The Human Rights Act - Francis Miller

The Human Rights Act - Francis Miller

(Arbitration - whose rules, whose arbitration?)

The Human Rights Act 1998 ("HRA") is being spoken about more and more in the context of arbitration procedure, but is it relevant? In my view, it is not.

It seems to me that the sensible mundane provisions of the HRA are being turned into the latest bogeyman upon which some people may seek to justify a court review of private arbitration procedure. There have been many spectres of doom raised in the past for the same purpose, but most of them were exorcised by the Arbitration Act 1996. However, is the Arbitration Act robust enough to withstand the latest challenge to its principles?

A questioning look at people and procedure

Is it true to say that lawyers and other representatives don't mind being in the cage of prescribed rules because they can then use their intellectual skills in playing a game of trying to get themselves out of the cage whilst keeping others firmly locked in?

Is it more true to say that if lawyers and other representatives were freed of all prescribed rules, they would erect their own cage of common rules because they feel uncomfortable if they are not caged-in with prescribed rules?

Is it a self-protective instinct that drives some people, including those who judge, to seek to work within prescribed rules of procedure which are recognised to be ―acceptable generally, even though the rules may not be wholly suitable for the specific matter in hand? For example, His Hon Judge Anthony Thornton QC, when speaking about The Human Rights Act 1998 ("FIRA"), was reported as stressing, "that arbitrators must now take special care and have an eye to the issues surrounding the FIRA so that they are not in breach of it, in the execution of their duties". He was suggesting ..... that arbitrators might follow closely the guidelines of the CIMAR Rules in order, to some extent, to reduce the prospect of their actions being challenged". The Judge added ..... that arbitrators should be sure to state the rules which they have adopted, so that they can clearly illustrate the framework of the guidelines that were followed". (Arbitration News & Views, issue 47, January 2002, pp 7&8)

Procedure generally

Whilst prescribed rules may generally be a good way to govern procedures for the resolution of disputes, it seems to me that we need to understand clearly who it is who should be doing the prescribing, the criteria upon which the prescribed rules are based, and the intended purpose of the rules when prescribed.

For example, if we consider litigation, the matter is quite clear because (i) the State, by its various organs, prescribes the rules; (ii) the criteria are based upon prescribing a set of rules which will apply generally to everyone within the jurisdiction so that both the claimant and the defendant can be aware of what is likely to happen, especially because the claimant can unilaterally commence proceedings; and (iii) the intended purpose is fairness as between the parties within the context of public interests.

If we consider arbitration, the matter is really quite different. In the first place, there are no prescribed rules save those which are prescribed by the agreement of the parties to the arbitration. In the second place, the criteria are based upon what the parties want to do subject only to any public ―interests restraints. In the third place, the intended purpose is simply about the fair resolution of one particular dispute without unnecessary delay or expense.

Each arbitration is a unique event. It ―follows that an experienced arbitrator is not likely to get confused with what ―is pontificated upon as being best for parties in general and what is actually best for a particular arbitration, albeit, such an arbitrator will take heed of what has been tried and tested by experience. Thus, when an arbitrator is appointed, the only concern of that arbitrator in respect of procedure should be what is best for the parties, ―together with a healthy regard for party autonomy. In short, the arbitrator should meticulously enquire into the wishes of the parties, ie the arbitrator should look closely at their arbitration agreement and any subsequent written agreements because the ―parties have the right to set down whatever rules they like or to leave the matter to the default rules in section 34 of the Arbitration Act 1996. The arbitrator has a duty to apply those agreed matters of procedure all in accordance with section 33.

With this view of arbitration procedure, I can see no just reason for anyone raising any questions of concern about procedural issues in the context of the HRA.

Is there another way in which HRA can affect arbitration?

In answering the question "Is there another way in which HRA can affect arbitration?" I am happy to draw again upon the observations of His Hon Judge Thornton in support of my answer, which is "No". In the same report referred to above he stated "... that it was possible voluntarily to contract out of most of the HRA's provisions, including Article 6 of the convention. So where an arbitration resulted from a genuinely free agreement between the parties, the HRA did not constrain arbitration."

If the real concern of those who argue that the HRA affects arbitration is that a person should not be bound to an arbitration agreement against their will (as at the time of the agreement being made); or, that a person was forced by some unreasonable pressure to concede to arbitration; then, if the court needed the additional powers of the HRA to prevent such abuse, I would accept that such a need may result in arbitration being affected by the HRA. Although, personally, I don't think there is a need for such additional powers to ensure a genuinely free agreement between the parties, I would readily agree to the power if it was needed.

However, for argument, let us say that arbitration was affected by the HRA in the context of ensuring a genuinely free agreement between the parties. Then that fact alone would scupper all the other claims that the HRA affects arbitration procedure. This fact would be the very evidence to show that once an arbitration is considered a genuinely free agreement between the parties, then the HRA cannot bite at anything done in an arbitration under the Arbitration Act 1996. Thus, from whatever angle one may argue, it is quite wrong to consider arbitration procedure in the context of the HRA because if there was not a genuinely free agreement between the parties, there would be no valid arbitration regardless of whether the actual procedure were good or bad.

So, is the Arbitration Act robust enough?

The debate on the HRA and arbitration seems to have only just got underway, so there will be much more to come. However, I believe the Arbitration Act will be robust enough to withstand the latest challenge to its principles. If not, we shall - for the same reasons which made the Arbitration Act 1996 essential legislation - have to have a new act to put matters right.