THE LAW AND PRACTICE OF COMMERCIAL ARBITRATION IN ENGLANDPDF电子书下载

PART Ⅰ PRELIMINARY 3

Chapter 1 Descriptive introduction 5

A The English system 5

1 General 5

2 Sources of law 6

3 The relationship with the Court 7

B The arbitration agreement 7

1 Nature and effect of the agreement 7

2 Enforcing the arbitration agreement 9

C The tribunal 10

1 Composition of the tribunal 10

2 Qualifications 11

3 Constituting the tribunal 12

4 Rights and duties of the arbitrator 12

5 Judicial arbitration 13

D Beginning an arbitration 13

E The jurisdiction of the Court 15

F The reference 16

1 Variety of procedures 16

2 Conciliation: duty to apply the law 20

3 Foreign law 20

4 Procedural reinforcement by the Court 21

5 Procedural control by the Court 21

(a) Intervention during the reference 22

(b) Intervention after the award 23

G The award 25

1 Types of award 25

2 The decision 26

3 Form and substance 26

4 Interest and costs 26

5 The effect of an award 27

H Appeals on questions of law 28

I Enforcement 30

Chapter 2 What is an arbitration? 32

A Why does it matter? 32

1 Relationship of arbitration to other types of tribunal 32

2 Separate historical origins of arbitration 34

3 Distinctive features of arbitration 36

B Defining an arbitration 41

1 General 41

2 Relevant factors: summary 43

(a) Attributes which must be present 43

(b) Other factors which are relevant 43

3 Relevant factors: detailed discussion 44

(a) Attributes which must be present 44

(i) Decision intended to be binding 44

(ii) The parties to the process 45

(iii) Consensual resolution of the dispute 45

(iv) A consensual tribunal 46

(v) An impartial tribunal 46

(vi) Enforceable agreement to refer 47

(vii) A formulated dispute 48

(b) Other factors which are relevant 50

(i) Evidence and contentions 50

(ii) The wording of the agreement 51

(iii) The choice of tribunal 51

(iv) A bilateral right to refer 52

(v) Obligation to apply the law 52

C Which arbitrations are subject to the Acts? 53

Chapter 3 Sources of arbitration law 55

A The common law 55

B Statute 56

1 Scope of the legislation 56

2 Commencement of 1979 Act 58

C Express agreement 58

D Practice of merchants and arbitrators 59

Chapter 4 Foreign arbitral law 61

A Introduction 61

B Foreign procedural law in an arbitration in England 61

1 The meaning of the 'curial law' 62

2 The status and effect of the arbitration agreement 65

3 The conduct of the reference 65

4 The legal content of the award 68

C English procedural law in an arbitration abroad 69

PART Ⅱ THE AGREEMENT TO ARBITRATE 71

Chapter 5 Introduction 73

Chapter 6 Agreements to refer future disputes 75

A Existence of agreement 75

1 Existence of underlying contract 75

2 Incorporation of agreement to arbitrate 75

3 Certainty 76

(a) Inconsistent clauses 76

(b) Abbreviated clauses 76

(c) 'in the usual way' 77

4 Arbitration in absence of prior agreement 77

B Scope of agreement 78

1 Disputes as to the existence of the contract 78

(a) Initial existence of the contract 78

(b) Continued existence of the contract 79

(i) Repudiation 80

(ii) Fundamental breach 80

(iii) Frustration 80

(iv) Termination provisions; conditions precedent 81

(v) Misrepresentation and non-disclosure 81

2 Illegality 81

3 Mistake and duress 82

4 Issues as to facts founding the jurisdiction 82

5 Rectification 83

6 Disputes as to scope of submission 83

7 Disputes as to the arbitrator's powers 84

8 Fraud 85

9 Claims in tort 85

10 Variations of the contract 86

11 Particular forms of words 86

(a) 'Claims'; 'differences'; 'disputes' 86

(b) 'in connection with'; 'in relation to' 87

(c) 'in respect of; 'with regard to' 87

(d) 'arising out of 87

(e) 'under' 88

(f) 'during the execution of 88

12 Clauses of limited scope 88

13 Unilateral arbitration clauses 89

C Construction of agreement; by what law? 89

D 'Disputes' and 'differences' 90

1 Introduction 90

2 Clauses requiring a 'dispute' or 'difference' 90

(a) Undisputed claims 90

(b) A genuine dispute 91

(c) Disputes arising after appointment of arbitrator 93

(d) Amendments 93

