London is consistently ranked among the most popular arbitral seats in the world, with a 2021 survey conducted by Queen Mary University of London finding that London was the most preferred seat (joint with Singapore). The Law Commission of England and Wales (the “Law Commission”) estimates that at least 5,000 domestic and international arbitrations take place in England and Wales each year, potentially worth at least GBP2.5 billion to the economy, although the actual figures may be much higher.

The London Court of International Arbitration (LCIA) has seen steady growth in the last decade, receiving 377 referrals in 2023, up from 333 in 2022. The sums claimed also increased significantly, with 29% of monetary claims set at over USD20 million (up from 19% in 2022).

Taking the LCIA’s data on sectors as a guide, the transport and commodities, energy and resources and banking and finance sectors dominate the LCIA’s caseload year-on-year, representing 66% of the LCIA’s caseload for 2023 (36% for transport and commodities; 16% for banking and finance; and 14% for energy and resources). A broad range of other sectors make up not-insignificant proportions of the LCIA’s caseload, including in 2023, for example, professional services (7%), construction and infrastructure (6%) and technology (6%).

The International Chamber of Commerce (ICC) and the LCIA are the most used arbitral institutions for international arbitration in England and Wales.

The Commercial Court is the principal court for arbitration-related claims (known as “arbitration claims”), with approximately 25% of all claims issued in the Commercial Court being arbitration claims. The procedure for arbitration claims is set out in Civil Procedure Rule (CPR) Part 62 and its Practice Direction.

In addition to the Commercial Court, arbitration claims may be issued in the Technology and Construction Court or the Circuit Commercial Court (Practice Direction 62, paragraph 2.3(1)). Arbitration claims relating to landlord and tenant or partnership disputes, however, must be issued in the Chancery Division (paragraph 2.3(2)).

In deciding where to issue an arbitration claim, claimants should have regard to the criteria set out in the High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996 (SI 1996/3215), which include the financial value, nature and importance of the dispute (including for any third parties) and whether the balance of convenience points to the proceedings being brought in the London Circuit Commercial Court (Article 5(4)). Where the financial value of the dispute exceeds GBP200,000, the proceedings shall be taken in the High Court unless the proceedings do not raise questions of general importance to third parties (Article 5(4)(d)).

International arbitration in England and Wales is primarily regulated by the Arbitration Act 1996 (the “Arbitration Act”), which applies to all domestic and international arbitrations where the seat of the arbitration is England and Wales or Northern Ireland (unless otherwise stated, references to “Sections” herein are to the Arbitration Act). Certain provisions in the Arbitration Act, in exceptional cases, such as stays of legal proceedings, enforcement of awards and the English courts’ powers exercisable in support of arbitration, apply even if the seat of arbitration is outside England and Wales or Northern Ireland, or if no seat has been designated or determined. In addition, certain areas of arbitration law (eg, confidentiality in arbitration) are not codified in legislation and are instead found in case law.

The Arbitration Act is strongly influenced by the UNCITRAL Model Law, but England and Wales has not adopted the Model Law wholesale. Examples of divergences between them include the following:

• by default, the Arbitration Act specifies that the tribunal shall comprise a sole arbitrator (Section 15(3)), whereas the Model Law specifies three arbitrators (Article 10(1));
• absent agreement, the Model Law sets out rules for the exchange of pleadings (Article 23), whereas the Arbitration Act does not;
• the Model Law does not include a mechanism for summary enforcement of domestic awards, whereas the Arbitration Act does (Section 66); and
• the Arbitration Act applies to all forms of arbitration, whereas the Model Law applies only to international commercial arbitration.

In July 2024, the newly elected Labour government reintroduced a Bill to Parliament to reform the Arbitration Act. The proposed changes in the Arbitration Bill aim to ensure the Arbitration Act remains fit for purpose and continues to promote England and Wales as a leading destination for commercial arbitration. The Arbitration Bill is almost identical to a previous Bill that fell in May 2024 after a general election was announced and Parliament was dissolved.

The Arbitration Bill reflects proposals made by the Law Commission in 2023 following an extensive consultation with legal practitioners, industry bodies and arbitral institutions in the jurisdiction. Following that consultation, the Law Commission concluded that the Arbitration Act works well and that “root and branch reform is not needed or wanted”. The reforms in the Arbitration Bill are therefore confined to a few major initiatives and tidy-up changes, including the following.

• Governing law: introducing a new default provision into the Arbitration Act that, unless the parties expressly agree otherwise, the governing law of the arbitration agreement will be the law of the seat of arbitration. Significantly, this provision would undo the current rule laid down by the UK Supreme Court in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38. This provision will not apply to arbitration agreements in investment treaty arbitration (and similar cases arising under foreign investment legislation). See 3.3 National Courts' Approach for the current law in this area.
• Impartiality: codifying the rule in Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48 requiring an arbitrator to disclose any circumstances that should reasonably give rise to justifiable doubts as to their impartiality. See 4.5 Arbitrator Requirements for more information.
• Summary disposal: granting an express power to the tribunal (subject to the agreement of the parties) to issue awards on a summary basis.
• Challenges of awards:
1. making provision to amend the court CPRs to place limits on when parties that have participated in arbitral proceedings can raise new objections and evidence in subsequent court proceedings to challenge the jurisdiction of the tribunal (Section 67);
2. expanding the remedies available under Section 67 to be consistent with the remedies available for other routes to challenge awards; and
3. amending the rules on time limits for applications in circumstances where there has been a request for a correction or additional award; see 11.1 Grounds for Appeal for information on the current rules.

