Arbitration just got easier

The Court of Appeal today got rid of a decision that has bugged arbitration lawyers for some 18 years.

An XL insurance policy contained an arbitration clause as follows: “Unless the parties otherwise agree the arbitration tribunal shall consist of persons with not less than ten years’ experience of insurance or reinsurance.” Question: was a senior insurance silk with rather more than ten years’ experience in insurance (since you ask, in this case it was the redoubtable Alastair Schaff QC) eligible?

The answer was No,  according to Morison J’s unreported 2000 decision in Company X v Company Y (17 July 2000): experience of insurance was (his Lordship had said) not the same thing as experience in insurance law. Nonsense, said the Court of Appeal in Allianz Insurance Plc & Anor v Tonicstar Ltd [2018] EWCA Civ 434. Experience in insurance was perfectly wide enough a phrase to encompass experience gained by prectising insurance law. True, in some cases there might be a clear divide between an area of life and the law relating to it (sport and sports law, for example): but not so with insurance. Nor was the Court worried that the earlier decision had stood for 18 years: error ought to be corrected, and little if any injustice would be caused if it was.

So there you have it. Arbitration books will be that bit shorter in future — and, in the view of us at Maricom, a good thing too.

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