Lloyd's Maritime and Commercial Law Quarterly
JUDICIAL INDEPENDENCE
The Rt Hon.
The Lord Saville of Newdigate*
There was a time, when I was in the Commercial Court, and when I was working on the Arbitration Bill, when I thought I knew a little about commercial law and commercial arbitration. The appellate courts, of course, often took a different view of my state of knowledge. Anyway those days, if indeed they ever really existed, have long gone by. I now seem to be concentrating exclusively on events in the 1970s, but these are themselves limited to what happened either in Northern Ireland on a certain day or (since the beginning of the year) in Chile over a rather longer period during that decade. So those who have come here hoping to hear from me of new and exciting developments in commercial law or in commercial arbitration are, I fear, going to be sadly disappointed. In a way I feel I am like the person who, attending a Welsh funeral, keeled over and died of a heart attack at the graveside, and was reported by the local paper as having cast a gloom over the whole proceedings.
Having said this, there is a topic which is in the news and which for a variety of reasons seems to me likely to be increasingly the subject of debate in the coming months and years; and that is the concept of judicial independence.
When we were working on the Arbitration Bill, we looked at the question of the independence of arbitrators, who of course, like judges, are empowered to give binding decisions on the rights and obligations of the parties’ disputes covered by an arbitration agreement. At first sight, it seemed obvious that we should follow the UNICTRAL Model Law on International Commercial Arbitration, which in Art. 12 specified justifiable doubts about the independence of an arbitrator (as well as justifiable doubts as to the impartiality of an arbitrator) as grounds for removal. If an arbitrator is not independent of one of the parties, then surely he will be acting or at least appearing to act in his own cause, thus offending a basic rule of justice, and for this reason should be removed?
In the end, however, we did not adopt this principle of the Model Law. What we did do was to specify (in the Arbitration Act 1996, s. 24) that an arbitrator could be removed if circumstances existed that gave rise to justifiable doubts as to his impartiality. That phrase, we believe, covers both doubts about whether the arbitrator was in fact impartial and doubts whether the arbitrator appeared to be impartial. We concluded that an additional requirement of independence was neither necessary nor desirable. It was in our view unnecessary since justifiable doubts as to impartiality seemed to us to cover all situations. Indeed, no one was able to explain what was meant to be covered by a lack of independence, which did not lead to justifiable doubts about impartiality. It seemed to us to be undesirable to add “independence” in these circumstances, because that could open
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