International Construction Law Review
BOOK REVIEWS
HUMPHREY LLOYD
The Arbitration Act 1996: A Commentary.
Fourth Edition by Bruce Harris, Rowan Planterose and Jonathan Tecks. Oxford: Blackwell Publishing, 2007. ISBN 97–8140513996–0. 487 pp. plus tables and index. Paperback. £67.50.
This commentary on the Arbitration Act 1996 (which applies in England and Wales) is widely considered to be the best commentary on the Act. It is certainly the book to which I turn first. It is in my view the best guide to the Act for practitioners outside the United Kingdom. Its value derives from the fact that it is written by three practitioners, each of whom covers different aspects of commercial arbitration in England and Wales. They have therefore drawn on their own wide practical experience in commenting on the provisions of the Act and on the relevance of decided cases. Their preface to the Fourth Edition is, in itself, typical and illuminating. They observe:
“There are no great recent signs of increase in the adoption of imaginative time- and cost-saving procedures that might have been hoped for. Attacks (often seemingly spurious) on awards and arbitrator occur very frequently, though happily they are usually firmly rebuffed by the Courts. The power to cap costs seems rarely to be used, perhaps due to a widespread belief that it is the expenditure of costs that is to be capped, rather than the level of costs that can be recovered.”
The authors then express the hope that the present plateau is only temporary and that “the arbitral community will soon recommence the journey towards the goals at which the Act is aimed”.
The preface also conveniently points out the areas in which there have been significant changes since the Third Edition. They include discussion of two recent cases where the agreement was not in writing but referred to writing and two cases where questions arose because a contract was said to have been obtained by bribery or was ultra vires.
There have also been developments in relation to “bias”. The authors lay the foundations for a very interesting discussion (in relation to section 30) on the question of jurisdiction in relation to cross-claims and set-offs. This is an area in which, as many practitioners in international commercial arbitration know, there is considerable divergence in law and practice. The authors also deal with sections 61 and 63 in relation to the award of costs. I hope that the authors will consider that their commentary on section 63 might be developed to give a rather more practical guidance as to how an arbitral tribunal could determine (a) the basis upon which recoverable costs are to be awarded and (b) what might be permissible as a basis other than that set out in section 63(5) (a reasonable amount in respect of all costs reasonably incurred with any doubt being resolved in favour of the paying party).
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