Journal Article - LMAA | London Maritime Arbitrators Association

120 Arbitration
had was often in the background. The parties’ lay representatives communicated directly
with the arbitrators by letter. By and large, everything was relatively simple, quick and very
cheap.
Towards the end of the 1960s, however, lawyers began to be involved more and more.
There were various reasons for this. One was that cases were becoming more complicated
generally. Another was that brokers and agents began to focus more on concluding contracts,
and less on dealing with the disputes that arose afterwards. In addition, P&I Clubs which,
until then, had often handled arbitration submissions for their members, began to employ
outside lawyers more frequently. An inevitable consequence of the involvement of lawyers
was increased procedural complexity. In the first place, lawyers are accustomed to court
procedures and so the informality of arbitration was unfamiliar to them and, as they saw it,
largely undesirable. They attempted to impose the procedures with which they were familiar
from the courts upon commercial arbitration. Lawyers are also naturally cautious and do
not want to risk being criticised for not having done something it might be thought they
should have done. This, too, means that they tend to indulge in procedural arguments which
might otherwise not have occurred.
Thus the practice of maritime arbitration itself became more complex and, in time, the
nature of those who became appointed as arbitrators changed. More and more people, such
as myself, who had some legal experience (and, in other cases, legal qualifications as well)
started to be appointed. Not only was this thought to be desirable in order to deal with the
increasing procedural complexities, but I believe that the parties’ lawyers—who have a
considerable say in choosing arbitrators—generally felt, and feel, more comfortable with
a tribunal made up of arbitrators who have some legal knowledge and who, thus, are
perceived as being more likely to reach a result that is correct in law rather than what might
be called a “purely commercial” outcome (which lawyers often see as being “arbitrary”).
And so it is that many of today’s maritime arbitrators in London have, to a greater or
lesser extent, legal backgrounds and often legal qualifications. Two of our recent past
Presidents were once themselves practising solicitors, and four of them have at some stage
worked with P&I Clubs (which are quasi-legal for these purposes) and are legally qualified.
On the other hand, it has to be said that a very substantial number of our arbitrators continue
to come from the purely commercial or practical world, and that is all to the good.
5. Integrity
In any judicial system, whether it be public or private, integrity is obviously of the highest
importance. London maritime arbitrators have an excellent—and I consider wholly
deserved—reputation in this regard.
One of the ways in which integrity is ensured is found in the fact that all arbitration in
England is subject—but only where necessary—to court supervision. I emphasise “only
where necessary” because, as a matter of policy, English law regards arbitration as being
a private, consensual process, and considers that the courts should only intervene in order
to support it and to make sure that nothing goes wrong. The courts are not there to substitute
their own views or decisions for those of arbitrators, save in very rare circumstances.
Our courts may intervene in three main areas. One is in connection with the question
whether an arbitration tribunal in fact has jurisdiction or not. Conceptually, English law
holds that this is a decision that cannot finally be made by the tribunal whose jurisdiction
has been challenged. Having said that, however, our Arbitration Act does allow arbitrators
to make decisions on their own jurisdiction, and those will be final and binding unless
challenged in the courts within a relatively short space of time after a decision is made.
A second area of challenge arises if there is a “serious irregularity” in the conduct of the
arbitration proceedings. I will not go into details here as to what amounts to a “serious
irregularity”. Let me just say that the emphasis is, rightly, on “serious”, and that our Act
contains a list of categories of such irregularity. That list not only emphasises the seriousness
(2011) 77 Arbitration, Issue 1 © 2011 Chartered Institute of Arbitrators