International Arbitration 2020

Last Updated August 18, 2020

UK

Law and Practice

Authors



Wilmer Cutler Pickering Hale & Dorr LLP offers one of the world’s largest and most experienced international arbitration and dispute resolution practices. The international arbitration group has been involved in more than 650 proceedings in recent years. Lawyers have successfully represented clients in a number of the largest institutional arbitrations and several of the most significant ad hoc arbitrations to arise in the past decade. The multinational team consists of nearly 70 lawyers, all of whom practise principally international dispute resolution. In addition to representing clients as counsel, many lawyers regularly sit as arbitrators in international arbitrations. The practice covers commercial and investment arbitration under the rules of all leading arbitral institutions and ad hoc arbitrations seated in a wide range of jurisdictions. It has represented individuals, companies, states and state entities. Lawyers have recently handled or are currently handling disputes under the International Chamber of Commerce (ICC), American Arbitration Association (AAA/ICDR), London Court of International Arbitration (LCIA), Stockholm Chamber of Commerce (SCC), International Centre for Settlement of Investment Disputes (ICSID), Vienna International Arbitral Centre (VIAC), Hong Kong International Arbitration Centre (HKIAC), Cairo Regional Centre for International Commercial Arbitration (CRCICA) and UNCITRAL rules, and also has extensive experience with more specialised forms of institutional arbitration and ad hoc arbitrations.

Arbitration is often used in England and Wales as an alternative to litigation. A 2018 survey by Queen Mary University of London found that London was the most frequently used arbitral seat in the world. The LCIA has confirmed that it had a record caseload in 2019, with a total of 395 referrals, with non-UK parties accounting for around 80% of its users. The LCIA has also confirmed that it has seen a spike in new cases in the first quarter of 2020 and the COVID-19 crisis will undoubtedly lead to additional cases. The ICC confirmed that in 2019 it had a record total of 869 new cases filed, representing an aggregate value of USD230 billion.

COVID-19 has had a profound impact on international arbitrations in London. Government restrictions on travel and in-person meetings have required a novel approach to the conduct of arbitral proceedings. A key trend that has emerged as a result of COVID-19 has been a shift towards remote hearings and contactless arbitrations as parties, tribunals and arbitral institutions have been forced to leverage digital technology to ensure that proceedings can go ahead. Most major institutions, including the ICC and LCIA, have issued guidance on the conduct of remote hearings, which have become the new norm in the UK during the pandemic.

Other hurdles continue to impact on international trade and business in the UK. The implications of Brexit for international arbitration in the UK are still to be determined, but are likely to be limited in the short and medium term for at least three fundamental reasons. First, Brexit will not have an impact on the UK’s status as a signatory to the New York Convention or the pro-arbitration stance of the courts. Second, the legislation that governs arbitration in this jurisdiction (the Arbitration Act 1996) will remain unchanged as it forms a part of domestic rather than European law. Third, English law will likely remain a popular choice as a governing law for parties to international contracts.

According to the LCIA’s 2019 annual casework report, disputes in the banking and finance, energy and resources, and transport and commodities sectors dominated the LCIA’s caseload and are the most likely growth areas for international arbitration.

The most commonly used institutions for international arbitration in England and Wales are the ICC and the LCIA (see 1.1 Prevalence of Arbitration).

England and Wales has not adopted the UNCITRAL Model Law (the “Model Law”). Instead, international arbitration in England and Wales is governed by the Arbitration Act 1996 (the “1996 Act”), which applies to all domestic and international arbitrations where the seat of the arbitration is England, Wales or Northern Ireland.

Although the 1996 Act is strongly influenced by the Model Law, one important difference is that the Model Law only applies to international commercial arbitration, whilst the 1996 Act applies to all forms of arbitration. Other key differences between the 1996 Act and the Model Law include the following:

  • whereas the Model Law does not permit an appeal on a point of law, a party can appeal an arbitral award on a point of law (unless otherwise agreed) under the 1996 Act;
  • whereas under the Model Law a party has 15 days to object to the appointment of an arbitrator, the 1996 Act does not impose a time limit;
  • whereas under the Model Law the default provisions for the appointment of arbitrators provide for the appointment of three arbitrators, the default provisions of the 1996 Act provide for the appointment of a sole arbitrator;
  • whereas under the Model Law a court must refer the parties to arbitration where the action is the subject of a valid arbitration agreement and a party so requests not later than when submitting his first statement on the substance of the dispute, under the 1996 Act, an English court is only able to stay its own proceedings and cannot refer a matter to arbitration; and
  • whereas under the Model Law a failure to make an appointment of an arbitrator results in the court or other authority specified in Article 6 making such appointment, under the 1996 Act, where each party is required to appoint an arbitrator, a party may treat its party-nominated arbitrator as the sole arbitrator in the event that the other party fails to make an appointment.

There have not been any changes to the 1996 Act in the past year. In the 13th Programme of Reform issued in December 2017, the Law Commission suggested that one area of potential reform to the 1996 Act is to introduce a statutory summary judgment-style procedure, since there is no express power in the 1996 Act for such a procedure. However, proposals to reform the 1996 Act have been put on hold. Nevertheless, the Law Commission indicated that some reform could be desirable in the near future to ensure that London remains a popular venue for international arbitration.

There are no formal legal requirements for an arbitration agreement to be enforced under the laws of England and Wales. However, Section 5 of the 1996 Act stipulates that Part (1) of the 1996 Act (Sections 1-84) only applies where the arbitration agreement is in writing. Given that Part (1) contains mandatory and non-mandatory provisions that facilitate the arbitration process, it is highly advisable to use a written arbitration agreement. A party that wishes to rely on an oral arbitration agreement would only be able to rely on the old common law to govern its arbitration.

The 1996 Act does not impose any strict requirements on the content of an arbitration agreement. Instead, Section 6(1) merely stipulates that the parties must agree “to submit to arbitration present or future disputes (whether they are contractual or not).”

Under Section 6(2) of the 1996 Act, it is possible for a contract to incorporate by reference an arbitration agreement that is contained in a separate document.

The 1996 Act stipulates in Section 6(1) that both contractual and non-contractual disputes may be submitted to arbitration. Beyond this, it does not define or describe the matters that are capable of settlement by arbitration. Instead, the 1996 Act provides that the question of what matters are not capable of settlement by arbitration is governed by common law (Section 81(1)(a)).

