Implementing the Arbitration Act 1996

The Arbitration Act 1996 states in its general principles, that the purpose of arbitration is a, “fair resolution of disputes by an impartial tribunal without necessary delay or expense”^{[88] [89] [90] This establishes some basic principles including the necessity of a “tribunal” of some sort, its impartiality, the quick and inex­pensive execution of the process, as well as the underlying principle of fair­ness. The Act furthermore reads that, “the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest".9° This gives the parties a relatively large scope of arranging the arbitration procedure according to their needs and wishes. There are some “mandatory provisions” laid down in the Arbitration Act, however, that cannot be overruled by any contrary agreements. All the clauses of the Act also hold provisions for when the parties do not come to any agreement.}

The authorisation to choose, “a law other than the law of England and Wales or Northern Ireland as the applicable law in respect of a matter”^¹ and the admittance that, “[t]he arbitral tribunal shall decide the dispute in accordance with the law chosen by the parties as applicable to the substance of the dis­pute, or if the parties so agree, in accordance with such other considerations as are agreed by them or determined by the tribunal,”^[91] is crucial: this gives mat leave to apply Islamic law.

According to the Arbitration Act, the composition of the arbitral tribunal can be decided on by the parties as well. They can appoint any number of ar­bitrators and may or may not nominate a chairman or umpire - this being a requirement, however, in the case of an even number of arbitrators unless otherwise agreed by the parties. If the parties do not specify a number of arbi­trators, one arbitrator is sufficient^{[93] [94] mat usually forms a tribunal consisting of at least one Islamic scholar and one solicitor or barrister, i.e. someone trained in English law. This being the minimum established in mat's procedure rules,9? an arbitral tribunal will sometimes consist of three or four persons, whereas mediations are usually carried out by only one or two persons. Siddiqi explains that “hybrids” like he himself, who are trained in both legal systems, can also arbitrate alone[95] The Arbitration Act holds that the arbitrators need to be impartial, qualified according to the specifications possibly defined in the ar­bitration agreement and physically and mentally capable of conducting the arbitration procedure[96] [97] [98] mat's policy that all arbitrators must be experts in English or Islamic law or both is not a direct provision of the Arbitration Act but a requirement that mat set for its own arbitration procedures. The par­ties can, according to the Arbitration Act, also decide on the procedure for ap­pointing the arbitrators,98 as well as the roles of the arbitrators and a possible chairman or umpired mat's standard constitution of tribunal meets these requirements, as long as the parties agree to it.}

If no chairman or umpire is appointed, the Arbitration Act further reads, “[...] the parties are free to agree how the tribunal is to make decisions, orders and awards. If there is no such agreement, decisions, orders and awards shall be made by all or a majority of the arbitrators.”^{[99] [100] [101] [102] [103] [104] [105] [106] [107] [108] [109] [110] This seems to be the regular case at mat.}

Furthermore, the arbitration tribunal, “may rule on its own substantive jurisdiction”101 and, “[a]ny such ruling may be challenged by any available ar­bitral process of appeal or review”. 102 An award can be challenged, “as to its substantive jurisdiction”^ or, “on the ground of serious irregularity affecting the tribunal, the proceedings or the award’™⁴ and which causes, “substantial injustice’™³ The Arbitration Act also includes the opportunity to, “appeal to the court on a question of law arising out of an award made in the [arbitral] proceedings”, unless the parties agreed not to include this right or, “to dispense with reasons for the tribunal’s award’™⁶ According to the procedure rules mat has set up, “[w]here the Tribunal determines a case it must serve on every party a written determination containing its decision and the reasons for it’™⁷ This rule complies with the Arbitration Act,^ω8 so that an appeal is not made impos­sible by dispensing with reasons for the award. mat has, however, explicitly excluded appeals in its procedure rules, only leaving the possibility of judicial review through application to the High Court which has supervisory jurisdic­tion and would survey the decision process and whether the tribunal acted within its competences.10⁹ This exclusion of the right of appeal to the English courts which parties will agree on by signing mat’s procedure rules does meet the requirements of the Arbitration Act.

The parties can, however, also apply to the court in various other situations according to the Arbitration Act, whether they have questions as to the juris­diction of the tribunal, desire an arbitrator to be removed from the tribunal, or wish the award to be enforced.110 “An award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgement or order of the court to the same effect.’111 This sen­tence is the main aspect highlighted in the media, as it gives legal power to tri­bunals working in line with the Act de jure. Siddiqi confirms that an arbitration award pronounced by mat is binding on the parties who have to agree to abide by it beforehand and that it could also be enforced in a County Court or High Court, depending on the amount in dispute.^{[111] [112] [113] [114] [115] [116] [117] [118] [119] [120] [121] The court would always have to evaluate whether an award corresponds to public policy and public inter­est before enforcing it.113 Siddiqi adds that an enforcement of an arbitration award made by mat has not yet been necessary, however, as they, “have a good track record."n4}

The Arbitration Act also gives the tribunal the power, “to decide all pro­cedural and evidential matters^,,,ⁿ⁵ including the time and place of the pro­ceedings, the languages of proceedings as well as required translations of any documents and, “whether and if so what form of written statements of claim and defence are to be used^,,.ⁿ⁶ It can furthermore decide how to proceed with relevant documents, that is, “whether and if so which documents [...] should be disclosed between and produced by the parties and at what stage^,,,ⁿ⁷ set time limits,ⁿ⁸ etc. The tribunal is furthermore granted the authority to decide, “whether to apply strict rules of evidence (or any other rules) as to the admissi­bility, relevance or weight of any material"^u9 and, “whether and to what extent there should be oral or written evidence or submissions”.The tribunal has to act according to its “general duty”, specified in the Arbitration Act as,

act[ing] fairly and impartially between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and adopt[ing] procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense [...]121

- a duty which also applies to procedural and evidence matters.122

mat makes use of these options and has standardised its procedures ac­cordingly.

being quicker and more cost efficient.^{[122] [123] [124] [125] [126] [127] [128] [129] Any client approaching mat about a dispute and wanting it settled by arbitration is first sent an application form, which has to be completed and complemented with a detailed statement laying out the main aspects of the dispute as well as what is expected from mat's involvement. After examining these papers, mat will contact the party in order to ask for any details or documents that might be missing and send out a letter to the other party to the dispute in order to find out about their view on the matter. In many cases, Siddiqi says, both parties approach mat together wanting the institution to settle their dispute, or will at least have spoken about contacting mat in advance. Before the actual arbitration starts, both parties have to sign an arbitration agreement, which can be amended ac­cording to their needs or wishes but in any case safeguards that the parties will abide by the arbitral awards4 The written form of the arbitration agreement is furthermore necessary for the Arbitration Act 1996 to apply to an arbitration procedure.125 As soon as all the relevant information, statements of both par­ties giving their positions and necessary documents forming a picture of the whole dispute situation as well as the agreement to arbitration are assembled and examined by the tribunal, a hearing will be scheduled. If the case turns out to be clear, the tribunal may be able to decide after one hearing, whereas more complex disputes may require a second or third hearing. During the joint hearing both parties will be given the opportunity to state their position and the tribunal will be able to cross-examine them.126 mat's rules of procedure show that the tribunal, “may allow oral, documentary or other evidence”^7 in­cluding witnesses.}