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(I). Arbitral Ltd.
If I (Grant Jones) have been employed as an ADR practitioner (such as an arbitrator, mediator or even possibly expert determiner) through Arbitral Ltd, the relevant arbitrants, mediants or determinants will have received a letter of engagement from Arbitral Ltd. For the purposes of the Regulations, the following information is relevant:
Name of the company: Arbitral Ltd.
Sole director: Prof Grant Meredith Jones. Company Reg. No. 6246654 VAT No: 911/2911/58
Trading address: 350 Riverside Mansions, Milk Yard, Garnet St., Wapping, London E1W 3SU
Company secretary and registered office: Munslows, New Penderel Hse., 283 High Holborn, London WC1V 7HP.
It is in the nature of websites, many of which are experimental or constantly changing, that information published may be for test purposes only, may be out of date, or may be the personal opinion of the author. All information on this website is intended for information purposed only and does not represent legal or other advice. Users are hereby placed under notice that they should take appropriate steps to verify such information. No user should act or refrain from acting on the information contained in this website without first verifying the information and as necessary obtaining legal and/or professional advice. No representation or warranty is made whatsoever as to the accuracy of the information contained in this website, nor to any linked website. All liability for any direct, indirect or indirectly resulting from inaccuracies, defects, errors, whether typographical or otherwise, omissions, out of date information or otherwise, even if such loss was reasonably foreseeable is excluded: save for such loss as that relating to personal injury or death.
The Arbitration Act 1996 ("the Act").
Whilst I welcome non-lawyers appearing before me as (say) accountant advocates in accountancy orientated arbitrations, parties to an arbitration
("the Arbitrants") should always consider obtaining legal advice upon all of the ramifications of the Act. More especially Arbitrants should
especially consider obtaining legal advice on the following sections of the Act. If Arbitrants have not appointed lawyers, then at the very least,
Arbitrants should review the Act and especially the below provisions.
(A) "Court to have regard to agreed qualifications".
"In deciding whether to exercise, and in considering how to exercise, any of its powers under section 16 (procedure for appointment of
arbitrators) or section 18 (failure of appointment procedure), the court shall have due regard to any agreement of the parties as to the
qualifications required of the arbitrators [Section 19 of the Act]".
ADR clauses requiring the appointment of an accountant, without a procedure for the appointment of that accountant (such as via the President of
the Institute of Chartered Accountants in England and Wales presidential appointment scheme) are not unfortunately uncommon. One of the grouses of
the accountancy profession is that there is no UK legal definition of an ‘accountant’. Anybody regardless of their lack of qualifications can call
themselves an accountant. However I believe that a court would be keen to imply a term into any such agreement that the accountant arbitrator be
qualified both as an accountant and as an arbitrator. The Consultative Council of Accountancy Bodies was established by the leading accountancy
qualifications in the United Kingdom and consists of: (I) the Institute of Chartered Accountants in England and Wales ("ICAEAW"); (II) the Institute
of Chartered Accountants of Scotland ("ICAS"); (III) the Institute of Chartered Accountants in Ireland ("ICAI"); (IV) the Association of Chartered
Certified Accountants ("ACCA"); (V) the Chartered Institute of Management Accountants ("CIMA"); & (VI) the Chartered Institute of Public Finance
and Accountancy (“CIPFA"). All the CCAB members offer ADR programmes. Therefore before considering any action under any defective arbitration
appointment clause, Arbitrants may wish to approach any of the members of the CCAB for their advice and assistance. Obviously the most well-known
accountancy arbitration programme is that offered by the ICAEAW.
(B) "Joint and several liability of parties to arbitrators for fees and expenses".
"(1) The parties are jointly and severally liable to pay to the arbitrators such reasonable fees and expenses (if any) as are appropriate in the
(2) Any party may apply to the court (upon notice to the other parties and to the arbitrators) which may order that the amount of the arbitrators' fees and expenses shall be considered and adjusted by such
means and upon such terms as it may direct.