At common law, the English courts have placed emphasis on the importance of upholding party autonomy to agree to arbitration to resolve their disputes. Consistent with this:

  • English courts have held that a wide range of non-contractual disputes (including tort, competition, intellectual property and certain statutory claims) are capable of settlement by arbitration; and
  • there is a strong assumption when construing an arbitration clause under English law that the parties intended to have disputes arising out of their relationship decided in the same forum (Fiona Trust & Holding Corporation v Privalov (2007) UKHL 40). In practice, this means that arbitration agreements are interpreted broadly to encompass non-contractual as well as contractual disputes.

There are, however, a limited number of disputes that are not arbitrable, including:

  • criminal, planning and certain family law matters;
  • insolvency proceedings subject to the statutory regime set out in the Insolvency Act 1986; and
  • certain employment disputes, in respect of which an employee has a statutory right to be heard in front of an employment tribunal.

There is also an open question as to the extent to which issues of mandatory EU law can be settled by arbitration. The long-standing view is that questions of EU law – including mandatory issues (such as competition law issues) – are arbitrable; it has been held that a tribunal that fails to apply these mandatory laws faces the risk of having its award set aside (Case C-126/97 Eco Swiss [1999] ECR I-3055).

There is a further open question as to whether certain statutory claims are capable of settlement by arbitration. This question does not lend itself to a general answer: each specific statutory claim will address this issue differently. On the one hand, the Court of Appeal has held that a shareholder’s unfair prejudice claim brought under Section 994 of the Companies Act 2006 is capable of settlement by arbitration (Fulham Football Club (1987) Ltd v Richards [2011] EWCA Civ 855). On the other hand, arbitrators have no power to order the winding-up of a company (Salford Estates (No.2) Ltd v Altomart Ltd [2014] EWCA Civ 1575).

Finally, the High Court has recently found that even if elements of a dispute raise an issue that is not arbitrable, the arbitration agreement will not be invalidated and the parties’ dispute as a whole will still be subject to the arbitration agreement (Aqaba Container Terminal (PVT) Co v Soletanche Bachy France SAS [2019] EWHC 471 (Comm)).

The approach of the English courts with respect to the enforcement of arbitration agreements is broadly pro-enforcement. English law will endeavour to uphold agreements to arbitrate, where possible. This pro-arbitration stance is reflected in English law’s approach to the construction of arbitration agreements.

The English courts tend to construe an arbitration clause widely and generously to the party that seeks to rely on it. Under English law, the threshold for finding that an arbitration clause in a commercial contract is void for uncertainty is a high one. For instance, in Exmek Pharmaceuticals SAC v Alkem Laboratories Ltd [2015] EWHC 3158 (Comm), a contract contained both an arbitration clause and an exclusive jurisdiction clause for “UK” courts that appeared to be inconsistent. The court held that the arbitration agreement was enforceable by finding a way to reconcile the clauses; it held that all disputes should be submitted to arbitration in England and Wales under the supervisory jurisdiction of the courts of England and Wales. This decision illustrates how English courts will strive to give an arbitration agreement meaning and will rarely hold that an agreement is pathological and, therefore, not enforceable because it is impossible to understand what the parties’ agreed.

Finally, as noted above, there is a strong assumption when construing an arbitration clause under English law that the parties intended to have disputes arising out of their relationship decided by the same tribunal, absent clear language to the contrary (Fiona Trust & Holding Corporation v Privalov (2007) UKHL 40).

Pursuant to Section 7 of the 1996 Act, an arbitration agreement is separable from the main agreement into which it has been incorporated (Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40). As such, an arbitration agreement generally survives the invalidity, inexistence or ineffectiveness of the main agreement.

The Court of Appeal has recently addressed the choice of law rules that govern the validity of arbitration agreements (Enka v Chubb [2020] EWCA Civ 574). The Court of Appeal held that, absent an express choice of law, the validity of the arbitration agreement will be governed by the law of the country of the chosen seat “subject only to any particular features of the case demonstrating powerful reasons to the contrary.” The case has been appealed to the Supreme Court and judgment is pending as at the time of writing.

The 1996 Act gives the parties broad autonomy to agree on the procedure for appointing arbitrators. The parties are entitled to agree in the arbitration agreement on the procedure to be followed for the constitution of the tribunal, the number of arbitrators (including whether there is an umpire or chairman) as well as any qualifications required from the arbitrators (Section 15). (The arbitrators must, of course, consent to their appointment before it is valid.)

Although the parties have broad autonomy to determine the process for selecting arbitrators, the court retains the power to remove arbitrators in certain circumstances – see 4.4 Challenge and Removal of Arbitrators.

The usual situation is that the parties’ arbitration agreement sets out the procedure that must be followed for the constitution of the tribunal. If it does not, Sections 16-18 of the 1996 Act set out a series of default mechanisms for the appointment of arbitrators. Depending on the number of arbitrators agreed by the parties, these include the default provisions for the appointment of:

  • a sole arbitrator – by joint appointment of the parties no later than 28 days after service by one of the parties of a request to do so (Section 16(3));
  • a tribunal comprised of two arbitrators – by each party appointing one arbitrator within 14 days of a written request by one of the parties to do so (Section 16(4));
  • a tribunal comprised of three arbitrators – by each party appointing one arbitrator within 14 days of a written request by one of the parties to do so, and the two party-appointed arbitrators then appointing a chairman (Section 16(5)); and
  • a tribunal comprised of two arbitrators and an umpire – as with three, subject to differences as to the timing of the umpire's appointment (Section 16(6)).

Where the parties have not agreed on the number of arbitrators, the default position is that the tribunal will consist of a sole arbitrator (Section 15(3)).

An alternative situation is where the parties have included in their arbitration agreement a mechanism for appointing the arbitral tribunal, but that mechanism fails. In these circumstances, the 1996 Act provides the English court with a number of powers that either party can apply to exercise, including:

  • a power to give directions as to the making of appointments, which includes delegating its power to make the necessary appointment to an arbitral institution if it thinks fit (Section 18(3)(a), Chalbury McCouat International Ltd v PG Foils Ltd [2010] EWHC 2050 (TCC));
  • a power to direct that the tribunal be constituted by such appointments as have been made (Section 18(3)(b));
  • a power to revoke any previous appointments (Section 18(3)(c)); and
  • a power to make the necessary appointments itself (Section 18(3)(d)).