(i) Amendments by respondent 94

(ii) Amendments by claimant 94

(e) What is a 'dispute? 95

(f) Disputes resolved before award 96

(g) 'Differences' 97

3 Clauses requiring a 'claim' 97

4 Cross-claims in arbitration 97

(a) Claim outside clause: cross-claim within clause 98

(b) Undisputed claim: cross-claim within clause 99

(c) Claim within clause: cross-claim outside clause 99

(d) Claim and cross-claim within clause 99

Chapter 7 Agreements to refer existing disputes 101

A Types of agreement 101

1 Express agreements 101

2 Implied agreements 102

B Special features 103

Chapter 8 Arbitration and third parties 105

A Claimant not named as a party 105

1 Agency: trusts 105

2 Succession by operation of law 106

3 Novation 106

4 Assignment 106

B Defendant not named as a party 108

Chapter 9 Multiple arbitrations 109

A Multiple defendants 110

1 Nature of the problem 110

2 Solutions 110

B Third-party situations 111

1 Nature of the problem 111

2 Solutions 112

(a) Same arbitrator tries both claims 112

(b) High Court tries both claims 113

(c) String contracts 114

(i) Existence of string 114

(ii) Failure to cooperate 115

(iii) Status of award 115

C Costs in multiple arbitrations 116

Chapter 10 What matters may be arbitrated 117

A General 117

B Questions of illegality 118

Chapter 11 Capacity of parties 119

A Capacity generally 119

B Particular cases 119

1 The Crown 119

2 Trustees and personal representatives 119

3 Death 119

4 Bankruptcy 119

5 Winding-up 120

Chapter 12 The residual jurisdiction of the Court 121

1 Nature of the Court's residual jurisdiction 121

(a) History of the jurisdiction 121

(b) The modern rules 122

2 Practical applications of the residual jurisdiction 123

(a) Proceedings brought in spite of arbitration agreement 123

(b) Concurrent proceedings in Court and in arbitration 124

(c) Arbitration ineffective 124

Chapter 13 Scott v Avery clauses 127

A Effect of Scott v Avery clause 127

1 Postponement of access to Court 127

2 Loss of Scott v Avery rights 129

(a) Annulment by Court 129

(b) Conduct of defendant 130

(c) Cesser of agreement to arbitrate 130

B Procedure 131

PART Ⅲ BEGINNING AN ARBITRATION 133

Chapter 14 Introduction 135

Chapter 15 Appointment of arbitrators and umpire 137

A Summary 137

1 A sole arbitrator 137

(a) Appointment by agreement 137

(b) Appointment by a third party 138

(c) Appointment by the Court in default of agreement 138

(d) Appointment by the Court to fill a vacancy 138

(e) Appointment in default of appointment of second arbitrator 138

(f) Appointment by the Court upon revocation or removal 138

(g) Appointment of umpire as sole arbitrator 138

2 A tribunal of two arbitrators 138

(a) Appointment by the parties 139

(b) Appointment by a third party 139

(c) Appointment by a party to fill a vacancy 139

(d) Appointment by the Court to fill a vacancy 139

(e) Appointment by the Court on removal of arbitrator 139

3 A tribunal of three arbitrators 139

(a) Pre-1979 139

(b) Post-1979 140

4 A tribunal of more than three arbitrators 140

5 An umpire 140

B Detailed discussion 140

1 A sole arbitrator 140

(a) Appointment by agreement 141

(b) Appointment by third party 142

(c) Appointment by the Court in default of agreement 144

(d) Appointment by the Court to fill a vacancy 146

(e) Appointment in default of appointment of second arbitrator 146

(f) Appointment by the Court upon revocation or removal 150

(g) Appointment of umpire as sole arbitrator 150

2 A tribunal of two arbitrators 151

(a) Appointment by the parties 151

(b) Appointment by a third party 152

(c) Appointment by a party to fill a vacancy 153

(d) Appointment by the Court to fill a vacancy 153

(e) Appointment by the Court on removal of arbitrator 154

3 A tribunal of three arbitrators 154

(a) Defaults in appointment 155

(b) Vacancies, revocation and removal 155

4 A tribunal of more than three arbitrators 156

5 An umpire 156

(a) Appointment by arbitrators 156

(b) Powers of the Court 157

C Method of choosing the arbitrator or umpire 158

Chapter 16 Lapse of time 159

A Introduction 159

1 General 159

