England is slowly shedding its conservatism in arbitration. There are modest signs that the long-standing ambivalence of English jurists to the finality of arbitration is coming to an end. Arbitral jurisdiction in England is emerging as independent and parallel to state courts rather than integrated and subordinate.

Almost four years ago, England introduced a new arbitration statute intended to update English law and bolster England's standing as an important arbitration venue.1 Prior to the new Arbitration Act, English law was criticized as out of touch in an increasingly international world. A pair of controversial House of Lords decisions underscored the need for change. 2

The process of reform in England was marked by resistance to harmonization, at least to the extent this might entail significant change to English law. A principal objection during debates on the drafting of the UNCITRAL Model Law was that certain aspects of it bore a civil law imprint without equivalent in common law. An additional obstacle was the old belief, on the part of many English jurists, that common law is inherently superior to other legal systems because of its regime of appeal against the legal merits of arbitration awards and its doctrine of stare decicis. 3 Some viewed English law as an already known and accepted international 'model law' in its own right. 4 England eventually decided, in 1989, against adoption of the UNCITRAL Model Law, considered inferior to common law, but suitable for what were viewed as countries with less developed legal systems.

The new English arbitration statute came into force in January 1997. It was, by any standard, conservative. Arbitrators were given more powers than ever before, particularly over procedure, and scope for court intervention was limited. But these developments mirrored features already in place in other jurisdictions. Although correct application of law by arbitrators ceased to be a matter of public policy in England, court-ordered appeal against the legal merits of an arbitration award was maintained where the arbitration takes place in England and English law applies to the merits. England was one of very few jurisdictions to scale back provisions of Article 28 of the Model Law, viewed as only a timid advance for arbitral authority when the Model Law was completed in 1985. The framers of the 1996 Arbitration Act went so far as to delete 'trade usages' from among the legal norms applicable by arbitrators in England without express authorization from the parties. 5 Numerous English particularisms were retained in an impressive codification that, in many respects, sought more to make English law accessible and comprehensible to foreign users than to harmonize English law. [Page17:]

The English Act did modernize through partial reception of international practice into English law. Arbitrators were freed from national choice-of-law rules. A strong doctrine of separability was confirmed and extended to arbitration agreements in contracts that do not come into existence. The principle of compétence-compétence was defined and given force of statutory expression. Party autonomy was elevated to the level of overriding principle. Enforcement of arbitration agreements was strengthened by removal from the courts of all discretion to refuse stay of proceedings in domestic arbitration. The notion of place of arbitration was introduced. For the first time, parties were expressly allowed by statute to authorize arbitrators to decide as amiables compositeurs, although neither the foreign words nor an English equivalent were used. The Act authorized arbitrators to dispense with English rules of procedure and evidence and to adopt inquisitorial methods. In a concession to international practice, discretion to award security for costs in respect of an arbitration proceeding was removed from the courts and conferred on arbitrators.

The new Act significantly reduced risk of involvement by local courts. It brought an end to judicial review of issues of fact characterized as appealable questions of law (i.e. the question of whether evidence before the arbitrator adequately supported the arbitrator's findings of fact). Enhancement of party autonomy closed avenues of appeal evolved under the old regime in relation to evidence and procedure. In addition, parties who failed to raise procedural objections during an arbitration would loose their rights to do so later in challenges of awards before courts. Procedural grounds of attack against arbitral awards were restricted and more rigorously defined, although scope for such recourse appears broader than the Model Law and legislative reforms in other jurisdictions.

