Commercial Dispute Resolution Briefing, December 2006

Court has discretion to decide whether or not to determine a question of law referred to it under section 45 of the Arbitration Act

Section 45 of the Arbitration Act 1996 provides the court with a discretionary power to determine questions of law. The court can, therefore, refuse an application if it is not persuaded that it should make a determination at that stage. Here, the parties' construction agreement provided that either party could apply to the court to determine any question of law. A dispute arose as to whether a question on the retention of risk in unforeseen structural works amounted to a question of law which the court should determine or whether the court retained a discretion and the question was more suited to a specialist construction law arbitrator chosen by the parties. The High Court confirmed that the power was discretionary, explaining that the