(3) If the application is made after any amount has been paid to the arbitrators by way of fees or expenses, the court may order the repayment of
such amount (if any) as is shown to be excessive, but shall not do so unless it is shown that it is reasonable in the circumstances to order
repayment...[Section 28]". One of the downsides of arbitration is that the Arbitrants have to pay for the arbitrators costs. Indeed they are jointly
and severally liable under the Act for the arbitrators costs. Thus a successful Arbitrant may have to still pay the full arbitrator costs. The only
respite for arbitration is that under section 28
(3) there is provision for a court taxation of arbitrators costs. Lawyers often increase the arbitrators costs dramatically by wishing to
rigorously follow court procedure. Arbitrants should approach arbitration with a view to cost reduction, not cost escalation. Further Arbitrants
should consider an application for security for costs whenever there is doubt that the other side cannot pay. Most arbitrator appointment acceptance
provisions draw attention to this joint and several liability. However in the heat of the initial process it is often forgotten.
(C) "Immunity of arbitrator" & "Immunity of arbitral institutions".
“(1) An arbitrator is not liable for anything done or omitted in the discharge or purported discharge of his functions as arbitrator unless the
act or omission is shown to have been in bad faith.
(2) Subsection (1) applies to an employee or agent of an arbitrator as it applies to the arbitrator himself...[Section 29]”.
"(1) An arbitral or other institution or person designated or requested by the parties to appoint or nominate an arbitrator is not liable for
anything done or omitted in the discharge or purported discharge of that function unless the act or omission is shown to have been in bad faith.
(2) An arbitral or other institution or person by whom an arbitrator is appointed or nominated is not liable, by reason of having appointed or
nominated him, for anything done or omitted by the arbitrator (or his employees or agents) in the discharge or purported discharge of his functions
(3) The above provisions apply to an employee or agent of an arbitral or other institution or person as they apply to the institution or person
This section speaks for itself; ‘it does what it says on the tin’. There is no statutory immunity in expert determination or mediation. Whilst
the standard expert determination agreement excludes liability, the strength of that exclusion can always be tested. A claim by a disgruntled party
in an expert determination against the expert for negligence amounts to a backdoor appeal. It is for that reason that many parties preferred the
finality of arbitration and ADR practitioners favour the cast iron certainty of the statutory immunity of the Act. Invariably the threat of
litigation increases costs under non-arbitration, but binding ADR methods, such as expert determination. This is notwithstanding the standard expert
determination letter of engagement which excludes liability to the fullest extent possible. It is worth noting that there is a small but growing
jurisprudence which indicates that mediators can also be liable in negligence.
(D) “Legal or other representation”.
"Unless otherwise agreed by the parties, a party to arbitral proceedings may be represented in the proceedings by a lawyer or other person chosen
by him [Section 36]".
I personally am often surprised when I am appointed specifically as
accountant in an arbitration because of my accountancy skills and I am
then presented by lawyers as advocates, when those advocates themselves
do not understand the accountancy issues involved. Notwithstanding my
specialist skill, the advocates then suggest expert opinion, more
especially accountancy expert opinion, is presented. This is to my mind
unnecessarily increases costs and goes to the heart of one of the
benefits of ADR, being the appointment of a specialist resolver. I
believe there are two reasons why accountants do not come forward as
advocates. First accountants are often not in control of the resolution
proceedings. The dispute has occurred and it is passed to lawyers. This
is even the case in say a partnership dispute where the partnership is
a partnership of accountants and the dispute is over the breakup
valuation of the partnership. Second accountants are themselves loath
to put themselves forward. I feel that this is unnecessary
self-effacement. Third and this is perhaps the only valid reason, it is
often hard in a dispute to isolate the accountancy issues from the
legal issues, and if there is a legal issue, then correctly that should
be addressed by lawyers. However I do not believe that this reason
precludes joint advocacy: a joint team of one accountant and one lawyer
acting as the advocates. What I suggest is that Arbitrants obtain legal
advice especially at the commencement of the arbitration, that should
not preclude Arbitrants from acting as advocates in the arbitration.
(E) "Power to appoint experts, legal advisers or assessors".
