4, Sch. 2) Act excluded (1.8.1998) by 1992 c. 52, s. 212A(6) (as inserted (1.8.1998) by 1998 c. 8, s. 7; S.I. 1998/1658, art. 2(1), Sch. 1 Act excluded (N.I.) (1.3.1999) by S.I. 1998/3162 (N.I. 21), art. 89(6); S.R. 1999/81, art. 3 Act excluded (31.3.2002) by The Dairy Produce Quotas Regulations 2002 (S.I.
    [Show full text]
  • 17Th ANNUAL REVIEW of the ARBITRATION ACT 1996 BIICL and SIMMONS & SIMMONS CONFERENCE on 26/3/2019
    17th ANNUAL REVIEW OF THE ARBITRATION ACT 1996 BIICL AND SIMMONS & SIMMONS CONFERENCE ON 26/3/2019 “THE INTERPLAY BETWEEN JUDGES AND ARBITRATORS” KEYNOTE LECTURE BY SIR RUPERT JACKSON 1. INTRODUCTION 1.1 This conference. This is a timely conference. The importance of international arbitration to successful international trade has been reaffirmed by the Supreme Court in Taurus Petroleum Ltd v State Oil Marketing Co [2017] UKSC 64 at [54]. London is a major centre of international arbitration, supported by the Commercial Court within the framework of the Arbitration Act 1996 (‘the 1996 Act’). The present conference will focus on recent developments in arbitration law, with particular reference to challenges under ss. 67 and 68 of the 1996 Act. 1.2 This lecture. In this lecture I will go off piste for a few minutes to talk about s.45 of the 1996 Act, before turning to the core issues under discussion today. 2. SECTION 45 OF THE 1996 ACT AND THE RELATIONSHIP BETWEEN THE COURTS AND ARBITRATORS 2.1 Section 45. The recent Commercial Court decision Goodwood Investments Holdings Inc v Thyssenkrupp Industrial Solutions AG [2018] EWHC 1056 (Comm) has focused attention on a little used provision of the Arbitration Act 1996, namely s. 45. That section provides: “(1)Unless otherwise agreed by the parties, the court may on the application of a party to arbitral proceedings (upon notice to the other parties) determine any question of law arising in the course of the proceedings which the court is satisfied substantially affects the rights of one or more of the parties.
    [Show full text]
  • Litigation & Dispute Resolution
    Litigation & Dispute Resolution 2018 Seventh Edition Contributing Editor: Michael Madden GLOBAL LEGAL INSIGHTS – LITIGATION & DISPUTE RESOLUTION 2018, SEVENTH EDITION Contributing Editor Michael Madden Production Editor Andrew Schofi eld Senior Editors Suzie Levy Caroline Collingwood Group Consulting Editor Alan Falach Publisher Rory Smith We are extremely grateful for all contributions to this edition. Special thanks are reserved for Michael Madden for all his assistance. Published by Global Legal Group Ltd. 59 Tanner Street, London SE1 3PL, United Kingdom Tel: +44 207 367 0720 / URL: www.glgroup.co.uk Copyright © 2018 Global Legal Group Ltd. All rights reserved No photocopying ISBN 978-1-912509-29-4 ISSN 2049-3126 This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualifi ed professional when dealing with specifi c situations. The information contained herein is accurate as of the date of publication. Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY August 2018 CONTENTS Preface Michael Madden, Winston & Strawn London LLP Australia Colin Loveday, Richard Abraham & Sheena McKie, Clayton Utz 1 Bermuda David Kessaram, Matthew Watson & Sam Riihiluoma, Cox Hallett Wilkinson Limited 14 Brazil Eduardo Perazza & Ariana Anfe, Machado, Meyer, Sendacz & Opice Advogados 25 British Virgin Islands Scott Cruickshank & Matthew Freeman, Lennox Paton 32 Cayman Islands Ian Huskisson, Anna Peccarino & Neil McLarnon, Travers Thorp Alberga 47 China Cui Qiang & Li Qishi, Commerce & Finance Law Offi ces 55 England & Wales Michael Madden & Justin McClelland, Winston & Strawn London LLP 62 Finland Markus Kokko & Niki J.
    [Show full text]
  • Copyright © and Moral Rights for This Phd Thesis Are Retained by the Author And/Or Other Copyright Owners
    Olokotor, Prince Ndudi Councillor (2017) Judicial attitudes to enforcement of transnational awards under the New York convention : a critical assessment of the English and Nigerian courts. PhD Thesis. SOAS, University of London. http://eprints.soas.ac.uk/id/eprint/24950 Copyright © and Moral Rights for this PhD Thesis are retained by the author and/or other copyright owners. A copy can be downloaded for personal non‐commercial research or study, without prior permission or charge. This PhD Thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder/s. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders. When referring to this PhD Thesis, full bibliographic details including the author, title, awarding institution and date of the PhD Thesis must be given e.g. AUTHOR (year of submission) "Full PhD Thesis title", name of the School or Department, PhD PhD Thesis, pagination. JUDICIAL ATTITUDES TO ENFORCEMENT OF TRANSNATIONAL AWARDS UNDER THE NEW YORK CONVENTION: A CRITICAL ASSESSMENT OF THE ENGLISH AND NIGERIAN COURTS Prince Ndudi Councillor Olokotor Thesis submitted for the degree of PhD in Law September 2016 School of Law SOAS, University of London Declaration I have read and understood regulation 17.9 of the Regulations for students of the SOAS, University of London concerning plagiarism. I undertake that all the material presented for examination is my own work and has not been written for me, in whole or in part, by any other person. I also undertake that any quotation or paraphrase from the published or unpublished work of another person has been duly acknowledged in the work which I present for examination.
