Family Law Hub

Arbitration

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  • The parties were aged 63. They had married in 1979, and separated in 2018. Four applications were made concerning an arbitrator's award made in 2020. The wife applied for the husband to show cause as to why he should not be held to the terms of the award. The husband challenged the award pursuant to s 68 of the Arbitration Act 1996, applied for leave to appeal on a point of law under s 69, and had invited the Family Court to decline to make an order in the terms of the award. The husband's challenges to the award failed on the basis that the award was not wrong; there was no relevant uncertainty, ambiguity, irregularity, or failure to deal with the issues. The disordered procedural steps in this case, together with his knowledge of similar procedural chaos in other cases, led Mostyn J to formulate guidance about the correct procedure to be adopted where one party wished to challenge an arbitral award, or where a party wished to implement an arbitral award in the face of opposition from the other party. The guidance, including a proposed standard order, was set out in the Appendix to the judgment and was issued with the authority and approval of the President of the Family Division. Judgment, 31/07/2021, free
  • The husband's appeal to the High Court to set the arbitral award aside had failed, and an order had been made in the terms of the arbitral award. This appeal was limited to the question of the test to be applied where one party declined to consent to or challenged the making of an order under the Matrimonial Causes Act 1973 in the terms of an IFLA Scheme arbitral award. Was (i) the test limited to those matters in the Arbitration Act 1996, save where there had been a supervening event or mistake; or (ii) should the appeals test under the Matrimonial Causes Act 1973 be applied? King LJ found that the judge in this case had applied the wrong test, and applying the appeals test she was satisfied that the husband had a real prospect of succeeding in an appeal against the award made. When presented with a refusal on the part of one party to agree to the conversion of an arbitral award into a consent order, the logical approach would be for the court to "triage" the case, with the reluctant party having to "show cause" why such order should not be made. Moylan LJ and Popplewell LJ agreed. The matter would now be remitted to a circuit judge, and a case management hearing would take place to determine the form and extent of the hearing required to determine these proceedings. Judgment, 23/10/2020, free
  • A challenge to an arbitration award regarding financial arrangements after a divorce. The parties were married from 2005 to 2018. The former husband sought for the arbitration award to be set aside under section 68 or section 69 of the Arbitration Act 1996, and for the court to exercise its discretion under section 25 of the Matrimonial Causes Act 1973 not to approve a consent order in the terms of the award. Ms Clare Ambrose, sitting as a deputy High Court judge, found that the various criticisms of the arbitrator were unfounded and the points raised were inappropriate attempts to re-open the facts. She declined permission to appeal under section 69, and the application under section 68 also failed. She was satisfied that the award was not wrong. It reflected a fair allocation of assets and was firmly within the range of right outcomes. She approved the order attached to the award. Judgment, 08/06/2020, free
  • An arbitration had taken place to resolve pension division, spousal maintenance, and the division of assets pertaining to shares and a redundancy. The husband felt that there had been a miscalculation of the wife's income, affecting the amount of spousal maintenance due. Ms Clare Ambrose, sitting as a Deputy High Court Judge, dismissed the application. The arbitrator's conduct fell far short of making this a case which required court intervention. Judgment, 22/07/2019, free
  • Wife's application that the final arbitral award of Mr Gavin Smith should not be made an order of the court. The application was dismissed. Judgment, 29/01/2019, free

Latest know-how

Latest training

  • Nigel Shepherd and Charles Hale QC bring you up to date with the evolving best practice in family arbitration including the use of arbitration in children cases, an option available since July 2016. Webcast, 25/01/2017, members only
  • David Walden-Smith from 29 Bedford Row and Nigel Shepherd from Mills & Reeve discuss the implications of the recent judgment of the President, S v S, on arbitration as an alternative to court. Webcast, 21/02/2014, registration required
  • Listen to this recorded webcast on Arbitration presented by David Walden-Smith of 29 Bedford Row Webcast, 05/07/2013, members only
  • Listen to the recording of our live webinar broadcast on 13 February 2013. Webcast, 15/02/2013, registration required

Latest sources

  • Application for arbitration in children cases Form, 19/07/2016, free
  • A link to the Scheme Rules with annotations provided by familyarbitrator.com. A downloadable version in Word is available on the site. Tool (external), 15/05/2012, free

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