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Appeals in arbitration: the modern function of Section 69 of the Arbitration Act 1996

Noussia, K., Al Muqaimi, M., Bouvery, L., Chen, W. and Nedeva, S. (2022) Appeals in arbitration: the modern function of Section 69 of the Arbitration Act 1996. In: Devenney, J. (ed.) Research Handbook on Transnational Commercial Law. Edward Elgar Publishing Ltd. (In Press)

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The Arbitration Act 1996 is founded on the principle that the object of arbitration is to give effect to the parties’ choice to refer their disputes to arbitration and that the courts should only intervene to support the arbitral process and not so as to displace it. The discussion primarily focuses on appeals under section 69 of the Arbitration Act 1996, in that it evaluates the purpose of appeals granted under the provisions of this section, with a special focus on shipping, reinsurance and investment arbitrations. Such a focus is chosen for two reasons: firstly, in an effort to show how the right to appeal in law is used differently in different categories of disputes, and secondly, so as to demonstrate how appeals are being used whereby also the parties’ expectations are different. The main argument is that where appeals may be allowed on questions of law, in reality we are witnessing an abuse of the choice given to the parties by law, as often questions of fact are cloaked as questions of law. In investment arbitrations, under the ICSID Convention, there is no appeal mechanism, however for non-ICSID cases, which are “localized”, investment treaty arbitrations taking place outside of ICSID must be sited in a legal system whose courts will have a review power, so as to allow the possibility for them to be reviewed. The analysis is also comparative jurisdictional (England, Singapore, China) and allows different conclusions, as other legal systems and international legislation follow a different approach than the one prescribed under section 69 of the Arbitration Act 1996. In Singapore, lately, a consultation is launched, to examine the potential of a law reform which will allow appeals on arbitral awards, if the parties desire so. In China, according to both the Arbitration Law of the People’s Republic of China and the Civil Procedure Law of the People’s Republic of China, appeals on arbitral awards are not allowed. In addition, both the UNCITRAL Model Law and the ICSID Convention do not provide for the right to appeal an arbitral award. The appeals regime as per section 69 of the Arbitration Act 1996 is a good law and should be pertained. It is suggested that in the future, the courts, through their rulings, should provide detailed criteria on what constitutes a question of law. Alternatively, any future law reform should entail allowing leave to appeal on arbitral awards altogether, with the actual appeal then being heard in courts so as to either be accepted or dismissed.

Item Type:Book or Report Section
Divisions:Arts, Humanities and Social Science > School of Law
ID Code:108662
Publisher:Edward Elgar Publishing Ltd

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