I found it easier to review the first of these booklets by Francis Miller. He is nothing if not industrious. Here, somewhat in the style of the late AP Herbert, he devises three imaginary situations, designed to illustrate some difficulties which may arise under the 1996 Act. He makes the reader go back to the wording of the Act, and ponder on its meaning. In the process, he provides some entertainment by virtue of the whimsical nature of the cases.

The first case is entitled Mutual Cover TPI Ltd v Forever Mutual TVI Ltd (1998) Mock 1, in which he asks the reader to accept that these two great mutual companies had a dispute about the settlement of accounts between them. But that they did not really have too much interest in the outcome in monetary terms; they could not themselves agree upon the matter in principle. It is said that the parties had really wanted the arbitrator to decide the matter on a basis of fairness, but the arbitrator, in the absence of an express agreement asking for s.46(1)(b) to be used, had simply applied the law. This seems to imply that a decision made under s.46(1)(a) would not be fair, although in accordance with the law. Newboy LJ said, "I accept totally the proposition, put forward by both counsel, that decisions about the law are not the product of an adversarial procedure and, indeed, they never have been." What a strange proposition.

The Court went on to seek the answer to the question, is s.46(1)(a) subservient to s.1(a), with the result that, if a decision under s.46(1)(a) does not produce a fair result in the award, it is not in accordance with the object of arbitration, and thus, the award in the case should be set aside. My response is that the question should not have been asked in the first place. S.1(a) merely provides that the provisions of Part One of the Act are founded on one of the following principles, and shall be construed accordingly: (a) the object of arbitration is to obtain the fair resolution of disputes etc.

The learned Lord Justice of Appeal then went on to find great difficulty in understanding the meaning of the simple expression "fair resolution". I am bound to ask, is he the right man for the job? The Court dismissed that appeal.

The second case is entitled Peter A. v Sam R (1998) Mock 2, in which an arbitrator decided a case under s.46(1)(b), although there was no agreement between the parties for that to be done. In the Court, it was claimed that this was a serious irregularity under s.68(2)(e) and the award should be set aside under s.68(3)(b). Furthermore, the actions of the arbitrator provided grounds for alleging that he was physically or mentally incapable of conducting the proceedings, and that he acted in bad faith in accepting the appointment. Before dismissing the appeal, Newboy LJ made the surprising comment, "I have decided to dismiss the application, even though it seems that the provisions of the Act would determine otherwise." After emphasising the importance of s.5(1), agreements to be in writing, the Court decided that it should invoke s.68(2) "Serious irregularity means an irregularity of one or more of the following kinds which the Court considers has caused or will cause substantial injustice to the applicant." On that ground, the appeal was dismissed, no evidence of substantial injustice being found. A victory for common sense.

The third case is entitled HH Judge Z v R Mouldings Plc & P Granules Plc (1998) Mock 3, in which a Judge-Arbitrator applied to the Court for relief from damages arising out of his resignation, under s.25 of the 1996 Act. The Court of Appeal, quite rightly, decided that the resignation was not reasonable, in all the circumstances. The respondents maintained that he had resigned in a fit of angst because his lack of detailed knowledge was exposed. The Court highlighted the difficulties thrown up by the wording of s.4 of the Act. The relief sought was not granted. This quite a useful way of reminding ourselves of the relevant provisions of the Act.

The second booklet was more difficult to review. It is entitled The 46(1)(b) Brigade. I therefore assumed that it would involve a detailed analysis of s.46(1)(b) of the 1996 Act. It does not. Its purpose is to raise the awareness of the need for the parties to know enough about arbitration, so that educated decisions can be made before they bind themselves to arbitration. On page 8, Francis Miller states that s.46(1)(b) gives the parties the option, should they choose, to have their disputes decided on considerations of justice and fairness, etc, as opposed to a decision strictly in accordance with the law. That is not what the sub-section says. It says "in accordance with such other considerations as are agreed by them or determined by the tribunal." Thus, a large cattle market, established over decades, will have established its own rules for dealings between traders there. A dispute has arisen, and the parties ask for an arbitrator to decide the point in accordance with their own rules, not in accordance with the general law of England and Wales. Similarly, in the case of the Football Association, or the MCC, or the Tennis Associations around the world. Maritime arbitrators would decide disputes in accordance with the usage of that particular community. Many other examples spring to mind. Francis also appears to say that the parties have a choice between a decision which is fair, or which is in accordance with the law. Cannot a decision in accordance with the law be fair.?

I was disappointed not to read a detailed analysis of s.46(1)(b). There is plenty of scope for it. After all, it is a most unusual provision to find in an Act of Parliament. He could have dealt with its genesis, and enlarged upon the discussions which led up to it being enacted. What did the framers of the Act have in mind, as to its scope, as to how much it would be used, as to difficulties which may arise if used by an inexperienced arbitrator. Was it opposed by members of the DTI?

On page 14, Francis began to lose me. He decided to use the words "congruity" and "incongruity" other than in accordance with standard usage. On page 15, he writes, "If the Arbitration Act is congruous with your own thinking, then, when you read the Act, you will find what you expect to see or, at least you will not find, things which (on reflection) will offend your expectations. If it is incongruent with your thinking, then you will be surprised at what you see." On page 5, Francis states that he has taken, as his mentor, Humpty Dumpty, thus, "When I use a word, it means just what I choose it to mean, neither more nor less." On page 15, he writes that if a person is surprised to read the provisions of s.60 (parties bearing their own costs), then s.60 would be incongruent with their anticipation. He states that, without knowing who the readers of his essay will be, he cannot say which, if any, of the provisions of the Arbitration Act would be congruous or incongruous for any particular reader. So much for Humpty Dumpty.

On page 18, Francis, determined not to leave any stone unturned, takes the reader through all the sections of the Act under the headings of congruous, incongruous, and likely to be irrelevant. Why, I ask myself? It cannot be of interest to the potential party, and it cannot be of use to an arbitrator, who will have read the Act, anyway. Doggedly, I made my way through pages 19 to 42. By that time, I needed a drink, but I still had not answered the question, Why?

I am sure that Francis enjoyed writing these two booklets, and I am sure that they will provoke comment.