Before entry into force of the 1996 Act, there was much speculation about how England would adapt to the more international regime. The English judiciary (and practitioners) had a 'reputation' for adherence to domestic thinking in international disputes. Colourful judicial metaphors applied to what lies beyond the run of the King's writ expressed a preference for the national. England was, after all, the jurisdiction that regarded international organizations as extra-terrestrials 'from the invisible depths of outer space'6 and non-national legal order as 'transnational firmament'. 7 Already in 1989, the Mustill Report foresaw difficulties if the 'untried' Model Law were 'assimilated into the highly developed system which prevails in England'. 8

In fact, more than three years into the new regime, English judges have proved important agents of a process of harmonization that continues after involvement by the legislator. They have disavowed formal legalism in the construction of arbitration agreements, the application of the 1996 Act and the enforcement of arbitral awards. They have internationalized their field of reference. English judges have formulated a doctrine of international public policy in all but name. They have affirmed full respect for party autonomy and arbitral jurisdiction over questions of procedure. The once discarded UNCITRAL Model Law itself has become a sort of 'travail préparatoire' English courts now use to complete and interpret English arbitration law. 9

In their treatment of pathological arbitration agreements, English courts, more readily than ever before, presume a basic intention to arbitrate and give effect to that goal by [Page18:] severing, disregarding or minimizing elements of arbitration provisions that are poorly drafted, nonsensical or contrary to public policy. English judges have upheld arbitral jurisdiction under hopelessly contradictory clauses that refer disputes both to arbitration and the courts or split subject matter jurisdiction between arbitrators and some other decision-maker. English judges recently enforced arbitration despite provisions that set out the recourse in permissive rather than mandatory language. 10

English courts continue to extend arbitral jurisdiction by liberalizing requirements for the formation of arbitration agreements. The category of what constitutes an 'agreement in writing' is broader than ever. Consistent with trends abroad, English judges have started to move away from the constraints of a conservative jurisprudence governing formal requirements for incorporation by reference. 11

England is moving beyond earlier rejection of international harmonization slowly to evolve into a Model Law jurisdiction. 12 The UNCITRAL text grew increasingly significant during the legislative process, 13 but early decisions under the 1996 Act placed the position of the Model Law in doubt. In the very first case under the new Act, Russell Bros. & Co. Ltd v. Lawrence Breen T/A L&E Properties, Pringle J. ruled reference to the Model Law inappropriate because England had enacted divergent legislation. 14 In Trygg Hansa Insurance Co. v. Equitas Ltd, Judge Raymond Jack Q.C. contrasted England's partial acceptance of the Model Law to wholesale adoption by Scotland and Hong Kong in order to justify maintenance of more conservative requirements for incorporation by reference. 15 In Vosnoc Ltd v. Transglobal Projects Ltd, Judge Jack likewise emphasized differences between the Model Law and the new English statute with respect to commencement of arbitration. 16

English judges went on to disregard or attenuate maintenance of domestic particularisms in the Arbitration Act. The courts all but abandoned formalities English law previously required for commencement of arbitration. Traditionally, in England, this involved more than mere service of a request for arbitration. It was necessary to serve notice that actually required the respondent to appoint its arbitrator, to agree appointment of an arbitrator or to agree to submit the dispute to a person already designated as arbitrator. Section 14 of the 1996 Act retained the English approach rather than the UNCITRAL Model Law proposal of commencement by request for arbitration. But the courts confirmed so many exceptions that formalities catalogued in the Arbitration Act must now be considered to have little application. Instead, what is important is clear communication of a party's intention to commence proceedings, a position consistent with international practice and the Model Law. In the latest decision on this question, the court held that it suffices validly to commence arbitration that a claimant copy to a respondent correspondence addressed to the claimant's arbitrator requesting confirmation of acceptance of appointment. 17

English judges also lessened the impact of provisions of the English statute that allow courts to assume jurisdiction where a party might be considered to have waived arbitration by taking a step in court proceedings. In a decision that contradicted Russell Bros, the Court of Appeal preferred Model Law provisions more favourable to preservation of arbitral jurisdiction in such circumstances than the wording of section 9(3) of the English Arbitration Act: 'the terms of the UNCITRAL Model Law on [Page19:] International Commercial Arbitration should be taken into account because it is clear that those responsible for drafting the Act had the provisions in mind when doing so'. 18 In another case, the court preferred Article 15 of the Model Law to the time limit set out in the English Arbitration Act for appointment of replacement arbitrators: 'there is nothing sacrosanct about the Statute's period of 14 days'. 19