2 Lapse of time: jurisdiction and defence 159

B Barring of claims by statute 161

1 Statutory time limits in arbitration 161

2 The beginning of the limitation period 162

3 Prolongation of time 163

4 The commencement of arbitration 164

(a) Notice of arbitration: form 164

(b) Notice of arbitration: particularity 165

(c) Notice of arbitration: service 165

C Limitation of time by contract 166

1 General 166

2 Barring the right and barring the remedy 168

3 'Impossible' time limits 170

4 Notice of claim 171

5 Appointment of arbitrator 173

6 Relief from a time-bar 173

(a) Conduct of defendant 173

(i) Breach of contract 173

(ii) Waiver and estoppel 174

(b) Unfair Contract Terms Act 1977 175

(c) Prolongation of time-limit 175

(i) Prolongation by arbitrator 175

(ii) Prolongation by the Court 176

D New claims 181

PART Ⅳ THE ARBITRATOR 183

Chapter 17 The rights and duties of the arbitrator 185

A The relationship between the parties and the arbitrator 185

1 Why does it matter? 185

2 Quasi-contract: status or contract? 186

(a) Quasi-contract 186

(b) Status 186

(c) Contract 187

B Obligations of the arbitrator to the parties 190

1 Duty to take care 190

2 Duty to proceed diligently 196

3 Duty to act impartially 197

C Obligations of the parties to the arbitrator 199

1 Remuneration for a completed reference 199

(a) Arbitrator 199

(b) Umpire 199

(c) Enforcement of the right to remuneration 200

(i) Lien 200

(ii) Action 201

(d) Fees of arbitrator/advocate 201

(e) The level of remuneration 202

(f) Fixing a reasonable fee 203

(g) Remedies where fees excessive 204

(h) Securing the arbitrator's fee 206

2 Remuneration for an uncompleted reference 208

(a) Arbitrator not involved in termination 208

(b) Arbitrator involved in termination but without fault 210

(c) Termination through fault of the arbitrator 210

3 Remuneration where the award is invalid 210

(a) Reference a nullity 210

(b) Award a nullity 211

(c) Award remitted 211

Chapter 18 Capacity, qualifications, and impartiality of the arbitrator 212

A Capacity and qualifications 212

1 Capacity to arbitrate 212

2 Qualifications required by agreement 213

3 Interest and bias 214

(a) Antecedent bias 215

(b) Partiality in the conduct of the reference 218

(i) Impartiality in making procedural decisions 218

(ii) Impartiality of expression 219

(iii) Personal contacts with the parties 219

B Waiver and estoppel 220

Chapter 19 The arbitrator advocate: the umpire: disagreement 222

A The arbitrator/advocate: general 222

B The position before disagreement 223

C Disagreement 226

D The position after disagreement 227

Chapter 20 Judicial arbitrators 229

A Judge-arbitrator 229

1 Appointment of a commercial judge as arbitrator or umpire 229

2 Judicial arbitration compared with other proceedings 230

3 Allocation of procedural powers 231

4 Suggested procedure for commencing judicial arbitrations 234

B Official referee 235

1 History 235

2 Official referee as arbitrator 236

3 Merits of arbitration by official referee 237

C County Court arbitration 238

PART Ⅴ THE CONDUCT OF THE REFERENCE 239

Chapter 21 Procedural powers and duties 241

A Absence of uniform procedure 241

B Ascertainment of the procedure to be followed 242

1 Express agreement on procedure 243

2 Agreement implied from conduct 245

3 Public policy 245

4 Implied agreement on procedure 248

(a) Express terms of agreement 249

(b) Language of agreement 249

(c) Subject matter of underlying contract 249

(d) Nature of dispute 250

(e) Identity of tribunal 250

(f) Natural justice 250

5 Procedure in the absence of agreement 250

6 Attitude of the Court to informal arbitrations 251

7 Alterations in procedure 253

C The powers of the arbitrator 254

1 Express powers 254

2 Implied powers 255

(a) Power to take evidence on oath 255

(b) Powers relating to the production of documents 256

(c) General statutory powers 256

(d) 'Subject to any legal objection' 256

3 Powers at common law 256

4 Supplementary powers of the Court 258

D Disputes on procedure 259

Chapter 22 A fair trial 261

A Introduction 261