    [Show full text]
  • Arbitration Act 1996 Is up to Date with All Changes Known to Be in Force on Or Before 15 April 2019
    Status: This version of this Act contains provisions that are prospective. Changes to legislation: Arbitration Act 1996 is up to date with all changes known to be in force on or before 15 April 2019. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. (See end of Document for details) Arbitration Act 1996 1996 CHAPTER 23 An Act to restate and improve the law relating to arbitration pursuant to an arbitration agreement; to make other provision relating to arbitration and arbitration awards; and for connected purposes. [17th June 1996] Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:— Annotations: Extent Information E1 This Act extends to England, Wales and Northern Ireland; for exceptions see s.108 Modifications etc. (not altering text) C1 Act modified (11.11.1999) by 1999 c. 31, s. 8(1)(2) (with application as mentioned in s. 10(2)(3)) C2 Act excluded (31.1.1997) by 1966 c. 41, s. 3 (as substituted by 1996 c. 23, s. 107(1), Sch. 3 para. 24 (with s. 81(2)); S.I. 1996/3146, art. 3 (with transitional provisions in art. 4, Sch. 2) Act excluded (1.8.1998) by 1992 c. 52, s. 212A(6) (as inserted (1.8.1998) by 1998 c. 8, s. 7; S.I.
    [Show full text]
  • August-2017.Pdf
    ARBITRATION The International Journal of Arbitration, Mediation and Dispute Management Volume 83 Issue 3 August 2017 ISSN: 0003–7877 Editorial Board Dr Michael O’Reilly Editor Professor Derek Roebuck Editor Emeritus Senior Research Fellow, Institute of Advanced Legal Studies, University of London Dr Gordon Blanke, Book Review Editor Partner, DWF (Middle East) LLP (International Commercial and Investment Arbitration), DIFC, Dubai, UAE Dominique Brown-Berset Attorney-at-Law, Partner, Brown and Page, Geneva Hew R. Dundas Chartered Arbitrator Arthur Harverd Chartered Accountant and Chartered Arbitrator, London Julio César Betancourt Academic Visitor, University of Oxford and University of Salamanca Dr Colin Y.C. Ong QC Barrister; Dr Colin Ong Legal Services, Brunei and Associate Member, Stone Chambers, London This volume should be cited as (2017) 83 Arbitration. The International Journal of Arbitration, Mediation and Dispute Management is published by Thomson Reuters, trading as Sweet & Maxwell. Registered in England & Wales, Company No.1679046. Registered Office and address for service: 5 Canada Square, Canary Wharf, London, E14 5AQ. For further information on our products and services, visit: http://www.sweetandmaxwell.co.uk. Computerset by Sweet & Maxwell. Printed and bound in Great Britain by Hobbs the Printers Ltd, Totton, Hampshire. No natural forests were destroyed to make this product; only farmed timber was used and replanted. Copies of articles from The International Journal of Arbitration, Mediation and Dispute Management, and other articles, cases and related materials, can be obtained from DocDel at Sweet & Maxwell’s Yorkshire office. Current rates are: £7.50 + copyright charge + VAT per item for orders by post, DX and email. Fax delivery is guaranteed within 15 minutes of request and is charged at an additional £1.25 per page (£2.35 per page outside the UK).
    [Show full text]
  • Judicial Control of Arbitral Awards in the United Kingdom
    23 Judicial Control of Arbitral Awards in the United Kingdom Andrew Tetley* 1introduction This book provides a forum for discussion of current issues and debates in international arbitration, covering the independence and impartiality of arbitrators; how conflicting interests may affect the conduct of arbitrators; the enforcement of arbitral awards, principally under grounds of procedural irregularity; how to resolve issues of misconduct by arbitrators during proceedings; and the current judicial interpretation of arbitration clauses. In England, the key legislation which governs these issues is contained in the Arbitration Act 1996 (the Arbitration Act). Also influential in shaping these issues are the procedural rules of specific arbitral insti- tutions, and the guidance published by organisations such as the International Bar Association (the IBA). 2 vacating commercial arbitration awards 2.1 Independence and Impartiality of International Arbitrators It is of fundamental importance that international arbitrators are both independent and impar- tial. It is a human right that ‘everyone is entitled to a fair and public hearing within a reasonable 1 time by an independent and impartial tribunal established by law’. Arbitration, although not entirely compatible with such description, is a consensual process which has been held to fall 2 within this right. All arbitral tribunals have a duty to act fairly and impartially between the 3 parties while conducting the arbitration proceedings and while exercising any of its powers 4 including in relation to procedure and evidence. 5 Independence is easier to demonstrate than impartiality. There are typically objective indicators of proximity or reliance by an arbitrator on a particular party or group.