Further, unless the parties otherwise agree, where each of the two parties to an arbitration agreement is to appoint an arbitrator and one party refuses to do so, or fails to do so within the time specified, the other party may give notice in writing to the party in default that he proposes to appoint his arbitrator to act as sole arbitrator (Section 17(1)).

There are two ways in which the English court can intervene in the selection of arbitrators.

First, the court can exercise certain powers to appoint under the default procedure referred to in 4.2 Default Procedures.

Second, the court can intervene where the parties have included in their arbitration agreement a mechanism for appointing the arbitral tribunal, but that mechanism fails. In these circumstances, the 1996 Act provides the English court with a number of powers that either party can apply to the court to exercise, as described in 4.2 Default Procedures.

The provisions governing the challenge and removal of arbitrators are found in Section 24 of the 1996 Act. Pursuant to that section, a party may apply to the English courts to remove an arbitrator and the court has the power to remove an arbitrator on several grounds, including:

  • where there are justifiable doubts as to his or her impartiality;
  • if an arbitrator does not possess the qualifications required by the parties’ arbitration agreement;
  • physical or mental incapability; or
  • if an arbitrator fails properly to conduct the proceedings or to use all reasonable dispatch in conducting the proceedings.

While the challenge is pending, the tribunal may continue the arbitral proceedings and make an award (Section 24(3)). The 1996 Act grants arbitrators who are challenged an opportunity to be heard (Section 24(5)).

For a recent example of the application of Section 24 of the 1996 Act, see Allianz Insurance v Tonicstar Ltd [2018] EWCA Civ 434, where an arbitrator was unsuccessfully challenged on the grounds that he did not possess the qualifications required by the parties’ arbitration agreement.

The 1996 Act contains a requirement for arbitrators to act fairly and impartially between the parties (Section 33(1)). The courts apply an objective test to the issue of impartiality. The court will ask whether a fair-minded and informed observer would conclude that there was a real possibility of bias (Koshigi Ltd v Donna Union Foundation [2019] EWHC 122 (Comm)). When applying this test, the English court is not bound by the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration. (These Guidelines are only binding where the parties so agreed, or the tribunal has adopted the rules in question.) However, the IBA Guidelines will be taken into account by the English court as persuasive authority.

The 1996 Act does not contain provisions equivalent to Articles 12 and 13 of the Model Law; as such, it does not require the disclosure of potential conflicts. However, it is acknowledged to be best practice that arbitrators should disclose, at the earliest opportunity, any matters that could reasonably be deemed to have a bearing on their impartiality. A failure to disclose will give rise to a ground to challenge the arbitrator, either by applying to the relevant arbitral institution or to the court.

The Court of Appeal recently considered when an arbitrator should make disclosure of circumstances that may give rise to justifiable doubts as to his impartiality (Halliburton v Chubb EWCA Civ 817). In that case, the appointment of an arbitrator was challenged on the basis that the arbitrator had failed to disclose that he had been appointed as an arbitrator in two related disputes, and this failure gave rise to "justifiable doubts as to his impartiality." The Court of Appeal held the arbitrator should have disclosed these circumstances, and found that an arbitrator's duty of disclosure extends to circumstances that merely might give rise to the possibility of bias. The Court found that the failure to disclose did not, ultimately, give rise to apparent bias, as such practice was commonplace and the non-disclosure was accidental. Therefore, the challenge was rejected. The case has been appealed to the Supreme Court and judgment is pending as at the time of writing.

As noted in 3.2 Arbitrability, the 1996 Act provides that the question of what matters are not capable of settlement by arbitration is governed by common law. At common law, a wide range of non-contractual disputes are capable of settlement by arbitration.

As noted above, there are a limited number of disputes that are not arbitrable. There is also an open question as to the extent to which mandatory EU law questions and certain statutory claims can be settled by arbitration.

Section 30(1) of the 1996 Act provides that, unless agreed otherwise, the tribunal has the competence to rule on its own substantive jurisdiction. This comprises the right to rule on (i) whether there is a valid arbitration agreement, (ii) whether the tribunal has been properly constituted, and (iii) what matters have been submitted to arbitration in accordance with the arbitration agreement.

A court can address issues of jurisdiction of an arbitral tribunal in three circumstances.

First, Section 32 of the 1996 Act allows a party to apply to the court for the determination of a preliminary point of jurisdiction. Such an application can only be made (i) where all the parties to the arbitral proceedings agree in writing to refer the matter to the court, or (ii) where the tribunal gives permission to apply to court, and the court is satisfied that the application will result in a saving of costs, was made without delay and there is good reason why the matter should be decided by the court. These criteria will only be met in exceptional circumstances (Toyota Tsusho Sugar Trading Ltd v Prolat SARL [2014] EWHC 3649 (Comm)). While the court is considering such a preliminary question of jurisdiction, the arbitration proceedings may continue and an award be granted (Section 32(4)).

Second, Section 67 of the 1996 Act allows a party to challenge an arbitral award on grounds of lack of substantive jurisdiction. The court will review de novo the tribunal’s jurisdiction by way of complete rehearing, and will not be bound by the tribunal’s reasoning (see 11.2 Excluding/Expanding the Scope of Appeal).

Third, under Section 72 of the 1996 Act, a party that does not take part in the proceedings can apply to the court for a declaration or injunction to restrain arbitration proceedings by challenging (i) the validity of an arbitration agreement, (ii) whether the arbitral tribunal has been properly constituted, or (iii) what matters have been referred to arbitration in accordance with the arbitration agreement.

It should be noted that the right to object to the substantive jurisdiction of the tribunal can be lost if a party takes part or continues to take part in proceedings without raising an objection (Section 73, 1996 Act).

A party can go to court to challenge the jurisdiction of the tribunal at any time. As noted in 5.3 Circumstances for Court Intervention, a party can both seek a determination of a preliminary question of jurisdiction and challenge the award for lack of substantive jurisdiction (although such a challenge must be brought within 28 days of the award being rendered).

A party that does not participate in the arbitral proceedings may also challenge the jurisdiction of the tribunal at any point.

