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8255 results in Intersentia

Page 388 of 413

  • Chapter 1 - The Principle of “Framed” Autonomy

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp 17-36

  • Summary

    FREEDOMS FRAMED BY LAW

    Primary European Union law originally did not expressly guarantee the autonomy of economic actors (the active market citizen), but it presupposed it in its legal rules. Article 3(3) TFEU requires as the basis for the internal market “a highly competitive social market economy”. European Union law is not a comprehensive legal order, but builds on the legal systems of the Member States. Every liberal legal order has the autonomy of private parties as its basic philosophy, and it had therefore not been necessary for the ECJ to define autonomy explicitly as a fundamental principle. An open market economy can only exist if actors can freely decide whether to enter markets or not, and, if so, when and how. On the other hand, on the demand side, potential customers (whether businesses or consumers) should be free to choose the products, services and suppliers at the prices and conditions they prefer. Freedom of decision for active market citizens and freedom of choice for consumers and customers are two of the governing principles of a liberal market system.

    These freedoms are supplemented by the freedom of contract, now recognised as a fundamental right (1.13). Freedom of contract as framed by EU law has positive and negative aspects.

    It is positive insofar as freedom of contract implies the freedom to choose with whom one wants to enter into contractual negotiations (and ultimately contracts) and freedom as to the terms of the contract (such matters as price and the quality of products and services offered and purchased, and the freedom to decide what will constitute valid performance of the contract).

    However, it is negative insofar as (in contrast to formerly socialist economies) one cannot normally be forced to enter into any contract; parties may opt out of Member State contract law by means of choice of law and jurisdiction clauses (at least to the extent that the rules of the relevant Member State legal system of contract law are not mandatory), and usually the content of their contracts will not be prescribed by the state or other third party.

  • Introduction. What are General Principles of EU Civil Law?

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp 1-16

  • Summary

    AN ONGOING DEBATE: “PRINCIPLES” VS. “RULES”

    “General principles” of EU law have long been recognised as part of unwritten law. They have been developed in a constant flow of case law of the now called Court of Justice of the EU (CJEU or simply ECJ) which takes its mandate from Article 19(1) TEU whereby “[i]t shall ensure that in the interpretation and application of the Treaty the law is observed.” The law – das Recht – le droit – this formula was to be found already in the original EEC Treaty, and was taken over by what later became the EC Treaty after Amsterdam (Article 220 EC) and has not changed its wording in the latest Lisbon version. However, its “upgrading” from what is now called the Treaty on the Functioning of the EU (TFEU), formerly the EC Treaty, to the Treaty on European Union (TEU) containing the basic principles and institutions of the Union itself, shows its high standing and importance in the political and legal order.

    The formula deliberately goes beyond a mere positivist concept of law. It obviously refers to the sources of the EU Treaties as “primary law” – now including the Charter of Fundamental Rights (the Charter) according to Article 6(1) TEU – and secondary law in the sense of Article 288 TFEU, namely regulations, directives and decisions. “General principles” seem to be in an “intermediary location” – something between primary and secondary law, even though they are, in the words of the ECJ, of constitutional relevance. A number of such general principles – mostly relating to constitutional and administrative law – have been developed, described and analysed in the fundamental study of Tridimas. They seem to be generally accepted by the ECJ, by its AGs, and by scholarship, even though there may be debates about their origin, scope and exact legal nature. However, principles of constitutional or administrative law will not be this book's focus, but rather principles of EU civil law.

  • Chapter 5 - The Principle of Balancing

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp 131-154

  • Summary

    INTRODUCTION: A DIALOGUE ON BALANCING IN EU CIVIL LAW

    This chapter takes up some ideas that are well known in EU constitutional law, namely the need to balance seemingly contradictory positions that each claim protection of their interests in one of the many “rights” or “principles” of the Charter. Take as starting point the ECJ's Promusicae case (1.8) which concerned the balancing of the right to protection of intellectual property under Articles 17 and 47 of the Charter on the one hand with the right to privacy and personality protection under Articles 7 and 8 on the other. The Court wrote:

    “The present reference for a preliminary ruling thus raises the question of the need to reconcile the requirements of the protection of different fundamental rights, namely the right to respect for private life on the one hand and the rights to protection of property and to an effective remedy on the other […] That being so, the Member States must, when transposing the directives mentioned above, take care to rely on an interpretation of the directives which allows a fair balance to be struck between the various fundamental rights protected by the Community legal order. Further, when implementing the measures transposing those directives, the authorities and courts of the Member States must not only interpret their national law in a manner consistent with those directives but also make sure that they do not rely on an interpretation of them which would be in conflict with those fundamental rights or with the other general principles of Community law, such as the principle of proportionality.”