    [Show full text]
  • The Commonwealth Secretariat Arbitral Tribunal: the Evolution and Explanation of Changes to the Tribunal’S Statute
    Chapter 10 The Commonwealth Secretariat Arbitral Tribunal: The Evolution and Explanation of Changes to the Tribunal’s Statute Alice Lacourt* Abstract This chapter seeks to interrogate the rationale for the establishment of the Common- wealth Secretariat Arbitral Tribunal (csat) and examine how the Statute creating the Tribunal has evolved. Several applicants in the early cases before csat brought parallel litigation before the domestic courts of the United Kingdom. Arguments based on lo- cal law acted as a counterpoint to developments in the case law and Statute of csat. The resulting csat decisions delineated key principles on human rights and access to justice, which are still relevant today. csat—and the nature of the applications before it—continues to evolve, and this chapter concludes by identifying some lessons learned so far and what to expect going forward. 1 Introduction This chapter is divided into six sections. In this first section, the domestic law framework of the Commonwealth Secretariat is considered, together with identifying the present-day principle features of the Commonwealth Secre- tariat Arbitral Tribunal (csat), as well as the wider context. Sections 2 and 3 provide a brief history of the Commonwealth Secretariat and overview of its organizational structure and governance, respectively. Section 4 examines how employment-related disputes were initially resolved at the Common- wealth Secretariat and the factors that led up to and informed the establish- ment of csat. Section 5 then analyses how the early cases before the Tribunal in fact shaped csat, together with the evolving roles of the Board of Governors * Alice Lacourt, Legal Counsel, Commonwealth Secretariat, [email protected].
    [Show full text]
  • Arbitration Act 1996
    Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are currently no known outstanding effects for the Arbitration Act 1996. (See end of Document for details) Arbitration Act 1996 1996 CHAPTER 23 E+W+N.I. An Act to restate and improve the law relating to arbitration pursuant to an arbitration agreement; to make other provision relating to arbitration and arbitration awards; and for connected purposes. [17th June 1996] Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:— Extent Information E1 This Act extends to England, Wales and Northern Ireland; for exceptions see s.108 Modifications etc. (not altering text) C1 Act modified (11.11.1999) by 1999 c. 31, s. 8(1)(2) (with application as mentioned in s. 10(2)(3)) C2 Act excluded (31.1.1997) by 1966 c. 41, s. 3 (as substituted by 1996 c. 23, s. 107(1), Sch. 3 para. 24 (with s. 81(2)); S.I. 1996/3146, art. 3 (with transitional provisions in art. 4, Sch. 2) Act excluded (1.8.1998) by 1992 c. 52, s. 212A(6) (as inserted (1.8.1998) by 1998 c. 8, s. 7; S.I. 1998/1658, art. 2(1), Sch. 1 Act excluded (N.I.) (1.3.1999) by S.I. 1998/3162 (N.I. 21), art. 89(6); S.R. 1999/81, art. 3 Act excluded (31.3.2002) by The Dairy Produce Quotas Regulations 2002 (S.I.
    [Show full text]
  • Arbitration-Procedures-And-Practice
    Country Q&A GLOBAL GUIDE 2015/16 ARBITRATION Arbitration procedures and practice in the UK (England and Wales): overview Marie Berard and Anna Kirkpatrick Clifford Chance LLP global.practicallaw.com/4-502-1378 USE OF ARBITRATION AND RECENT TRENDS Arbitration therefore has the potential for confidentiality. However, there are many exceptions to this principle of confidentiality in arbitration in English law and if confidentiality 1. How is commercial arbitration used and what are the is important to a party, it must provide for it in the arbitration recent trends? agreement. Arbitration also has the potential to be more flexible than litigation. For example, parties can appoint arbitrators who are experts in a specialist field and tailor the Use of commercial arbitration procedure to suit the needs of their particular case. Some Parties from all over the world, often with no connection to parties value the finality of an arbitral award. Awards are less England and Wales, select London as the seat of their likely to be appealed than judgments and certain rights of arbitrations. Parties domiciled in the jurisdiction frequently appeal can be excluded by agreement. select international arbitration for the resolution of cross-border disputes and choose London as the seat. However, arbitration is not ideal in all circumstances. Unless the parties expressly agree otherwise, the tribunal cannot A wide range of contractual and non-contractual claim s can be generally compel a third party to join an arbitration. It also referred to arbitration in this jurisdiction. This includes disputes cannot consolidate a number of related arbitrations in order to involving intellectual property rights, competition disputes and bring them before one tribunal.
    [Show full text]