As described in more detail in 11.1 Grounds for Appeal, the standard of review under a Section 67 challenge to the jurisdiction of the tribunal is de novo. The court will review the tribunal’s jurisdiction by way of complete rehearing, without being bound by the tribunal’s reasoning (Dallah Real Estate & Tourism Holding Co v Government of Pakistan [2010] UKSC 46).

A party may apply for a stay of proceedings where another party commences litigation in the courts in England and Wales in breach of an arbitration agreement (Section 9(1), 1996 Act). The burden of proof is on the applicant to establish the existence of an arbitration clause and that the clause covers the subject matter of the dispute. If this is satisfied, the burden of proof shifts to the party that commenced court proceedings to show that the arbitration agreement is null and void, inoperative or incapable of being performed (Joint Stock Company “Aeroflot Russian Airlines” v Berezovsky [2013] EWCA Civ 784).

As noted in 2.1 Governing Law, Section 9 only grants the court power to stay the proceedings – it does not require the court to refer the parties to arbitration.

A party must challenge the court’s jurisdiction within the time limit for acknowledging service of the claim form, which is generally 14 days. The right of a stay may also be lost where a party seeking the stay has taken steps in court proceedings to answer the substantive claim. This can include participating in a case management conference and inviting the court to make related orders (Nokia Corp v HTC Corp [2012] EWHC 3199 (Pat)).

The court also has an inherent jurisdiction to stay proceedings even where Section 9 of the 1996 Act is not satisfied. The court has exercised this discretion where there is a dispute as to the validity or scope of the arbitration agreement (Golden Ocean Group v Humpuss Intermoda Transportasi [2013] EWHC 1240 (Comm)).

If a party commences litigation in another jurisdiction (other than a member state of the EU or contracting state to the Lugano Convention), the party against whom proceedings are commenced can apply to the English court for an anti-suit injunction. There is no requirement that an arbitration is seated in England and Wales for the court to grant an anti-suit injunction to protect arbitration proceedings. In practice, the English court is far more likely to grant an anti-suit injunction where the arbitration is seated in this jurisdiction because the availability of an anti-suit injunctive is normally a matter for the supervisory court of the seat of the arbitration (Amtrust Europe Limited v Trust Risk Group [2015] EWHC 1927 (Comm)).

English law places great emphasis on arbitration being a consensual process. Accordingly, English law does not permit a tribunal to assume jurisdiction over non-parties. There is nothing to prohibit a tribunal from inviting non-parties to produce documents, for example, but the tribunal does not have the power to compel a non-party to do so. Instead, the court has limited powers to make such orders.

Common ways of seeking to bind a non-signatory include agency, the group of companies doctrine, or piercing the corporate veil. In proceedings before English courts, arguments based on agency are most likely to succeed – the English courts have regularly held that a third party may be bound to an arbitration agreement through principles of agency law. The English courts have been clear that the group of companies doctrine “forms no part of English law” (Peterson Farms Inc. v C & M Farming Ltd [2004] EWHC 121 (Comm)). Further, the Supreme Court has held that the circumstances in which English law will be willing to pierce the corporate veil are extremely rare (VTB Capital Plc v Nutritek International Corp [2013] UKSC 5).

In certain circumstances, a third party will acquire rights under a contract pursuant to the Contract (Rights of Third Parties) Act 1999. If such a contract contains an arbitration agreement, a third party that has acquired these rights will have the right to insist on being sued in arbitration rather than in court (Nisshin Shipping v Cleaves & Co [2003] EWHC 2602 (Comm)). Equally, a third party that wishes to enforce its rights under such a contract would have to do so through arbitration.

The powers of a tribunal to grant preliminary or interim relief are set out in Sections 38 and 39 of the 1996 Act.

Section 38(1) provides that the parties are free to agree on the powers of the arbitral tribunal. Subject to contrary agreement, the arbitral tribunal has the power to:

  • order a claimant to provide security for costs in the arbitration (Section 38(3));
  • give directions relating to property that is the subject matter of the proceedings or as to which any question arises in the proceedings (Section 38(4));
  • direct a party or witness to be examined (Section 38(5)); and
  • give directions for the preservation of evidence (Section 38(6)).

Section 39 provides that the parties are free to agree that the tribunal will have the power to order, on a provisional basis, any relief it would have the power to grant in a final award.

In the absence of agreement to the contrary, an arbitral tribunal can only grant interim relief if the relief in question falls into one of the four categories set out above. However, the rules of many arbitral institutions provide for the granting of interim relief by the tribunal. By agreeing to arbitrate before one of these institutions, the parties will have agreed that the tribunal should be empowered to grant interim relief.

The 1996 Act does not, unless otherwise agreed, confer on the tribunal a power to grant an interim injunction to secure the sum in dispute. However, it is possible to seek a freezing injunction from the High Court (Section 44(2)(e)).

Unless otherwise agreed by the parties, the court has the power to make orders in respect of those set out in Section 44 of the 1996 Act. The matters in which the court is empowered to grant an interim relief are: taking of evidence of witnesses; the preservation of evidence; orders relating to preservation, detention, inspection, or sampling of the disputed matter; the sale of any goods; and the granting of an interim injunction.

Furthermore, in situations of urgency, the court is entitled (on the application of a party or proposed party to arbitral proceedings) to make such orders as it thinks necessary for the purpose of preserving evidence or assets.

However, the court’s power to order provisional measures under Section 44 of the 1996 Act is limited. Once the tribunal is constituted, the court will only make interim orders with the permission of the tribunal or where the tribunal has no power or is unable to act effectively (Section 44(5)).

The powers of the court to grant interim relief do not extend to ICSID arbitrations, where any relief should be sought from the tribunal (ETI Euro Telecom International NV v Republic of Bolivia & Anor [2008] EWCA Civ 880).

The Court of Appeal has recently confirmed that the English courts have the power to make orders against non-parties under Section 44 (A & B v C, D & E [2020] EWCA Civ 40). In that case the Court of Appeal found that the English courts have jurisdiction under Section 44(2)(a) to compel a non-party to give evidence in support of an arbitration.

Unless the parties agree otherwise, the tribunal has the power to order the claimant to provide security for costs (Section 38(2)-(3), 1996 Act). Costs for which security can be ordered include both the costs of the arbitrators and the parties’ own costs (Section 39, 1996 Act).