    A similar approach was taken in the more recent Sky case (1.13):

    “In the light, first, of the importance of safeguarding the fundamental freedom to receive information and the freedom and pluralism of the media guaranteed by Article 11 of the Charter and, second, of the protection of the freedom to conduct a business as guaranteed by Article 16 of the Charter, the European Union legislature was entitled to adopt rules such as those laid down in Article 15 of Directive 2010/13, which limit the freedom to conduct a business, and to give priority, in the necessary balancing of the rights and interests at issue, to public access to information over contractual freedom.”

  • Chapter 3 - The Principle of Non-Discrimination

  • Norbert Reich
  • Book:
    General Principles of EU Civil Law
    Published by:
    Intersentia
    Published online:
    22 November 2017
    Print publication:
    03 December 2013, pp 59-88

  • Summary

    “SPILL-OVER” EFFECTS OF NONDISCRIMINATION ON CIVIL LAW?

    The concept of non-discrimination, also called “equal treatment”, plays an important role in Union law, and has in many cases decided by the Court of Justice of the EU been understood as a general constitutional principle. As regards the economic law of the Union, market subjects should be treated as equals if they are in a comparable situation, or conversely, law should not impose equal treatment on them if they are in different situations, unless such this difference is objectively justified. The Codorniú case provides us with an example. The Court invalidated a Community regulation forbidding Spanish producers from using the traditional term crémant by reserving it to French and Luxembourg producers of sparkling wine. The measure was held to violate the principle of non-discrimination because Spanish producers were without justification put on an unequal basis relative to other producers.

    Over time EU non-discrimination law, apart from the distinctly market-orientated approach, has also taken on a social dimension by including within its ambit the struggle against discrimination based on gender, race, ethnic origin, age, disability or sexual orientation. This development is part of a more general trend in fundamental rights in the EU.

    Article 21 on “non-discrimination” of the Charter of Fundamental Rights, which became formally part of EU law after the Lisbon Treaty was ratified, but which had guided the ECJ in its interpretation and application of Community law beforehand, reads:

    “1. Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.

    2. Within the scope of application of the Treaty […] and without prejudice to the special provisions […] any discrimination on grounds of nationality shall be prohibited.”

  • Chapter 27 - Due Notice

  • from PART VI - PRINCIPLES OF CIVIL LITIGATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 753-762

  • Summary

    NATURE OF THE PRINCIPLE OF DUE NOTICE

    Due notice demands that proceedings should not be conducted without both parties enjoying reasonable notice of the case. Nor should the court decide an action or any part of it without giving both parties reasonable opportunity to contradict the proposed decision. At the core of this principle is the need for the legal system to show respect for a person's individuality. It is the antithesis of justice for judgment to be awarded behind the back of a defendant who has no reasonable opportunity to controvert the case against him. Such highhandedness is both a naked form of despotism and old-fashioned bad manners. This principle also enables the court to avoid making an incorrect decision. Furthermore, the opportunity to satisfy the court will normally include the right to submit oral argument to supplement written submissions, at any rate in the context of case management decision-making, and of course at trial. This principle of due notice or audi alteram partem (‘let the other side be heard’) is one of the principles of natural justice. Its twin is nemo judex in causa sua or the principle of judicial impartiality (on which 26.19 ff).

    The (non-binding) American Law Institute/UNIDROIT Principles recommend:

    ‘Neither the court nor the judge should accept communications about the case from a party in the absence of other parties, except for communications concerning proceedings without notice and for routine procedural administration. When communication between the court and a party occurs in the absence of another party, that party should be promptly advised of the content of the communication.’

    The American Law Institute/UNIDROIT Principles elaborate upon the requirement of ‘Due Notice and Right to be Heard’ by noting these requirements:

  • (i) initial notification to the defendant of commencement of proceedings and the nature of the allegations and relief sought;

  • (ii) linguistic transparency;

  • (iii) the defence must be communicated to the claimant;

  • (iv) proper notification of motions and determinations by the court;

  • (v) the parties’ right to ‘submit relevant contentions of fact and law and to offer supporting evidence’;

  • Chapter 16 - Fees, Expenses and Recoverable Costs

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 313-318

  • Summary

    INTRODUCTION

    Those technically qualified to graduate (or to receive postgraduate degrees), and now proposing to gain their degree, are unable to receive their degrees in the University of Cambridge unless they have paid their university and college bills. A Rite of Passage is thus subject to a prior Right to Payment. On a similar basis, the arbitral tribunal can withhold the award if they have not yet been paid in full for their fees and expenses.