Perhaps the most interesting development is an increased acceptance of international practice and arbitral awards as potential sources of law. In one case, an English court appealed to principles 'well established in the context of international arbitration law'. 20 In Denby v. English & Scottish Maritime Insurance Co. Ltd and Yasuda Fire Marine Insurance Co. of Europe v. Lloyd's Underwriting Syndicates nos. 229, 356, 462, 571, 661 and 961,21 the Court of Appeal upheld an award in which arbitrators declined to follow the judicial precedent established in Denby and then applied the arbitrators' solution to an appeal against the first instance decision in Denby. In another case, the Court of Appeal indicated that it is legitimate to hear evidence of practice by arbitrators under institutional rules when the application of those rules is in dispute. 22 In Laker Airways Inc. v. FLS Aerospace Ltd, 23 Rix J. referred to an international arbitration award and preferred a decision of the Paris Cour d'appel to English case law that 'arose within a domestic (national) context' involving parties familiar 'with the domestic scene'. The French decision was preferred, in part because it related to international arbitration, but also because of the Cour d'appel's 'great experience in this field'. In Tsavliris Salvage (International) Ltd v. Guangdong Shantou Overseas Chinese Materials Marketing Co., Clarke J., as he then was, upheld reliance on relevant arbitral practice: 'indefinite immobilization has long been regarded by Lloyd's arbitrators as a relevant danger for salvage purposes'. 24 The Admiralty Court also relied on arbitral 'case law', namely Lloyd's Open Form Salvage arbitration awards, 'with a view to promoting uniformity and consistency within the LOF system of arbitration'. 25

Beyond the new significance such decisions potentially confer on an existing corpus of published arbitral 'case law', such as that of the International Chamber of Commerce, reference by English courts to arbitral awards defeats one of the principal objectives of maintaining judicial review of the legal merits of arbitration: containment of production of law by arbitrators. It was not long ago that reference to arbitration awards was considered, in England, to be subversive of a unitary and coherent legal system. Closely associated with this concern was the fear that abolition of rights of appeal on the merits of arbitration would set arbitrators free to create autonomous systems of 'pseudo-law' in competition with state law.

That English judges themselves look to arbitration awards highlights the anomaly of the decision to retain an avenue of appeal on merits in legislation intended to reform and modernize arbitration law. 26 The increased popularity of arbitration means that arbitrators more often find themselves on the 'front line' of legal developments, especially in international disputes where domestic law does not always provide adequate solutions. Why should arbitrators sitting in England be more restricted than judges in circumstances that demand innovation? Why should development of English law risk judicial intervention only because arbitrators get there first? 27[Page20:]

The vestige of a conception of arbitration that is supervisory rather than supportive, limited judicial review of arbitration was retained at a time when it could no longer be justified as a matter of English legal theory. English opposition to the Model Law's abolition of all recourse to local courts on substantive issues is rooted in earlier resistance formulated, largely during the 1970s, 28 when both exclusion of judicial review and amiable composition were still considered violations of public policy in England and the appeal regime itself was seen as a mark of the superiority of the English legal system. In addition, the authors of the Arbitration Act 1996 understood judicial review of the legal merits of arbitration to accord with party autonomy: 'the parties have agreed that law will be properly applied with the consequence that if the tribunal fail to do this, it is not reaching the result contemplated in the arbitration agreement'. 29 Although parties may, by agreement, exclude appeals on questions of law under the 1996 Act, presumption of consent to judicial review in the absence of exclusion is at odds with international practice.