• Preliminary determination of tribunal’s jurisdiction: providing that the court’s ability to make a preliminary determination on the tribunal’s jurisdiction may do so only as an alternative to the tribunal itself ruling on this question, providing that an application on this issue (or on a preliminary point of law) requires only the agreement of the parties or the tribunal’s permission; see 5.3 Circumstances for Court Intervention for the current position.
• Court’s powers against third parties: clarifying expressly that the English court can make orders against third parties in support of arbitration proceedings, and that third parties have full rights of appeal in respect of such orders; see 6.2 Role of Courts for the current rules.
• Emergency arbitrators: making provision for court applications to enforce the orders of emergency arbitrators; see 6.2 Role of Courts for the current position.
• Immunity: strengthening an arbitrator’s immunity in situations of resignation or removal.

The changes in the Arbitration Bill will apply to arbitration agreements whenever made, but not to arbitrations and court proceedings concerning arbitration commenced before the reforms enter force.

As part of its consultation into potential reforms of the Arbitration Act, the Law Commission considered other proposals, including to:

• prohibit discrimination in the appointment of arbitrators;
• codify common law rules on confidentiality;
• reform the non-mandatory provision enabling appeals on a point of law; and
• make express provision to address third-party funding.

However, ultimately the Law Commission did not recommend reform in these areas and these proposals have not found their way into the Arbitration Bill.

There are no formal legal requirements for an arbitration agreement to be enforced under English law.

There are some qualifications in the application of the Arbitration Act – for example, Part 1 of the Arbitration Act only applies where the arbitration agreement is in writing (Section 5). For these purposes, “in writing” is broadly defined and can include, for example, an arbitration agreement being “evidenced in writing”. Oral arbitration agreements are valid under English law but are rare in the commercial context. Parties that wish to rely on an oral arbitration agreement would only be able to rely on the common law to govern its arbitration.

The Arbitration Act does not impose any strict requirements on the content of an arbitration agreement – only that the parties must agree “to submit to arbitration present or future disputes (whether they are contractual or not)” (Section 6(2)).

The Arbitration Act does not define the meaning of arbitrability but, consistent with the New York Convention, it recognises the right of the court to refuse recognition or enforcement of an award where the matter is not capable of settlement by arbitration (Section 103(3)).

Contractual and non-contractual disputes may be submitted to arbitration (Section 6(1)). Beyond this, the Arbitration Act does not define nor describe the matters that are capable of resolution by arbitration. Instead, Section 81(1)(a) of the Arbitration Act provides that common law governs whether matters are capable of settlement by arbitration.

The Arbitration Act is founded on a principle that parties should be free to agree how their disputes are resolved, subject only to public policy safeguards (Section 1(6)). In addition, the English courts emphasise the importance of upholding party autonomy to agree to arbitration to resolve their disputes. Consistent with this:

• English courts have held that a broad range of non-contractual disputes (including tort, competition, intellectual property and certain statutory claims) are capable of resolution 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, albeit more of a question of scope than arbitrability, the English courts interpret arbitration agreements broadly to encompass non-contractual as well as contractual disputes.

In recent years, there has been an apparent trend towards widening the range of disputes that may be capable of resolution by arbitration. However, a dispute will not generally be arbitrable under English law if it involves matters of public policy or public rights, for example. Consistent with this, disputes that are generally not capable of being resolved by arbitration under English law include:

• criminal, planning and certain family law matters;
• certain insolvency-related claims, including disputes arising from the exercise of statutory powers by a liquidator under the statutory regime contained in the Insolvency Act 1986; and
• certain employment disputes, in which an employee has a statutory right to be heard by an employment tribunal.

Courts’ Approach to Determining the Governing Law of the Arbitration Agreement

The English courts apply common law rules to determine the law governing the arbitration agreement. The leading case on governing law is the decision of the UK Supreme Court in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] UKSC 38. The Enka v Chubb rule is complex, but in summary provides as follows.

• The law applicable to the arbitration agreement will be the law chosen by the parties to govern it or, in the absence of such a choice, the system of law with which the arbitration agreement is most closely connected.
• Whether the parties have agreed on a choice of law to govern the arbitration agreement will be ascertained by construing the arbitration agreement and its matrix contract as a whole, applying English law rules on contractual interpretation.
• Where the law applicable to the arbitration agreement is not specified, a choice of governing law for the matrix contract will generally apply to the arbitration agreement, as an implied choice.
• However, additional factors may negate such an inference and instead imply that the arbitration agreement was intended to be governed by the law of the seat. Such factors include:
1. any provision of the law of the seat which indicates that, where an arbitration is subject to that law, the arbitration agreement will also be treated as governed by that country’s law; or
2. the existence of a serious risk that, if governed by the same law as the matrix contact, the arbitration agreement would be ineffective.
• In the absence of any choice of law, the arbitration agreement is governed by the law with which it is most closely connected. Where the parties have chosen a seat of arbitration, the closest connection will generally be to the law of the seat, even if this differs from the law applicable to the matrix contract.

For information on proposed future reforms in this area, see 2.2 Changes to National Law.

Enforcement of Arbitration Agreements

Consistent with England and Wales being an “arbitration-friendly” jurisdiction, the English courts adopt a broadly pro-enforcement approach to arbitration agreements. The courts generally aim to construe contracts to give effect to parties’ agreement to arbitrate, even where potential inconsistencies appear on the face of the contract.

The case of Adactive Media Inc v Ingrouille [2021] EWCA Civ 313 is illustrative in this regard. The court was asked to enforce a judgment in default obtained from the Californian courts. The contract underlying the dispute contained an arbitration clause providing for all disputes to be referred to arbitration, save for claims relating to breach of confidence, which were subject to the exclusive jurisdiction of the Californian courts. The English Court of Appeal refused to enforce the Californian judgment as it related to claims the Court of Appeal considered fell within the scope of the arbitration agreement.