    Here there are two matters, (i) the question whether the arbitrator (or tribunal) is entitled to fees and expenses, or entitled to keep payments made in respect of these and (ii) the question of payment of costs as between the parties to the reference. These will be examined in turn.

    ARBITRAL TRIBUNAL's FEES

    The court can determine a dispute over fees and expenses. It would not seem to matter whether the fees have yet to be paid or whether they have already been paid, because the criterion to determine whether they are ‘excessive’ should apply uniformly. This appears to be the judicial approach, even though the criteria are only set out in connection with the second context.

    In a case where the fees had been paid in order to obtain the award (this is the usual case), in Hussmann (Europe) Ltd v. Al Ameen Development & Trade Co (2000), Thomas J examined closely the fees submitted by a tribunal and held that they were not excessive, although the number of hours spent was surprisingly high and the fee claim was, therefore, borderline. It might be significant that the chairman in this case was a judge who had been permitted to act gratuitously, although his ‘fee’ would be paid to the Treasury. There was certainly no suggestion that the hours claimed had not genuinely been worked.

    In United Tyre Co Ltd v. Born (2004) the Court of Appeal considered a preliminary issue concerning delay in the bringing of an application under section 28(3) for adjustment of a fee. Again in this case (as is usual) the fee had already been paid in order to obtain the award. The fee greatly exceeded the value of the claim and the number of hours claimed, in addition to secretarial hours, was surprisingly high.

  • Chapter 6 - ‘The Seat’ and the Range of Relevant Laws

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 155-168

  • Summary

    THE SEAT OF THE ARBITRATION

    In England the ‘juridical seat of the arbitration’ is determined as follows:

  • (i) It can be ‘designated’ (a) ‘by the parties to the arbitration agreement’, or (b) ‘by any arbitral or other institution or person vested by the parties with powers in that regard’, or (c) ‘by the arbitral tribunal if so authorised by the parties’; or

  • (ii) in the absence of (i) (a) to (c), the seat can be ‘determined… having regard to the parties’ agreement and all the relevant circumstances’.

    • If the seat is England and Wales, the provisions of Part 1 of the Arbitration Act 1996 (England and Wales) apply.

    Even if the seat is not England and Wales or ‘no seat has been designated or determined’ the Arbitration Act 1996 (England and Wales) will apply to the following matters: (i) the grant of a stay of legal proceedings; (ii) enforcement of an award; (iii) unless this is ‘inappropriate’, securing attendance of witnesses; (iv) unless this is ‘inappropriate’, various supportive powers concerning, for example, taking of evidence, preservation of evidence, etc; (v) the court can exercise any of the powers contained within Part 1 of the Arbitration Act 1996 (England and Wales) if ‘by reason of a connection with England and Wales… the court is satisfied that it is appropriate to do so’; (vi) the provision on the ‘separability’ of the arbitration agreement (9.07 ff); and (vii) the provision on the death of a party. Clarke J in ABB Lummus Global Ltd v. Keppel Fels Ltd (1999) considered the structure of these provisions of the Arbitration Act 1996 (England and Wales).

    CHANGE OF SEAT

    The English Arbitration Act 1996 does not appear to contain explicit guidance on whether the seat can be changed from that which was originally designated or determined. However, Clarke J in ABB Lummus Global Ltd v. Keppel Fels Ltd (1999) and Aikens J in Dubai Islamic Bank PJSC v. Paymentech Merchant Services Inc (2001) accepted that the parties can by agreement vary the seat.

  • Chapter 18 - Challenges to English Arbitral Awards under English Law

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 331-372

  • Summary

    GENERAL POINTS CONCERNING CHALLENGES UNDER THE 1996 ACT (SECTIONS 67, 68 AND 69)

    THE THREE GROUNDS OF CHALLENGE IN OUTLINE

    There is a ground of challenge before the High Court (Commercial Court: 24.01 ff, vol I) based on (i) lack of jurisdiction (section 67, Arbitration Act 1996: 18.19 ff), or (ii) the assertion that the arbitral panel has been guilty of ‘serious irregularity affecting the tribunal, the proceedings or the award’ (section 68, 1996 Act: 18.41 ff), or (iii) on the basis of an error of (English) law (section 69, 1996 Act: 18.67 ff).

