Part X Judicial Review, Judicial Performance, and Enforcement, 29 Judicial Review of the Merits of Arbitration Awards under English Law

Subject(s):

Jurisdiction — Third party participation — Arbitral tribunals — Arbitrators — International courts and tribunals, procedure

This chapter considers the history of judicial review of the merits of arbitration awards in the courts of England. Topics discussed include arbitration before and during the nineteenth century; the English Arbitration Act 1979; the decision in The Nema, a case which concerned the possible frustration of a seven-voyage consecutive voyage charter due to a prolonged strike at the loading port; and section 69 of the English Arbitration Act 1996. The chapter concludes by referring to Lord Wilberforce’s parliamentary observation cited by Lord Steyn in Lesotho Highlands Development Authority v Impregilo SpA. The case raised an issue under section 68(2)(b) of the 1996 Act as to whether the arbitral tribunal had ‘exceed[ed] its powers’. The House of Lords held that an erroneous exercise of a power that was possessed was a mere error of law and not the same thing as acting in excess of powers that were not possessed; and that therefore the award could not be challenged. In the context of arbitration, the House of Lords was determined to allow no possibility that errors of law might be dressed up as decisions in excess of powers. That would have opened the floodgates to the opportunities for judicial intervention in the merits of disputes.