English courts appear to be in a period of transition; attitudes strongly in favour of reviewing arbitration awards to correct or develop English law co-exist with a growing sensitivity to finality. Notwithstanding the possibility of recourse against the legal merits of an award where the arbitrator's decision is 'obviously wrong' or (in cases of 'general public importance') 'open to serious doubt', English courts uphold, on appeal, many arbitral decisions and show surprising tolerance of arbitrators who 'create law' or depart from decided English authority. In Panatown Ltd v. Alfred McAlpine Construction Ltd, 30 the Court of Appeal upheld a sole arbitrator who relied on a minority view Lord Griffiths expressed in the House of Lords decision of St. Martins Property Corporation v. Sir Robert McAlpine Ltd, 31 after the court at first instance ruled that the arbitrator had been wrong to do so. In another case, both the court of first instance and the Court of Appeal upheld the decision of an arbitral tribunal that refused 'with all due respect' to follow judicial precedent on a point of construction of a standard form reinsurance contract. 32 English courts also continue to approve reliance by arbitrators on trade usages.

Before exercising discretion to grant permission to appeal from an arbitration award, English courts are now required to balance the state's interest in the (exclusive) production of English legal norms with the parties' decision not to resolve disputes via local courts and must, under section 69(3)(d), accord weight to the parties' choice of arbitration rather than litigation. Section 69(3)(d) was intended to introduce an important change in the law in order to reduce the number of appeals. This objective does not yet appear to have been met. The largest single category of arbitration-related litigation is still made up of appeals against the legal merits of arbitrators' decisions. 33 Leave to appeal has been granted and appeals on the merits have been successful, under the new Act, even against awards in respect of disputes under 'one-off' contracts which, under the old regime, the courts, as a general rule, left undisturbed and error of English law has served as a ground to strike down a partial award on jurisdiction rendered with reference to parties' intentions and international trade practice. In addition, English courts have not, thus far, conducted the balancing exercise required by section 69(3)(d) on record. 34 Written comment is to be found in only two cases. Tuckey J., as he then was, indicated that little importance attached to section 69(3)(d) as compared to the substance of the grounds for appeal. Where, for instance, arbitrators are 'obviously wrong' at law or rely on trade usage in respect of [Page21:] which no evidence is submitted, section 69(3)(d) would not '[stand] in the way of granting leave'. 35 In India Steamship Co. Ltd v. Arab Potash Co. Ltd36 Colman J. considered that section 69(3)(d) could not save an arbitration award where arbitrators do not follow applicable English case law. Both views are contrary to the intended purpose of section 69(3)(d). 37

Parties often choose English law and designate London as venue for no other reason than neutrality. Section 69(3)(d) confers far greater discretion on the courts to disregard, in international arbitration, the local English practice of appeal against legal merits and it remains to be seen to what extent party autonomy will be respected under this provision. Given the intent of the 1996 Arbitration Act as a whole, it is at least conceivable that just as the House of Lords took initiative to limit appeals on questions of law soon after introduction of the 1979 Act, on the basis that the underlying purpose of those reforms was to reduce court intervention, the courts will again intervene under the 1996 Act to harmonize English law with respect to appeals on the merits in international disputes. 38 The theoretical basis for this development is already in place. Perspectives have altered. Legal pluralism and comparative law have taken the edge off claims to superiority. Indeed, numerous appeals flow not from any error of law by arbitrators, but from the indeterminacy of English law itself. The doctrine of party autonomy is normally associated with freedom to exclude local law and local courts and is, accordingly, incompatible with judicial review, a view now expressed by English judges. 39 Gone is the public policy of proper application of legal norms by arbitrators. 40 In its place, a series of decisions, following entry into force of the new Act, recognized a public policy value in the finality of international arbitration awards. 41 These cases all concern enforcement, in England, of New York Convention awards, i.e. 'foreign' arbitration awards, but the courts nonetheless expressed a public policy in favour of finality of international arbitration in broad and general terms. There is no apparent reason why public policy in favour of finality of international arbitration should apply only to awards rendered outside England. In Westacre Investments Inc. v. Jugoimport - SPDR Holding Co. Ltd, Colman J. underlined the importance of finality within England itself, citing the need 'to take into account the importance of sustaining the finality of international arbitration awards in a jurisdiction which is the venue of more international arbitrations than anywhere else in the world'. 42 In another case, Thomas J. acknowledged that the parties' 'intention that there be finality' is a factor 'of great importance' in 'an international commercial [Page22:] arbitration'. 43 English judges have set aside other domestic practices maintained in the 1996 Act on the ground that they are out of place in international disputes. 44