    Ground (iii), under section 69, can be excluded by agreement (18.95 ff).

    But grounds (i) and (ii) are mandatory: they cannot be excluded by party agreement.

    Permission to appeal, under sections 67–69, from the High Court to the Court of Appeal can only be given by the High Court itself, unless (i) the High Court decision was made outside the court's jurisdiction, or (ii) consideration of the issue of permission involved an unfair process, or (iii) there is a preliminary issue whether section 69 applies at all or whether the parties have excluded it. The reason for exception (iii) is this: ‘there is a distinction between those cases where the court is assisting or overseeing the arbitration process and the cases where the question is whether the jurisdiction of the court has been excluded.’

    The policy of the law is to lean against second appeals from arbitration decisions, that is, from the High Court and then to the Court of Appeal. That policy was noted in the Itochu case (2012), the Amec case (2011), and earlier in the Sukuman case (2007), where Waller LJ said:

    ‘[The Arbitration Act 1996 contains] many sections in which the right to appeal to the Court of Appeal is circumscribed by the necessity to obtain leave from “the court” at first instance. This was important to those drafting the Arbitration Act 1996 (England and Wales). It was the intention of those drafting the Arbitration Act 1996 (England and Wales) to limit appeals to the Court of Appeal to avoid the delay and expense that such appeals can cause.

  • Chapter 2 - Mediation Combined with Arbitration

  • from PART I - MEDIATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 65-82

  • Summary

    INTRODUCTION

    This chapter is devoted to connections between mediation and arbitration. The main points of contact are as follows.

    (i) Multi-tier dispute resolution clauses render mediation an obligatory step prior to arbitration or litigation; in England it is possible for the innocent party to seek a stay of premature litigation to create the opportunity for mediation to be pursued, if the opponent, in breach of such a multi-tier dispute resolution clause, has wrongly commenced litigation before conducting mediation (1.59 ff); the leading English decision is Cable & Wireless case (2002).

    (ii) Occasionally the English court might recommend mediation to try to resolve an impasse; this can arise when the parties have litigated in different jurisdictions in order to determine whether they should be arbitrating; this was Colman J's response to a jurisdictional wrangle concerning a disputed arbitration agreement in C v. RHL (2005) (2.07).

    (iii) Mediation might be voluntarily attempted by the parties even aft er arbitration has begun (2.08).

    (iv) Parties might clothe an arbitrator as a mediator (‘med-arb’, that is, ‘intraarbitral mediation’); here the arbitrator is required, if necessary, to perform the successive roles of mediator and arbitrator; but this ‘chameleon’ style of dispute resolution is controversial; nevertheless, there has been commercial interest in expansion of this consensual method of ‘med-arb’ (2.09 ff). The problems here are:

  • (a) there are doubts whether an arbitrator will be necessarily competent to act in both capacities;

  • (b) the prospect of arbitration might impede the parties’ in the conduct of mediation because they might be inhibited from weakening their prospects during arbitration, if the mediation fails;

  • (c) there are also dangers of confidential information imparted during the mediation phase being improperly used by the arbitrator during the second phase;

  • (d) the mediator might have a financial conflict of interest because greater remuneration might arise if the dispute proceeds to arbitration;

  • (e) a mediated settlement achieved through the intervention of an arbitrator is not obviously an ‘arbitral award’ (and the better view is that it is not such an award); problems of enforcement can arise, therefore, if an attempt is made to enforce the settlement using the machinery of enforcement applicable to arbitral awards.

  • Chapter 10 - Courts Giving Effect to Arbitration Agreements

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 211-242

  • Summary

    INTRODUCTION

    This is a tough topic, because the law has become convoluted and there is also the prospect of changes to European law to remove the inconvenient West Tankers case (10.49 ff).