The rule of separability applies in English law and is codified in Section 7 of the Arbitration Act. Unless the parties agree otherwise, an arbitration agreement is separable from the main contract in which it is incorporated, such that it generally survives the invalidity, inexistence or ineffectiveness of the main agreement.

However, there are certain limits to the doctrine of separability – eg, where the arbitration agreement itself is directly impeached (Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40) or where there is a question concerning the formation of the contract (eg, mistake) that may invalidate the arbitration agreement (DHL Project and Chartering Ltd v Gemini Ocean Shipping Co Ltd [2022] EWCA Civ 1555).

Parties have broad discretion to agree on arbitrators and the procedure for their appointment, but the court retains the power to remove arbitrators in certain circumstances, such as where there are justifiable doubts about their impartiality, or where the arbitrator does not possess the qualifications required by the parties’ arbitration agreement (Section 24).

There are no requirements regarding religion, gender or ethnicity, for example, that may limit who can be selected as an arbitrator. Arbitrators are not employees of the parties and therefore anti-discrimination legislation does not apply (Jivraj v Hashwani [2011] UKSC 40).

Section 16 of the Arbitration Act contains the following default mechanisms for the appointment of arbitrators:

• 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 comprising 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 comprising 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 chairperson (Section 16(5)); and
• a tribunal comprising two arbitrators and an umpire – as with three, subject to differences regarding the timing of the umpire’s appointment (Section 16(6)).

Unless the parties agree otherwise, the default position is that the tribunal will consist of a sole arbitrator (Section 15(3)).

Where parties have agreed a tribunal appointment mechanism but that mechanism fails, the Arbitration Act grants the English courts powers exercisable on application by either party, including:

• to give directions when making 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));
• to direct that the tribunal be constituted by the appointments made (Section 18(3)(b));
• to revoke any previous appointments (Section 18(3)); and
• to make the necessary appointments itself (Section 18(3)(d)).

Furthermore, unless the parties agree otherwise, where each of the two parties is required to appoint an arbitrator and one party refuses to do so (either at all or within the agreed time period), the other party may give notice in writing to the party in default that it proposes to appoint its arbitrator to act as sole arbitrator (Section 17(1)).

The English courts can exercise certain powers to appoint under the default procedure, or the court can intervene where the parties have agreed an appointment mechanism but it has failed (see 4.2 Default Procedures).

A party may apply to the English courts to remove an arbitrator and the court has the power to remove an arbitrator on the grounds that:

• there are justifiable doubts about their impartiality;
• an arbitrator does not possess the qualifications required by the parties’ arbitration agreement;
• an arbitrator is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to their capacity to do so; or
• an arbitrator fails to conduct the proceedings properly or to use all reasonable dispatch in conducting the proceedings (Section 24).

While the challenge is pending, the tribunal may continue the arbitral proceedings and make an award (Section 24(3)). Arbitrators who are subject to a Section 24 challenge may be heard before the court makes an order (Section 24(5)).

In H1 v W [2024] EWHC 382 (Comm), the court removed an arbitrator for apparent bias after remarks by that arbitrator during a procedural hearing that he knew one of the parties’ expert witnesses well and that there would be no need for him to be called to an evidential hearing, suggesting that the arbitrator had already decided to accept the expert’s evidence rather than assessing it objectively following cross-examination.

Section 33 of the Arbitration Act provides for the general duties of arbitrators. These are mandatory and include a requirement that arbitrators act fairly and impartially between the parties. The English 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 (Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48).

In Halliburton, the UK Supreme Court confirmed that an arbitrator has a legal duty to disclose matters that would or might give rise to justifiable doubts as to their impartiality. The Supreme Court held that there may be circumstances where the acceptance of multiple appointments involving a common party and the same or overlapping subject matter gives rise to an appearance of bias. Whether it does so will depend on the facts of the case and, in particular, the customs and practice in the relevant field of arbitration. Based on the facts of the case, the Supreme Court in Halliburton concluded that the arbitrator had a legal duty to disclose the appointments in related disputes. However, the failure to disclose did not ultimately give rise to apparent bias for several reasons, including the fact that there was no prospect of the appointing party gaining any advantage by reason of overlapping references.

When considering the basis for such disclosures, the English courts are not bound by the International Bar Association (IBA) Guidelines on Conflicts of Interest in International Arbitration, but they will be considered by the English courts as persuasive authority (Halliburton). Accordingly, the “non-waivable red”, “waivable red”, “orange” and “green” issues are an important guide to arbitrators sitting in arbitrations seated in England and Wales.

There are plans to codify the common law duty of disclosure laid down by Halliburton in the Arbitration Act; see 2.2 Changes to National Law.

A failure to disclose may give rise to a ground to challenge the arbitrator, by applying either to the relevant arbitral institution (eg, LCIA Rules 2020, Article 10.1) or to the court (see 4.4 Challenge and Removal of Arbitrators).

See 3.2 Arbitrability.

Unless otherwise agreed by the parties, the arbitral tribunal may rule on its own substantive jurisdiction, including:

• whether there is a valid arbitration agreement;
• whether the tribunal is properly constituted; and
• what matters have been submitted to arbitration in accordance with the arbitration agreement (Section 30(1)).

There are three circumstances in which a court can address issues of jurisdiction of an arbitral tribunal (apart from at enforcement stage – see 12.2 Enforcement Procedure).