The current position under the 1996 Act is that security for costs is only available from the tribunal, with the court only ordering security in relation to challenges to an award made under Sections 67-69 of the 1996 Act.

The 1996 Act gives the parties autonomy to agree their own procedural rules. This is typically done by the parties incorporating a set of institutional rules that govern the procedure of the arbitration in the arbitration agreement. In the absence of agreement by the parties, the default provision under the 1996 Act is for the tribunal to determine all procedural and evidential matters (Section 34).

The 1996 Act does not set out any mandatory procedural steps that are required by law. Instead, as noted in 7.1 Governing Rules, the parties are given autonomy to agree on their own procedural rules.

The Act does, however, impose certain overarching principles, which have to be observed in determining the procedure to be followed. Most importantly, the 1996 Act imposes on the tribunal a “general duty” to act fairly and impartially, giving each party a reasonable opportunity of putting its case and dealing with that of its opponent (Section 33(1)(a)). The tribunal is also under an obligation to adopt procedures that avoid unnecessary delay and expense, and are suitable to the circumstances of the particular case, in order to provide a fair means for the resolution of the dispute (Section 33(1)(b)). Section 33 is mandatory; it cannot, therefore, be excluded by agreement.

Further, the 1996 Act places an obligation on the parties to do all things that are necessary for the proper and expeditious conduct of the arbitral proceedings (Section 40).

As noted in relation to 7.2 Procedural Steps, arbitrators are under a general duty to act fairly and impartially and to adopt procedures that avoid unnecessary delay and expense, and provide a fair means of resolving the dispute that is referred to them (Section 33, 1996 Act). At common law, arbitrators are also under a duty to render an enforceable award.

In addition to the general powers granted to a tribunal under Section 38 of the 1996 Act (discussed in 6.1 Types of Relief), a tribunal has the power under Section 56(1) to withhold an award for non-payment of its fees.

There are no particular qualifications or other requirements for legal representatives appearing in an arbitration that is seated in England and Wales. The 1996 Act simply provides that, unless the parties agreed otherwise, a party may be represented in proceedings “by a lawyer or other person chosen by him” (Section 36). Accordingly, foreign lawyers are free to appear without restriction, as are non-lawyers that are not qualified in any jurisdiction.

The procedural and evidential matters of arbitral proceedings seated in England and Wales are governed by Section 34 of the 1996 Act, which gives the tribunal a broad power to decide all such issues, subject to the right of the parties to agree any matter. Under Section 34(2), the tribunal has the power to decide:

  • whether written statements of claim and defence are to be used and at what stage these should be supplied;
  • whether any and, if so, which documents or classes of documents should be disclosed between and produced by the parties and at what stage of proceedings;
  • whether evidence should be given orally at a hearing;
  • whether to apply strict rules of evidence, including whether a document is protected from disclosure by privilege;
  • whether and to what extent the tribunal should take the initiative in ascertaining the facts and the law; and
  • whether and to what extent there should be oral or written evidence or submissions.

The tribunal’s powers are only applicable to the parties to the arbitration. Hence, the tribunal cannot order a non-party to produce documents, or secure the attendance of witnesses. In such cases, the tribunal and/or the parties generally request the court to assist.

When making an order for the production of documents, the tribunal may determine that a document (or class of documents) is protected from disclosure on the grounds of privilege.

As noted above, Section 34 of the 1996 Act empowers the tribunal to decide all evidential matters, unless the parties agree otherwise. This power includes the right to determine (i) whether to apply “strict” rules of evidence as to the admissibility, relevance or weight of any material sought to be tendered on matters of fact or opinion; and (ii) the time, manner and form in which such material should be exchanged or presented.

It should be noted that tribunals will often follow the IBA Rules on the Taking of Evidence in International Arbitration rather than adopt the strict rules of evidence that apply to English court proceedings.

A tribunal has the power to order disclosure of documents by the parties (Section 34(2)(d), 1996 Act). However, a tribunal does not have the power to require the attendance of witnesses or order the production of documents by a third party.

To obtain third-party disclosure or secure the attendance of a witness to produce documents or obtain oral testimony, a party to arbitral proceedings can (with the agreement of all the parties or the permission of the tribunal) apply to the court under Section 43 of the 1996 Act.

The English courts have confirmed that court orders for pre-action disclosure are not available if there is an arbitration agreement between the parties (Travelers Insurance Company Ltd v Countrywide Surveyors Ltd [2010] EWHC 2455 (TCC)).

The 1996 Act is silent on the issue of confidentiality. However, English courts have held that all arbitral proceedings seated in England and Wales are confidential. This conclusion is based on the implied duty of confidentiality, which derives from the essentially private nature of arbitration, and, as such, exists in all arbitration agreements (Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184).

Pursuant to this implied duty of confidentiality, all constituent parts of an arbitral proceeding – including the pleadings, all documents produced and disclosed during the proceedings, the hearing, and the award – are deemed confidential. Both the parties and the tribunal are under the implied obligation to preserve this confidentiality (Dolling-Baker v Merrett [1990] 1 WLR 1205, Hassneh Insurance Co v Mew [1993] 1 Lloyd's Rep 243, Ali Shipping Corporation v Shipyard Trogir [1997] EWCA Civ 3054). Further, it should be noted that a party to whom documents (or other information) were disclosed in arbitral proceedings is precluded by the implied duty of confidentiality from referring to or relying on that information in subsequent proceedings.

There are certain exceptions to the confidentiality obligation. Most notably, parties are entitled to agree that the proceedings will not be confidential. The Court of Appeal in Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184 recognised three further exceptions – cases where disclosure is (i) in the interests of justice, (ii) required by law or (iii) required to establish or protect a party’s legal rights. These exceptions are mainly relied on by parties when initiating recognition and enforcement proceedings of an award in a given country, where the court requires them to disclose the award.

The parties are entitled to agree on the formal requirements for an award to be valid (Section 52(1), 1996 Act). In the absence of such agreement, the 1996 Act contains a set of default formalities that will apply:

  • the award shall be in writing and signed by all the arbitrators or all those assenting to the award (Section 52(3));
  • the award shall contain reasons for the award, unless it is an agreed award or the parties have agreed to dispense with reasons (Section 52(4)); and
  • the award shall state the seat of the arbitration and the date when the award was made (Section 52(5)).

