‘The King[’s] Courts as the fountain of justice’ and the supremacy of ordinary law: implications for English arbitration

Abstract English arbitration law is predicated on a uniquely close relation between the courts and arbitration with, historically, substantial interference and review by the former over the latter, although in recent decades statutory reform and ‘judicial legislation’ have curtailed this. Nevertheless, English arbitration law is almost unique among leading arbitration jurisdictions in permitting appeals on points of law, as well as emphasizing the importance of the law of the seat, and a consequent trenchant rejection of the possibility of delocalized arbitration. This article suggests that these idiosyncrasies flow from the twin English constitutional principles that ‘The King is the fountain of justice’ (although in practice this means the King’s Courts) and the supremacy of ordinary law and tribunals. These principles entail a concomitant individual right to petition the King’s Courts to remedy injustice and the subjection of everyone, no matter how rich or powerful, to the same law and courts. This, in turn, explains English reluctance to permit ousters of the Courts’ jurisdiction, which persists even under the current pro-arbitration regime as regards vulnerable parties, and a rejection of the idea of ‘freedom from law’ whether on the part of state authorities or private parties such as arbitral tribunals.