First, Section 32 of the Arbitration Act allows a party to apply to the court for determination of a preliminary point of jurisdiction. Such an application can only be made with:

• the agreement in writing of all the other the other parties to the proceedings; or
• the permission of the tribunal and if the court is satisfied that:
1. the determination is likely to result in substantial savings in costs;
2. the application was made without delay; and
3. there is good reason why the matter should be decided by the court.

These criteria will be met only in exceptional circumstances (VTB Commodities Trading Dac v JSC Antipinsky Refinery [2019] EWHC 3292 (Comm)). While the court is considering a preliminary question of jurisdiction, the arbitration may continue and an award may be granted (Section 32(4)).

For information on proposed future reforms to Section 32, see 2.2 Changes to National Law.

Second, Section 67 of the Arbitration Act permits a party to challenge an arbitral award on grounds of lack of substantive jurisdiction; see 11.1 Grounds for Appeal.

Third, Section 72 of the Arbitration Act enables a party that has not participated in the arbitration proceedings to apply to the court for a declaration or injunction to restrain the arbitration proceedings by challenging:

• the validity of an arbitration agreement;
• whether the arbitral tribunal has been properly constituted; or
• what matters have been referred to arbitration in accordance with the arbitration agreement.

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).

A party can challenge the jurisdiction of the tribunal at any time before the English courts; see 5.3 Circumstances for Court Intervention.

The standard of review under a Section 67 challenge to the jurisdiction of the tribunal is de novo; see 11.3 Standard of Judicial Review. For information on proposed future reforms in this area, see 2.2 Changes to National Law.

Questions of admissibility are separate from questions of jurisdiction. A dispute as to the jurisdiction of the tribunal concerns whether a tribunal has the power to determine the dispute in question at all, whereas questions of admissibility concern whether the tribunal will exercise its power in relation to a particular claim submitted to it where there is an alleged defect in the way the claim has been brought. For example, the court has held that the question of whether a party had complied with a multi-tier dispute resolution clause raised questions of admissibility rather than jurisdiction, and that it therefore did not have the power to review the tribunal’s decision (Republic of Sierra Leone v SL Mining Ltd [2021] EWHC 286 (Comm); NWA v NVF [2021] EWHC 2666 (Comm)).

A court must stay court proceedings in respect of a matter that under an arbitration agreement is to be referred to arbitration (Section 9(1)). The burden of proof is on the applicant to establish the existence of an arbitration agreement and that it covers the matter in dispute.

In Mozambique v Privinvest Shipbuilding SAL (Holding) [2023] UKSC 32, the Supreme Court confirmed the relevant test to be as follows:

• the court must identify the matters that have been or will foreseeably be raised in the court proceedings, and determine if each matter falls within the scope of the arbitration agreement;
• a matter need not cover the whole of the dispute;
• a matter is a substantial issue, not an issue that is peripheral or tangential to the subject of the proceedings;
• a common-sense approach to evaluating the substance and relevance of a matter should be taken; and
• the true nature of the matter must be considered, as well as the relevant context.

A party must challenge the court’s jurisdiction within the time limit for acknowledging service of the claim form. The right of a stay may be lost where the applicant 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 has an inherent jurisdiction to stay proceedings even where Section 9 of the Arbitration 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, the party against whom proceedings are commenced can apply to the English courts for an anti-suit injunction. The English courts may grant an anti-suit injunction where proceedings are brought in breach of an English-seated arbitration agreement. The English courts may also grant an anti-suit injunction in support of a foreign-seated arbitration, provided that the court is satisfied that it has jurisdiction, such as pursuant to an English law contract (UniCredit Bank v RusChemAlliance [2024] EWCA Civ 64), and that it is the proper forum to grant such relief.

English law does not permit a tribunal to assume jurisdiction over non-parties (Kabab-Ji SAL v Kout Food Group [2021] UKSC 48). The tribunal does not have the power to compel a non-party to produce documents, for example, but it may invite non-parties to do so.

Parties may seek to bind a non-signatory to the arbitration agreement in certain circumstances, such as via the doctrine of agency (Filatona Trading Ltd v Navigator Equities Ltd [2020] EWCA Civ 109).

The English courts have emphasised that the group of companies doctrine “forms no part of English law” (Peterson Farms Inc v C & M Farming Ltd [2004] EWHC 121 (Comm)). Furthermore, 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).

See also 13.5 Binding of Third Parties.

Sections 38–39 of the Arbitration Act list a tribunal’s powers to grant preliminary or interim relief. Parties are free to agree on the powers of the tribunal (Section 38(1)).

Subject to contrary agreement, the 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 about 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)).

Parties may 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 (Section 39).

Unless otherwise agreed, the Arbitration Act does not confer on the tribunal the power to grant an interim injunction to secure the sum in dispute. However, it is possible to seek a freezing injunction from the English courts in support of arbitral proceedings (Section 44(2)(e)).

Preliminary/Interim Relief

Unless the parties agree otherwise, the English courts have the power to make orders in respect of:

• taking witness evidence;
• the preservation of evidence;
• the preservation, detention, inspection or sampling of the disputed property;
• the sale of any goods the subject of the proceeding; and
• granting an interim injunction (Section 44(2)).

Where urgent, the court may (on the application of a party or proposed party to arbitral proceedings) make such orders as it thinks necessary to preserve evidence or assets (Section 44(3)).

However, if the application is not urgent, 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(4)). The court will only act to the extent that the tribunal has no power or is unable at the time to act effectively (Section 44(5)).

Despite some uncertainty in case law, it is generally considered (and is the view of the Law Commission) that the court can make orders against non-parties under Section 44 – eg, by ordering the taking of evidence from a non-party witness for the purpose of aiding foreign arbitral proceedings (A & B v C, D & E [2020] EWCA Civ 409).

