Two Faces of Progress: Fairness and Flexibility in Arbitral Procedure

TWO FACES OF PROGRESS: FAIRNESS AND FLEXIBILITY IN ARBITRAL PROCEDURE*

Arranged in pairs, the biographies in Plutarch’s Parallel Lives contrast great statesmen, orators and soldiers from the ancient Roman and Greek worlds.¹ Cicero, the Roman orator, finds himself juxtaposed with his Greek counterpart, Demosthenes. The Roman general Caesar stands compared with the Hellenic military genius of Alexander. And so on.

A comparative approach might also commend itself on how arbitrations are conducted in England. The relevant distinctions, however, lie not with noble individuals (although many giants of the profession remain active), but rather relate to legislative provisions. In particular, Sections 34 and 68 of the Arbitration Act 1996 provide a prism through which to examine two significant themes in arbitration’s legal framework.²

The first provision, Section 34, emphasizes arbitrator discretion in procedural matters. The arbitral tribunal decides all procedural and evidential matters, subject only to the parties’ right to agree otherwise. A non-exhaustive list of procedural matters includes language, the form of written statements of claim and defence, the extent of oral submissions, questions of document disclosure, and the application of rules of evidence.

This discretion, however, must always be exercised in the shadow of Section 68, which imposes constraints related to fundamental procedural fairness. Arbitral awards may be challenged for “serious irregularity” and set aside if that irregularity results in substantial injustice. This control mechanism permits the judiciary to monitor aberrant arbitrator behavior, with the aim of insuring a floor of procedural integrity in arbitration.

These provisions work in tandem to present the two faces of progress in English arbitration law. One rejects parochial application of purely local procedures. The other aims to safeguard elemental due process.

A. Procedural Discretion

The text of Section 34 is significant less for what it says than for what it does not say. The statute stipulates that “It shall be for the arbitral tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter”. There is no hint that English trial practices apply to matters such as evidence and document production simply because the arbitral seat has been fixed in London.

Nothing prevents parties from agreeing on English rules, which in some instances might be well-suited to addressing particular questions. Moreover, arbitrators may take English procedure as a starting point for their inquiry, or adopt an English approach on a given issue. But English rules do not apply automatically as default procedures.

This discretion in procedural matters falls within a trend sometimes referred to as “delocalization”, by which arbitration has become less dependent on the idiosyncrasies of the arbitral seat.³