(1) Unless otherwise agreed by the parties –
(a) the tribunal may -
(i) appoint experts or legal advisers to report to it and the parties, or
(ii) appoint assessors to assist it on technical matters, and may allow any such expert, legal adviser or assessor to attend the proceedings; and
(b) the parties shall be given a reasonable opportunity to comment on any information, opinion or advice offered by any such person.
(2)The fees and expenses of an expert, legal adviser or assessor appointed by the tribunal for which the arbitrators are liable are expenses of the
arbitrators for the purposes of this Part..[Section 37].
At the outset of an arbitration the Arbitrants should attempt to agree
whether there will be expert opinion. As noted above I believe the ADR
procedure is best conducted by experts in the field. This is subject to
the proviso that the expert should also have a legal knowledge. The
solution is obvious, select an expert in the field who also has a legal
knowledge. To have an accountant expert arbitrator employee a legal
assessor can dramatically increase costs. Contrariwise to have a lawyer
arbitrator employ an expert can also dramatically increase costs.
(F) “Determination of preliminary
point of law”.
“(1) Unless otherwise agreed by the parties, the court may on the
application of a party to arbitral proceedings (upon notice to the
other parties) determine any question of law arising in the course of
the proceedings which the court is satisfied substantially affects the
rights of one or more of the parties. An agreement to dispense with
reasons for the tribunal's award shall be considered an agreement to
exclude the court's jurisdiction under this section.
(2) An application under this section shall not be considered unless
(a) it is made with the agreement of all the
other parties to the
(b) it is made with the permission of the
the court is satisfied -
(i) that the determination of
the question is
likely to produce substantial savings in costs, and
(ii) that the
application was made without delay.
(3) The application shall identify the question of law to be
and, unless made with the agreement of all the other parties to the
proceedings, shall state the grounds on which it is said that the
question should be decided by the court.
(4) Unless otherwise agreed by the parties, the arbitral tribunal
continue the arbitral proceedings and make an award while an
application to the court under this section is pending.
(5) Unless the court gives leave, no appeal lies from a decision of
court whether the conditions specified in subsection (2) are met.
(6) The decision of the court on the question of law shall be
as a judgment of the court for the purposes of an appeal. But no appeal
lies without the leave of the court which shall not be given unless the
court considers that the question is one of general importance, or is
one which for some other special reason should be considered by the
Court of Appeal...[Section 45]”.
This route, may ameliorate the problem of the accountant arbitrator not
being well-versed in legal matters. However this section is arguably
open to abuse in that it can be used as a delaying tactic. The
Arbitrants should agree at the outset whether they wish to have the
right to appeal to the Court in this regard.
(1) The parties are free to agree on the powers of the tribunal as
regards the award of interest.
(2) Unless otherwise agreed by the parties the following provisions
(3) The tribunal may award simple or compound interest from such
at such rates and with such rests as it considers meets the justice of
the case -
(a) on the whole or part of any amount awarded by the tribunal, in respect of any period up to the date of the award;
the whole or part of any amount claimed in the arbitration and
outstanding at the commencement of the arbitral proceedings
before the award was made, in respect of any period up to the date of
(4) The tribunal may award simple or compound interest from the date
the award (or any later date) until payment, at such rates and with
such rests as it considers meets the justice of the case, on the
outstanding amount of any award (including any award of interest under
subsection (3) and any award as to costs).
(5) References in this section to an amount awarded by the tribunal
include an amount payable in consequence of a declaratory award by the
(6) The above provisions do not affect any other power of the
to award interest...[Section 49]”.
Arbitrants should be aware of this power of the arbitrator.
“(1) If during arbitral proceedings the parties settle the dispute,
following provisions apply unless otherwise agreed by the parties.
(2) The tribunal shall terminate the substantive proceedings and, if
requested by the parties and not objected to by the tribunal, shall
record the settlement in the form of an agreed award.
(3) An agreed award shall state that it is an award of the tribunal
shall have the same status and effect as any other award on the merits
of the case.
(4) The following provisions of this Part relating to awards
52 to 58) apply to an agreed award.
