Law Commission consultation on reform of the Arbitration Act 1996
In September, the Law Commission of England and Wales published a formal consultation paper containing various proposals to update and reform the Arbitration Act 1996 (the “AA”), the main statute which regulates arbitration in England and Wales, and Northern Ireland.
The Law Commission is a UK statutory body whose task is to keep the law under review and to recommend reform. As part of its most recent programme of review, it has been seeking views from stakeholders since last year, the 25th anniversary of the AA, on how the AA might be improved (a process to which the Linklaters International Arbitration team contributed); and the consultation paper is the next step.
As the Law Commission notes in its consultation, the consensus has been that the AA works well and that there is no need for extensive reform. Instead the review is aimed at modernising amendments which might help the AA remain state of the art and support London as a leading seat of international commercial arbitration. To that end, the Law Commission makes a number of provisional proposals in its consultation paper and invites responses. Following this period of consultation, the Law Commission plans to publish final recommendations by mid-2023 and it will then be for the UK Government to decide whether those should be implemented.
Consistent with the consultation’s focus, and from the suggestions made to it by stakeholders, the Law Commission has identified a number of discrete areas upon which it wishes to concentrate in this stage of consultation. A summary of the main ones identified, and the issues discussed in the consultation, is as follows.
- Confidentiality; should provisions be inserted into the AA to codify the law on confidentiality in arbitration?
- Independence of arbitrators and whether current case-law on the degree to which arbitrators must disclose issues which might cast doubt on their impartiality should be codified.
- Discrimination and whether the AA should do more than the current regime in the field of restricting the ability of the parties to make arbitrator appointments conditional on protected characteristics.
- Whether immunity of arbitrators to legal liability should be strengthened.
- Should the AA provide greater support for the ability of arbitrators to dispose of meritless issues in a summary fashion by the inclusion of an express statutory power to that effect?
- Improvement of the functioning of the AA’s provisions on court measures in support of arbitral proceedings; in particular whether the AA can be clearer on the degree to which such measures can be ordered against third parties, whether the circumstances in which the court can grant interim relief should be simplified and whether the AA requires amendment to help bolster compliance with emergency arbitrator orders.
- Challenges against jurisdictional awards made by the tribunal, and whether the current workings of the AA, which permit a full rehearing of the issue by the court, might be restricted to an appellate review instead; and
- Whether the AA’s provisions on appeals to the court on a point of law should be reformed.
The Law Commission has set a deadline for responses of 15 December 2022. The Linklaters International Arbitration team is planning to submit a response in due course. If you have any observations, please do feel free to get in touch with any of the contacts listed, or your usual Linklaters contact.