B Dispensing with a hearing 262

C The hearing: minimum requirement 263

1 Notice of hearing 264

2 Opportunity to attend 265

3 Right to be present throughout the hearing 265

4 Opportunity to present argument and evidence 266

(a) Argument 266

(b) Evidence 267

5 Opportunity to controvert opponent's case 269

(a) Hearing evidence in absence of party 269

(b) Hearing argument in absence of party 270

(c) Hearing evidence in the absence of both parties 271

(d) Communicating opponent's case 272

6 Oral hearing exhaustive of evidence and argument 273

Chapter 23 The course of the reference: part one 274

A Stages of the reference: summary 274

B Detailed discussion 275

1 Fixing the procedure 275

2 Defining the issues 278

(a) Reasons for defining the issues 278

(b) Methods of defining the issues 279

(i) Pleadings 279

(ii) Written statements of case 282

(iii) Letters of claim and defence 282

(iv) Oral elucidation of issues 282

3 Production and preparation of documents 283

(a) The two types of discovery 284

(b) Discovery in arbitrations 285

(c) Inspection 286

(d) Preparation of documents for the hearing 287

4 Interim protection orders 288

(a) Interim orders relating to property: general 288

(b) Safeguarding the subject matter of the dispute 289

(i) Interlocutory injunction to protect property 290

(ii) Appointment of receiver 291

(iii) Detention, custody and preservation 291

(iv) Securing the sum in dispute 292

(c) Protection of property for evidentiary purposes 292

(i) Examination by the arbitrator and his delegates 293

(ii) Examination by the parties and their delegates 294

(iii) Order facilitating examination 294

(iv) Orders for inspection before reference 295

5 Order for security 295

(a) Security for costs 295

(b) Security for claims 297

(i) Interim protection order 298

(ii) Arrest of ship 298

(iii) Mareva injunction 300

(iv) Procedural 'orders nisi' 301

6 Arranging the hearing 302

Chapter 24 The course of the reference: part two 304

7 Investigation of facts and law: the hearing 304

(a) Failure to appear at the hearing 304

(b) Order of proceedings 305

(i) The usual order of proceedings 305

(ii) Evidence and arguments in rebuttal 306

(iii) Intervention by the arbitrator 307

(iv) 'Stopping counsel' 307

(v) Reading the documents 308

(c) Attendance of witnesses 308

(d) Evidence on oath 309

(e) Refusal to answer questions 310

(f) Relaxation of strict rules of evidence 310

(g) Admissibility of evidence 312

(i) Authenticity and admissibility of documents distinguished 312

(ii) Hearsay evidence: statements in documents 313

(iii) Expert evidence 314

(h) Fresh evidence 315

(i) Notes of proceedings 315

(i) Arbitrator's notes 315

(ii) Shorthand note 316

(j) Foreign law 316

(i) The choice of proper law 317

(ii) Issues governed by the proper law 318

(iii) Proof of foreign law 318

(k) EEC law 319

8 The decision 320

(a) Consulting third parties 320

(b) Delegating the working out of the award 321

(c) Arbitrator using own knowledge 321

(d) Arbitrators acting together 322

9 The award 323

10 Appeal procedures 323

PART Ⅵ THE AWARD 329

Chapter 25 Types of award 331

A Interim or final 331

B Awards giving recourse to the Court on a question of law 332

1 Arbitrations under the 1979 Act 332

(a) Reasoned award 332

(b) Preliminary question of law 333

2 Arbitrations not under the 1979 Act 333

(a) General 333

(b) Choice of award 334

Chapter 26 Form and contents of award 337

A Formal requirements 337

1 Writing and signature 337

2 Parties 337

3 Recitals 337

4 Date 338

5 Publication 338

6 Stamp 338

B Substantive requirements 338

1 Cogency 339

2 Completeness 339

3 Certainty 340

4 Finality 341

5 Enforceability 342

C Reasons 343

D Relief and remedies 343

1 Awards for the payment of money 343

2 Specific performance 344

3 Injunction 344

4 Declaratory relief 344

5 Indemnity 345

6 Interest 345

7 Dissolution of partnership 347

E Costs 347

1 The arbitrator's discretion as to costs 347

(a) Matters justifying a departure from the general rule 348

(b) Matters not justifying a departure from the general rule 349