    The following propositions will be developed in this chapter:

    (i) A stay of judicial proceedings is the primary mechanism for ‘giving effect’ to an arbitration agreement (10.03 ff). Mustill & Boyd (2001) explain a stay's operation in this context:

    ‘A stay of legal proceedings is the principal means by which an arbitration agreement is enforced, there being no direct power to compel a party, by mandatory injunction, to appoint an arbitrator or to bring his claim by arbitration. A negative injunction is not, since the Judicature Acts [1873–75], the proper remedy for stopping court proceedings in England and Wales, although an injunction may, in a proper case, be granted to stay foreign proceedings brought in breach of an agreement to arbitrate.’ Mustill & Boyd continue: ‘By staying the [English court] proceedings, the court compels the claimant either to proceed by arbitration or to abandon his claim.’

    (ii) The New York Convention (1958) requires contracting states to give effect to arbitration agreements (10.22).

    (iii) But English courts are more robust: they will issue an injunction to stop a party pursuing litigation or arbitration outside England if that conduct is a violation of an arbitration agreement in respect of which the English court has jurisdiction to ‘police’ compliance (10.23 ff).

    (iv) However, the English courts have been at logger-heads with the European Court of Justice. In the (in)famous West Tankers case (10.49 ff), the ECJ held that an anti-suit injunction cannot be granted to stop the (English) respondent from commencing or continuing to pursue court litigation in another Member State within the EU.

    (v) Outside the geographical zone of this restriction, however, the English courts retain the power to issue anti-injunctive relief, for example if the off ending proceedings are brought in New York or Singapore, these being jurisdictions outside the European judicial area (10.39 ff).

    (vi) Member States’ courts must adhere to a decision of an EU Member State court which involves an incidental decision that an arbitration agreement is not valid or operative (10.56 ff).

  • Chapter 7 - Counterclaims and Set-Off

  • from PART II - COMMENCEMENT OF COURT PROCEEDINGS AND PREPARATION FOR TRIAL
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 125-144

  • Summary

    INTRODUCTION

    The present chapter examines, first of all, counterclaims made by the defendant against the claimant, especially if these exceed the value of the main claim. Secondly, set-off will be explained. This is a complex body of law, the essence of which is the possibility that a money action might be met successfully by a counter-plea that the claimant owes the defendant a sum of money, and that these cross-claims should result in an action for the ‘balance’ or ‘difference’.

    COUNTERCLAIMS AND OTHER ‘ADDITIONAL CLAIMS’ UNDER PART 20

    ‘Additional claims’ under Part 20 cover a wide class of claims collateral to the main claim, notably: (i) counterclaims by defendants against claimants or against a claimant and another; (ii) claims by defendants against any person (whether or not already a party) for contribution, or an indemnity; or (iii) for some other remedy. In general, an additional claim under Part 20 must be treated as though it were a primary claim. The party bringing an additional claim is known as an ‘additional claimant’: this party cannot be the main claimant. However, the rules add special qualifications concerning service, case management, admission, and default judgment, and these detailed provisions must be studied closely. Service of an additional claim under Part 20 on a person renders him henceforth a party to the proceedings. ‘Additional parties should be referred to in the title to the proceedings in accordance with the order in which they are joined to the proceedings, for example, “Third Party” or “Fourth Party”, whatever their actual procedural status.’

    This topic can be summarised in three propositions:

  • (i) there is no need for the court to grant permission for most types of additional claims under Part 20 made by a defendant, provided the defendant makes the claim when he files his defence;

  • (ii) however, a counterclaim against a person other than the original claimant requires the court's permission and the intended target of that counterclaim will need to be added as a new party;

  • (iii) permission to bring a Part 20 claim is not required if a defendant seeks a contribution or indemnity against an existing defendant provided the defendant makes the claim when he files his defence or within 28 days of the date when the relevant new defendant files his defence.

  • Chapter 5 - Fundamental Features of English Arbitration

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 143-154

  • Summary

    GENESIS OF THE ENGLISH ARBITRATION ACT 1996

    Arbitration in England substantially rests on the Arbitration Act 1996 (England and Wales). This statute reflects the sequence of topics in the UNCITRAL Model Law. However, the English Act covers a wider range of matters than the Model Law. The main deviation from the Model Law is section 69 of the Arbitration Act 1996, which permits appeals (subject to the High Court's permission) from awards where there is alleged to have been an error of English law: 18.67 ff.

    The Court of Appeal in Cetelem SA v. Roust Holdings Ltd (2005: 13.18 to 13.21) noted that the Departmental Advisory Committee's report (notably the 1996 report) provides a valuable source of guidance when construing the Act, although the fact that a particular matter is not mentioned in that report does not prevent the court from deciding that this matter is in fact compatible with the Act.

