EXCLUSION OF JUDICIAL CONTROL
PERMISSIBLE EXCLUSIONS UNDER THEARBITRATION ACT 1996
The Arbitration Act 1996 confers upon the courts, in respect of arbitrations with their seats in England, Wales or Northern Ireland, powers which fall into two broad categories: powers which are intended to facilitate the proceedings in the arbitration, and powers which ensure that the award is reached properly and in accordance with the agreement and expectation of the parties. Some of the courts’ powers of control are capable of being excluded by agreement in writing,1 whereas others are mandatory under s 4(1) and Sched 1 and accordingly are not capable of exclusion by any means including choice of some other curial law.2 The willingness of Parliament in the Arbitration Act 1996 to allow the parties to exclude access to the courts is a clear break from the previously recognised principle that any attempt to exclude the jurisdiction of the courts is contrary to public policy,3 although there have in the past been inroads into the common law rule: the two most important were the recognition of the integrity of Scott v. Avery arbitration clauses rendering the making of an arbitration award a condition precedent to any application to the court, and the “exclusion agreements” provisions of the Arbitration Act 1979 under which the parties could agree to oust the jurisdiction of the High Court to hear preliminary questions of law, to order the arbitrators to give reasons, to give leave for an appeal against an award on a point of law4 and to remove an action from arbitration to the courts where fraud was alleged.5
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