Roderick O'Driscoll's letter has its roots in my article, "Arbitration: Future in the Past 'Sense", as published in issue no.38.

As always, Roderick gives good practical advice about dealing generally with issues of law and fact and it would be unwise in the company of inexperienced people to divert readers away from the advice by addressing fundamental concepts. However, this is the Chartered Institute of Arbitrators and it is our duty to look closely at the foundation stones supporting any advice.

Roderick expresses the view that one of the fundamental factors of my article "is not strictly correct because [section 34] of the [Arbitration] Act 1996 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 [sub-section 34(g)] whether and to what extent the Tribunal should itself take the initiative in ascertaining the facts and the law."

Because Roderick is a solicitor we must be especially attentive when he challenges an observation and when his challenge draws support from a section of a statue, which has not - as yet* - been undermined by judicial comment.

What does section 34 of the Arbitration Act tell us? In the first place we know, by section 4 and Schedule 1, that it is a non-mandatory section and, therefore, if the parties so choose they can delete it in its entirety. And, of course, they can amend all or any of the sub-sections. Indeed, as Roderick points out in the paragraph which I quoted above, the actual wording of section 34 itself emphasises the point that the entire section is "subject to the right of the parties to agree otherwise."

So what was it that I wrote which caused Roderick to say, "This [comment by Francis] is not strictly correct."? My comment, as accurately quoted by him was this: "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." Thus, I am at a loss to know why Roderick reaches his conclusion.

* Note the saga of judicial comment undermining section 12(1) of the Arbitration Act 1950.