A few aspects of the reforms have given rise to difficulties in practice.

English courts (and practitioners) continue to struggle with the principle of separability. It has been misused to rationalize a narrow approach to incorporation by reference45 and to limit characterization of an underlying contract. 46 On the other hand, in circumstances where separability ought to apply, English courts have not yet taken on board the full significance of section 7 of the Act, which expressly provides for the survival of an arbitration agreement where the underlying contract does not come into existence. 47

Security for costs is still problematic. Following sharp criticism of orders by English courts for security in international arbitration proceedings, the fact that one party has its central management and control outside England is now a prohibited ground for granting such relief. This accords with the spirit of international arbitration where no parties are 'foreign' (or all of them are). Despite express anti-discrimination provisions in the Act, English courts still take into account one party's location outside England in granting orders for security in the context of arbitration-related litigation, even where the foreign party is found to have adequate assets and neither party has any link to England other than the decision to arbitrate in London. 48

Early decisions under the 1996 Act expressed opposing views on the extent to which the merits of questions concerning the existence, scope and validity of arbitration agreements should be referred to an arbitral tribunal once the court is prima facie satisfied that there may be an agreement to arbitrate. The Court of Appeal ruled recently that courts should decide these questions during applications for a stay in the interest of avoiding jurisdictional challenges at a later stage after the expense of completing arbitration proceedings. 49 This interventionist approach does not fully respect party autonomy. In addition, direct access to local courts during the initial stages of arbitration deprives English law of benefits to be gained from doctrine and practice developed at the international level where experienced arbitrators have devised solutions to jurisdictional challenges that differ considerably in nature from those encountered by state courts.

Overall, English law has improved and the courts continue to liberalize and to modernize. Case by case, English judges are moving English arbitration closer to the UNCITRAL Model Law to complete harmonization commenced by legislation, a programme that belies earlier pessimism50 and fully accords with authorial intent. 51

1
The English Arbitration Act 1996 came into force on 31 January 1997.

2
Copée-Lavalin SA/NA v. Ken-Ren Chemicals and Fertilisers [1994] 2 W.L.R. 631 and Hiscox v. Outhwaite [1992] 1 A.C. 562.

3
See, for example, Lord Diplock's 1978 Alexander lecture (45 Arbitration 10 at 21), as well as his speech to the House of Lords on 15 May 1978 (44 Arbitration 195 at 202-3).

4
Lord Denning stated to the House of Lords, on 12 December 1978 (45 Arbitration 10 at 21), that: 'owing to arbitrations and cases which are stated for the opinion of the court, the commercial law of England is the commercial law of the world. Other countries do not have a procedure like ours by cases stated to get the points of law before the courts. They end with arbitrators.' See also the Response of the Departmental Advisory Committee to the UNCITRAL Model Law (the 'Mustill Report') (1990) 6 Arbitration International 3 which considered, at para. 76, that existing English arbitration law was a system already 'familiar to, and accepted and trusted by a very large international commercial community'.

5
Section 46 of the Arbitration Act amalgamates into a single category of non-law ('other considerations') trade usages, rules of law and amiable composition.