(5) Unless the parties have also settled the matter of the payment
the costs of the arbitration, the provisions of this Part relating to
costs (sections 59 to 65) continue to apply...[Section 51].”
I have seen arbitrator letters of engagement which state that the
Arbitrants agree (by signing the letter of engagement) to the
arbitrator having to provide an agreed award. I am unsure as to the
legitimacy of such a letter of engagement. Whilst it is nice to have an
agreed award, I am unsure as to why the arbitrator should claim the
contractual right to demand that he be party to an agreed award. I
suspect that such letters of engagement arise because the arbitrator is
concerned that his costs will be overlooked in any agreed award. This
is a legitimate concern. Arbitrants should therefore consider all costs
in attempt to reach finality when they draft a settlement.
(I) “Form of award.”
“(1) The parties are free to agree on the form of an award.
(2) If or to the extent that there is no such agreement, the
(3) The award shall be in writing signed by all the arbitrators or
those assenting to the award.
(4) The award shall contain the reasons for the award unless it is
agreed award or the parties have agreed to dispense with reasons.
(5) The award shall state the seat of the arbitration and the date
the award is made...[Section 52]”.
Most accountancy orientated arbitral institutions (such as the
require the giving of reasons. For my own part I think the giving of
reasons is an excellent discipline of the arbitrator to follow; it
insures that the arbitrator addresses all the issues. However in the
past the giving of reasons has led to Arbitrants seeking to avoid an
award against them. Such Arbitrants have used the reasoning as the
basis of an appeal. For that reason many arbitrators attach reasons to
the award, but state of those reasons do not themselves form part of
(J) “Power to withhold award in
case of non-payment”.
“(1) The tribunal may refuse to deliver an award to the parties
upon full payment of the fees and expenses of the arbitrators.
(2) If the tribunal refuses on that ground to deliver an award, a
to the arbitral proceedings may (upon notice to the other parties and
the tribunal) apply to the court, which may order that - (a) the
tribunal shall deliver the award on the payment into court by the
applicant of the fees and expenses demanded, or such lesser amount as
the court may specify, (b) the amount of the fees and expenses properly
payable shall be determined by such means and upon such terms as the
court may direct, and (c) out of the money paid into court there shall
be paid out such fees and expenses as may be found to be properly
payable and the balance of the money (if any) shall be paid out to the
(3) For this purpose the amount of fees and expenses properly
is the amount the applicant is liable to pay under section 28 or any
agreement relating to the payment of the arbitrators.
(4) No application to the court may be made where there is any
available arbitral process for appeal or review of the amount of the
fees or expenses demanded.
(5) References in this section to arbitrators include an arbitrator who
has ceased to act and an umpire who has not replaced the other
(6) The above provisions of this section also apply in relation to
arbitral or other institution or person vested by the parties with
powers in relation to the delivery of the tribunal's award. As they so
apply, the references to the fees and expenses of the arbitrators shall
be construed as including the fees and expenses of that institution or
(7) The leave of the court is required for any appeal from a decision
of the court under this section.
(8) Nothing in this section shall be construed as excluding an
application under section 28 where payment has been made to the
arbitrators in order to obtain the award...[Section 56]”.
This section should be further considered in the context of Arbitrant
joint and several liability for the arbitrators costs.
(K) “Effect of award”.
“(1) Unless otherwise agreed by the parties, an award made by the
tribunal pursuant to an arbitration agreement is final and binding both
on the parties and on any persons claiming through or under them.
(2) This does not affect the right of a person to challenge the
by any available arbitral process of appeal or review or in accordance
with the provisions of this Part...[Section 58]”.
This is one of the main benefits of arbitration: finality. However
is also one of the downsides. Arbitrants should be fully aware before
agreeing to and indeed commencing with the arbitral process, that the
process will result in resolution finality; whether the result is in
their favour or not.
(L) “Agreement to pay costs in any
“An agreement which has the effect that a party is to pay the whole
part of the costs of the arbitration in any event is only valid if made
after the dispute in question has arisen...[Section 60]”.
