Arbitration-Friendliness: Promises of Principle and Realities of Practice

Abstract

WE CAN expect that many eminent commentators will pass judgment on the first 10 years of operation under the Arbitration Act 1996.1 Their scrutiny will be intense and erudite. Herein lies a danger. For the very sophistication of the analysis may obscure simple truths. First among these is the fact that the 1996 Act has turned out to be an unquestionable improvement on the prior law. Indeed, London's reputation today as a centre for international commercial arbitration is enviable. In the Queen Mary/PWC Survey conducted under the direction of Dr Mistelis, England was ranked by respondents as the preferred international arbitration venue.2 The Second Annual Litigation Trends Survey by Fulbright & Jaworski, based on 354 registered interviews, records London as the favoured arbitration venue in the world, preferred by 31 per cent of respondents overall (including US and UK respondents), followed by New York (with 25 per cent) and Paris (with 5 per cent). Amongst UK respondents, London was preferred by 60 per cent. In contrast, New York was only preferred by 33 per cent of US respondents. This agreeable situation stands in satisfying contrast to what I observed when I started practice in the 1970s, when the ravages and abuses of the special case procedure had led to the result that an international lawyer proposing a London venue might be accused of professional negligence. The point was a serious one; how could one justify the selection of a place of arbitration for an ICG arbitration which considered a cornerstone of the ICC rules – namely the waiver of appeal – to be a nullity? And it is a matter of historical fact that in those Dark Ages the ICC Court of Arbitration, the world's leading body in the field, clearly and demonstrably shunned London. Today's far brighter …