Arbitration - a View from the Bench (A Gamekeeper-Poacher Turned Poacher-Gamekeeper)

Abstract

MY FIRST observation is of the truly remarkable extent to which the attitude of the English judges to arbitration has changed since 42 years ago. That was when I arrived at 3 Essex Court in the Middle Temple as the pupil of Mr John Donaldson, who greeted me with the words ‘All pupils are a nuisance’. A month later he, and I with him, were in the House of Lords for the hearing of an appeal on an award in the form of a special case, Fairclough Dodd & Jones Ltd v. Vantol Ltd [1956] 2 Lloyd's Rep 437. The same day, British troops landed in the Suez Canal Zone, which somewhat distracted attention. When their Lordships came to give their reasons, Lord Tucker said: ‘The case eventually reached your Lordships’ House in October 1956. The time that has elapsed since January/February 1951 has not been due to the “delays of the law” but to the failure of the parties to avail themselves of the facilities provided for the speedy hearing of commercial suits involving questions of law.' Lord Simonds added: ‘Where the substantial issue between the parties raises a question of law of general importance such as the construction of a commercial instrument in common use, which must to the knowledge of the parties ultimately be determined by a court of law, it is difficult to see what advantage is to be gained by pursuing the tortuous and expensive course of arbitration and then a statement of a Special Case.’ And Lord Goddard said (for those were the days when the Lord Chief Justice had time enough to sit occasionally hearing appeals in the House of Lords): ‘I am glad that the learned judge pointed out that the lengthy period that it has taken to reach a final decision …