A recent case, reported in The Times (8.10.96) with the above headline, should bring cheer and comfort to our colleagues who harbour the fear that courts interfere only too readily with the powers of arbitrators. Mr Justice Morrison held that a High Court Judge could intervene in the interlocutory stages of an arbitration by remitting a matter to the arbitrators, although he refused to do so on an application of Flatamentos Maritmos SA (a) for the removal of the arbitrator of their arbitration against Effjohn International BV and (b) an order setting aside his decision as to directions or alternatively remitting the matter for a fresh decision. Mr Justice Morrison stated that the power to intervene would be used only in rare cases, because courts respected the autonomy of arbitrators.
This case gives some indication of the future attitude of the courts when called upon to exercise jurisdiction under section 24(1) of the Arbitration Act 1996. By that section, a party to arbitral proceedings may apply to the court to remove an arbitrator on the grounds that, inter alia, s/he has refused or failed to properly conduct the proceedings.
Under current legislation, the court has jurisdiction to remove an arbitrator who has 'misconducted himself in the proceedings'. Mustill and Boyd, (Commercial Arbitration. Second Edition. Butterworths. 1989. p.530) point out that this undoubtedly covers all instances of what would ordinarily be understood as misconduct in the course of the reference: 'It also embraces situations in which although the arbitrator has not necessarily acted unfairly, he has allowed himself to get into a position where unreasonableness be suspected or foreseen.' The learned authors comment that the fact that the court is given a wide power to remove the arbitrator in cases of misconduct does not mean that the power will be freely exercised.
The Arbitration Act 1996, in its preamble, purports to restate and improve the law relating to an arbitration agreement, and section (1)(6) sets out the matters in which the court should not interfere except as provided by the Act. In making decisions and giving judgments on applications under section 24 it would be unthinkable that the Court would construe its duty otherwise than in accordance with case law precedent even although this was decided under a previous Act which spelt out similar authority.
The power of a Judge to intervene in ongoing leglislation and the exercise of that power will, according to the rules of the construction of statutes, remain as it is at the present time.