I recall a leading paper by Martin Harman of Masons over a decade ago where he opined that arbitration was "over lawyered". With the recent passing of Brian Clapham and some years ago that of John Newey I suggest that arbitration is now "under lawyered".

I was very interested to read the views of Francis Miller on the four problems propounded for discussion by John Tackaberry QC in his article Arbitration (1998). I am particularly interested in the fourth question to which Francis refers which is

to what extent does one think a Tribunal should reach conclusions on fact or law on points that were not discussed before it. I have always regarded this as a danger area. In his penultimate paragraph, Francis states that "If, of course, we are talking about arbitration as opposed to State litigation .... then presumably the tribunal has only the powers given to it by the parties". This, I think is not strictly correct because paragraph 34(g) of the 1996 Act provides that the Tribunal has the right to decide all procedural and evidential matters (subject to the right of the parties to agree otherwise) including:

(g) Whether and to what extent the Tribunal should itself take the initiative in ascertaining the facts and the law.

In the excellent address given by Judge Esyr Lewis last year on the subject of Arbitration Appeals, the Learned Judge stressed that one of the most common (and successful) reasons for appealing an Award is that the Arbitrator has taken into account and made a finding on some fact that was not discussed before him, and which the parties had not had the opportunity to address him on.

It seems to me that the Tribunal has an unfettered discretion to take into account whatever facts and legal points it wishes but it must be subject to the restraint that such facts and legal points as it is desirous of taking into account should always be put to the parties. This seems to me to be consistent with the duty under Section 33(1) to act fairly and impartially giving each party a reasonable opportunity of putting its case and dealing with that of his opponent.

It seems to me a matter of natural justice that if a Tribunal intends to reach its conclusion on some fact which has not been raised by one or other of the parties, it is incumbent upon them to give each party an opportunity to comment. It should not be forgotten that unless the parties agree otherwise, the Tribunal must make its determination in accordance with English law (see A.A. Section 46(3)). English law requires that any Court or Tribunal can only make its determination on the basis of the evidence that is before it. There is no appeal against findings of fact provided by the Arbitration Act.

The position regarding points of law which have not been addressed to a Tribunal but upon which the Tribunal have made a determination is not quite so clear. There is an appeal on point of law albeit subject to certain restrictions (see Section 69 of the Arbitration Act). It seems to me that a Tribunal would not be acting irregularly on making a determination based on a point of law that had not been discussed before it by the parties. Indeed, if the arbitration is being conducted without legal representation it may be pointless and only lead to confusion for the Arbitrator to invite lay persons to discuss points of law. However, if legal representatives are in attendance then it seems to me that it would be sensible, particularly for a non-legal Arbitrator, to let it be known to the parties' representatives what his view of any particular aspect of law that he saw as relevant was, in order to enable them to comment. It is a Tribunal's duty to adopt procedures avoiding any unnecessary expense. If the Arbitrator had, for example, got the law hopelessly wrong and not given the parties an opportunity to comment, thus forcing one or other of the parties to appeal, it might be argued that he was creating unnecessary expense.

In January's issue of the Branch newsletter there were two items on adjudication. Obviously this is becoming of interest and since your editorial sought feedback I thought I should drop you a note.

Firstly, an interesting point raised by Rod O'Driscoll in his paper which took me by surprise a little. Rod suggests that because of Section 108(3) of the Construction Act (please forgive the abbreviation) the parties are free to agree in advance to accept the decision of the Adjudicator as finally determining the dispute.

I had previously felt that it is extremely difficult for the parties to agree in advance to accept the Adjudicator's decision as finally determining the dispute. I do not see, for example, that one can agree that in advance until after the dispute has arisen, otherwise it would fail the test that the contract must provide for Adjudicator's decision to be binding until determined finally by legal proceedings or arbitration. I feel it could fall foul to the same problems if the agreement was made before the Adjudicator was appointed. At best, therefore, surely the parties can only agree to treat the decision as final if they agree to do some time after the appointment of the Adjudicator and before his decision is issued (to agree afterwards, of course, is expressly provided for within the Act).

In your editorial you mention the lack of cases taken to adjudication. That is true, of course, for "Act" adjudications - no doubt partially due at least to the limited number of contracts to which the Act applies (i.e. only those entered into within the last 7 months) and the natural tendency for disputes to arise later rather than earlier in the contract. Parties often prefer to have their disputes settled only after they know the consequences of a decision.

Adjudications, however, have taken place under contracts which call for them. The New Engineering Contract family of contracts is probably the most famous - and it is claimed gave rise to the Construction Act adjudication provisions. Some limited experience, therefore, is now being gained of adjudications - I have myself given half a dozen or so decisions in the last two years. I know others have also given decisions.

My experience has been that, notwithstanding the requirements in the New Engineering Contract to adjudicate disputes at the time the issues arise, referrals to adjudication have mainly come towards the end of contracts - the parties using whatever means they believe are open to them to raise "late" disputes.

What I am particularly interested in is how Arbitrators will deal with issues which have been through adjudication. Will they want to see the decision? What notice will they take of the Adjudicator's findings? I have myself held the view that if the parties have agreed an Adjudicator to deal with their dispute an Arbitrator will want some persuading that the Adjudicator has got things entirely wrong.

I am sure we would be all interested in hearing opinions - and even better actions taken by Arbitrators when faced with disputes which have already been adjudicated.