Report No. 176

2.36 Supersession of arbitration agreement - plea for provision rejected

It was proposed in the Consultation Paper that a provision like sec.19 of the 1940 Act to supercede the arbitration agreement may be included. There was also a provision in proviso to section 25 of the 1940 Act. The English Act, 1950 contained similar provision in sections 24(2) and 25(2)(b). The court could declare that the arbitration agreement was to have no effect.

This related to cases of fraud or where the arbitrators were removed by the court. Russel says (para 7.086) that this remedy was rarely used (Property Investments (Development) Ltd. vs. Byfield Building Services Ltd. (1985) 31 Build LR 47 and that the remedy is not available under the 1996 Act. The court may fill a vacancy but it is for the parties to agree to terminate the arbitration agreement (sec. 23 of the English Act).

It appears that the procedure for challenging of an arbitrator (sec.13) or his failure or impossibility to act (sec.14) and the power of termination and substitution (sec.15) are sufficient remedies. Therefore, there is no need to have a provision for supersession of the arbitral agreement.