Arbitration Bill [HL]

Lord Mance Excerpts

Committee stage
Wednesday 11th September 2024 Lords Chamber

[Lord Sentamu (CB)]

My Lords, I associate myself with the wonderful words of the three noble and learned Lords and I share the concern of the noble Lord, Lord Hacking, but when I was reading theology, my then—wonderful—professor of theology said that the only way you know whether you have resolved a theological conundrum is to try to find some practical solution to your particular difficulty.

My greatest concern with the amendment is this. It talks about safeguarding the arbitration proceedings against fraud and corruption. Probably Queen Elizabeth I would have said to such a suggestion what she said to the troops at Tilbury:

“I have no desire to make windows into men’s souls”.


How do you safeguard proceedings against corruption? Corruption is in the hearts and minds of people. How do you do it? I cannot find a real, practical solution. Therefore, on those grounds, although the amendment is well intentioned, I think the burden it would put on the proceedings of arbitration is far too great, so please may we not have a desire to make windows in people’s hearts.

[Lord Mance (CB)]

My Lords, I declare an interest as an arbitrator, including in cases involving corruption in my practice hitherto. It seems to me that there are two types of corruption that we may be talking about. One is substantive corruption affecting the transaction which is the subject of an arbitration. That is regularly arbitrated and investigated, and tribunals do their best. With respect to the noble and right reverend Lord behind me who has just spoken, I am afraid that sometimes involves trying to see into men’s minds. Arbitrators do make findings of corruption. I will come back to what might be done with those findings slightly later.

We have been talking mainly about corruption in relation to the arbitration proceedings, which is the area to which the amendment of the noble Lord, Lord Hacking, is directed. We have heard of cases in which—one hopes, remarkably—it has been found in court that both sides were involved in some sort of collusion. I am thinking not of the case which has been expressly mentioned but of a case which I believe was decided in the Commercial Court by Mr Justice Butcher, where a non-existent arbitration award endorsed by a non-existent foreign court judgment was attempted to be enforced in the Commercial Court. That could happen only by some form of collusion between those appearing in front of the court, hoping that the persons to be affected by an English judgment would not get to know of it or involve themselves in time. As it happens, they did, and of course the non-existent award was not enforced. I believe the matter was referred to public authorities who might be interested.

I agree with my noble and learned friend Lord Hoffmann that such investigations into the propriety or ethical behaviour of those appearing in front of arbitrators as a matter of standard procedure would be difficult to contemplate, given the sort of exercise that would be involved. That said, I am sure that arbitrators, if they were on notice for any reason of possible complicity in some corrupt activity by those appearing in front of them, would be very concerned to try as best they could to get to the bottom of it. I suggest that the noble Lord’s proposed amendment would, if anything, be duplicative and unnecessary if read mildly, but if read widely, as involving the sort of initial admonition which he suggested, it would be problematic and would not carry matters very far, so I, too, do not support it.

I will make a general observation about corruption, which, as I have indicated, is regularly fought in the courts in a substantive respect. Of course, arbitrators have the problem that they are confined by the agreement to arbitrate, which usually relates to a specific transaction. However, if you are talking about a widespread scheme of corruption, perhaps involving fraud on a foreign state, the state may not be party to the arbitration, and it may be quite difficult to investigate all the other ancillary transactions that form part of the web of corruption. Corruption notoriously involves complexity designed to confuse and conceal. That problem is inherent in arbitration; it seems to me that it may be one of the disadvantages of arbitration. It is a problem that can, to some extent, be alleviated by court assistance. There is a valuable clarification of Section 44 of the Arbitration Act 1996 in this Bill, which will enable that assistance to be secure when third parties are involved.

It is difficult to foresee arbitrators being made into investigators. That would be a change of role for which they are not suited. The one possible area where I suggest that legal attention might be considered—but not in this Bill, for the reasons already given by noble Lords—is where corruption is found by an award. There might be something to be said in that context for an express provision permitting disclosure, to interested public authorities, of corruption that has actually been found. One would not have or contemplate a situation where arbitrators had to disclose allegations of corruption that they were concerned to decide. But once they decided that there was corruption, disclosure might then be contemplated. It seems to me that it is probably already permitted by common law, because there is no privilege in iniquity; on the other hand, I do not believe that arbitrators at the moment would, without express legislative backing, be likely to disclose even corruption that they had found in their award. That might be a possible area where an express legislative provision—so they could at least just disclose corruption —would be valuable.

