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to make such an order; but the exercise of that power was discretionary. It

was argued that in exercising its discretion the court should refuse to

make the order sought, because the issue would be much better dealt with

in the arbitration itself. The House of Lords decided that the power to

order costs should be exercised by the court. But Lord Mustill, in a

dissenting judgment with which Lord Browne-Wilkinson agreed, said

that in his judgment an order for security for costs did not conform with

the type of procedure that the parties had chosen. Accordingly the

application should be refused, “notwithstanding that on a narrower view

it appears to answer the justice of the case”.13 It is perhaps significant that

only a year later, when the English Arbitration Act 1996 was enacted, the

power to order security for costs in an arbitration was taken away from

the English Court and vested in the arbitrators themselves.14

Finally, there are dissenting judgments which provoke a wry

smile, as the dissenting judge self evidently lets off steam. In an article in

the Columbia Law Review15, Judge Fuld referred to a judge in the

Appellate Court who said:

“In essence, what these four judges have done

here is to blindly announce a….rule which not

13 14 15

Ibid at p.65. English Arbitration Act, 1996, sections 38 and 44. Fuld, “The Voices of Dissent”, Columbia Law Review, Vol. 62, No.6 at p.923.

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