Agora: Thoughts on Fiona Trust: Fiona Trust: 10 Years On, the Fresh Start Entrenched

Abstract

This note examines the attitude towards arbitration exhibited by the House of Lords in the three cases which it has considered under the Arbitration Act 1996 and asks whether, after Fiona Trust , users of London arbitration can now be confident that the English courts will give effect to the principles enshrined in section 1 of the 1996 Act, in particular the principle of strictly circumscribed intervention. When the Arbitration Act 1996 was enacted, it set ambitious goals in terms of recalibrating the relationship between the courts and arbitral tribunals. Section 1 of the 1996 Act reminds the court that the principles underlying the practice of arbitration are that parties should be able to obtain fair, swift and certain resolution of their disputes, party autonomy in the choice of tribunal and process should be respected and the courts should not intervene in arbitral proceedings except in limited, specified situations. Brave words, but what is the practical reality? Three recent House of Lords cases give us the chance to take stock. The decision in Fiona Trust ,1 building on their Lordships’ views expressed in the reference to the ECJ in West Tankers 2 and Lord Steyn’s seminal speech in Lesotho Highlands ,3 suggests that a new era in English arbitration law is now firmly established. Indeed, Lord Steyn made it very clear in Lesotho Highlands that he considered that the 1996 Act turned the page. He approved4 the following passage from Thomas J’s judgment in Seabridge Shipping v. Orssleff’s Eftf’s :5 > International users of London arbitration should, in my view, be able to rely on the clear ‘user-friendly language’ of the Act and should not have to be put to the trouble or expense of having regard to the pre-1996 Act law on issues where the provisions …