For information on proposed future reforms in this area, see 2.2 Changes in National Law.

Emergency Arbitrators

The Arbitration Act does not contain any provisions addressing emergency arbitrators. The agreement of emergency arbitrator provisions (whether in institutional rules or otherwise), does not prevent a party from applying to court under Section 44, provided the usual requirements in Sections 44(3) to (5) have been met (Gerald Metals SA v Timis [2016] EWHC 2327 (Ch)). In Gerald Metals, the High Court refused to grant a freezing order against a defendant to arbitration proceedings. This was because the defendant had given undertakings in the arbitration which satisfied the arbitral institution that the matter was not sufficiently urgent to require an emergency arbitrator and could await the formation of the tribunal. There has been uncertainty among the arbitration community about the effects of the decision in Gerald Metals – namely, a concern that the existence of emergency arbitrator provisions (which are now found in most of the leading institutional rules) preclude the parties from obtaining relief from the court under Section 44. However, the Law Commission considers that this is an incorrect reading of Gerald Metals.

For information on proposed future reforms in this area, see 2.2 Changes to National Law.

Under the Arbitration Act, unless the parties agree otherwise, the tribunal has the power to order the claimant to provide security for costs (Section 38). Costs for which security can be ordered include the arbitrators’ and the defendant’s costs (Section 39).

The court has no power to order security for costs during arbitration proceedings. It can order security in respect of challenges to an award under Sections 67–69 (Section 70(6)) (see 11.1 Grounds for Appeal).

Parties are free to agree procedural and evidential matters. In the absence of an agreement by the parties, the tribunal will determine all procedural and evidential matters (Section 34).

No mandatory procedural steps are required by law. Instead, the parties can agree their own procedural rules (see 7.1 Governing Rules).

Section 33 of the Arbitration Act imposes a “general duty” on the tribunal to:

• act fairly and impartially, so that each party is given a reasonable opportunity to put its case and deal with that of its opponent; and
• adopt procedures that avoid unnecessary delay and expense, to provide a fair means for the resolution of the dispute.

Section 33 is a mandatory provision that cannot be excluded by agreement of the parties.

Arbitrators are also under a duty to render an enforceable award.

In addition to the general powers granted to a tribunal under Section 38 (see 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 specific qualifications or other requirements for legal representatives appearing in arbitrations seated in England and Wales. Unless the parties agreed otherwise, a party may be represented in proceedings “by a lawyer or other person chosen by [the party]” (Section 36). Accordingly, foreign lawyers are free to appear without restriction, as are non-lawyers that are not qualified in any jurisdiction.

Parties have broad discretion to agree evidential matters, including:

• the extent of disclosure and at what stage this should occur; and
• whether evidence should be presented at an oral hearing.

Absent party agreement, Section 34(2) of the Arbitration Act gives the tribunal a broad power to determine all procedural and evidential matters.

Unless the parties agree otherwise, the tribunal has broad powers to decide all evidential matters, including about disclosure of documents, witness evidence and whether to apply rules of evidence (Section 34).

In practice, the IBA Rules on the Taking of Evidence in International Arbitration are often adopted in English-seated arbitrations.

Under Section 37 of the Arbitration Act, unless the parties agree otherwise, the tribunal may appoint experts, legal advisers or assessors to report to it and the parties, and allow them to attend hearings.

The tribunal may order disclosure of specific documents from parties under its general power under the Arbitration Act to determine all procedural and evidential matters (Section 34(2)(d)).

Tribunals do not have the power to order disclosure from a non-party, nor the attendance of a witness. Accordingly, if a party wishes to compel a witness to attend a hearing and provide evidence, or requires a non-party to produce documents, they will need to apply to court.

For witnesses located inside the UK, a party to arbitral proceedings may apply to the court to “secure the attendance before the tribunal of a witness in order to give oral testimony or to produce documents or other material evidence” (Section 43). This provision is mandatory. However, before applying to court, the applicant must first obtain either the agreement of the other party/ies to the arbitration or the permission of the tribunal.

For witnesses located outside of the UK, a party to an arbitration must rely on Section 44. This allows the party to apply to a court for an order in relation to “the taking of evidence of witnesses” (Section 44 2(a)) and “the preservation of evidence” (Section 44 2(b)) for the purposes of arbitral proceedings. See also 5.7Jurisdiction Over Third Parties and 6.2 Role of Courts.

The Arbitration Act does not contain provisions on confidentiality. However, under English law, in the absence of explicit agreement to the contrary, an arbitration agreement contains an implied term obliging the parties to maintain confidentiality (Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184). This reflects the prevailing view that arbitration is private in nature, and that confidentiality is a key perceived advantage of arbitration as opposed to litigation. This duty of confidentiality applies to all constituent parts of the arbitral proceedings, including the award, the pleadings and all documents disclosed or produced.

Confidentiality may also arise in equity (Halliburton Co v Chubb Bermuda Insurance Ltd [2020] UKSC 48) or the tort of misuse of private information (Campbell v MGN Ltd [2004] UKHL 22), for example. Furthermore, some institutional rules contain express confidentiality provisions, including Article 30 of the LCIA Rules 2020.

However, there are certain recognised exceptions to confidentiality in English law, including:

• where parties agree to dispense with the obligation;
• where the disclosure of documents is ordered or permitted by the court;
• where disclosure is reasonably required to establish or protect a party’s legal rights; and
• where disclosure is necessary in the interests of justice.

