Reviewing the Arbitration Act 1996
The Law Commission of England and Wales will be conducting a review of the Arbitration Act 1996 and has now published a consultation paper and is requesting responses to the consultation by Thursday 15 December 2022.
The Commission said that the Act helped the UK, and London particularly, to be a “leading destination for commercial arbitrations”.
The review therefore aims to ensure that the UK remains at “the forefront” of international dispute resolution, with the overarching aim being to “maintain the attractiveness of England and Wales as a ‘destination’ for international arbitrations.
Summary of Consultation proposals from the Law Commission:
- The proposal considers it a strength that the law of confidentiality can be developed appropriately by the courts on a case by case basis and proposes to retain the current regime around confidentiality and privacy in arbitration proceedings, that is, no codification of the law of confidentiality in the Act.
- Retain the duty of impartiality of arbitrators without expanding this to include a duty of independence, and amend the Act to codify the disclosure requirement as per the case law imposing on arbitrators a continuing duty to disclose any circumstances which might reasonably give rise to justifiable doubts as to their impartiality.
- Strengthening the immunity of arbitrators in certain cases and introducing provisions in support of equality and against discrimination in arbitral appointments; including proposals that an arbitrator should not be susceptible to challenge based on their protected characteristics and any agreement in relation to the arbitrator’s protected characteristics should be unenforceable (subject to a stated exception).
- For summary disposal, there is a proposal for an explicit provision (non-mandatory) that a tribunal may adopt a summary procedure to dispose of a claim or a defence to resolve disputes without unnecessary delay and expense and improve efficiency ensuring that it is fair and appropriate in the circumstances of the case. The Law Commission provides two main options for the threshold for such summary disposal and is asking consultees to comment on the preferred approach.
- Extend the capacity of the courts to support arbitration proceedings. Where orders are made against third parties, they should have the usual full right of appeal, rather than the restricted right of appeal which applies to arbitral parties.
- The Act could empower the court to order compliance with a peremptory order of an emergency arbitrator, mirroring the provision currently only available to a fully constituted arbitral tribunal.
- Refine the process for challenging the jurisdiction of an arbitrator, so that challenges in the courts take place by way of an appeal, rather than a full rehearing.
- The papers provisionally conclude that the Act is compatible with the use of modern technology and are asking consultees whether the Act should empower explicitly an arbitral tribunal to order remote hearings and the use of electronic documentation.
The Law Commission says that “Our proposals are provisional, and subject to this formal consultation exercise. We hope as many interested parties as possible will respond to the consultation.”
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