As is well known, the development of the law in England and Wales was effected not only through cases where the claims were brought in the courts, but through claims that were brought in arbitrations. In 1979 (by statute) and 1981 (by Lords Denning and Diplock through an interpretation of that statute), the relationship between the courts and arbitration was changed on the perceived basis that it was damaging the attractiveness of London as a centre for dispute resolution through arbitration.
The change has been hailed as a “pragmatic compromise”, but the clear consequence that can be seen today is that far fewer developments of the law are made in areas where the probability is that the case has had to begin in arbitration. As arbitration clauses are widespread in some sectors of economic activity, there has been a serious impediment to the development of the common law by the courts in the UK, particularly though the Commercial Courts in London (a term I also use in this lecture to encompass the TCC and specialist courts of the Chancery Division – all housed together today in the Rolls Building) and on appeal from them.
Speech by the Lord Chief Justice: The Bailii Lecture 2016
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