In Manchester City Football Club Ltd v The Football Association Premier League Ltd and others [2021] EWCA Civ 111, the Court of Appeal upheld a decision permitting the publication of a judgment dismissing challenges to an award under the Arbitration Act, as the public interest in publication of the judgment outweighed any duty of confidentiality, and publication would not lead to the disclosure of significant confidential information.

Unless the parties agree otherwise, a majority of the tribunal must agree to an award in order for it to be given (Section 20(3)).

The parties are free to agree on the form of an award (Section 52(1)). In the absence of such agreement, the award must:

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

The term “in writing” means recorded by any means, including as an electronic document (Section 5(6)).

The Arbitration Act does not specify a time limit in which an award must be delivered, except that:

• where an award is remitted by the court to the tribunal, the tribunal shall make its award within three months of the date of the order for remission, unless the court orders otherwise (Section 71(3));
• any correction of the award must be made within 28 days from when the application was received by the tribunal or, if the correction is made at the initiative of the tribunal, within 28 days of the award (Section 57(5)); and
• any additional award must be made within 56 days of the original award (Section 57(6)).

Time limits for corrections and additional awards can be extended by agreement of the parties (Sections 57(5)–(6)).

Unless the parties agree otherwise, the tribunal has the power to grant the following remedies:

• make a declaration about 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 a party to do or refrain from doing anything (Section 48(5)(a));
• order specific performance of a contract (other than a contract relating to land) (Section 48(5)(b)); and
• order the rectification, setting aside or cancellation of a deed or other document (Section 48(5)).

In addition, the parties can agree that the tribunal will have the power to order on an interim basis any relief it would have the power to grant in a final award (Section 39).

Under English law, punitive (exemplary) damages are not recoverable for claims of breach of contract (Addis v Gramophone Company Limited [1909] A.C. 488) but may be recoverable in certain tort claims. However, in accordance with Section 48 of the Arbitration Act, it may be possible for the parties to agree in writing that the tribunal has the power to award punitive damages.

The English courts have enforced foreign arbitral awards for punitive damages, notwithstanding arguments that this would be contrary to English public policy (Pencil Hill Ltd v US Citta di Palermo Spa [2016] EWHC 71(QB)).

Costs

The parties can agree how costs are allocated, but an agreement that one party is to pay part or the whole of the costs of the arbitration is valid only if that agreement is made after the dispute has arisen (Section 60).

In the absence of an agreement between the parties, the tribunal can allocate the costs of the arbitration between the parties (Section 61(1)). This is done on the general principle that “costs should follow the event” (ie, the losing party pays the successful party’s legal costs), unless this is inappropriate in the circumstances (Section 61(2)).

“Costs” include the arbitrators’ fees and expenses, the fees and expenses of any arbitral institution, and the legal and other costs of the parties (Section 59).

If the parties do not agree costs, the tribunal can determine the recoverable costs (Section 63(3)). If it does so, the tribunal must specify the basis on which it has acted and the items of recoverable costs and the amount referable to each. If the tribunal does not determine the recoverable costs, either party can apply to the court (Section 63(4)).

The tribunal can direct that the recoverable costs of the whole or part of the arbitration are limited to a specified amount (Section 65(1)).

Where contingency fee arrangements apply, Section 58(A)(6) of the Courts and Legal Services Act 1990 provides that a costs order made in proceedings (including arbitral proceedings) “may not include provision requiring the payment by one party of all or part of a success fee payable by another party under a conditional fee agreement”.

Interest

Unless the parties agree otherwise (including in a contractual term), the tribunal has broad discretion 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 meet the justice of the case (Section 49).

There are three grounds upon which to challenge an arbitral award:

• lack of substantive jurisdiction (Section 67);
• serious irregularity that has or will cause substantial injustice (Section 68); and
• appeal on a point of law (Section 69)

Section 67: Challenge to the Tribunal’s Substantive Jurisdiction

A challenge to the tribunal’s substantive jurisdiction is usually based on one of three grounds:

• the existence or validity of the arbitration agreement;
• the constitution of the tribunal; or
• the scope of the arbitration agreement.

A challenge can be made to a final award that deals with the merits, or to a preliminary award on the tribunal’s jurisdiction. If the challenge is against a preliminary award on jurisdiction, the tribunal may continue with the arbitration proceedings and make a further award while the challenge to its jurisdiction is pending (Section 67(2)).

Following a challenge under Section 67, the court may confirm, vary or set aside the award in whole or in part (Section 67(3)). For potential future changes to Section 67 remedies, see 2.2 Changes to National Law.

Section 68: Challenge on the Grounds of Serious Irregularity

The applicant must show both that:

• there has been a “serious irregularity”; and
• “substantial injustice” has resulted or will result from this irregularity.

Section 68 is intended to remedy procedural irregularities, and not to correct errors of fact or law. An exhaustive list of circumstances amounting to a serious irregularity is contained in Section 68(2):

• the tribunal has failed to comply with its general duties under the Arbitration Act– eg, the duty to give each party a reasonable opportunity to present its case under Section 33;
• 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 has exceeded the powers vested in it by the parties in relation to the proceedings or the award;
• 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 in the award that is admitted by the arbitral tribunal or other institution or person vested by the parties with powers relating to the proceedings or the award.

A “high threshold” must be met to make a successful challenge under Section 68 (K v A [2019] EWHC 1118 (Comm)).

An applicant may lose its right to bring a Section 68 challenge if it did not act promptly as soon as it thought it had a reason to object and continued to take part in the proceedings (Section 73 of the Arbitration Act; Radisson Hotels APS Denmark v Hayat Otel Işletmeciliği Turizm Yatırım Ve Ticaret Anonim Şirketi [2023] EWHC 892 (Comm)).

Following a successful challenge under Section 68, the court may 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 (Section 68(3)).

