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PART II.II OTHER PROVISIONS RELATING TO ARBITRATION: Appointment of judges as arbitrators

Arbitration Act 1996, Merkin and Flannery on the

Page 834 PART II.II OTHER PROVISIONS RELATING TO ARBITRATION: Appointment of judges as arbitrators Appointment of judges as arbitrators 1 93 . – (1) An eligible High Court judge or an official referee may, if in all the circumstances he thinks fit, accept appointment as a sole arbitrator or as umpire by or by virtue of an arbitration agreement. (2) An eligible High Court judge shall not do so unless the Lord Chief Justice has informed him that, having regard to the state of business in the High Court and the Crown Court, he can be made available. (3) An official referee shall not do so unless the Lord Chief Justice has informed him that, having regard to the state of official referees’ business, he can be made available. (4) The fees payable for the services of an eligible High Court judge or official referee as arbitrator or umpire shall be taken in the High Court. (4A) The Lord Chief Justice may nominate a senior judge (as defined in section 109(5) of the Constitutional Reform Act 2005) to exercise functions of the Lord Chief Justice under this section. (5) In this section – ‘arbitration agreement’ has the same meaning as in Part I; ‘eligible High Court judge’ means – (a) a puisne judge of the High Court, or (b) a person acting as a judge of the High Court under or by virtue of section 9(1) of the Senior Courts Act 1981; ‘official referee’ means a person nominated under section 68(1)(a) of the Senior Courts Act 1981 to deal with official referees’ business. (6) The provisions of Part I of this Act apply to arbitration before a person appointed under this section with the modifications specified in Schedule 2. Notes The section re-enacts section 4 of the Administration of Justice Act 1970, by permitting a Commercial Court judge or ‘official referee’ to act as an arbitrator. 2 Note that it only permits appointment as a sole arbitrator or umpire. It is seldom used. Apart from one well-known (but confidential nonetheless) story of a prominent Commercial Court judge (now sitting in the Court of Appeal) who was recently appointed to hear a reinsurance dispute, such appointments may probably be counted on one hand. That appointment in particular was apparently sought precisely because the market wanted a definitive view of a clause in a reinsurance contract; however, the appointment of a judge as arbitrator would rather seem to defeat the purpose, if confidentiality is to mean anything, since the decision remains officially undisclosed.

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