Challenging an arbitration award – some key principles.docVIP

The Arbitration Act 1996 – Ninth Annual Review Anti-suit injunctions and procedural irregularity Khawar Qureshi The Arbitration Act 1996 (“the Act”) has been in force for the large part since 31st January 1997. As we approach the 10th anniversary of the coming into force of the Act, anecdotal evidence suggests that there has been a consistent increase in the number of arbitrations seated in London – at least 8,000 during 2005 according to some informed estimates (conservative as these are bound to be because of the confidential nature of arbitration proceedings). Approximately 60 arbitration applications have been considered pursuant to the Act in 2005. Of those, it would appear that a very small percentage overcome the “permission” threshold or ultimately succeed on the merits, albeit within increasingly tight timetables being set by the Court. However, certain fundamental questions remain (and, it is respectfully submitted, should form the basis of a systematic review of the Act): Has the Act struck the right balance? Is there inconsistency in some of the provisions of the Act and the approach of the Courts? Is it correct to characterise the Act as being rooted purely in a desire to give effect to party autonomy (the consensual approach), or in truth, is the Act simply a reflection of a policy decision by the State to permit arbitration to take place, subject to certain conditions (the concessional approach)? (A). Some context. The 1996 Act contains 110 sections and 4 schedules. The Bill which ultimately formed the 1996 Act was accompanied by a report prepared by a committee known as the DAC, chaired by Lord Saville of Newdigate (“the DAC report”). The DAC Report is replete with references to the need to enhance party autonomy. Indeed Section 1 of the Act appears to confirm that the parties to arbitration are in fact signing up to a largely self contained system to achieve private justice. Section 1 – provides as follows; “1. The provisions of this Part