Report No. 76

4.49. Voluntary character and the consideration of speed.-

It is sometimes stated that since an arbitrator is bound to apply the law, there should be some means of ensuring that he applied the law correctly. However, it is also to be remembered that parties resort to an arbitration voluntarily and select or agree to a particular arbitrator, because, inter alia

(i) they have faith in him, and

(ii) the proceedings will be more speedy and free from technicalities than in the courts.

The object of achieving speed and informality is likely to be largely frustrated if a statutory provision makes it compulsory to give reasons for the award. The general rule is that the parties cannot object to the decision given by their own judge, except in case of misconduct and the like.1 This general principle should not be departed from unless weighty reasons exist for such departure.

No doubt, it is desirable that the award should be correct in law. But the fundamental question is, how far should the finality of the award yield to the desirability of legal correctness, and what procedural requirements should be insisted upon to ensure that the award is sound in law? In this connection, reference may be made to the observations of Barwick, C.J. (of the High Court of Australia), made in 19722. He observed that "finality in arbitration in the award of the lay arbitrator is more significant than legal propriety in all his processes in reaching that award."

The importance which the law attaches to the finality of arbitration goes against the suggestion now put forth for giving reasons for an award. A requirement that the reasons for an award should be given would open too wide a door for challenging the award, even if the grounds for setting aside are, by statute, restricted in other respects.

1. Government of Kelantan v. Duff Development Co. Ltd., 1923 AC 395; Russell (1970), pp. 359, 360.

2. Tuta Products Pvt. Ltd. v. Hutcheson Bros. Pvt. Ltd., (1912) 127 CLR 253 (258): (1972) Australian Law Journal Reports 119 (Australia).

4.50. No change.-

For these reasons, we are not inclined to recommend a provision requiring the arbitrator to give reasons for the award.