Section 69: 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 permission of the court (Section 69(2)). An application for permission to appeal under Section 69 will usually be dealt with on the papers, unless the court considers it necessary to hold a hearing (Osler v Osler and others [2024] EWCA Civ 516).

An applicant must show that:

• the appeal relates to a question of law and not fact;
• the question arises out of the award;
• a determination of the question will “substantially affect its rights”;
• the question of law is one that the tribunal was asked to determine;
• based on the findings of fact, the tribunal’s decision is “obviously wrong” or, where the question is one of “general public importance”, at least “open to serious doubt”; and
• it is just and proper for the court to determine the question.

To be open to challenge, a point of law must have been “fairly and squarely before the arbitration tribunal for determination” (Sharp Corp Ltd v Viterra BV [2024] UKSC 14).

It is not sufficient for an applicant to demonstrate that the tribunal may have come to a different conclusion if it had applied the law correctly. The applicant must show that a tribunal that had correctly applied the law could not have reached the conclusion that was reached (John Sisk & Son Ltd v Carmel Building Services Ltd (In Administration) [2016] EWHC 806).

Following a successful appeal, the court may vary the award, remit the award to the tribunal in whole or in part, for reconsideration in light of the court’s determination, or set aside the award in whole or in part (Section 69(7)).

Procedure

A challenge or appeal is started by filing an arbitration claim form under CPR Part 62.

Before making a challenge or appeal, the applicant must first exhaust any available recourse in the arbitral process and any available recourse under Section 57 to correct or obtain an additional award (Section 70(2)).

A challenge or appeal must be brought within 28 days of the date of the award or of being notified of the outcome of any appeal or review in the arbitral process (Section 70(3)). Where a request for correction of an award is first made under Section 57, the date of an award for the purposes of the 28-day period for challenge or appeal runs from the date of the original award, not the date of the corrected award, except 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)). For proposed reforms to Section 70(3), see 2.2 Changes to National Law.

Section 69 is not mandatory and can be excluded by agreement of the parties. It is often disapplied by the parties agreeing certain institutional rules, such as the ICC rules (Article 28.6) and LCIA rules (Article 26.8).

However, Sections 67 and 68 of the Arbitration Act are mandatory provisions, so the right to challenge an arbitral award for lack of jurisdiction or a serious irregularity cannot be excluded by agreement of the parties.

The standard of review adopted by the court for an appeal on a point of law under Section 69 is intended to be deferential rather than meticulous (Zermalt Holdings SA v Nu-Life Upholstery Repair Limited [1985] 275 EG 1134).

Where the substantive jurisdiction of the tribunal is challenged under Section 67, the standard of review is de novo and will take place via a full rehearing (Dallah Real Estate & Tourism v Government of Pakistan [2010] UKSC 46). For information on proposed future reforms in this area, see 2.2 Changes to National Law.

The UK (England, Wales, Northern Ireland and Scotland) is party to the New York Convention, so foreign awards made in the territory of another state that is party to the New York Convention are binding in the UK. Sections 101 to 104 of the Arbitration Act provide for the enforcement of awards under the New York Convention.

The UK is also party to the Geneva Convention on the Execution of Foreign Arbitral Awards 1927, and an arbitral award that is made in the territory of a contracting party can be enforced under the Arbitration Act (Section 99). The Geneva Convention 1927 has largely been superseded by the New York Convention.

The UK has also enacted:

• the Foreign Judgments (Reciprocal Enforcement) Act 1933, which provides for the reciprocal recognition and enforcement of arbitral awards in former Commonwealth countries, although this statute has largely been superseded by the New York Convention; and
• the Arbitration (International Investment Disputes) Act 1966, which provides for the recognition and enforcement of arbitral awards from the International Centre for Settlement of Investment Disputes.

English-Seated Awards

Section 66 of the Arbitration Act sets out a summary procedure for the enforcement of English-seated awards. First, under Section 66(1), an arbitral award may “by leave of the court, be enforced in the same manner as a judgment or order of the court”. Alternatively, an award can be converted into a court judgment under Section 66(2). In practice, the Section 66(2) mechanism is rarely used.

An award can also be enforced by action on the award for failure to comply with the award (Section 6(4)). Again, this method is rarely used in practice.

The enforcing party will need to apply to the court for permission following the procedure in CPR 62. This involves submitting an arbitration claim form, attaching a witness statement, the award and the arbitration agreement. This is generally done without giving notice to the other party. If permission to enforce is granted, a judgment will be entered in the terms of the award and the same powers that are available to enforce an ordinary court judgment will be available. Where a party can show that a tribunal lacks substantive jurisdiction to make an award, leave to enforce will be refused (Section 66(3)).

Foreign Awards

To enforce a foreign award under the New York Convention, a party should follow the procedure under Section 102 of the Arbitration Act. This requires the enforcing party to produce the duly authenticated award or a duly certified copy of the award and the original arbitration agreement or a duly certified copy of it. If an award is in a foreign language, a certified copy of it should also be produced.

Section 103(2) of the Arbitration Act mirrors Article V of the New York Convention, providing the following six grounds under which the enforcement of an award may be resisted in the UK:

• that a party to the arbitration agreement was (under the law applicable to them) under some incapacity;
• that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made;
• that a party was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings, or was otherwise unable to present their case;
• that the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration;
• that the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, with the law of the country in which the arbitration took place;
• that 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, or under the law of which, it was made.

In addition, the English courts have discretion to refuse to enforce a foreign award in the UK on the grounds of public policy (Section 103(3)).

The court may adjourn its decision whether to enforce an award if an application to set aside or suspend an award has been made to the courts of the seat of the arbitration and is pending (Section 103(5)).

