Scrutiny : third progress report : seventh report of session 2004-05 : report, together with formal minutes and appendices / House of Lords, House of Commons, Joint Committee on Human Rights.
- Great Britain. Parliament. Joint Committee on Human Rights
- Date:
- 2005
Licence: Open Government Licence
Credit: Scrutiny : third progress report : seventh report of session 2004-05 : report, together with formal minutes and appendices / House of Lords, House of Commons, Joint Committee on Human Rights. Source: Wellcome Collection.
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![v Commonwealth Secretariat,’ where it was held that Part I of the Arbitration Act 1996 was applicable to the Commonwealth Secretariat Arbitral Tribunal (CSAT), the Bill intends to clarify that there is no recourse to the courts under the Arbitration Act, from decisions of CSAT. 1.8 Currently, the Commonwealth Secretariat Act 1966 allows an exception to the Commonwealth Secretariat’s immunity from suit in respect of arbitration proceedings. Therefore, under Part I of the Arbitration Act, there is some judicial supervision of arbitration proceedings, including the power to enforce an award, power to challenge the jurisdiction of the arbitral tribunal, power to challenge a serious irregularity in the arbitral proceedings, and power to appeal to the courts on a point of law (unless otherwise agreed by the parties to the arbitration).'' The nature of the courts’ jurisdiction under Part 1 of the Arbitration Act is therefore limited, and provides minimum protections against procedural unfairness. 1.9 The Government does not suggest that the exclusion of CSAT proceedings from judicial supervision under Part I of the Arbitration Act 1996 is required by the current terms of the Agreed Memorandum. However, it points out that “both the Commonwealth Secretariat and a number of Commonwealth Governments have raised concerns about the level of immunity from the jurisdiction of the UK courts conferred on the Commonwealth Secretariat” and states that therefore “amendments to Annex A of the Revised Agreed Memorandum to reflect the extended immunity are expected to be acceptable to the Commonwealth Governments and will be formally agreed once the Bill receives Royal Assent’.'* In our view, the extension of the Commonwealth Secretariat’s immunity under clause 1 of the Bill, beyond that required by existing international obligations, to exclude the limited judicial oversight currently available under Part I of the Arbitration Act 1996, may risk disproportionate interference with the Article 6 right of access to court. 1.10 We also asked the FCO for further information on the alternative recourse available to employees of the Commonwealth Secretariat, and other international organisations affected by the Bill. We note that concerns have been expressed in debates on the Bill as to the independence of CSAT from the Commonwealth Secretariat, in particular as regards appointment and remuneration. In its letter to us, the FCO characterised CSAT as “an internal dispute resolution mechanism” but stated that “changes were made to the Statute of the CSAT in 2002 to ensure that it is an independent and impartial mechanism for settlement of disputes.” 1.11 We emphasise that, for an immunity from suit to be Article 6 compliant, alternative mechanisms must be in place to provide recourse to a tribunal which is fully independent, both institutionally and in practice, of the international organisation involved in the dispute. An internal dispute resolution mechanism is unlikely to satisfy this requirement. Where recourse to an independent tribunal is not provided, the very essence of the right of 10 [2002] EHC 377 (Comm) 11 Sections 66-69, Arbitration Act 1996 12 Appendix 1 13 HL Deb, 11 January 2005, Cols. GC5-GC10](https://iiif.wellcomecollection.org/image/b32221873_0011.jp2/full/800%2C/0/default.jpg)
