A way must be found to put into the public domain the decisions of leading ex-judges who are now sitting as arbitrators, the Lord Chief Justice said yesterday.
Lord Thomas’s speech at the launch of TheCityUK’s 2016 legal services report coincided with the announcement that the now retired Master of the Rolls, Lord Dyson, was returning to 39 Essex Chambers, where he would act as an arbitrator.
The speech also followed one Lord Thomas made earlier this year, in which he suggested that the growth of arbitration as a means of resolving commercial disputes has retarded the development of the common law.
This was because there had been a big drop in the number of appeals from arbitral awards coming before the courts after a narrow test for the grant of permission to appeal was introduced in the 1996 Arbitration Act.
In his speech yesterday, which considered how best to meet the twin challenges of keeping the law up-to-date and “keeping our system the best in the world”, Lord Thomas said one of the issues was collaboration between arbitral organisations and the judiciary to aid the ongoing development of English law.
He said: “I spoke earlier this year, in a speech that caused not a little controversy, about the problem of developing law without enough court decisions. Many thought that I had made an attack on arbitration. It certainly was not, but it was trying to explore in an open way how do you make certain that, where we have got excellent retired judges who sit as arbitrators, decisions get into the public domain.
“Do you do it by the route, which I personally would favour, of loosening the restrictions on appeal in the Arbitration Act or do you find some other method? But it is very, very undesirable that we are entering into a stage where great legal minds have retired from the bench, are giving awards and setting out principles which are known only to the cognoscenti. This is not good. So I think there is a very fruitful avenue here in exploring this.”
Commending work to promote the contribution of English law both domestically and internationally, Lord Thomas also said the City should explain “why everything we do is relevant to our broader society”.
He explained: “I do think… there is a tremendous task in showing that, actually, the work we do through the providing of legal services does not just benefit the City, but the UK as a whole.
“If you take the opening of offices to do legal work in other parts of the UK (Belfast is a prime example), that is bringing highly paid jobs to other parts of the country and addressing, in part, what some perceive to be the different levels of remuneration and reward in society.
“I know the City has been very keen on doing this in relation to the problems in London, but I do think that trying to see that the legal work that comes through the City provides benefits throughout the rest of the UK – like in Belfast – is tremendously important.”