Arbitration Act 1996, Merkin and Flannery on the

Professor Robert Merkin KC and Louis Flannery KC

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Page 365

PART II.I

ARBITRATION PURSUANT TO AN ARBITRATION AGREEMENT : The arbitral proceedings

General duty of the tribunal

33. –
- (1) The tribunal shall –
  - (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and
  - (b) 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.
- (2) The tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it.

Notes

§33.1 Historical background

Section 33(1)(a) is a basic statement of the rules of natural justice, which had always been applied to arbitrations by the common law. It encompasses the concepts previously referred to as ‘misconduct’ (which, under the old law, could lead to the remission or setting aside of the award and the removal of the arbitrators) and the interesting notion of ‘procedural mishap’ (which, although not recognised by the 1950 Act, could once have led to remission of the award). However, the concept of ‘procedural mishap’ was wider than the concept set out in section 33, in particular because it applied to cases in which the failure of the arbitrators to provide a fair hearing resulted from the inability of one or both of the parties to present their case properly. Procedural mishap in that very broad sense does not survive the 1996 Act.1

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