Lord Saville’s Speech: “The English Arbitration Act 1996 – 15 years on”
23 Thursday Aug 2012
Sophie Lalor-Harbord, CMS News Articles
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Prior to the opening of the 21st International Council for Commercial Arbitration (ICCA) Conference in Singapore earlier this year, the Right Honourable Lord Saville of Newdigate PC QC spoke at the Chartered Institute of Arbitrators’ (CIArb) reception. His speech was entitled The English Arbitration Act 1996 – 15 years on.
Lord Saville was almost single handedly responsible for drafting the 1996 Act and prior to his retirement in 2010, he sat as a Judge of the Supreme Court.In his speech, Lord Saville spoke about the very limited right of appeal available for a party contained in s 69 of the 1996 Act. He described how this limited right of appeal is a compromise between ensuring access to justice where an Arbitral Tribunal has made a decision which is “obviously wrong” and safeguarding the fact that decisions of an Arbitral Tribunal should be final and binding as the parties have chosen arbitration because they do not want to go to Court. On this subject, Lord Saville said:
“My own personal preference, for what it is worth, was to get rid of appeals on questions of law altogether, unless the parties expressly agreed to take that course, but the compromise reached seems to have worked reasonably well.”
Lord Saville also gave his opinion on the debate as to whether arbitrators should have the power to grant interim measures of protection ex parte. He believes they should not. Giving arbitrators such powers, he said, “would contradict some of the basic principles of arbitration“.
A full transcript of Lord Saville’s speech can be read here.
For more blog pieces relating to arbitration, see Olswang’s Singapore International Arbitration Blog.
3 comments
Teresa Evans said:
20/02/2013 at 20:00
Is the arbitration route working well for the “UK funeral consumer”?
As an unofficial advocate of the “UK funeral consumer” I do not accept that the bereaved seeking redress via the dispute resolution route could expect to get a fair decision. That route does appear to work to the immediate advantage of some members of the funeral trade.
My interpretation of Vigers v Cook (1919) is that judges agreed in the appeal that a funeral package is ‘unique’ and if one single component of that package falls down, then the whole contract has been breached. I gather from complaints brought to my attention that that legal principal was not taken into consideration when each sought redress via the National Association of Funeral Directors (NAFD) “Funeral Arbitration Scheme” (FAS). On each occasion conciliators of this scheme had proposed a small discount on the sum charged by the funeral company. This suggests that the conciliators had not acknowledged the legal principle that when an order is taken for a funeral that the term “funeral” indicates a complex operation, a series of single operations, that forms ‘one’ contract. If they did they may have concluded that a total refund, including damages, for hurt feelings of annoyance and frustration, inconvenience and loss of benefit, might have been a more suitable proposal to have made.
Unless legally represented, I struggle to accept that many lay funeral consumers seeking redress via this route would be able to identify when a legal principal has been overlooked. As I have not managed to locate details of any Court cases in England that relate specifically to breach of ‘funeral’ contract since 1919, might support my view. Given the very nature of the purchase, it is highly probable that a consumer dissatisfied will give up the challenge at the second hurdle of the NAFD’s dispute process i.e. at conciliation level.
When discussing privacy and confidentiality Lord Savile says, “The general view is that commercial arbitration is a private method of resolving disputes and that the arbitral proceedings and outcome should be confidential. There is no doubt that many choose arbitration because of these perceived attributes. We were pressed when preparing the Arbitration Act to include provisions enshrining the principle of privacy and confidentiality in the legislation. We concluded that it would be unwise to take this course. There are many problems, such as the means for enforcing privacy and confidentiality. More importantly, there would have to be many exceptions and qualifications, because many third parties are likely to have a legitimate interest in knowing of the existence of arbitration and its subject matter, let alone the result”.
The NAFD appears keen for parties taking advantage of its “Funeral Arbitration Scheme” to agree on privacy and confidentiality. This may be an indication that the NAFD is one of likely “many” companies that Lord Saville suggests, choose arbitration because of the “…perceived attributes”.
It is to my advantage that some people chose to breach the privacy agreements that they made through the NAFD’s scheme and inform me about their experiences. If they had not, I would not be any the wiser about matters I describe here. I would not breach a confidence so I cannot go to the press. If I or indeed the person making the complaint did so, other consumers might be alerted about what particular funeral company to avoid when someone close to them dies.
If Lord Saville’s eyes should happen to fall on this criticism of arbitration I hope that he will agree that arbitration does not work to the advantage of the “UK funeral consumer”. I hope he will acknowledge that the bereaved consumer is more often a ‘vulnerable’ consumer and is getting a raw deal in the UK, and not only in the process of dispute resolution, but by the Courts. The Courts expect all consumers who are first and foremost human beings that have feelings, to first seek an alternative means to resolving a complaint. When they do, the outcome I describe above is what the funeral consumer making a complaint can expect the outcome to be.
Teresa Evans http://www.evansaboveonline.co.uk
Jon Underwood said:
04/03/2013 at 16:46
I just wished to add my support to Teresa’s points about. I too am concerned about the benefits for the consumer of the arbitration process in the funeral industry.
Jon