In Singapore arbitrations generally, but particularly in the maritime field, English law frequently governs the merits, usually because of an express choice of law in the applicable contract. This talk will consider the nature of an arbitrator’s obligation to decide cases in accordance with the law and its relationship to the formal doctrine of precedent in the English courts, where English law indeed governs the merits, examining the matter both from a theoretical perspective and also with an eye on the practical issues that arise.
There are difficulties with the view that arbitrators are subject to the doctrine of stare decisis under English law, so as to be bound to follow prior judicial decisions; but to claim that they are not is also difficult without a “declaratory theory” of English common law. The talk will consider the arguments and will also consider whether the (English) Arbitration Act 1996 supports any particular solution as being correct and whether (if the seat of arbitration is Singapore) the (SIngapore) International Arbitration Act 1994 offers any assistance.
In considering the arguments, the practical realities will be identified, with a particular focus on how an arbitrator might react to a prior judicial decision they consider to be ‘bad law’. Should he follow it, and so issue an Award he believes gives the wrong answer to the case before him? Or should he not follow it, explaining in his reasons why he considers it bad law, and so issue an Award he believes to be correct?