Arbitration Practice and Procedure (Interlocutory and Hearing Problems) by D Mark Cato and Ian Menzies (Contributing Editor)

Abstract

This is a very different kind of book on arbitration: indeed, it is so different as to be unusual. It addresses the procedure and practice of arbitration by first asserting a proposition or typical situation, followed by a hypothetical narrative: there then follows a question arising from the facts which the arbitrator poses to himself (emphasised by heavy print), followed by the analysis of the authors which appears under the title Course of Action. The range is very comprehensive, with 39 numbered paragraphs, and varying numbers of sub-paragraphs, covering such a variety of topics as arbitration agreements, appointments, awards, costs, damages, directions, evidence, fees, injunctions, interest, misconduct, pleadings, settlements and witnesses. All is embellished by three appendices collecting together apposite statutes, Rules of the Supreme Court and a miscellany of arbitral rules. The book has a very practical slant and arbitrators operating in the everyday hurly-burly of arbitral practice may find it helpful, provided they can first slot themselves into one of the categories identified by the authors. Ultimately the success of the book will turn on the authors having identified the issues likely to prove troublesome in practice and in the soundness of the analysis and advice given under Course of Action. There can be no complaint with the level of the awareness of the authors, they are both practising arbitrators. The Course of Action which they recommend is however not always free of reservation, but given the task the authors have set themselves it would be remarkable if at the first attempt they succeeded in producing a watertight text. The methodology is however far from being straightforward, and may even represent a dangerous design. It calls not only for accurate analysis of an ever-developing system of law and practice, but also its perceptive application to the hypothetical narrative set out in the text. This may embody demands which the authors have not fully appreciated. Not all the issues confronted in the text fall within the province of procedure and practice, strictly perceived; but this only adds to the potential utility of the text. Nor is there any detriment in the unambiguous bias towards construction arbitration. Nonetheless the text creates a certain disquiet which cannot be shaken off. This is an innovative adventure which has not quite come off.