6
Arab Monetary Fund v. Hashim (No. 3) [1991] 2 A.C. 114 at 133.

7
Bank Mellat v. Helleniki Techniki SA [1984] Q.B. 291 at 301.

8
See paras. 77 and 78 of the Mustill Report.

9
Professor Robert Merkin's annotated guide to the English Arbitration Act 1996 (2000, London, LLP) includes, in appendices, a copy of the Departmental Advisory Committee on Arbitration Law Report on the Arbitration Bill ('DAC Report') along with the full text of the Model Law. Other available guidebooks published when the Arbitration Act came into force likewise include the Model Law text.

10
Lobb Partnership Ltd v. Aintree Racecourse Co. Ltd [2000] C.L.C. 431. See also Canadian National Railway Co. et al. v. Lovat Tunnel Equipment Inc. (1999) 174 D.L.R. 4th 385.

11
Secretary of State for Foreign and Commonwealth Affairs v. Percy Thomas Partnership and Kier International Limited (1998) 65 Con. L. R. 11.

12
Because court-ordered appeal on questions of law is contrary to fundamental principles of international commercial arbitration, UNCITRAL does not, at present, list England as a Model Law jurisdiction. See the Model Law jurisdictions listed at UNCITRAL's website (www.uncitral.org/en-index.htm) which states 'within the United Kingdom of Great Britain and Northern Ireland: Scotland'.

13
See the DAC Report at para. 4.

14
14 March 1997, Comm. Ct., Pringle J., unreported.

15
[1998] 2 Lloyd's Rep. 439 at 447.

16
[1998] 2 All E.R. 990 at 999.

17
Seabridge Shipping A.B. v. A.C. Orssleff's EFTF A/S [1999] 2 Lloyd's Rep. 685. The earlier cases are reviewed in S. R. Shackleton (1999) International Arbitration Law Review 53 at 65-67.

18
Patel v. Patel [1999] 3 W.L.R. 322 at 325. The same result is achieved in other jurisdictions by specific statutory provision for reference to the Model Law in international disputes. For example, Article 940(6) of the Quebec Code of Civil Procedure provides that 'dans le cas d'un arbitrage mettant en cause des intérêts du commerce international', procedural rules governing arbitration are to be interpreted with reference to the UNICTRAL Model Law and related travaux préparatoires. See as well section 2(3) of the Hong Kong Arbitration Ordinance (cap 341).

19
Federal Insurance Co. & Anor. v. Transamerica Occidental Life Insurance Co. [1999] C.L.C. 1406 at 1411.

20
Minmetals Germany GmbH v. Ferco Steel Ltd [1999] C.L.C. 647 at 659.

21
5 March 1998, C.A., Hobhouse, Brooke and Chadwick L.JJ., unreported.

22
Cargill v. SIMSA [1998] 1 Lloyds Rep. 489 at 495.

23
[1999] 2 Lloyd's Rep. 45 at 51-52.

24
(The 'Pa Mar') [1999] 2 Lloyd's Rep. 338 at 360.

25
Owners, Master and Crew of the Tug 'Hamtun' v. Owners of the Ship 'St John' [1999] 1 Lloyd's Rep. 883 at 900.

26
Section 69 of the Arbitration Act 1996.

27
In the course of debates in the House of Lords, Lord Wilberforce lamented maintenance in the new legislation of an avenue of appeal to the courts on the legal merits of an arbitration award (18 January 1996, H.L. Hansard, col. 777 at col. 778): 'I have never taken the view that arbitration is a kind of annex, appendix or poor relation to court proceedings. I have always wished to see arbitration, as far as possible, and subject to statutory guidelines no doubt, regarded as a freestanding system, free to settle its own procedure and free to develop its own substantive law - yes, its substantive law.'

28
See para. 80 of the Mustill Report.

29
See the DAC Report at para. 285. See also para. 81 of the 1989 Mustill Report: 'it would be illogical to regard the Model Law as an advance on English law in this particular respect, the more so since the existence of a right of appeal coupled with a right, subject to exceptions, to contract-out seems more in accordance with the principle of party autonomy on which the participants in the drafting of the Model Law laid such stress . . .'

