In the case of Essex County Council v Premier Recycling Limited [2006] EWHC 3594 the court considered whether the fact that an arbitrator's decision was to be "final and binding" meant that an appeal on a point of law under section 69 of the Arbitration Act 1996 was excluded. The case confirms that the court will look not only at the express terms of the arbitration agreement but also at its context when deciding whether the possibility of an appeal has been validly excluded under section 69. The judge concluded that the words "final and binding" in isolation were not sufficient to exclude an appeal under section 69. The phrase was, in fact, just as appropriate to mean "final and binding subject to the provisions of the Arbitration Act 1996". The words must, however, be considered in context. In this case, the fact that the parties had decided on a quick procedure, referring a narrow point of construction to an expert using a paper based procedure, were important considerations, but were not sufficient to demonstrate an intention to exclude the possibility of an appeal. (Permission to appeal was nevertheless refused on further grounds.)

Section 69 is a non-mandatory provision and parties may opt out of it in their arbitration agreement if they wish to preclude the possibility of an appeal. This case highlights the importance of careful drafting of arbitration agreements, particularly any provision intended to exclude the right of appeal under section 69. This applies both to the parties' arbitration agreement itself, and any subsequent agreement relating to the arbitral procedure, for example the terms of an arbitrator's appointment, which may refer to the status of the resulting award and the scope of any appeal process.