[Lord Wolfson of Tredegar (Con)]

My Lords, I begin with an apology. I could not attend Second Reading because I was having my cataracts done. The happy consequence is that I can now see the Minister even more clearly on the Government Front Bench. I take this rather belated opportunity to welcome him to that place and to wish him well.

I declare two interests: first, as a barrister working in international commercial arbitration as both counsel and arbitrator. Secondly, in 2021, when I was in government, I invited the Law Commission to undertake this review of the Arbitration Act, to burnish what is generally regarded as a gold standard for an arbitration statute. It bears taking 30 seconds to put on record that the Law Commission is an underappreciated part of our legal landscape and does sterling work. Indeed, the Minister introduced earlier today the digital assets Bill, which also emanates from the Law Commission. The Government accepted all the Law Commission’s recommendations in this context.

I also pay tribute to my noble and learned friend Lord Bellamy, who, when he was a Minister, worked very hard on this issue and introduced a previous Bill before it fell, with others, at the general election. Nevertheless, this is a good Bill, and we should get it on to the statute book.

On the amendment before the Committee, the noble Lord, Lord Hacking, kindly referred to my role as counsel in the Nigeria v P&ID case. Of course, client confidentiality applies even now, but he was kind enough not to point out that I lost that case, and I am grateful to him for not making that clear. As to the other cases he mentioned, I appeared early on in the Mozambique litigation and acted in the Steinmetz proceedings before the ICSID tribunal in Paris. I also acted for BSG in the LCIA arbitration and the subsequent litigation in London. I won a number of those cases, fortunately.

Nobody wants corruption in arbitration—we all want to root it out—but we are not persuaded that the general duty either is necessary or would achieve its aims, for the reasons set out so clearly by the noble and learned Lord, Lord Hoffmann. It is not clear what arbitrators are meant to do; under Section 33 they already have a duty to resolve cases fairly, and if corruption disentitles a right to a remedy, the tribunal can say so.

As the noble and learned Lord, Lord Mance, pointed out, there are a number of issues here. Take a case where there is a London seat but the substantive contract is governed by Ruritanian law. Ruritanian law might regard as permissible that which English law regards as impermissible. Would this clause mean that the London-seated tribunal would have to decline to enforce or to give a remedy? The Act as presently drafted provides that public policy can trump an award in some cases. Section 103(3) deals with foreign awards, substantially reflecting Article V of the New York convention, and Section 68(2)(g) deals with appeals from London-seated arbitrations—that was a provision in the Nigerian case.

Arbitration Bill [HL]

Lord Mance Excerpts

Second reading committee
Tuesday 19th December 2023 Grand Committee

[Lord Mance (CB)]

My Lords, I shall make just a very brief intervention. First, I disclose that, since retiring from practice as an arbitrator in the Supreme Court, I have also taken part in the representations which were made to the Law Commission, and indeed met with it, and I was one of the judgment writers in a case called Dallah against the Government of Pakistan, which forms part of the background to the clause which amends Section 67.

I echo the congratulations to the Law Commission on its responsiveness and diligence in this matter. The fact that the most significant clause in practical terms emerged only part way through the consultation process shows the commission’s willingness to listen. The way it has dealt with this seems largely satisfactory. I hear what was said about the words “of itself”, which must be read against the background that, as my noble and learned friend Lord Hoffman said, express agreement otherwise is required. There may be a difference regarding Scottish law here, which says simply

“Unless the parties otherwise agree”.


It does not require them “expressly” otherwise to agree. However, that sort of nuance will probably not be decisive. I suspect that the courts will make good sense of Clause 2, even though it looks a bit awkward.

I will say a few words on the important question: what is the approach to review? This will depend in part on the nature of the rules that are permitted to be made under Clause 11. However, I heard the Minister say that the aim was that the challenge should not be de novo. That is an oversimplification; the position is quite nuanced. In new subsection (3C), provision is understandably made for circumstances whereby someone, having argued a jurisdictional point before a tribunal, then seeks to raise objections that they could have raised but did not previously, or seeks to allow evidence that they could have adduced but did not before the tribunal. Not surprisingly, that sort of conduct, without good excuse, potentially will be sanctioned, assuming rules giving effect to new subsections (3C)(a) and (b) are passed.

Otherwise, the scene is largely discretionary. New subsection (3B) simply indicates what type of provision may be made by rules where the tribunal has already ruled, and new subsection (3C)(c) prescribes that,

“evidence that was heard by the tribunal must not be re-heard by the court, unless the court considers it necessary in the interests of justice.”

