The Arbitration Act 1996 A COMMENTARY Fourth Edition Bruce Harris FCIArb,FRSA Rowan Planterose MA (Cantab), LLB, FCIArb, Barrister Jonathan Tecks MA (Cantab), FCIArb, Barrister FOREWORD BY The Rt. Hon. The Lord Bingham of Cornhill KG Senior Law Lord PUBLISHED IN ASSOCIATION WITH THE CHARTERED INSTITUTE OF ARBITRATORS This page intentionally left blank The Arbitration Act 1996 A COMMENTARY Fourth Edition Bruce Harris FCIArb,FRSA Rowan Planterose MA (Cantab), LLB, FCIArb, Barrister Jonathan Tecks MA (Cantab), FCIArb, Barrister FOREWORD BY The Rt. Hon. The Lord Bingham of Cornhill KG Senior Law Lord PUBLISHED IN ASSOCIATION WITH THE CHARTERED INSTITUTE OF ARBITRATORS © 1996, 2000, 2003, 2007 by Bruce Harris, Rowan Planterose and Jonathan Tecks Editorial offi ces: Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK Tel:(cid:2)44 (0)1865 776868 Blackwell Publishing Inc., 350 Main Street, Malden, MA 02148-5020, USA Tel:(cid:2)1 781 388 8250 Blackwell Publishing Asia Pty Ltd, 550 Swanston Street, Carlton, Victoria 3053, Australia Tel:(cid:2)61 (0)3 8359 1011 The right of the Authors to be identifi ed as the Authors of this Work has been asserted in accordance with the Copyright, Designs and Patents Act 1988. All rights reserved. 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First edition published 1996 Second edition published 2000 Third edition published 2003 Fourth edition published 2007 Library of Congress Cataloging-in-Publication Data Harris, Bruce. The Arbitration Act 1996 : a commentary / Bruce Harris, Rowan Planterose, Jonathan Tecks.—4th ed. p. cm. Includes bibliographical references and index. ISBN-13: 978-1-4051-3996-0 (pbk. : alk. paper) ISBN-10: 1-4051-3996-X (pbk. : alk. paper) 1. Great Britain. Arbitration Act 1996.— 2. Arbitration and award—England. I. Planterose, Rowan. II. Tecks, Jonathan. III. Title. KD7645.A316H37 2007 347.42(cid:3)09—dc22 200702003 ISBN: 9781405139960 A catalogue record for this title is available from the British Library Set in 10/12 Palatino by Charon Tec Ltd (A Macmillan Company), www.charontec.com Printed and bound in the UK by TJ International, Padstow, Cornwall The publisher’s policy is to use permanent paper from mills that operate a sustainable forestry policy, and which has been manufactured from pulp processed using acid-free and elementary chlorine-free practices. Furthermore, the publisher ensures that the text paper and cover board used have met acceptable environmental accreditation standards. For further information on Blackwell Publishing, visit our website: www.blackwellpublishing.com To: Javier Elizabeth and Abigail Frances, Peter and Caroline This page intentionally left blank Contents Biographical Note vi Foreword to Fourth Edition vii Preface to Fourth Edition viii References and Abbreviations xi 1. Materials 1 A. Arbitration Clauses 1 B. Agreements Prior to or on Constitution of Arbitration 3 C. Agreements as to Tribunal and Court Powers 9 D. Checklist for Preliminary Meetings 11 E. Agreement with Arbitrator on Resignation 14 F. Checklist for Awards 15 G. Agreements as to Costs 17 H. General Note on Arbitration Claims 18 2. The Arbitration Act 1996 23 Text of the Act and Commentary 23 Arrangement of Sections 25 3. Appendices 467 The Arbitration Act 1996 (Commencement No. 1) Order 1996 469 The Unfair Terms in Consumer Contracts Regulations 1999 471 The Arbitration Act 1950, Part II 480 Table of Cases 488 Index 498 v Biographical Note Bruce Harris is a full-time commercial and maritime arbitrator who has been involved in more than 8000 arbitrations and made more than 2000 awards. He has written, lectured and talked extensively on arbitration, and was President of the London Maritime Arbitrators Association in 1990/2 and Chairman of the Chartered Institute of Arbitrators in 1993/4. He was a member of the DAC and recently chaired a committee that reviewed and conducted a major survey into the fi rst 10 years of the Act’s working. Rowan Planterose is a former practising barrister, now a solicitor, Chartered Arbitrator, and adjudicator. He is managing partner of the solicitors fi rm Davies Arnold Cooper and runs the fi rm’s construc- tion focus group. He is a construction and commercial lawyer, devot- ing much of his time to arbitration, either as representative of a party or as arbitrator. He has been a member of the Chartered Institute’s Professional Committee, its Council and Executive Board. He lectures widely on both domestic and international arbitration matters. Jonathan Tecks is a Principal Lecturer and Director of Advocacy and Dispute Resolution at the University of the West of England at Bristol. He is extensively involved with the Chartered Institute of Arbitrators, formerly as Chairman of the Examinations Board and currently as a Course Director for Mediation Accreditation Assessments. He is External Course Director for the Postgraduate Diploma in Arbitration at the College of Estate Management, Reading. As a Chartered Arbitrator and mediator he arbitrates and mediates in respect of a broad range of civil and commercial disputes. vi Foreword to Fourth Edition by the Rt. Hon. The Lord Bingham of Cornhill KG Senior Law Lord The fi rst edition of this book was written when the 1996 Act was on the point of coming into force. The appearance of a fourth edition, in little over a decade, is testimony to two things: fi rst, the continuing vitality of the arbitration process in England and Wales; and, secondly, the proven value of the earlier editions. The citation in this edition of over a hundred cases on the Act decided since the last edition four years ago is compelling evidence that the arbitration process is alive and kicking. Since large sums of money are often at stake, it is not surprising that parties, although commit- ted to arbitrate, seek recourse to the court to advance or protect their interests. But blessed is the arbitration which achieves no reference in the law reports. I do not doubt that close attention to this commentary is conducive to that happy result. To be useful a commentary such as this must be (as this commentary is) accurate, readily intelligible, comprehensive, strictly practical and above all up-to-date. An out-of-date commentary is as much use as a 1920s Baedeker to someone wanting to book into a hotel. So it is time for a new edition. In welcoming the fi rst edition I expressed the hope that the 1996 Act and the commentary would together raise the reputation of arbitration in this country to new and unprecedented heights. This must remain the goal of everyone seriously committed to this invaluable means of resolving civil disputes. Tom Bingham House of Lords 6 June 2007 vii