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Judicial Supervision and Support for Arbitration

Please click here for an extract from a paper given by Karen Gough of 39 Essex Street, a Past President of the Chartered Institute of Arbitrators, which is reproduced with her kind permission. It describes how the court has applied Arbitration Act 1996 provisions in both supervising and supporting civil and commercial arbitrations. Click to Download.

Family arbitration through the IFLA scheme has been considered by the senior judiciary in a number of cases:

  • In S v S [2014] EWHC 7 (Fam) the then President of the Family Division, Sir James Munby, dealt with the approval of a final consent order to implement the terms of an arbitrator’s award. In the course of doing so he gave approval to the process of arbitration as an alternative to the court determining claims for financial remedies on divorce. He gave general guidance as to how an order flowing from an arbitrator’s award should be put before the court, and the limited role the court would need to play in approving such an award.

  • Sir James Munby followed up his decision in S v S with Arbitration Practice Guidance in November 2015.

  • In DB v DLG [2016] EWHC 324 (Fam) Mr Justice Mostyn was faced with a party to an arbitration who was dissatisfied with the result and sought to persuade the court to make an award which was different to the arbitrator’s award. The court stated that there were limited grounds on which an arbitrator’s award could be challenged. Those grounds would be the limited grounds of challenge which existed under the Arbitration Act 1996 and also in those rare cases where there was fraud, mistake or a supervening event which undermined the basis of the order. The judge also gave guidance as to the procedure to be followed when a party to an arbitration refused to agree to an order being made in the terms of the arbitrator’s award.

  • Following the introduction of children arbitration within the IFLA scheme the President of the Family Division issued Guidance as to the interface between arbitration and the role of the court.

  • In 2018 the President of the Family Division issued new standard forms of order to be used in the context of court orders in support of a family arbitration (the precedents can be found here).

  • In BC v BG [2019] EWFC 7 Ms Clare Ambrose sitting as a Deputy High Court judge gave guidance as to the relationship between family arbitration and the Arbitration Act 1996, noting that the 1996 Act gave an arbitration award a binding effect and limited the role of the court in the event of a party seeking to challenge the outcome of the arbitration. The guidance provided in this case suggests that the provisions of the Arbitration Act 1996 should be the preferred approach to giving effect to an arbitration award, rather than the notice to show cause procedure suggested in DB v DLG.

  • Ms Clare Ambrose gave further guidance as to the scope for an arbitrator to amend an award pursuant to s57 of the Arbitration Act 1996 in H v W [2019] EWHC 1897.

  • In CM v CM [2019] EWFC 16 Mr Justice Moor encouraged parties to use family arbitration as the means to resolve a dispute as to the wording of a letter of instruction to an expert in financial remedy proceedings which were ongoing in the Family Court so that the matter could be resolved more quickly and cheaply than it would be by a High Court judge.