The Major Principles of Arbitration and Litigation: A Comparison

Neil H. Andrews

doi:10.1017/9781780685106.005

Chapter 4 - The Major Principles of Arbitration and Litigation: A Comparison

from PART II - ARBITRATION

Published online by Cambridge University Press: 13 December 2017

Neil H. Andrews

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Summary

OVERVIEW OF THE PRINCIPLES APPLICABLE TO ARBITRATION OR TO THE JUDICIAL PROCESS

In chapter 25 of Volume I, it was suggested that there are five constellations of procedural principles relating to court proceedings, and the judicial process in general. Not all of these principles apply to arbitration.

For convenience, these major principles will be restated here briefly (those principles, namely II, IV, VI and XIV, which do not apply to arbitration will be marked in bold; as for the principle of finality, which is respected more intensely within arbitration law, when compared with litigation, this is underlined in the text below).

(1) ADVICE AND ACCESS: EMPOWERING THE PARTIES

I. Rights of Legal Consultation and Representation

II. Access to Court and to Justice (arbitration is an opting-out from public adjudication)

III. Protection against Bad or Spurious Claims and Defences

(2) CONDITIONS FOR SOUND DECISION-MAKING

IV. Judicial Independence (not a separate requirement in English arbitration law)

V. Judicial Impartiality

VI. Publicity and Open Justice (arbitration is a consensual retreat from open and public justice)

VII. Judicial Duty to Give Reasons

(3) AN EFFICIENT PROCESS

VIII. Judicial Control of the Civil Process to Ensure Focus and Proportionality

IX. Avoidance of Undue Delay

(4) A FAIR PROCESS

X. Judicial Duty to Avoid Surprise: The Principle of Due Notice

XI. Procedural Equality (equal respect for the parties)

XII. Equal Access to Information, including Disclosure of Information between Parties

XIII. Fair Play between the Parties

XIV. Accuracy of Decision-making (the arbitral tribunal is shielded from judicial scrutiny of the merits of the decision underpinning the relevant award – that is, the decision on the substance of the dispute; in England this shield applies to findings of fact and applications of foreign law, but section 69 of the Arbitration Act 1996 permits the High Court to control applications for review of arbitral findings of English law.)

(5) UPHOLDING JUDGMENT

XV. Finality (arbitration respects the principle of finality more intensely than court adjudication)

XVI. Effectiveness

We will see that the arbitral process substantially embodies the same fundamental principles as court proceedings. However, diff erences do exist: in respect of access (the choice of arbitration precluding resort to the court on questions concerning the merits or the substance of the dispute), publicity, accuracy, finality, and independence.

Information

Type: Chapter
Information: Andrews on Civil Processes
Arbitration and Mediation
, pp. 113 - 142

DOI: https://doi.org/10.1017/9781780685106.005 [Opens in a new window]

Publisher: Intersentia

Print publication year: 2013

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