30
(1998) 88 B.L.R. 67.

31
[1994] 1 A.C. 85.

32
Yasuda Fire and Marine Insurance Co. v. Lloyd's Underwriting Syndicate nos. 229, 356, 462, 571, 661 and 961 [1998] Lloyd's Rep. (Ins. and Reins.) 285 and Denby v. English & Scottish Maritime Insurance Co. & Ors. and Yasuda Fire and Marine Insurance Co. v. Lloyd's Underwriting Syndicate nos. 229, 356, 462, 571, 661 and 961, 5 March 1998, C.A., Hobhouse, Brooke and Chadwick L.JJ., unreported. See, contra, India Steamship Co. Ltd v. Arab Potash Co. Ltd, 12 December 1997, Comm. Ct., unreported, where Colman J. ruled that, under the 1996 Act, 'matters of construction which have already been determined by the courts should not be determined by arbitrators in a manner that is inconsistent with those decisions'.

33
See a review of these cases in S.R. Shackleton (2000) International Arbitration Law Review 71.

34
Despite the express wish of the drafters of the new Act 'that this factor should be specifically addressed by the court when it is considering an application'. See the DAC Report at para. 290. English courts continue, as a general rule, to adhere to a policy of giving no reasons for decisions to grant or refuse permission to appeal the merits of an arbitration award. This practice evolved by analogous reference to the procedure of appeal to the House of Lords (see Matthew Hall Ortech v. Tarmac Roadstone Ltd (1997) 87 B.L.R. 96 at 107). It is arguably a practice of no relevance to arbitration.

35
Ergmatra A.G. v. Marco Trading Co. [1998] C.L.C. 1552 at 1556.

36
12 December 1997, Comm. Ct., Colman J., unreported.

37
Lord Saville, 'The Arbitration Act 1996: What We Have Tried to Accomplish' (1997) 13 Const. L.J. 410 at 412: 'This new provision means that over and above the court being satisfied that the tribunal was obviously wrong in law, or (in a case of general importance) that its conclusion was at least open to serious doubt, there will have to be something else which makes it just and proper for the court to substitute its own decision for that of the tribunal. This should, and is intended to, make successful applications for leave to appeal from an arbitration award very rare indeed.'

38
Like its predecessor in 1979, the Arbitration Act 1996 was the outcome of compromise (see the DAC Report at paras. 4 and 394).

39
The courts understand respect for party autonomy as limiting rather than sanctioning judicial intervention. In Sanghi Polyesters Ltd (India) v. The International Investor (KCFC) Kuwait [2000] 1 Lloyd's Rep. 480 at 482, D. Mackie, QC, sitting as a Deputy High Court Judge, stated: 'I now do this dealing first with Section 69 on which three points arise. I first point out that the policy of English law enshrined in the Arbitration Act 1996, most obviously in Section 1, is to hold parties to arbitration to their agreement to arbitrate … the right to appeal is very limited.' See also Longmore J. in Andre Cayman Islands Trading Co. v. Stolt Nielson B.V. (The 'Sun Sapphire') [2000] C.L.C. 156 at 160: 'on a matter such as repudiation, on which reasonable minds might reach different conclusions on the same facts, it will seldom be right for a judge to substitute his view for that of an umpire. The parties would normally wish, in these days of so-called party autonomy, that the umpire, on being informed of the right test to apply in law, should apply that test to the facts as he finds them to be.' See Egmatra AG v. Marco Trading Co. [1998] C.L.C. 1552 at 1556 where Tuckey J., as he then was, referred to section 69(3)(d) as 'a long stop provision which underlines again the need for the court to respect the decision of the tribunal of the parties' choice'. See, as well, the decision of the Hong Kong Court of Appeal in Wong Bik Ling Kitty v. Crow Insurance Group (Hong Kong) Ltd [2000] 1 H.K.C. 233 at 236, per Rogers J.A.: 'Arbitration proceedings are quite separate from court proceedings. The point of them is that they are the choice of the parties. The matter is left to the parties and the arbitrator except in exceptional circumstances. The court only interferes in the outcome of arbitration proceedings in exceptional circumstances and certainly not just because the court might feel that the decision might be wrong.'