2 Judicial control over the award of costs 350

3 Costs of award and costs of reference 352

4 Costs in special case 352

5 Costs of interim award and consultative case 353

6 Failure to deal with costs in award 353

7 Interlocutory costs 353

8 Scale of costs 354

9 Taxation of costs 354

Chapter 27 The effect of a valid award 356

A General 356

B The effect of a valid award on the arbitrator 356

1 'Functus officio' 356

2 Section 17 ('the slip rule') 357

3 Sub-section 18(4) 359

C The effect of a valid award on the parties 360

1 Fresh right of action 360

2 The award as a bar to further proceedings 361

(a) Award of damages 361

(b) Award of debt 362

(c) Declaration 362

(d) Action in rem 362

(e) The rule in Conquer v Boot 362

3 The award as conclusive of issues of fact and law 364

D The effect of an award on third parties 364

E Awards of foreign arbitrators 365

Chapter 28 Enforcement of the award 367

A Introduction 367

B Obtaining a judgment or order 367

1 Action on the award 368

2 Application under section 26 of 1950 Act 369

3 Practice 371

C Enforcing awards of foreign arbitrators 372

1 Enforcement at common law by action or under section 26 374

2 Enforcement of 'Convention awards' 375

3 Enforcement of 'foreign awards' 376

D Disciplinary action by trade associations 378

PART Ⅶ PROBLEMS AND REMEDIES 379

Chapter 29 Judicial control: a historical survey 381

A Introduction 381

B Three methods of private arbitration 382

C The position before the Act of 1698 384

1 Enforcement 384

2 Judicial intervention in the reference 385

3 Mistake of law 386

D 1698 to 1854 386

1 Enforcement of the agreement to arbitrate 386

2 Judicial intervention in the reference 386

(i) Submissions by rule of court in a pending action 387

(ii) Submissions out of court made a rule of court under the 1698 Act 387

(iii) Submissions out of court, not made a rule of court under the Act 388

3 Mistake of law 389

E 1854 to 1889 390

1 The move towards reform 390

2 Enforcement of the agreement to arbitrate 392

3 Judicial intervention in the reference 393

4 Mistake of law 393

F 1889 to 1979 394

1 The Acts of 1889, 1934 and 1950 394

2 Enforcement of the agreement to arbitrate 395

3 Judicial intervention in the reference 396

4 Mistake of law 398

G 1979 and after 399

1 The beginning of 1979 399

(a) Judicial control over procedure 399

(b) Judicial control over errors of law 399

(c) Summary 400

2 Developments in 1979 401

(a) Judicial policy 401

(b) Origins of the 1979 Act 402

Chapter 30 Court proceedings wrongly brought 409

A Proceedings in breach of agreement to arbitrate 409

1 Injunction to restrain proceedings 410

2 Damages 411

3 Stay under the inherent jurisdiction 411

4 Compulsory stay: non-domestic arbitration 412

(a) Pre-requisites of a compulsory stay 413

(b) Circumstances precluding compulsory stay 414

(i) 'Null and void, inoperative, or incapable of being performed' 414

(ii) 'Not in fact any dispute' 415

(c) Removing the stay 416

5 Discretionary stay: domestic arbitration 416

(a) Arbitration agreement 417

(b) (i) Legal proceedings commenced in any court 419

(b) (ii) Matters agreed to be referred 419

(b) (iii) The plaintiff as a party to the agreement 420

(c) (i) and (ii) The identity of the applicant 421

(c) (iii) 'Step in the proceedings' 421

(d) (i) 'ready and willing 423

(d) (ii) 'No sufficient reason' 424

(e) The discretion 425

(i) General 425

(ii) Focus material to the discretion 425

(a) Delay 426

(b) Issues of law 426

(c) Multiplicity of proceedings 427

(d) Allegations of impropriety 428

(e) Identity of arbitrator 429

(f) Scott v Avery clause 430

(g) Expense 431

(h) Exclusion of legal representation 431

(iii) The terms of the stay 431

6 Inter-pleader proceedings 432

B Loss of the right to arbitrate 433

Chapter 31 Hopeless claims and defences 435

A The abuses 435

B Relevant principles 436

C Hopeless claims 436

1 Defects in law 437

(a) Intervention by the Court 437

(b) Powers of the arbitrator 438

2 Defects in fact 439

D Hopeless defences 440

Chapter 32 Remedies available during the reference 444