Further, at common law, an award must also make a final determination of a particular issue (Brake v Patley Wood Farm [2014] EWHC 4192 (Ch)). The 1996 Act does not prescribe a time limit within which an award must be rendered. However, the tribunal is under an obligation to avoid “unnecessary delay” and the parties can specify a time within which an award should be rendered.

The New York Convention, implemented in Part III of the 1996 Act, requires awards to be “duly authenticated” in order for contracting states to be obliged to enforce them. Therefore, an unsigned award may not be enforceable in another contracting state.

Under the 1996 Act, it is up to the parties to agree on the scope of the tribunal’s power to grant remedies (Section 48). In the absence of such agreement, the 1996 Act provides the tribunal with the power to grant comprehensive relief. This includes the power to:

  • make a declaration as to any matter to be determined in the proceedings (Section 48(3));
  • order the payment of a sum of money in any currency (Section 48(4));
  • order (i) injunctive relief, (ii) specific performance of a contract that does not relate to land, and (iii) rectification, setting aside or cancellation of a deed or other document (Section 48(5)).

There is no express rule that addresses whether the tribunal can award punitive (or exemplary) damages. If the parties so agree, the tribunal is entitled to do so. In the absence of such agreement, punitive or exemplary damages may only be awarded in the same circumstances that such damages are provided for under the applicable law. As a matter of English law, punitive or exemplary damages are not available for a breach of contract claim but are available for a limited number of claims in tort.

It is possible that where a certain remedy is available under the governing law but not under English law, the award of such a remedy would be contrary to English public policy and should be refused on that basis by a tribunal seated in England and Wales. However, a recent case held that the English law position that penalty clauses should not be enforced was not a sufficient reason to refuse recognition under the New York Convention (Pencil Hill Ltd. v US Citta di Palermo Spa [2016] EWHC 71(QB)).

Under the 1996 Act, parties are entitled to pre-award interest, post-award interest and to recover legal costs.

Under Section 49, the parties can agree on the power of the tribunal to award interest (Section 49(1)). In the absence of such agreement, Section 49 contains default provisions on the award of interest. These empower the tribunal to award pre-award and post-award interest on a simple or compound basis, at such rates and with such rests as the tribunal considers meets the justice of the case. No mandatory nor customary rate of interest is applicable.

Under the 1996 Act, the parties to an arbitration are also entitled to reach an agreement with regard to the costs of the proceedings (Section 61(1)). The only restriction on this autonomy is that the parties are not entitled to agree, before the dispute in question has arisen, that one party will pay the costs of the arbitration irrespective of the outcome (Section 60).

In the event that no agreement on costs has been reached, the 1996 Act contains default provisions that give the tribunal the power to allocate costs of the arbitration between the parties (Section 61). These costs include the arbitrators’ fees and expenses, the fees and expenses of any arbitral institution, as well as the legal and other costs of the parties (Section 59). In a recent case, the High Court held that the costs of the arbitration may also include the costs of third-party funding in certain circumstances (Essar Oilfields Services Ltd v Norscot Rig Management PVT Ltd [2016] EWHC 2361 (Comm)).

As far as the allocation of costs is concerned, the 1996 Act provides that, unless agreed otherwise, costs should “follow the event” unless the tribunal considers that such an award would be inappropriate in the circumstances of the case (Section 61(2)). This means that the starting point for the allocation of costs is that the successful party is entitled to its reasonable costs.

There are three limited grounds on which a challenge can be made to an award in England and Wales, namely:

  • the tribunal lacked substantive jurisdiction to make the award (Section 67);
  • there was a serious irregularity that has caused or will cause substantial injustice (Section 68); and
  • the tribunal erred on a point of law (Section 69).

Sections 67 and 68 are mandatory provisions of the Act – ie, they cannot be excluded by agreement. In contrast, the right to appeal on a point of law under Section 69 may be excluded if the parties agree otherwise.

Challenge to the Tribunal’s Substantive Jurisdiction

A challenge to the tribunal’s substantive jurisdiction may be made to a final award that deals with the merits or to a preliminary award on the tribunal’s jurisdiction. A challenge to jurisdiction is generally based on (i) the existence, validity or scope of the arbitration agreement; or (ii) whether the tribunal was constituted in accordance with the arbitration agreement. Where an award is challenged for lack of jurisdiction, the court must revisit the tribunal’s decision on jurisdiction.

A challenge under Section 67 is not limited to instances where a tribunal has found that it does have jurisdiction. A party may also challenge under Section 67 a tribunal’s finding that it does not have jurisdiction (GPF GP Sarl v Poland [2018] EWHC 409 (Comm)).

A party that challenges the substantive jurisdiction of the tribunal is entitled to a complete rehearing, instead of a review of the decision by the tribunal (see Dallah Real Estate & Tourism Holding Co v Government of Pakistan [2010] UKSC 46).

A party’s right to bring a challenge under Sections 67 and 68 can be lost if that party does not object to the tribunal’s jurisdiction and/or procedural irregularities forthwith and continues to take part in the proceedings (Section 73, 1996 Act).

Challenge on the Grounds of Serious Irregularity

A Section 68 challenge has two limbs. The applicant must show that (i) there has been a “serious irregularity” and (ii) “substantial injustice” has resulted. The High Court has recently reiterated that there was a “high threshold” to be met under Section 68 and the courts should not approach awards “with a meticulous legal eye endeavouring to pick holes, inconsistencies and faults in awards with the objective of upsetting or frustrating the process of arbitration” (The Secretary of State for the Home Department v Raytheon Systems Limited [2015] EWHC 311 (TCC)).

Section 68 contains an exhaustive list of what constitutes a “serious irregularity”:

  • the tribunal has failed to comply with its general duty under the 1996 Act;
  • the tribunal has exceeded its powers;
  • the tribunal has failed to conduct the proceedings in accordance with the parties’ agreed procedure;
  • the tribunal has failed to deal with all the issues put to it;
  • an arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award has exceeded its powers;
  • there is uncertainty or ambiguity as to the effect of the award;
  • the award was obtained by fraud or is otherwise contrary to public policy;
  • the award does not comply with requirements as to form; or
  • there was irregularity in the conduct of the proceedings or the award that is admitted by the arbitral tribunal or other institution or person vested by the parties with powers in relation to the proceedings or the award.