40
The 1996 Arbitration Act ended restrictions on exclusion agreements in the 'special categories' of contracts, i.e. insurance contracts, commodity contracts and Admiralty claims. See section 4 of the 1979 Arbitration Act.

41
Westacre Investments Inc. v. Jugoimport - SPDR Holding Co. Ltd [1998] 3 W.L.R. 770 and C.A. [1999] 2 Lloyd's Rep. 65; Soinco SACI v. Novokuznetsk Aluminium Plant (NKAP) [1998] 2 Lloyd's Rep. 337; Omnium de Traitement et de Valorisation v. Hilmarton Ltd [1999] 2 Lloyd's Rep. 222 and Minmetals Germany GmbH v. Ferco Steel Ltd [1999] C.L.C. 647.

42
[1998] 3 W.L.R. 770 at 799.

43
Petroles de Portugal v. B.P. Oil International Ltd [1999] 1 Lloyd's Rep. 854 at 855.

44
One of the principal factors considered by the courts in abandoning English formalities for commencement of arbitration proceedings, now listed at section 14 of the Act, is the unawareness by foreign parties of English technicalities in this regard. See Allianz Verisicherungs-Aktien Gesellshaft v. Fortuna Co. Inc. [1999] 1 Lloyd's Rep. 497 at 503; Vosnoc Ltd v. Transglobal Projects Ltd [1998] 2 All E.R. 990 at 999 and Charles M. Willie (Shipping) Ltd v. Ocean Laser Shipping Ltd [1999] 1 Lloyd's Rep. 225 at 235. Exactly the same criticisms have been made of English arrangements for appeal on questions of law by one member of the DAC, Roy Goode 'The Adaptation of English Law to International Commercial Arbitration' (1992) 8 Arbitration International 1 at 11: 'We ought not to expect foreigners to be familiar with our rules on exclusion agreements when drafting their contracts. Nor should the onus be on the parties to prove a desire for finality, when such desire is the norm rather than the exception.' The view is not a new one. Appeal on a point of law under the former 'case stated' procedure was considered by a Commercial Court Users Conference in 1962 (Cmnd. 1616). The Conference noted at para. 30: 'we understand that this procedure is unique to English law. It is certainly not understood by foreigners who have submitted disputes to English arbitration and is not infrequently the subject of complaint by them.'

45
Trygg Hansa Insurance Co. v. Equitas Ltd [1998] 2 Lloyd's Rep. 439.

46
The Bumbesti [1999] C.L.C. 1413.

47
Azov Shipping Co. v. Baltic Shipping Co. [1999] 2 Lloyd's Rep. 159. See the discussion of this case in S. R. Shackleton (1999) International Arbitration Law Review 117 at 127129.

48
Azov Shipping Co. v. Baltic Shipping Co. [1999] 2 Lloyd's Rep.39.

49
Al-Naimi T/A Buildmaster Construction Services v. Islamic Press Agency Int. [2000] 1 Lloyd's Rep. 522.

50
See para. 85 of the Mustill Report: '. . . if the Model Law is to be urged as a better regime, it is fair to remark that it is not a regime which would ever have been arrived at spontaneously, through pressure from English users and practitioners, independently of the UNCITRAL initiative'.

51
Lord Saville stated that one purpose of the Arbitration Act 1996 was 'to reflect generally accepted international views on the proper conduct of the arbitral process', in 'The Arbitration Act 1996' (1997) L.M.L.Q. 502 at 517.