Part IV The Role of Arbitrators in the Development of Shipping Law, 18 The Contribution of Arbitration to the Law »
Bernard RixFrom: The Role of Arbitration in Shipping Law
Edited By: Miriam Goldby, Loukas Mistelis
This chapter reflects on the overall role of a maritime arbitrator. It emphasizes that the process of arbitrator selection tends to focus on their knowledge, experience, and expertise. They also have the duty to reason their awards—a duty owed not just to the losing party but perhaps more widely if one wishes to speak of a genuine transnational maritime law. The corollary of this is the need for transparency to ensure their accountability. While this might seem to conflict with the principle of confidentiality, this is probably because this principle is misunderstood: hearings should continue to be held in private to protect the confidentiality of evidence, however it does not necessarily follow that awards (appropriately anonymized) should be kept confidential ‘for all time’. As for the autonomy of the lex maritima itself, the chapter argues that one must not ignore its intimate and mutually enriching relationship with national laws.
Bernard RixFrom: The Law of Reinsurance (3rd Edition)
Colin Edelman, Andrew Burns
Part X Judicial Review, Judicial Performance, and Enforcement, 29 Judicial Review of the Merits of Arbitration Awards under English Law »
Bernard Rix SirFrom: Defining Issues in International Arbitration: Celebrating 100 Years of the Chartered Institute of Arbitrators
Edited By: Julio César Betancourt
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.