Статья посвящена вопросам, связанным с правовым регулированием английского коммерческого арбитража. Особое внимание авторы уделяют отношениям между английскими государственными судами и коммерческим арбитражем, а также юридической действительности арбитражного соглашения.
Тhe practice of resolving business conflicts in the second half of XX century has proved that in an increasingly cross-border commercial world, parties to international business transactions have growing discomfort as regards resolving their disputes before focal national courts, especially under unfamiliar legal systems. The result was that international arbitration, with its relative speed, cheap and confidential proceedings, had become the preferable choice for resolving conflicts arising out of international transactions and very important element of combined system of international commercial dispute resolution.
But the quality of arbitral institutions and the legal framework providing the foundation on which these institutions are built, differs in essentially different jurisdictions. This difference is the basis for determining the status of arbitral-friendly jurisdictions. The best-of-class commercial arbitration jurisdictions are France, USA, Holland, Hong Kong, Singapore, Sweden, Switzerland, the United Kingdom of Great Britain and the Northern Ireland and a few others. This publication looks at the United Kingdom, as its legislation proved to be one of the most arbitration-friendly.
Relations between arbitration institutions and English courts haven’t always been so easy. The “special case procedure” was codified in Section 21 of the Arbitration Act 1950. This procedure empowered an arbitrator to state any part of an award in the form of a “special case” for the condition of the High Court and empowered the courts to order the arbitrator to state the case if he refused to do so. In Half dan Greig v. Sterling Coal (The Lysand) the Court of Appeal gave a ringing endorsement to judicial primacy over arbitration (1973). As a result, it became very difficult for any arbitrator to deny a party’s request to state the award in the form of a special case. Lord Denning considered that if parties agreed to arbitrate, it was, by English law, on the assumption that a point of law could in proper case be referred to the courts. So English courts exercised a hand-on supervision of arbitral tribunals and reviewed arbitration awards. Moreover, in 1922 in Chernikow v. Roth, Schmidt & Co. it was decided that agreement should exclude the jurisdiction of the courts to control arbitrations are contrary to public policy.
Only the Arbitration Act 1979 abrogated the special case procedure and allowed the exclusion of the right of appeal to the courts, subject to fixed limitations, but this Act was not sufficient to turn the general orientation in the relationship between the courts and arbitration. Lord Justice Saville, the chairman of the Departmental Advisory Committee on Arbitration Law clarified the situation, in his report on the 1996 Arbitration Bill, as follows: English law has been a subject of international criticism that the courts intervene more than they should in arbitration proceedings. Thus English law has made a start anyway. The Arbitration Act 1996 gave English arbitration law a new police. Namely: section 68 allows parties to challenge arbitration awards in the Courts where there is a “serious irregularity causing substantial injustice”; section 69 limits the right of appeal on questions of law to situations where the decision of the tribunal of arbitrators was “obviously wrong”, or where the question was of “general public importance” and the arbitrator’s decision was “open to serious doubt”. Parties to a conflict are allowed to exclude the right to appeal to the Courts on question of law.
Serious irregularity is defined as “an excess of power” or “tribunal exceeding its substantive jurisdiction”. These legal relations were essential in Lesotho Highlands Development Authority v. Impregilo SpA (2005). The question was the following: where the tribunal has made an error of law, but the parties have expressly excluded the right of appeal under section 69 of the 1996 Act, can a party nevertheless challenge an award by characterizing the error of law as an excess of power (serious irregularity) under section 68 of the Act? Lord Steyn gave the leading judgment: “erroneous exercise of an available power” rather than an “excess of power”. The arbitral award wasn’t open to challenge in accordance with the purpose of the 1996 Act: drastic reduction in the extent of intervention of courts in arbitration proceeding. It means that arbitration isn’t an inferior tribunal. Lord Steyn’s judgment endorsed the opinion of Lord Wilberforce that arbitration should be regarded as a freestanding system, free to settle its own procedure and free to develop its own substantive law.
English courts grant anti-suit injunctions, i.e. injunctions to restrain parties to a dispute or to an arbitration agreement from instituting or continuing proceedings in courts of other countries. In West Tankers Inc. v. Ras Riunione Adriatica Di Sicurta SpA (The Front Comor), the issue was whether the English court was entitled to grant an injunction to restrain a party from commencing or continuing court proceedings in breach of an arbitration agreement, where the court proceedings were brought in another Member State of EU. EC Regulation 44/2001 governs the allocation of jurisdiction between courts of Member States, but expressly excludes arbitration from its scope. The House of Lords referred the matter to the European Court of Justice, but it expressed its firm view that this Regulation didn’t preclude the grant of injunctions to restrain court proceedings in other Member States which had been brought in breach of an arbitration agreement. This “practical reality” went far beyond the need to support and enforce the party’s choice of arbitration, as an end in itself. In a short judgment the ECJ held that this Regulation did preclude Member States from granting anti-suite injunctions on the base that proceedings in another Member State were in breach of an arbitration agreement (2009). Some commentators argued that the decision of ECJ “appears to undermine the very concept of arbitration”, particularly the kompetenz-kompetenz’ principle (for instance, see: Merkin R. The Future of Anti-suit Injunctions in Europe. — Arbitration Law Monthly. — 2009. — March.)
Very important questions are related to the problem of construction of the arbitration clause. English law was influenced by international practice in favor of liberal construction of arbitration agreements. The leading precedent is the House of Lords decision in the Fiona Trust v. Privalov case. The allegation of bribery should be determined by the arbitration. This is the main rule stipulated by the above-mentioned decision. Particularly:
— as a matter of construction, the claim that the contracts had been procured by bribery fell within the arbitration clauses in the contracts;
— by reason of the principle of separability the invalidity of the main contract didn’t necessarily entail the invalidity of the arbitration agreement; even if bribery had vitiated the main contracts, it had no effect on the arbitration clauses.
There are notable points about the court’s reasoning. The first influence on the court’s opinion must have its understanding the purpose of commercial arbitration and the assumption of validity of the arbitration agreement. In particular: there is no rational basis upon which a businessman would be likely to wish to have questions of the validity or enforceability of the contract decided by one tribunal and questions about its performanee decided by another. One would need to find very clear language before deciding that they must have had such an intension.
Some conclusions
The obvious lessons of history to jurisdictions which desire recognition of all nations as arbitration-friendly powers are as follows:
— over a quarter of century the state can reform law on international commercial arbitration;
— only legal technicalities are insufficient, but they need add-ins in complementary adaptation of state power and activity and political will;
— appropriate aptitude and consistent performance on the understanding that today’s conditions might be described as those of a less arbitration-friendly jurisdiction made it possible for England to reform the law on international commercial arbitration;
— contemporary era of development of English arbitration law and extent of court intervention might be characterized by the following rule: popularity of commercial arbitration institutions depends on the extent of court intervention in arbitration proceedings, such as less control generated onward drift to a determinate state;
— the London Court of International Arbitration (LCIA) and London Maritime Arbitrators Association (LMAA) are institutional commercial arbitrations which provide the leading positions of international commercial arbitration in the world;
— international commercial arbitration institutions are, as a rule, national institutions dependent on state control, but less control is, to some extent, better than more control.
Авторы:
Alexander V. CHEBOTARENKO
Vyacheslav P. LEBEDEV
International Law Offices (Interlegal)
Источник: Ukrainian Journal of Business Law. – 2013. – № 1-2. – Р. 19 – 20.