Originially from: World Arbitration and Mediation Review (WAMR)

COMPARISONS OF ARBITRATION PRACTICE
IN ENGLAND AND THE UNITED STATES
By David Farrington, Lovell White Durrant, London and New York; Solicitor of
the Supreme Court of England & Wales, Solicitor of the Supreme Court of Hong
Kong, licensed legal consultant, New York. This paper was first presented on
August 5, 1990, at a session sponsored by the American Bar Association’s
International Law & Practice Section, International Commercial Arbitration
Committee, during the ABA’s annual meeting in Chicago.
1. This paper does not purport to be an exhaustive comparison of the many
differences between English and U.S. commercial arbitration. Instead, it
highlights those important differences which the author has recognised during his
many years of arbitrating in both England and, more recently, the United States of
America. Arbitration in England and Wales is not the same as arbitration
elsewhere in the United Kingdom—Scotland and Northern Ireland have their own
laws and judicial system.
2. In many ways, a direct comparison between the U.S. and England is not
possible nor helpful. Other considerations apart, such differences as exist may
depend upon the particular industry or trade in which arbitration is being
conducted. Thus, for example, the procedures of English maritime arbitration in
London may well be different from those of the Society of Maritime Arbitrators
in New York, whereas the rules and procedures of the American Arbitration
Association and London Court of International Arbitration are not dissimilar.
This paper will cover seven differences, of which four are substantive and three
procedural. The four substantive differences are: (a) court intervention
(paragraphs 4-8); (b) consolidation (paragraphs 9-11); (c) legal costs (paragraphs
12-14); and (d) punitive damages (paragraphs 15-17).
3. Until the legislation which is at present pending before the British Parliament
is passed, arbitration in England will continue to be subject to the Arbitration Acts
of 1950, 1975, and 1979. These statutes, like the Federal Arbitration Act (9
U.S.C. ss. 1-14) and the Uniform Arbitration Act, contain provisions relating to
such diverse matters as the appointment of arbitrators and their powers, and the
vacating of Awards. Under English law, however, an agreement to arbitrate does
not need to be in writing and is enforceable even if oral or unsigned. Compare,
however, Section 4 of the Federal Arbitration Act (“agreement in writing”) and
Section 2 of the Uniform Arbitration Act.
Judicial Intervention
4. The major distinction between the English and U.S. statutes is in relation to
the powers of the court to intervene both during the arbitral process and after an