A Introduction 444

B The repetory: summary 444

1 Remedies possessed by the Court 444

(a) Directed towards the agreement to arbitrate 444

(b) Directed towards the parties 444

(c) Directed towards the arbitrator 445

(d) Directed towards a future arbitrator 445

2 Remedies possessed by the arbitrator 445

C The repertory: detailed discussion 445

1 Remedies possessed by the Court 445

(a) Directed towards the agreement to arbitrate 445

(i) Revocation of the agreement to arbitrate 445

The general power: section 25(2)(b) 446

The specific power: section 24(2) 448

(a) 'An agreement' 448

(b) 'which may arise in the future between them' 448

(c) 'guilty of fraud' 448

(d) 'shall have power' 449

(e) 'so far as may be necessary' 449

(f) 'shall cease to have effect' 449

(ii) Termination at common law 450

The Bremer Vulcan case 451

Repudiation 454

Frustration 455

Supervening illegality 457

Termination by consent 457

Abandonment 458

Affirmation, waiver and estoppel 458

Effect of termination 459

Procedure 460

(iii) Annulment of Scott v Avery clause 461

(iv) Refusal to stay action 461

(b) Remedies directed towards the parties 462

(i) Injunction to restrain further proceedings 462

(ii) Damages 467

(iii) Declaratory relief 468

(c) Remedies directed towards the arbitrator 469

(i) Revocation of authority of arbitrator 469

(ii) Removal of arbitrator 473

(iii) Replacement of arbitrator 476

(iv) Injunction 477

(v) Declaration as to status of the arbitrator 477

(vi) Preliminary question on arbitrator's powers 478

(d) Declaration as to status of future award 478

2 Remedies of the arbitrator: default proceedings 479

(a) General 479

(i) Total default 479

Arbitrator's powers at common law 480

Arbitrator's powers under section 5 of the 1979 Act 482

(ii) Partial default 485

D Situations and remedies: summary 486

Total breakdown of arbitration, for any reason 487

Prolonged inactivity by claimant 487

Prolonged inactivity by the respondent 487

Refusal by either party to comply with procedural obligations 487

Prolonged inactivity by the arbitrator 487

Serious mishandling of the reference 488

Lack of impartiality 488

Refusal to act, incapacity or death of the arbitrator 488

Jurisdictional problems 488

Problems as to the arbitrator's powers 488

Chapter 33 Remedies available after the reference 489

A Passive remedies 489

B Active remedies 490

1 Setting aside and remission 490

(a) Setting aside 491

(b) Remission 491

2 The jurisdiction to remit 491

3 Grounds for setting aside or remitting 493

(a) Misconduct 494

(b) Error on the face of the award 496

(c) Excess of jurisdiction 497

(d) Patent defects in the award 499

(e) Misunderstandings 502

(f) Mistakes by the arbitrator 503

(g) Fresh evidence 505

4 Choice of setting aside or remission 505

5 The effect of setting aside and remission 507

6 Procedure for setting aside and remission 509

7 Declaration of invalidity of award 510

8 Injunction to restrain enforcement of award 511

C The benevolent interpretation of awards 511

Chapter 34 Questions of jurisdiction 513

A Injunction to restrain arbitration 513

B Declaratory relief 514

C Arbitrator invoking the decision of the Court 515

D Arbitrator investigating his own jurisdiction 516

E Objections after publication of the award 518

Chapter 35 Waiver 521

A Waiver generally 521

B What may be waived 521

C Dealing with irregularities 523

Chapter 36 Appeals 525

A Introduction 525

1 The old system 526

2 The new system 527

B RSC Order 55 529

C The nature of the appeal 531

1 The old system 531

(a) Extent of duty to hear appeals 531

(b) Types of reviewable issues 532

(i) Conclusions of law 532

(ii) 'Primary'findings of fact 532

(iii) 'Secondary' findings of fact 533

(iv) Mixed conclusions of fact and law 533

(c) Nature of the review 534

2 The new system 534

(a) The Nema 535

(i) Conclusions of law 538

(ii) and (iii) 'Primary' and 'secondary' findings of fact 539

(iv) Mixed conclusions of fact and law 540

(b) The new system compared with 'error on the face' 540

