21 March 2016Print This Post
LCJ: litigation preferable to arbitration in commercial cases
Lord Thomas: reconsider restrictions on judiciali appeal of arbitration
Lord Thomas: laws on arbitration “wrong turning”
The growth of arbitration as a means of resolving commercial disputes has retarded the development of the common law and the balance between the two should be re-examined, according to the Lord Chief Justice.
In the Bailii Lecture, given earlier this month in London, Lord Thomas argued that legislation in 1979, reinforced in 1996, to alter the relationship between the court and arbitration, “went too far… in favouring the perceived advantages for arbitration as a means of dispute resolution in London over the development of the common law”.
The LCJ has a worthy point. How can the common law develop, particularly in this digital, modern age, without cases to decide? However, the obvious response from parties and practitioners is that they have been priced out of the Courts, both by Court fees but also unacceptable delays due to the lack of resources in the civil court system. Additionally, there is the ever increasing costs threat of failing to mediate / arbitrate. The availability of high quality mediators and arbitrators, including many former judges, inevitably means that parties can attempt to settle their differences more quickly, more cheaply and on their own terms. The use of the court, regrettably, is often a very poor second choice.