Arbitration Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Second reading committee
Tuesday 19th December 2023 Grand Committee

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, the noble and learned Lord, Lord Bellamy, introduced the Bill by saying “Everyone in the Room knows more about this than me”. There is an exception—I suspect that I know less about it than any other noble Lord here.

I am the only speaker in this debate who is not a lawyer. However, I have employed a lot of lawyers in my time and my business experience in employing them was in trying to avoid litigation or arbitration. I was very much of the view that it was not a route that would be beneficial to the businesses which I was involved with, but it was very welcome that that resource was there. Litigating or arbitration within England and Wales was trusted by all international parties with which I was dealing. There was never any question about the jurisdiction in which any future disputes would be agreed and it was always an easy thing to agree with international colleagues.

My noble friend Lord Hacking gave us a tour de force on the historical context. He took us all the way back to 1698 and talked about his early days in this House. I have been around here quite a long time too and remember very well Maurice Peston, Peter Fraser and a number of the other noble Lords to whom he referred when the 1996 Bill was being considered, although I do not go back as far as 1979.

The noble and learned Lord, Lord Etherton, opened by congratulating the Government on the Bill, as I think everyone did. However, it is fair to say that all noble Lords, while congratulating the Government, raised particular issues. The noble and learned Lord referred to anti-discrimination procedures, the Equality Act and the appointment of arbitrators. I will be interested to hear what the Minister has to say on that.

The noble Lord, Lord Verdirame, spoke in a wider context, if I can put it like that, about how English and Welsh arbitration fits within an international framework. I have been on the edges of those types of procedure and they have been wholly unsatisfactory, from my point of view. There is an international frame- work for dealing with matters when they cross boundaries and, when there are disputes about jurisdiction, it can be an extremely lengthy and expensive procedure in which to be involved. When there are these jurisdiction issues, I would be interested to know whether the Bill may, for example, go some way to resolving them, because I understand that they can be difficult.

The noble and learned Lord, Lord Hope, asked a particular question about the Scottish position on arbitration. Again, I will listen to the Minister’s response on that.

The noble Lord, Lord Faulks, raised Nigeria v P&ID Ltd. This case was referred to in the Explanatory Notes and I had a look at that judgment. It seemed that the concern raised within it by Mr Justice Knowles was whether going through the arbitration process itself can be used as a way of money laundering. That is a concern. The noble Lord asked a number of questions of the Minister on whether, in that set of circumstances with those particular concerns raised, the Bill will go any way to addressing those concerns or whether it is such a particular set of circumstances that it is not appropriate for this Bill. I thought that was an interesting question.

The noble and learned Lord, Lord Thomas, essentially raised the same point about making sure, to quote his words, that London arbitration is seen as fair, honest and clean. If it is anything less than that, it will undermine its competitiveness and its standing in the world.

We then had the two speakers in the gap, the noble and learned Lords, Lord Hoffmann and Lord Mance. They both spoke with huge amounts of expertise and raised their own particular technical points, which I am sure the Minister will answer fully. The noble Lord, Lord Beith, concluded that he agreed that this is an important and well-prepared Bill—a model, to use his word, of how Bills should be handled in this House.

The Labour Party obviously supports this Bill. The only point I have for the Minister is that none of the measures introduced in the Bill can be easily measured. Will there be any sort of assessment, in a year or two’s time, of whether the changes introduced are working satisfactorily and whether this may need to be returned to in the next few years? Whether the changes are actually having any impact would not seem to be easily measured but, other than that, we support the Bill.

Arbitration Bill [HL]

Lord Ponsonby of Shulbrede Excerpts

Lords Special Public Bill Committee
Wednesday 27th March 2024 Other Business

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I want to add to what the noble and learned Lord, Lord Thomas, has just said, and I add my thanks to everyone that he thanked. I express the deep gratitude of the Members of the Committee that he so ably led for his chairmanship throughout, his inspired leadership, his understanding of difficult issues and, perhaps even more important, his ability to explain difficult issues that challenged the experts—that is, witnesses, those who were listening to the Committee and those Members of the Committee who are not lawyers. We are all grateful to the noble and learned Lord. We are also grateful to the clerk, who kept us well-informed throughout, to the Law Commission for its work and to Professor Green in particular.

I shall say a word or two about the witnesses. We heard from many witnesses and read the written evidence of many more. The degree to which, although there were disagreements, they were conducted and expressed carefully and with regard to the opinions of others was notable. In particular, I and others were grateful to the witnesses who gave evidence orally —I too prefer “witnesses” as a word to “stakeholders” in this context, and “experts” also—for their engagement with our questioning and, in the case of the amendments today, for effectively achieving unanimity on the need for the amendments that were discussed.

I shall say a word or two about Amendment 1. It was, and I think is, common ground that Enka and Chubb left the law on the choice of arbitration law in an unsatisfactory and unclear state. The Bill as originally proposed included the words “of itself”. To put this on the record, without the amendment new Section 6A(2) would have read: “For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part does not, of itself, constitute express agreement that that law also applies to the arbitration agreement”. For the lawyers among us, that raised a red flag, or rather rang a bell signalling danger. The words “of itself” suggested that if there were more then there might be such an express agreement, because of the agreement between the parties that a particular law applied to the agreement. In our view, the deletion of the words “of itself” subtracts nothing and adds clarity. For that reason, we support that deletion and this amendment entirely.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I too thank the noble and learned Lord, Lord Thomas. I have indeed had an amusing and interesting excursion into the world of arbitration. I sit on this Committee as a layman and it has been interesting to hear through various submissions the expert views of so many of the witnesses. I thank Mr Topping for his support to me and other members of the Labour Party who have taken part in this short Bill.

To round up on the Bill, the single most important message that I got through the whole process was the need for the arbitration process to be up to date and effective and to maintain its competitive advantage in the international arena. I know from my previous business experience that it is a competitive world and that other jurisdictions are developing fast. I understand the necessity for this Bill and am glad that the House has dealt with it expeditiously. I hope and expect that this will be to the benefit of the arbitration process. Having said that, I thank our Chairman and the Minister for the way in which this Bill has been handled within the House.