Lloyd's Maritime and Commercial Law Quarterly
BOOK REVIEW - THE LAW AND PRACTICE OF COMMERCIAL ARBITRATION IN ENGLAND
THE LAW AND PRACTICE OF COMMERCIAL ARBITRATION IN ENGLAND (2nd Edition) by Sir Michael J. Mustill, Lord Justice of Appeal, and Stewart C. Boyd, Q.C. Butterworths, London (1989, Ixxvii and 649 pp., plus 160 pp. Appendices and 23 pp. Index). Hardback £90.
The second edition of this textbook on Commercial Arbitration is certainly most welcome and perhaps somewhat overdue. The more cynical minded might have thought that one of the authors was waiting (optimistically) for a change in the law on abandonment arising out of The Antclizo [1988] 1 W.L.R. 603 in the House of Lords before going to press. As it happens, the second edition did not wait for the House of Lords in The Antclizo, but does deal comprehensively with the law as at 1 January 1989. There have been important decisions on almost every aspect of the statutory and common law framework of commercial arbitration since 1982, the date of the last edition. This means that there is simply no option for the practitioner in this field but to buy the second edition. It is very rare for a textbook to become accepted so quickly as a, or the, “standard” work but Mustill & Boyd has achieved this distinction. It has been cited in a considerable number of decisions since publication. Often passages are discussed in detail in cases raising new or difficult points: see The Eastern Saga
[1984] 2 Lloyd’s Rep. 373, and Universal Petroleum Co. Ltd. v. Handels und Transport GmbH [1987] 1 W.L.R. 1178.
The layout of the new edition has not changed vastly. The book deals with the subject in a chronological fashion, starting with the agreement to arbitrate, then dealing with the arbitration reference itself, the arbitrators’ rights and duties, the award, its enforcement, and then court remedies during the reference and finally appeals. As indicated above, whole chapters have, however, had to have been rewritten or substantially re-edited in the light of a large new body of case law. The authors also deal with s. 26 of the Civil Jurisdiction and Judgments Act 1982, in force since November 1984. The book is undoubtedly a must for any serious commercial law library. I would not want to advise on any procedural point arising in an arbitration context, without first consulting it.
I do have one or two comments, however, which might be considered for future editions. First, some of the non-commercial arbitration cases do raise points of general application and these are not always given the prominence they deserve: e.g., the Court of Appeal’s decision in Chilton v. Saga Holidays Plc [1986] 1 All E.R. 841 (dealing with the right to test evidence by cross-examination even where the claimant appears in person without legal representation). Secondly, some thought might be given to a chapter summarizing some of the powers which parties might consider conferring by way of contract on an arbitrator (e.g., security for costs, and consolidation of back to back arbitration in string sales). A summary as indicated above might enable practitioners to anticipate problems at the drafting stage. Finally, it is becoming increasingly popular for practitioners’ textbooks to offer key precedents in the appendices. This may not be appropriate, but consideration might be given, at least, to adding the relevant Practice Directions texts at the back of the book.
David Joseph
Barrister.
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