How far should the High Court exercise a supervisory jurisdiction over the conduct and the outcome of arbitration proceedings? There are different schools of thought, one view being that arbitration should be as much as possible an autonomous process, because the parties will have adopted it by agreement as a method of resolving their disputes speedily and expertly, and the less they are dragged into the ordinary forensic arena the better pleased they will be (and, as a corollary, the more willing to use the arbitral services of the City of London).

The other view is that the courts have a duty, with arbitration as with any other inter-reacting dealings in which the citizen engages, to see that rights and duties are properly recognised. Better a fair protracted arbitration than an unfair but expeditious one. As Russell on Arbitration (19th edn.) has it, there is a never ending war between two irreconcilable principles, the high principle which demands justice though the heavens fall, and the low principle which demands that there shall be an end to litigation.

One context in which these different approaches recently became manifest in the courts was that of the appellate jurisdiction of the High Court under the Arbitration Act 1979. That Act was intended to create a simple scheme of appeal from arbitral decisions which would reconcile the two principles and replace the unsatisfactory procedures of case stated under the earlier legislation and the common law action to set aside or remit an award for error on its face. It was quite clear that by s. 1 the Act of 1979 permitted an appeal where a substantial question of law arose out of the award (i.e. one that could substantially affect the rights of a party). That very experienced commercial judge, Robert Goff, J., said in one case that he was unable to discover in the Act any basis for applying further restrictions (The Oinoussian Virtue [1981] 1 Lloyd’s Rep. 533). But the House of Lords, under the influence of Lord Diplock, laid down in the Pioneer Shipping case [1982] A.C. 724 a complex structure of additional conditions for the granting of leave to appeal. It was clear that Lord Diplock felt that was what best met the needs and desires of the international commercial community and he was prepared to gloss the Act to achieve that result. One was therefore ready to conclude from that case that Lord Diplock adhered to the first view set out above, that the courts should interfere as little as possible with arbitral proceedings (see my commentary in this journal for May of last year— ([1982] 2 LMCLQ 271)).