If one of these grounds is present, the applicant must then show that “substantial injustice” has resulted from the serious irregularity. The question of substantial injustice is approached independently of the question of serious irregularity. To succeed on the substantial injustice test, an applicant does not need to demonstrate that the outcome would have been different, provided it can show that “the tribunal might well have reached a different conclusion in its award” (The Secretary of State for the Home Department v Raytheon Systems Limited [2015] EWHC 311 (TCC)).

On a successful challenge under Section 68, the court can remit the award to the tribunal for reconsideration, set aside the award, or declare the award to be of no effect in whole or in part.

As noted above, a party’s right to bring a challenge under Section 68 can be lost if that party does not object to the tribunal’s jurisdiction and/or procedural irregularities forthwith and continues to take part in the proceedings.

Appeal on a Point of Law

An appeal on a point of law can be brought with the agreement of all other parties to the arbitration or with the leave of the court. To be granted leave, an applicant must satisfy the court that:

  • a determination of the question will substantially affect its rights;
  • the question of law is one that the tribunal was asked to determine;
  • on the basis of the findings of fact, the decision of the tribunal is obviously wrong – or that the question is of general public importance and the tribunal’s decision is at least open to serious doubt; and
  • it is just and proper for the court to determine the question.

The standard of review adopted at the leave stage by the court is deferential. When determining if the tribunal has reached a decision that is “obviously wrong”, an error must be apparent on the face of the award itself, such that it constitutes a “major intellectual aberration” (HMV UK Ltd v Propinvest Friar Ltd Partnership [2012] 1 Lloyd’s Rep 416). Likewise, where the question is one of general public importance, the mere fact that the court might have reached a different conclusion is unlikely to render an award “open to serious doubt”.

The standard of review adopted by the court at the appeal itself, if leave is granted (or all parties have agreed to refer the point), is similarly deferential. It is not sufficient for an applicant to satisfy the appeal court that it may have come to a different conclusion. A Section 69 appeal will only be successful if an applicant can show that a tribunal that correctly understood the law could not have reached the same conclusion as that reached by the tribunal (Vinava Shipping Co Ltd v Finelvet AG (The Chrysalis) [1983] 1 Lloyd’s Rep 503).

If an appeal under Section 69 is successful, the court may (i) vary the award; (ii) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the court’s determination; or (iii) set aside the award in whole or in part.

Procedure

In terms of procedure, a challenge or appeal is started by filing an arbitration claim form under Part 62 of the Civil Procedure Rules (CPR). The claim form is required to identify the basis of the challenge by reference to the relevant section of the Arbitration Act and give an outline of the award being challenged. To apply to the court, the applicant must also show that all available recourses from the tribunal to correct, review or make an additional award were exhausted.

Any challenge or appeal must be brought within 28 days of the date of the award or of being notified of the outcome of any arbitral appeal, review, correction to the award or an additional award (Section 70(3)). In a recent case the High Court confirmed that the date of an arbitration award for the purposes of the 28-day period for appealing under Section 70(3) runs from the date of the original award and not the date of correction of the award, save in cases where the corrections were material to the challenge in question (Daewoo Shipbuilding and Marine Engineering v Songa Offshore Equinox [2018] EWHC 538 (Comm)). This 28-day time limit can be extended by the court under certain circumstances, unless the parties agree otherwise (Section 79(3)).

As noted above, Sections 67 and 68 of the 1996 Act are mandatory and cannot be excluded by agreement of the parties. Section 69, on the other hand, is not mandatory and the right to appeal to the court on a question of law can be excluded if the parties agree otherwise.

The parties will be deemed to have excluded an appeal under Section 69 if they agree that the tribunal is not required to give a reasoned award. Similarly, an agreement to apply many of the major institutional rules (including the ICC and LCIA rules) will exclude the right to appeal under Section 69.

The parties can agree additional appeal procedures before a second arbitral tribunal or before an arbitral institution. However, the parties cannot expand the court’s power to review an arbitral award that is set down in Sections 67 and 68, because the court’s power to review an arbitral award is statutory.

As noted in 11.1 Grounds for Appeal, when a party seeks leave to appeal, the standard of judicial review of the merits of the case is deferential. In contrast, the standard of review when a party is challenging the substantive jurisdiction of the tribunal is de novo (Dallah Real Estate & Tourism v Government of Pakistan [2010] UKSC 46).

The UK (England, Wales, Northern Ireland and Scotland) is a party to the New York Convention, which it signed and ratified in 1975. This was subject to the reservation that the New York Convention only applied to awards made in the territory of another contracting party. Sections 100-104 of the 1996 Act provide for the recognition and enforcement of New York Convention awards (“awards made, in pursuance of an arbitration agreement, in the territory of a state (other than the United Kingdom) which is a party to the New York Convention”).

IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation [2017] UKSC 16 is an important recent decision of the Supreme Court on the interpretation of the New York Convention and the 1996 Act. The Supreme Court held that the New York Convention constitutes “a complete code” that was intended to establish “a common international approach” to the conditions for recognition and enforcement. Therefore, it is not permissible to use English procedural rules to fetter a party’s rights under the New York Convention.

The UK is also a party to the Geneva Convention on the Execution of Foreign Arbitral Awards 1927. An arbitral award that is made in the territory of a contracting party to the Geneva Convention can be enforced under the 1996 Act (Section 99). There are a small number of countries that have not acceded to the New York Convention but are party to the Geneva Convention 1927. Apart from in relation to these countries, enforcement of awards under the Geneva Convention 1927 has been largely superseded by enforcement under the New York Convention.

England and Wales has not signed any other similar enforcement conventions. However, England and Wales has enacted the following acts.

  • The Foreign Judgments (Reciprocal Enforcement) Act 1933 – this provides for the reciprocal recognition and enforcement of arbitral awards in former Commonwealth countries. Again, enforcement of awards pursuant to this statute has been largely superseded by enforcement under the New York Convention.
  • The Arbitration (International Investment Disputes) Act 1966 – this provides for the recognition and enforcement of ICSID awards.