(M) “Recoverable fees and expenses
“(1) Unless otherwise agreed by the parties, the recoverable costs
of the arbitration shall include inrespect of the fees and expenses of
the arbitrators only such reasonable fees and expenses as
areappropriate in the circumstances.
(2) If there is any question as to what reasonable fees and expenses
are appropriate in the circumstances, and the matter is not already
before the court on an application under section 63(4), the court may
on the application of any party (upon notice to the other parties) -
(a) determine the matter, or
(b) order that it be determined by such means and upon such terms as the court may specify.
(3) Subsection (1) has effect subject to any order of the court
under section 24(4) or 25(3)(b) (order as to entitlement to fees or
expenses in case of removal or resignation of arbitrator).
(4) Nothing in this section affects any right of the arbitrator to payment of his fees and expenses...[Section 64].”
As in litigation, litigants even if successful usually cannot
recover all of their litigation costs. The situation is the same in
(N) “Appeal on point of law”; the
“Effectiveness of agreement to
exclude court's jurisdiction”; & “Commencement of arbitral
“(1) Unless otherwise agreed by the parties, a party to arbitral
proceedings may (upon notice to the other parties and to the tribunal)
appeal to the court on a question of law arising out of an award made
in the proceedings. An agreement to dispense with reasons for the
tribunal's award shall be considered an agreement to exclude the
court's jurisdiction under this section.
(2) An appeal shall not be brought under this section except - with the
agreement of all the other parties to the proceedings, or (b) with the
leave of the court. The right to appeal is also subject to the
restrictions in section 70(2) and (3).
(3) Leave to appeal shall be given only if the court is satisfied –
that the determination of the question will substantially affect the
rights of one or more of the parties,
(b) that the question is one
which the tribunal was asked to determine,
(c) that, on the basis of
the findings of fact in the award –
(i) the decision of the tribunal on
the question is obviously wrong, or
(ii) the question is one of general
public importance and the decision of the tribunal is at least open to
serious doubt, and
(d) that, despite the agreement of the parties to
resolve the matter by arbitration, it is just and proper in all the
circumstances for the court to determine the question.
(4) An application for leave to appeal under this section shall
identify the question of law to be determined and state the grounds on
which it is alleged that leave to appeal should be granted.
(5) The court shall determine an application for leave to appeal under
this section without a hearing unless it appears to the court that a
hearing is required.
(6)The leave of the court is required for any appeal from a decision of
the court under this section to grant or refuse leave to appeal.
(7) On an appeal under this section the court may by order -
confirm the award,
(b) vary the award,
(c) remit the award to the
tribunal, in whole or in part, for reconsideration in the light of the
court's determination, or
(d) set aside the award in whole or in part.
The court shall not exercise its power to set aside an award, in whole
or in part, unless it is satisfied that it would be inappropriate to
remit the matters in question to the tribunal for reconsideration.
(8)The decision of the court on an appeal under this section shall be
treated as a judgment of the court for the purposes of a further
But no such appeal lies without the leave of the court which shall not
be given unless the court considers that the question is one of general
importance or is one which for some other special reason should be
considered by the Court of Appeal...[Section 69]”.
“(1) In the case of a domestic arbitration
agreement any agreement to
exclude the jurisdiction of the court under - (a) section 45
(determination of preliminary
point of law), or (b) section 69
(challenging the award: appeal on point of law) - is not effective
unless entered into after the commencement of the
in which the question arises or the award is made.
(2) For this purpose the commencement of the arbitral proceedings has
the same meaning as in Part I (see section 14).
(3) For the purposes of this section the question whether an
arbitration agreement is a domestic arbitration agreement shall be
determined by reference to the facts at the time the agreement is
entered into...[Section 87]”.
“(1) The parties are free to agree when arbitral proceedings are to be
regarded as commenced for the purposes of this Part and for the
purposes of the Limitation Acts.
(2) If there is no such agreement the following provisions apply.
