Wider appeal - Widening of the scope of appeals from commercial arbitration awards
Wider appeal
NOT many lord mayors get asked to deliver the Cedric Barclay Memorial Lecture. But The Rt Hon Lord Mayor of the City of London, Alderman Robert Finch, did just that at the fifteenth International Congress of Maritime Arbitrators in London recently.
"London is still the cornerstone of international commercial arbitration and commercial law," he said, "But, to remain the cornerstone, two things must be ensured: first, the continued development, refinement and modernisation of English commercial law by the English Commercial Court; and, second, the maintenance of a first-class international arbitration and mediation system.
"I believe a widening of the scope of appeals from commercial arbitration awards would help ensure both these objectives. The City's global institutions cannot be cutting-edge if English commercial law lags behind. London arbitration will be less attractive if English commercial law loses its bloom. We need to ensure that the court system and arbitration systems in London work hand-in-hand."
A desire to get more arbitration awards before the courts on appeal, in England or anywhere else, is not without a touch of incongruity. One of the intentions of the 1996 Arbitration Act was, after all, to make it difficult to get arbitration awards before the courts on appeal. But, in order to appreciate the incongruity, one has to assume that the 1996 Act is a fabulous piece of legislation, without fault and beyond criticism. Not everybody agrees.
It was Cedric Barclay who said, "A judge is supposed to know nothing. An arbitrator is supposed to know everything". But he would surely have approved of a lord mayor delivering a lecture established in honour of his name in which was advocated the continued development of English law in a way which increased the level of co-operation that exists between arbitrators and the courts.
For publication
EVEN if arbitrators really are expected to know everything, it must be said that maritime arbitrators in London do not yet know the point at which their antediluvian attitude towards the publication of awards has ceased to become even mildly diverting.
At ICMA, John Weale, President of the Association of Maritime Arbitrators of Canada, did his best to help make it easier for London to be sensible. He debunked most of the myths about why London continues to stick doggedly to its decision not to make publication the default rule in its procedure. And he said that, if the LMAA seriously wanted to encourage the publication of awards, it could readily do so. All it has to do is amend its terms to reflect that wish. It isn’t against the law. It doesn’t have to be expensive. You don’t have to enter into a deal with Lloyd’s Maritime Law Newsletter. Just put the awards on the LMAA website and charge people to access them. People won’t take their arbitrations away from London on the strength of this.
John Weale concluded, “If the LMAA amended its terms to make publication the default setting, it would not be left in the awkward posture of defending a position which is ultimately untenable, not only in terms of logic, but also in terms of its own self-interest.”
The LMAA hosted ICMA with panache. It took John Weale – the friendliest and best-meaning of vipers – to its bosom. It deserves our admiration. But, so far as publication is concerned, it has no shame, and seems rather to like defending untenable positions.
Against publication
JOHN Weale might reasonably have expected a passionate response from the ICMA floor. But not a bit of it.
Simon Kverndal, a barrister from Quadrant Chambers, made the most miserable response when he set out his two main reasons for not having awards published. Firstly, he was worried about a “proliferation of citations of authority”. This, he argued, would lead to more research by lawyers, whose clients would have to bear the cost implications. Desperate stuff, and very lame.
Simon’s second point was that any attempt at publication had to be in a user-friendly format. This ignored the fact that John Weale had already addressed this issue when he suggested that the LMAA post the awards on its website. And it seemed to suggest that ordinary people aren’t capable of reading an arbitration award. If they are not, then the arbitrators are doing something wrong.
Much more in keeping were the remarks of Donald Davies who, responding to a comment that there is no hidden agenda to the LMAA’s attitude to publication, said, “I did have a question, but the question is no longer relevant because there is apparently no hidden agenda.”
Thank goodness for truly outstanding arbitrators, with a sense of humour, who support publication.
Money and lawyers
LAWYERS are like everyone else in one respect. They like money. Judging by most ship finance conferences, they like talking about money too. Because most ship finance conferences seem to end up with a speaker panel full of lawyers.
What about a ship finance conference with no lawyers as speakers, and very few in the audience? That seems just the place to head for. Book your diary for October 29, Amsterdam, and go to www.mareforum.com to book for the fourth Tango for Two Mare Forum Ship Finance Conference.
It will cover the world beyond China, long-term financing of cargo movement, guiding profitable investment, and cultural differences between banks, finishing with a tanker owners’ debate. There is a heady mix of shipowners and shipping investors and financiers on the programme, drawn from every shipping market.
Past form has shown this to be a lively day, with real debate and the chance to make just the contacts you need. And of course there is never a bad time to spend a day or two in Amsterdam, especially if there are not too many lawyers around to see you.