The procedure for enforcing an arbitral award in England and Wales is governed by the 1996 Act. Section 66 provides two alternative procedures for the enforcement of an award: (i) an arbitral award may, by leave of the court, be enforced in the same manner as a judgment or order of the court; or (ii) an award creditor may begin an action on the award, seeking the same relief from the court as is set out in the tribunal’s award. The latter procedure is rarely followed in practice.

An application for leave to enforce is generally made without notice to the other party. It involves submitting an arbitration claim form and a witness statement attaching the arbitration agreement and award (CPR, Part 62). Where leave is granted, judgment may be entered in terms of the award and the same powers that are available to enforce a court judgment are available to enforce an award. Leave to enforce will be refused where, or to the extent that, the award debtor shows that the tribunal lacked substantive jurisdiction to make the award (Section 66(3), 1996 Act). This procedure governing enforcement is separate from and does not affect the recognition or enforcement of an award under the New York Convention.

To obtain recognition and enforcement of a New York Convention award, a party must produce (i) the duly authenticated original award or a duly certified copy thereof, and (ii) the original arbitration agreement or a duly certified copy thereof (Section 102(1), 1996 Act). If the award or agreement is in a foreign language, the party must also produce a translation of it certified by an official or sworn translator, or by a diplomatic or consular agent (Section 102(2)).

Recognition and enforcement of New York Convention awards in England and Wales can only be refused on limited grounds. These are set out in Section 103 of the 1996 Act (which mirror Article V of the New York Convention):

  • a party to the arbitration agreement was under some incapacity;
  • the invalidity of the arbitration agreement;
  • a party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case;
  • the award deals with a dispute that did not fall within the terms of the arbitration, or deals with matters out of the scope of the arbitration;
  • the composition of the arbitral tribunal was not in accordance with the agreement of the parties or the law of the country of the arbitration;
  • the award has not yet become binding on the parties or has been set aside or suspended by a competent authority of the country in which it was made;
  • the award is in respect of a matter not capable of settlement by arbitration;
  • enforcement of the award would be contrary to public policy; or
  • the award contains decisions on matters not submitted to arbitration – in which case it may only be recognised or enforced to the extent that it contains decisions on matters submitted to arbitration that can be separated from those on matters not so submitted.

Under Section 103 of the 1996 Act, enforcement “may” be refused on one of the above grounds. This means that the English courts retain a discretion to enforce an award even where one of the grounds for refusal is shown to exist. In practice, however, it would be rare for the English court to conclude that an award should be enforced despite there being grounds for refusing recognition. In Dallah Real Estate & Tourism Holding Co. v Ministry of Religious Affairs (Pakistan) [2009] EWCA Civ 755, the court recognised that its discretion to enforce an award – even where a ground in Section 103 exists – should be narrowly construed.

It is not necessary for the court to recognise and enforce an arbitral award in its entirety. The English court has held that “award” in the 1996 Act should be construed broadly to mean the “award or part of it”, with the result that the court can enforce part of an award (IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation [2008] EWCA Civ 1157).

The English courts have generally adopted a strongly pro-enforcement approach, which is reflected in English courts’ approach to refusing enforcement on public policy grounds.

Section 103(3) of the 1996 Act gives effect to Article V(2)(b) of the New York Convention, meaning that an English court may refuse to recognise or enforce an award on the ground that it is contrary to public policy. However, the English courts have held that arguments for refusing recognition on public policy grounds should be approached with extreme caution and the public policy exception should be construed narrowly. This is because it “was not intended to furnish an open-ended escape route for refusing enforcement of New York Convention awards” (IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation [2005] EWHC 726 (Comm)).

The English courts have imposed a high standard for refusing enforcement on public policy grounds. The Court of Appeal in Deutsche Schachtbau- und Tiefbohr-Gesellschaft M.B.H. v Ras Al Khaimah National Oil Co. [1987] 3 WLR 1023 stated that for an award to be contrary to public policy, there should be some element of illegality or a finding that enforcement is clearly injurious or wholly offensive to the public.

The recent decision by the English Court of Appeal in RBRG Trading (UK) v Sinocore International [2018] EWCA Civ 838 also laid out several principles indicating a high standard for refusing enforcement on public policy grounds. For instance, the mere fact that English law would have arrived at a different result does not, of itself, justify the application of English public policy and a refusal of enforcement. Also, the mere fact that the performance of the contract may be illegal in the place of performance, without more, will not render an award on the basis of such contract unenforceable in England, where the contract is legal by its applicable law and by the lex arbitri.

Therefore, the public policy exception will only apply in narrow circumstances, including where the award was obtained by fraud (Westacre Investments Inc v Jugoimport-SPDR Holding Co Ltd [1999] 2 Lloyd’s Rep 65), or when the award was tainted by illegality (Soleimany v Soleimany [1998] 3 WLR 811). Public policy considerations will also preclude the performance of an illegal act such as bribery. However, public policy considerations do not preclude enforcement of a contract procured or "tainted" by bribery or corruption (National Iranian Oil Company v Crescent Petroleum Company International Ltd [2016] EWHC 1900 (Comm)).

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Wilmer Cutler Pickering Hale & Dorr LLP offers one of the world’s largest and most experienced international arbitration and dispute resolution practices. The international arbitration group has been involved in more than 650 proceedings in recent years. Lawyers have successfully represented clients in a number of the largest institutional arbitrations and several of the most significant ad hoc arbitrations to arise in the past decade. The multinational team consists of nearly 70 lawyers, all of whom practise principally international dispute resolution. In addition to representing clients as counsel, many lawyers regularly sit as arbitrators in international arbitrations. The practice covers commercial and investment arbitration under the rules of all leading arbitral institutions and ad hoc arbitrations seated in a wide range of jurisdictions. It has represented individuals, companies, states and state entities. Lawyers have recently handled or are currently handling disputes under the International Chamber of Commerce (ICC), American Arbitration Association (AAA/ICDR), London Court of International Arbitration (LCIA), Stockholm Chamber of Commerce (SCC), International Centre for Settlement of Investment Disputes (ICSID), Vienna International Arbitral Centre (VIAC), Hong Kong International Arbitration Centre (HKIAC), Cairo Regional Centre for International Commercial Arbitration (CRCICA) and UNCITRAL rules, and also has extensive experience with more specialised forms of institutional arbitration and ad hoc arbitrations.

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