Sections 33 and 34 of the English Arbitration Act 1996: A Potential Conflict

Abstract

Section 1 of the English Arbitration Act 1996 (hereafter referred to as ‘the Act’) requires that the provisions of the Act be interpreted purposively, according to the general principles set out in that section. The first of these provides that the object of arbitration is to ‘obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense’. This principle finds particular expression in section 33 which imposes upon arbitral tribunals the duty to: > adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined. Based on Article 18 of the Model Law, this section is expressed to be mandatory, and as such, to have effect ‘notwithstanding any agreement to the contrary’ by the parties (s. 4). Set out in section 34 of the Act are the means at the tribunal's disposal for the fulfilment of this duty, giving it the power to decide all procedural and evidential matters. Yet section 34 is not a mandatory provision. The powers it gives to a tribunal are expressed as being ‘subject to the right of the parties to agree any matter’. In this way, it gives expression to the general principle of party autonomy, …