Like my noble friend Lord Verdirame, I emphasise that it can be important to retain the ability for a court to review de novo the jurisdictional basis on which a tribunal acted, so long as it does not fall foul of one of the situations that I mentioned. It is wrong for a tribunal’s analysis of its own jurisdiction to be axiomatically final. That would be a classic case of bootstrapping and there is a considerable risk—which, I am sure, escapes no one —of conferring on to individuals the power to be arbiters of their own powers. It is healthy to have a review.

That is also internationally contemplated. Take the New York convention, which contemplates that the court of the seat will have an important role in reviewing, among other things, the jurisdictional basis of an arbitrator’s activity if the arbitrators have exceeded their jurisdiction in setting aside their award. The convention also contemplates that enforcement courts may have a parallel role, although their activity may be subject to considerations of issues of stop law and abuse of process if there has been a prior decision by the court of the seat or, indeed, by another enforcement court.

I join my noble friend Lord Verdirame in what he said on this area. Otherwise, I strongly commend the Bill.

Assisted Dying Bill [HL]

Lord Mance Excerpts

2nd reading
Friday 22nd October 2021 Lords Chamber

[Lord Mance (CB)]

My Lords, in my former judicial capacity in the Supreme Court in the case of Nicklinson, which the noble Baroness, Lady Bakewell, has mentioned, I was one of the clear seven-to-two majority who said that this was not a matter for judges but for Parliament to decide. In my current legislative capacity, I welcome the opportunity to join in this debate.

Suicide is decriminalised, yet assisting suicide remains criminal—probably a unique exception to the principle that you can only be an accomplice to an act that is itself criminal. If a person may choose freely to commit suicide, what justifies a refusal to allow them to obtain willing assistance? The question arises in the tragic context of imminent death where many will wish to determine the hour and manner of their death when, as we have heard, their palliative drugs may not always alleviate, and it needs answering with reference to the interests of society at large as well as all concerned.

Some may believe that the underpinning principle remains that suicide is still really a wrong, an offence against the sanctity of life even by the person committing it. Its decriminalisation is then a matter of simple pragmatism, a recognition of the incongruity of punishing people whose attempts at suicide fail. I think everyone agrees that the sanctity of life is certainly an important principle, but everyone also agrees that individual autonomy and dignity in life and in dying are two other important principles, and they can tug in different directions. A balance has to be struck.

There are many examples, some already touched on by the noble Lord, Lord Purvis of Tweed: the right of a patient to refuse or insist on the withdrawal of medical treatment, and the power of doctors, with the imprimatur of the court, to withhold further life support or sustenance and medical treatment in a case where the patient is in a state meaning that they can no longer choose for themselves, as in the famous case of Bland and the case of the conjoined twins, which I am sure noble Lords know. One important distinction drawn in those cases is between the voluntary decision of an informed adult of sound mind to do an act, including one that will or may lead to death, and the means that another person may have provided to enable that informed decision. Again, a decision in the judicial House of Lords to which I was a party, Kennedy in 2008, identifies that distinction with clarity: the second person providing the means cannot be regarded as causing the voluntary act or death of the former person.

The present Bill is very careful to recognise and give effect to that basic distinction. All that it permits is the provision of assistance to a person wishing voluntarily to commit suicide, wishing freely to choose to do that—see Section 4. Amending the Bill to refer to “euthanasia” rather than “assisted suicide” would therefore be an exercise in deliberate linguistic distortion. The Bill should not be killed by misdescription.

In summary, the Bill requires us to weigh a balance of factors: the clearly established and pressing considerations of autonomy and dignity in life and death for a narrowly defined group of persons who wish to exercise free will, and on the other hand the risks generally stated to others, particularly vulnerable members of society, who it is feared may be or feel pressured to commit suicide. In that connection, it is of fundamental importance that the Bill contains careful provisions for comprehensive medical and judicial involvement. I do not share the scepticism of the noble Lords, Lord Gold and Lord Hastings of Scarisbrick—although this is not my field—about judicial involvement. Lord Wilson in Nicklinson had no concern and indeed recommended some of the precautions that the noble Baroness, Lady Meacher, has taken on board.

Subject to listening to the rest of the debate, my present view is therefore that Parliament should accept the present carefully limited and balanced Bill. It is certainly not committing itself to striking the same balance in some other context or tailcoating on the position in Canada.