    The 2006 ‘Report on the Arbitration Act 1996 (England and Wales)’ reveals that the English legislation is perceived as effective. No changes were recommended.

    MAIN ELEMENTS OF THE ENGLISH ARBITRATION ACT 1996

    The five main elements are:

  • (i) respect for the parties’ freedom of contract in procedural matters;

  • (ii) the arbitral tribunal's duty to promote efficiency speediness, and fairness in the conduct of the submission;

  • (iii) the principle of procedural co-operation between the parties;

  • (iv) the minimalist role of the courts;

  • (v) judicial support and supervision.

    • These points will now be developed.

    RESPECT FOR THE PARTIES’ FREEDOM OF CONTRACT IN PROCEDURAL MATTERS

    The parties’ consensual autonomy (‘freedom of contract’) is a leading feature of the Act (as noted in section 1 of the Arbitration Act 1996 (England and Wales): the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest). This freedom enables them to determine, or at least influence, how the repertoire of procedural measures should be applied in their particular case. Parties to arbitration can shape their ‘alternative’ to ordinary court procedure.

  • Chapter 26 - Judicial Independence and Impartiality

  • from PART VI - PRINCIPLES OF CIVIL LITIGATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 733-752

  • Summary

    JUDICIAL INDEPENDENCE

    INTRODUCTION

    The Constitutional Reform Act 2005 seeks to enshrine respect for judicial independence in the United Kingdom, including the ‘tribunal judiciary’. Article 6(1) of the European Convention on Human Rights also requires courts and other tribunals to be ‘independent’.

    On this Lord Hope commented in Porter v. Magill (2001) that ‘there is a close relationship between the concept of independence and that of impartiality’ (on the latter, 26.19 ff), and he quoted from the European Court of Human Rights in Findlay v. UK (1997):

    ‘The Court recalls that in order to establish whether a tribunal can be considered as “independent”, regard must be had inter alia to the manner of appointment of its members and their term of office, the existence of guarantees against outside pressures and the question whether the body presents an appearance of independence. As to the question of ‘impartiality’, there are two aspects to this requirement. First, the tribunal must be subjectively free from personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect. The concepts of independence and objective impartiality are closely linked…’

    Lord Hope added in Porter v. Magill (2001):

    ‘In both cases the concept requires not only that the tribunal must be truly independent and free from actual bias, proof of which is likely to be very difficult, but also that it must not appear in the objective sense to lack these essential qualities.’

    And Lord Bingham wrote, in The Business of Judging (2000):

    ‘[I]mpartiality and independence may not be synonyms, but there is a very close bloodtie between them: for a judge who is truly impartial, deciding each case on the merits as they appear to him or her, is of necessity independent.’ (On this ‘blood-tie’ in the context of arbitration, see 4.16 ff, vol II).

    The (non-binding) American Law Institute/UNIDROIT Principles recommend: ‘The court and the judges should have judicial independence to decide the dispute according to the facts and the law, including freedom from improper internal and external influence.’ And: ‘Judges should have reasonable tenure in office.’

  • Chapter 3 - Commercial Arbitration: What Is It and Why Choose It?

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 85-112

  • Summary

    COMPARATIVE DISCUSSION

    There are many references in this chapter to reports submitted to the author by distinguished English and foreign experts (the author was fortunate in 2010–11 to receive national reports from various jurisdictions concerning arbitration, in preparation for his General Report on Arbitration at the International Association of Procedural Law's world congress in Heidelberg in 2011). The author also expresses gratitude to these contributors for this material. For reasons of space, it has not been possible to cite verbatim more than occasional fragments from these national reports.

    THE NATURE OF ARBITRATION

    Arbitration is a means by which two or more parties (including sovereign States) can refer a dispute to a neutral decision-maker for a final decision (an ‘award’).

    An arbitral tribunal's power to reach a binding decision on the merits is to be contrasted with mediation (or conciliation) (generally, 1.01 ff). A mediator, although neutral, is not empowered or expected to give a binding decision. A mediator is instead mandated to facilitate a consensual resolution of the parties’ dispute.

    The arbitral process displays the triangular configuration of a ‘lis’, that is a juridical dispute between at least two persons. There will be a claim, defence, and factual or legal arguments within the framework of those outline contentions. Supporting material will be marshalled, opposed, and tested. The tendency is for the matter to be considered in an intense and focused way.

