An interesting case involving the extent to which arbitration awards by religious courts are enforceable at civil law has recently come before the Chancery Division of the High Court.
Sterling v Rand & Anor  EWHC 2560 (Ch) was an adjourned hearing of an application by an arbitration claim form for summary enforcement of an award arising out of a dispute between the parties relating to a property in Stoke Newington that was made by a tribunal consisting of three dayanim of the London Beth Din. The case raised issues as to the powers available under the Arbitration Act 1996 to a Beth Din to order specific performance of a contract relating to land. It also raised issues as to the proper exercise of the Court’s discretion to refuse to make an order enforcing a domestic arbitration award under s.66 of the 1996 Act [1-3].
The questions before the Court were:
- did the Beth Din have the power to order the transfer of the property?
- even if the Beth Din lacked the power to make such an order, did the Court have such power? and
- should the Court exercise its discretion under s.66 to make the requested order? .
The Defendants contended that the Beth Din did not have jurisdiction because the powers set out s.48(5)(b) of the 1996 Act (which governs remedies available in an arbitration under the Act) applied ‘Unless otherwise agreed by the parties’ . Their position was that there had been no agreement regarding specific performance of land and, accordingly, that the Beth Din had no power to make the award that it did .
The Claimant’s primary position was that the point was now barred because the Defendants had never challenged the award on that ground or otherwise . Alternatively, the Beth Din had jurisdiction because the Defendants had agreed in writing that the Beth Din would decide the dispute according to Jewish law and procedure. S.48(5)(b) of the 1996 Act was subject to the parties’ agreement under s.48(1), and there was no dispute that under Jewish law the Beth Din could order the transfer of a property in a dispute concerning ownership. By agreeing to arbitration under Jewish law, the parties were agreeing to Jewish law to the full extent permitted by the 1996 Act .
In the event, the outcome was inconclusive. Ms Clare Ambrose, sitting as a Deputy High Court Judge, declined to make the order sought. She did not dismiss the application, because it remained open to the parties to address the matters that had given rise to concern and resolve them in their chosen tribunal. In her view, the simplest course would be to ask the Beth Din to reopen its award on grounds of the new factual evidence before her. There was evidence (including correspondence from the Beth Din itself) that it could reopen a matter on grounds of new evidence and, in any event, the parties could agree to remit matters back to it. As matters stood, she was not satisfied that she would have any power under the 1996 Act to order that the arbitration award be remitted .
An interesting if obscure area of law and religion (and a brief note because Chancery matters are not my starter for ten in any event). What was not in question, however, was whether or not, in principle, the secular courts have the power to entertain and enforce an arbitration award made by a religious court under the 1996 Act. That issue appears to be settled law: see, for example, Kohn v Wagschal & Ors  EWCA Civ 1022.
[With thanks to Russell Sandberg for drawing the case to our attention.]