England & Wales’ Law Commission Publishes Consultation Paper on the Arbitration Act 1996

The Arbitration Act 1996 came into force on 31 January 1997. Twenty-five years later it is still the gold-standard legal framework for arbitration.

On 22 September 2022, the Law Commission of England and Wales published its much anticipated “Review of the Arbitration Act 1996: A consultation paper”. The review seeks to ensure that the Act remains “state of the art” for domestic and international arbitration. It is thoughtful and wide-ranging — from considering major reforms to underlying principles of the Act, to minor tweaks that reflect how modern arbitration is conducted today (often remotely, and increasingly with a desire to reduce the carbon footprint of international arbitrations).

In particular, four proposals strike us as interesting features:

• First, in a “world-leading initiative … send[ing] an important signal about diversity and equality”: an offer to tackle discrimination in arbitral appointments by adopting the language of the English Equality Act 2010 so that arbitral appointments cannot be challenged for reasons that are discriminatory.
• Second, driving for efficiency: the Commission provisionally recommends a nonmandatory provision giving arbitrators the power to adopt a summary procedure to decide issues that have no real prospect of success and no other compelling reason to continue to a full hearing (borrowing its thresholds from the English Civil Procedure Rules).
• Third: the Law Commission’s suggestion to codify that arbitrators have a continuing duty to disclose any circumstances which might reasonably give rise to justifiable doubts as to their impartiality (following the Supreme Court of the United Kingdom’s decision in Halliburton Co v Chubb Bermuda Insurance Ltd [2020] UKSC 48).
• Finally, on the thorny topic of challenges to jurisdiction: a proposal that any challenge under section 67 of the Act should be by way of an appeal (where the court reviews the decision of the tribunal) and not a total rehearing.

If any of those proposals are adopted, they will go some way to cementing the U.K.’s position as a global hub for international arbitration for another twenty-five years.

The consultation concludes on 15 December 2022.