"WHERE THE KINGS WRIT DOES NOT RUN" THE ORIGINS AND EFFECT OF THE ARBITRATION ACT

Abstract

In the five years before the passage in the United Kingdom of the Arbitration Act 1979, the availability of the stated case procedures in arbitration proceedings drew mounting criticism. The 1979 Act radically modified the English approach to questions of law in arbitration proceedings. The Australian jurisdictions, however, retain stated case procedures drawn from earlier English statutes. This article aims to trace the development of stated case procedures in the United Kingdom, to examine the factors which led to the 1979 Act and to examine the approach of the courts to the new Act. By 1979, various statutes had spawned three different forms of stated case, all or any of which might arise in an arbitration proceeding. In order of historical development these were the final award in the form of a case stated, the consultative stated case, and the interim award in the form of a stated case. In an arbitration proceeding the parties have chosen a private forum to resolve their dispute. Why then should so many opportunities to resort to the courts have developed? In theory, the answer was that arbitrators should, like judges of first instance, decide issues of fact and resolve disputes within a fixed set of legal rules. Arbitrators, however, are not usually trained lawyers. The stated case procedures gave arbitrators the opportunity to obtain an authoritative ruling on uncertain issues of law which might arise in the course of, or at the conclusion of an arbitration. In reality, however, arbitrators sought to make their final awards court proof by simply not giving reasons, while the motive of parties resorting to the interlocutory stated cases often was simply to delay and frustrate the progress of proceedings.