The attraction of arbitration as a means of settling disputes is the speedy resolution that can be obtained through the informality of the proceedings and the specialised knowledge of the arbitrator. There is no need to endure the law’s delays, nor to explain at length the practice and custom of the trade to a Judge who might have little grasp of the commercial realities (though this last would hardly apply to our Commercial Court). The provision therefore of a right of appeal from the arbitrator to the court is to that extent a negation of the primary purpose, indeed the raison d’etre, of arbitration. As Russell on Arbitration (19th edn.) has it, there is a neverending war between two irreconcilable principles, the high principle which demands justice though the heavens fall, and the low principle which demands that there shall be an end to litigation.

However, in practice there has to be some form of judicial supervision, for cases at least where the arbitrator appears to have gone clearly wrong. There is then a justification for involving the normal judicial process. Unlike most Continental jurisdictions English law has always provided for judicial review upon certain grounds or, more accurately, by certain procedures (for our jurisprudence has always made the existence of a right depend on the availability of a process; it has not created a procedure to defend a right; so we might well claim “ubi remedium, ibi ius”, instead of the reverse). A particular advantage in having judicial review of arbitral decisions is—and this is often overlooked by those foreigners who admire our arbitrators and want to avail themselves of the English arbitral forum, but at the same time recoil in horror from the unexpected lack of finality at the arbitral level— that a competent appellate tier (which we have) will give the law a certainty and uniformity, by its guidance to the arbitrators, that will be lacking in the jurisdictions that permit each arbitrator to decide a case on the ad hoc, not to say the palm tree justice, principle. The latter situation breeds uncertainty and injustice, and has led to foreign arbitral work being transferred to this country. However, the other side of the coin is that if the right of appeal is too readily available, and particularly if it can be used as a delaying tactic, the point of arbitration will be lost, and, as was happening in relation to English arbitration in the period before the Act of 1979, parties may lose confidence in the forum.

Even apart from the general drawbacks of a too easily available right of appeal, we could hardly claim that before the Act of 1979 we had a satisfactory procedure