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Monday evening, Butterworths Challenges in Arbitration was launched in celebratory style at Farrer & Co, the (professional) home of the title’s general editor Hendrik Puschmann. This new text—written by Puschmann and a team of contributors, including me—considers the various ways in which arbitrators and their awards can be challenged before the courts of England and Wales, and via arbitral institutions. In his generous foreword, Professor Loukas Mistelis described the book as a ‘significant work on arbitration and its relation to the English courts’ and ‘a very important tool for arbitration practitioners and scholars.’ Those gathered at the event were treated to opening remarks by the Rt Hon Sir Peter Gross, until recently a leading light of the Court of Appeal, who spoke about the balance the English courts strike between correcting the arbitral process when needed and leaving it alone when not.
As remarked by Professor Mistelis, London remains a popular seat (or legal place) of arbitration, with estimates of more than 3,000 arbitrations commenced annually in England (Butterworths Challenges in Arbitration (2019), Foreword). One expected consequence of having such a large number of cases seated in the jurisdiction is that a proportion of the claims heard by the English courts every year relate to challenges to arbitrators, arbitral awards and their enforcement.
In his article ‘Why Courts Review Arbitral Awards’ (Fn. 1), Professor Rusty Park stated that efficient arbitration implicates a tension between the rival goals of finality and fairness. On the one hand, shielding arbitral awards from judicial challenge promotes finality, while, on the other, enhancing fairness calls for some measure of court supervision of the arbitral process.
The UNCITRAL Model Law on Commercial Arbitration and the Arbitration Act 1996 (AA 1996)—like many other arbitration statutes and ordinances globally—provide for judicial review of arbitral awards at the enforcement stage, as well as during standalone set-aside proceedings. As Professor Park noted in his article, although no system reconciles the goals of finality and fairness perfectly, national legislators and courts must engage in a process of legal fine tuning that seeks a reasonable balance between arbitral autonomy and judicial control mechanisms.
Butterworths Challenges in Arbitration seeks to illuminate how the English courts approach that balancing exercise. It also looks at how challenges are handled internally by arbitral institutions in cases in which institutional rules have been chosen or an institution has been designated as an appointing authority.
As Puschmann remarks in the book’s introduction, the AA 1996 offers a variety of avenues for challenging the arbitral process and its outcome, but the court’s jurisdiction is exercised with great caution. When called on to consider dislodging an arbitrator or overturning an award, Puschmann’s advice to clients, in the majority of cases, has been: ‘Don’t do it!’ (Butterworths Challenges in Arbitration (2019), Introduction). It would appear that parties and their lawyers may be adopting a similarly cautious approach: the published minutes of the November 2019 meeting of the Commercial Court Users Group demonstrate significant declines in the number of serious irregularity challenges (AA 1996, s 68) and appeals on points of law (AA 1996, s 69) (Fn. 2) for the court year 2018–2019 as compared to the court year 2017–2018, which suggests—as the Commercial Court itself posits—that applicants are deterred by the frequently cited and demonstrable high hurdle for success. Incidentally, the book itself contains a helpful section on High Court challenge statistics in Chapter 8, written by Hanna Roos and Philip Clifford QC.
Whatever the statistics may be, guidance on making challenges for parties and practitioners remains vital, and it is hoped that Butterworths Challenges in Arbitration meaningfully contributes to the bank of knowledge in this area.
Ricky Diwan QC of Essex Court Chambers comments: “This is a welcome and refreshing addition to the texts on the Arbitration Act 1996, providing insightful guidance on the principles applicable to challenges and willing to question approaches adopted under the Act in a thought-provoking way.”
Professor Mads Andenas QC (Hon) of Brick Court Chambers calls it “essential reading for arbitration lawyers”.
LexisNexis® UK is proud to publish this brand new work.
Many congratulations to Hendrik and all the expert contributors on their achievement. The book is available to purchase here.
The authors of Butterworths Challenges in Arbitration are: Hendrik Puschmann, Alistair Calvert, Andreas Geroldinger, Barry Fletcher, David Hunt, David Ibbetson, Emilie Jones, Hanna Roos, John Gilbert, Julia Kelsoe, Kate Allass, Niamh Cleary, Philip Clifford QC, Robert Meade, Rumiana Yotova, Sally Mantell, Stefan Holzinger and Steven Barrett.
‘Why Courts Review Arbitral Awards’ by William W Park, Recht Der Internationalen Wirtschaft und Streiterledigung IM 21 Jahrhundert: Liber Amicorum Karl-Heinz Bockstiegel 595 (R. Briner, L. Y. Fortier, K.-P. Berger & J. Bredow, eds., 2001), reprinted in 16 Int’l Arb. Rep. 27 (November 2001)
‘English Commercial Court Releases Updated s68 and s69 statistics: Challenges down, and the hurdle for success remains high’, Herbert Smith Freehills LLP, Arbitration Notes, 12 February 2020, republished on Lexis®PSL Arbitration on 13 February 2020 with permission
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Barry specialises in international arbitration and commercial litigation. He trained and practised at Jones Day before joining Pinsent Masons. At LexisNexis, Barry is Head of Arbitration and Head of the Lexis®PSL Dispute Resolution Group.
In practice, Barry’s work included commercial, aviation and technology arbitrations pursuant to international arbitral rules, involving UK and international clients. He also has a background in general commercial, civil fraud and IT litigation, including experience before the High Court. While in private practice, Barry worked with a broad range of clients from the private and public sectors.
At LexisNexis, when not focused on the strategic development and operational requirements of the Dispute Resolution Group, Barry’s content work focuses on the law and practice of international commercial arbitration and investment treaty arbitration. In addition to his work for Lexis®PSL, Barry contributes to the LexisNexis Dispute Resolution Blog and New Law Journal on litigation and arbitration matters
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