(c) Finding of fact made without evidence 541

D Reasons 541

1 Introduction 541

2 The legislation 543

3 The duty to give reasons 544

(a) No reasons given 544

(b) Reasons given voluntarily 545

(c) Reasons given pursuant to a request 545

(d) Reasons for part of the award 548

(e) Reasons given pursuant to an order 548

4 What are reasons? 552

5 Inferences of fact 554

E Leave to appeal 555

1 Introduction 555

2 The Nema guidelines: a new philosophy 556

3 The Nema guidelines in practice 559

4 Application for leave to appeal 563

5 Citation of awards 565

6 Citation of decisions on leave to appeal 566

7 Enforcement of award pending appeal 567

(a) The old system 567

(b) The new system 568

8 Conditions on leave to appeal 570

(a) Security for costs 570

(b) Security for the amount of the award 570

(c) Limiting the scope of the appeal 571

(d) Costs 571

F Orders on appeal 571

1 Confirming the award 572

2 Varying the award 572

3 Setting aside 573

4 Remission 573

G Preliminary questions of law 575

1 The old system 575

2 The new system 576

(a) Interim award 577

(b) Determination of question of law under section 2 577

(i) First stage: the decision to invoke section 2 577

(ii) Second stage: the application 578

(iii) Third stage: the decision to entertain the application 578

Application by consent of arbitrator or umpire 579

Applications with the consent of all the parties 581

(iv) Fourth stage: the discretion 581

(v) Fifth stage: the decision 582

H Leave to appeal to the Court of Appeal 582

1 The old system 582

2 The new system 583

(a) Appeals on questions of law 583

(i) The certificate 584

(ii) Leave to appeal 586

(b) Appeals on procedural matters 586

I Exclusion agreements 587

1 Domestic and non-domestic agreements 587

2 'Special category' disputes 588

3 The terms of an exclusion agreement 590

Chapter 37 Procedures not by way of appeal 592

A Judicial control otherwise than by appeal 592

B The duty to apply the law 594

C Possible methods of recourse 597

1 Jurisdiction 597

2 Remission 600

3 Intervention in equity 600

4 Renunciation of mandate 601

5 Removal of the arbitrator 601

6 Judicial review 602

7 Misconduct 602

D 'Equity' clauses: amiable composition 605

1 The meaning of the clause 606

2 The duty of the arbitrator 613

3 The effect on the contract 613

4 The clause and the arbitration 615

5 Methods of appeal 616

Appendices 621

Appendix 1 Legislation affecting arbitration 621

PART 1. CURRENT LEGISLATION 623

Arbitration Act 1950 623

Administration of Justice Act 1970, s. 4 and Sch. 3 647

Arbitration Act 1975 650

Arbitration Act 1979 654

Arbitration Act 1979 (Commencement) Order 1979 660

Arbitration (Commodity Contracts) Order 1979 660

Limitation Act 1980, s. 34 662

Supreme Court Act 1981, s. 18 663

Rules of Supreme Court, Ord. 73 663

PART 2. STATUTES NO LONGER IN FORCE 669

Arbitration Act 1698 669

Civil Procedure Act 1833, ss. 39, 40 670

Common Law Procedure Act 1854, ss. 3-17 671

Supreme Court of Judicature Act 1884, s. 11 675

Arbitration Act 1889, ss. 1-12, 18-30, Schs. 1, 2 675

Administration of Justice Act 1920, s. 16 681

Arbitration Clauses (Protocol) Act 1924, ss. 1,2 681

Arbitration (Foreign Awards) Act 1930, ss. 8, 9 682

Arbitration Act 1934, ss. 1-21, Schs. 1-3 683

Appendix 2 Convention on the recognition and enforcement of foreign arbitral awards. Done at New York, on 10 June 1958 689

Appendix 3 Special case 694

A Duty to state a case 694

B Fetters on the special case procedure 696

C Drafting the special case 698

1 Formulating the question of law 698

2 Finding the facts 699

3 Contentions 700

4 Decision and alternative award 700

D Procedure on hearing of special case 701

1 Setting down and argument 701

2 Concurrent motion to remit or set aside the award 702

3 Powers of Court on hearing of special case 702

4 Appeal to Court of Appeal 702

5 Inferences and remission for further findings 702

Appendix 4 'Manifest disregard' under United States law 704

Appendix 5 Fact and law 707

1 Findings of fact 707

2 Mixed conclusions of fact and law 708

3 Conclusions of law 709

Index 711