    The decision-making capacity of the arbitrator is similar to the judgment-delivering capacity of a (public) court or judge. The adjudication of arbitral disputes should be no less procedurally pure and scrupulous than the judicial process of state courts (here the emphasis is on the procedural duties of arbitral tribunals; by contrast, see 3.38 on the general inability within commercial arbitration to examine the tribunal's findings of fact, or even application of substantive legal norms – except in England under section 69, Arbitration Act 1996, which permits the High Court to grant permission in exceptional cases for matters of English law to be re-opened on appeal by the court, 18.67 ff).

  • Chapter 15 - Final Remedies, the Award, and Correction of the Award by the Tribunal

  • from PART II - ARBITRATION
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 301-312

  • Summary

    REMEDIES AVAILABLE TO THE ARBITRAL TRIBUNAL

    The parties can agree on the remedies that can be granted.

    It might be assumed that this means that they can draw from the portfolio of remedies available under English law, if that is the law governing the substance, or from the range of remedies recognised under any relevant foreign applicable law. But the Departmental Advisory Committee's Report (1996) suggested that party autonomy could have a larger creative function in this context: ‘there is nothing to restrict such remedies to those available at Court’. This comment by the Committee is curiously tantalising and opaque. Indeed it is an irresponsible throw-away line, because the arbitral tribunal is offered no guidance in determining which ‘new’ remedies are acceptable, and which are beyond the pale of English and foreign acceptance.

    A more orthodox exercise of party autonomy will be an agreement to exclude a particular type of remedy.

    Under the English legislation the arbitral tribunal can grant monetary relief in any currency, including interest (which can be compound). Interest can be awarded in respect of the principal sum(s) mentioned in the award, or the sum(s) claimed and which were only paid after commencement of the proceedings; post-award interest can also be awarded, and this can be compound.

    In the Lesotho case (2005) (see also on that case, 18.46 ff) the House of Lords held that the power to make awards of interest is unconstrained. Lord Phillips noted that the phrase ‘as it considers meets the justice of the case’ confers a broad discretion.

    But what if the parties’ agreement contains an express exclusion of the power to award compound interest and yet the arbitral tribunal goes on to make an award of compound interest? This would involve an error by the tribunal, because section 49(2) states that the default discretion to award compound interest can be excluded by the parties’ (written) agreement.

  • Chapter 15 - Appeals

  • from PART III - END-GAME: TRIAL, APPEAL, FINALITY AND ENFORCEMENT
  • Neil H. Andrews
  • Book:
    Andrews on Civil Processes
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    08 August 2013, pp 415-460

  • Summary

    INTRODUCTION

    A system of civil appeals has five main functions and just ifiations: (i) correcting wrong decisions; (ii) maintaining the faith of the public in the judicial system; (iii) keeping trial judges up to scratch; (iv) enabling teams of senior judges to develop and ref ne judicial doctrine; (v) promoting a unified and consistent application of the law. And there is a further argument: providing an incentive to lower-tier judges to progress up the judicial ladder. These points will be developed now.

    First, recourse to appeal enables an aggrieved litigant to rectify a perceived judicial error, of law or fact. Machinery for appeals from decisions is an official acknowledgement of judicial fallibility. A court will allow an appeal when it concludes that the lower court's decision was ‘wrong’ or ‘unjust because of a serious procedural or other irregularity in the proceedings in the lower court’. On matters of law, appellate courts are fully prepared, indeed obliged, to make corrections. However, in general, the courts are most reluctant to hear appeals on ‘academic’ or ‘hypothetical’ points, namely matters which are of no immediate and direct concern to the parties. But an exception to this can arise if the point of law is of general public importance.

    Secondly, the system of civil appeals also promotes the public interest in correcting judicial mistakes since such errors might otherwise undermine public faith in the administration of justice.

    Thirdly, the potential scrutiny on appeal keeps trial judges up to scratch by exposing their decisions to rigorous scrutiny. The author is aware of the horror experienced by some first instance judges, ambitious to be promoted to the Court of Appeal, who feel that their decisions have been unjustifiably reversed by the appeal court. In one instance, the overturned judge later sought to repudiate the authority of the appellate court (but this is an unusual response).

    Fourthly, the appellate system enables senior and experienced judges, working as a team rather than isolated trial judges, to develop and refi ne legal doctrine. The ‘team’ here (for details, 29.10) refers to the panels of Lords Justices of Appeal in the Court of Appeal.

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