England - Part I - The Review of International Arbitral Awards
Lord Jonathan Mance, House of Lords, United Kingdom.
Three particular topics have been identified for discussion under this heading: review of an arbitral tribunal’s jurisdiction, review of the arbitral process and review based on public policy. The heading assumes that there has been an award. But it is right to note that under English law there is scope for review of jurisdiction at a much earlier stage, as soon as an arbitration has been purportedly commenced.
An English lawyer would recognise all three types of review. But he would immediately think of a fourth: review as to the merits of an award – review au fond. This in modern English law is sometimes (though rarely) permissible by way of appeal to the Court. English law has in the past taken a rather different attitude about appeal on the merits to other systems. The difference has very largely evaporated with first the Arbitration Act 1979 and now the Arbitration Act 1996. But the continuing (though greatly restricted) existence of this fourth kind of review remains part of the overall picture. When English courts discuss the limits of review of jurisdiction and of the arbitral process and of review based on public policy, they frequently couple the discussion with a reference to the continuing existence of a limited right of appeal on the merits. If review of jurisdiction and process and review based on public policy were to be broadly interpreted, this could undermine the deliberately introduced restriction of merits review.