Although the Arbitration Act and the New York Convention are silent on the point, a party, such as a sovereign state, may be immune from enforcement proceedings. Where a state has agreed in writing for a dispute to be resolved by arbitration, the state is not immune from court proceedings “which relate to the arbitration” (Section 9 of the State Immunity Act 1978, or SIA). This includes proceedings to recognise and enforce awards (Svenska Petroleum Exploration AB v Government of the Republic of Lithuania and AB Geonafta [2006] EWCA Civ 1529). However, a party may not execute against the property of a state unless the state has separately expressly waived its immunity from execution (Section 13(2)(b) of the SI) or execution is sought against property that is in use or intended for use for commercial purposes (Section 13(4) of the SIA).

The English courts adopt a strongly pro-enforcement attitude to arbitration awards and, for this reason, have been reticent to refuse to enforce arbitral awards. For example, while Section 103(3) grants the English courts the discretion to refuse to enforce an award in the UK on the grounds of public policy, the courts have emphasised that this is to be approached with “extreme caution” (IPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation (2017) UKSC 16).

In certain cases, however, such as where the arbitration agreement is between a consumer and a business, the English courts have been willing to refuse enforcement on public policy grounds (Chechetkin v Payward Ltd and others [2022] EWHC 3057 (Ch)).

Aside from consolidation (see 13.4 Consolidation), the Arbitration Act is silent on the availability of class or group arbitration. In contrast to jurisdictions such as the United States, group arbitration remains uncommon in England and Wales and faces similar challenges to those that arise in multiparty or multi-contract arbitration (eg, consent). However, the rise in group litigation claims before the English courts (and elsewhere) and examples of group claims in investment treaty arbitration (eg, Abaclat v Argentina, ICSID Case No ARB/07/5 and Theodoros Adamakopoulos and others v Republic of Cyprus, ICSID Case No ARB/15/49) indicate that there is potential for group arbitration to become more prevalent in the future.

The Bar Standards Board’s BSB Handbook regulates English barristers participating in arbitrations in England and Wales. Similarly, the Solicitors Regulation Authority (SRA) Standards and Regulations, including the Code of Conduct for Solicitors, RELs and RFLs, regulate the activities of Solicitors acting in arbitrations in England and Wales. There are no separate rules that apply to counsel from jurisdictions outside England and Wales participating in arbitrations in England and Wales.

Several arbitral institutions incorporate mandatory ethical standards into their arbitration rules – eg, the 2020 LCIA Rules, which give the tribunal the power to order sanctions for non-compliance (see 2020 LCIA Rules, Articles 18.4 and 18.5).

Third-party funding for arbitration is now well established in England and Wales. It is a rapidly growing sector, serviced by increasingly sophisticated financing arrangements and specialist litigation financing providers.

In general, English law permits funding agreements between claimants and third-party funders that provide for funders to receive payment in the event of success. However, such agreements need to comply with the Courts and Legal Services Act 1990 and relevant case law.

In R (on the application of PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28, the Supreme Court held that litigation funding agreements, which provide for a funder’s success fee to be calculated as a percentage of damages recovered, are a damages-based agreement for the purposes of Section 58AA of the Courts and Legal Services Act 1990. Such agreements must therefore meet the requirements of the Damages-based Agreements Regulations 2013 or are otherwise unenforceable.

The UK government announced in March 2024 that it would fast-track legislation that would reverse the decision in PACCAR. However, the proposed Litigation Funding Agreements (Enforceability) Bill did not come into force before Parliament was dissolved after the general election was announced, and it was not among the planned bills announced by the new Labour government on 17 July 2024 for the 2024–25 Parliamentary session.

A tribunal may order the consolidation of arbitration proceedings with consent of the parties to the arbitration (Section 35(1)). In the absence of such agreement, however, the Arbitration Act provides no default power for the tribunal to order the consolidation of proceedings (Section 35(2)).

Some commonly used institutional rules for arbitration give the tribunal the power to order consolidation in certain circumstances – eg, the LCIA Rules 2020 (Articles 22.1 and 23).

Under English law, a non-signatory third party may be bound by an arbitration agreement, but the circumstances are limited. Circumstances in which this may occur include the following.

• Where an agent has executed an arbitration agreement on behalf of its principal.
• Where contractual rights or causes of action are assigned or transferred to a third party – where those rights or causes of action were originally subject to an arbitration agreement, the third party may also be bound by it (West Tankers Inc v Ras Riunione Adriatica Di Sicurta SpA [2005] EWHC 454 (Comm)).

• The Contracts (Rights of Third Parties) Act 1999 provides that, in certain circumstances, a third party may enforce rights arising under a contract. If those rights are subject to an arbitration agreement, the third party may be bound to it (Nisshin Shipping v Cleaves & Co [2003] EWHC 2602 (Comm)). It is relatively common for contracts to exclude the application of the Contract (Rights of Third Parties) Act 1999.
• An insurer may be subrogated to contractual rights that are themselves subject to an obligation to arbitrate.
• Where, in limited circumstances, the corporate veil is pierced to extend an arbitration agreement to a group company because the corporate entity is simply a “façade to conceal the true facts” (VTB Capital plc v Nutritek International Corp and others [2013] UK SC 5).

An arbitral award will not bind third parties, including parent companies of parties to an arbitration. For example, the English courts have held that a prior arbitration award that had rescinded a joint venture agreement had no binding effect on a subsequent proprietary claim made against third parties who were not parties to the arbitration (Vale SA v Steinmetz [2021] EWCA Civ 1087).

See also 5.3 Circumstances for Court Intervention.