(3) Where the arbitrator is named or designated in the arbitration
agreement, arbitral proceedings are commenced in respect of a matter
when one party serves on the other party or parties a notice in writing
requiring him or them to submit that matter to the person so named or
(4) Where the arbitrator or
arbitrators are to be appointed by the
parties, arbitral proceedings are commenced in respect of a
one party serves on the other party or parties notice in writing
requiring him or them to appoint an arbitrator or to agree to the
appointment of an arbitrator in respect of that matter.
(5) Where the arbitrator or
arbitrators are to be appointed by a person
other than a party to the proceedings, arbitral proceedings are
commenced in respect of a matter when one party gives notice in writing
to that person requesting him to make the appointment in respect
that matter... [Section14]”.
The Arbitrants may have chosen arbitration because of its finality.
These sections taken together may preclude finality. Further these
sections draw attention to the potential difficulty of appointing an
expert arbitrator, who whilst may be expert in (say) accountancy is not
expert in law and may well make an "obviously wrong" legally based
decision. If the parties want finality they should agree to finality at
the onset of the arbitral proceedings.
(O) “Loss of right to object”.
“(1) If a party to arbitral proceedings takes part, or continues to
take part, in the proceedings without making, either forthwith or
within such time as is allowed by the arbitration agreement or the
tribunal or by any provision of this Part, any objection -
(a) that the
tribunal lacks substantive jurisdiction,
(b) that the proceedings have
been improperly conducted,
(c) that there has been a failure to comply
with the arbitration agreement or with any provision of this Part, or
(d) that there has been any other irregularity affecting the tribunal or the proceedings, he may not raise that objection later, before the
tribunal or the court, unless he shows that, at the time he took part or continued to take part in the proceedings, he did not know and could not
with reasonable diligence have discovered the grounds for the objection.
(2) Where the arbitral tribunal rules that it has substantive
jurisdiction and a party to arbitral proceedings who could have
questioned that ruling -
(a) by any available arbitral process of
appeal or review, or
(b) by challenging the award, does not do so, or
does not do so within the time allowed by the arbitration agreement or
any provision of this Part, he may not object later to
substantive jurisdiction on any ground which was the subject of that ruling...[Section 73]”.
I am surprised at the number of Arbitrants who simply ignore the
commencement of arbitral proceedings. If you think the arbitral
proceedings are invalid, say so: do not just simply ignore the
One of the benefits of ADR, especially of arbitration, is that an expert can be chosen who is familiar with the commercial context to the dispute. That benefit however as been reduced as lawyers seek to
question the impartiality of arbitrators so as to avoid the award and/or ‘play for time’. Inevitably experts maybe be known to the Arbitrants and/or
their legal advisers because they may well operate in the same commercial arena; and this in my view is beneficial to the ADR process. Of course it
is correct to say that an arbitrator cannot have a direct interest in the position of a particular Arbitrant. However the question is to what extent
one can look at the indirect interests of the arbitrator viz any particular Arbitrant. As can be seen I have a number of employment and positions,
and am no ‘spring chicken’. Over the years, as an accountant I may have instructed a particular set of lawyers or as a lawyer I may have been
instructed by a particular set of accountants. I will do a normal conflict search prior to accepting any appointment and that conflict search will
be performed at some, if not all of the employees and positions noted on this website. However, I cannot perform an indirect conflict search to
ascertain whether one of my employees or positions has at some time in the past been instructed by, or has instructed any particular set of lawyers
or accountants. I will however disclose any such relationship of which I am aware: whenever I disclosed such an indirect relationship the Arbitrants
have always accepted that I continue in office.
The practice of law and accountancy within an ADR context.
I have been advised by various professional bodies that the practice of an arbitrator, conciliator and mediator is not the practice of law or of accountancy; this is notwithstanding my professional qualifications as a lawyer or as an accountant. Doubts remain as to whether the appointment of an expert determiner, given that I am both a lawyer and accountant, falls within the practice of law or accountancy, but for my view I take the view that it does fall within either one of those practices. If I am therefore appointed as an arbitrator, conciliator or mediator I am not governed, save in an indirect sense, by the relevant professional organisations.