England and Wales is a ‘pro-arbitration’ jurisdiction. The English courts do not interfere with arbitration but, as described below, will support the process where required and permitted by law. The local institutions (see Section 2.3 below) are internationally renowned. Many leading firms and barristers’ chambers have specialist arbitration teams, with different specialists practising not just international commercial and investor-state arbitration but also, for example, shipping, insurance and commodities arbitration. Case law is highly developed and challenges to awards are rarely successful (between 2010 and 2020 less than 1% of English arbitral awards were successfully challenged in the courts). Reliable and well-equipped facilities such as the International Dispute Resolution Centre are capable of hosting in-person and hybrid hearings. 

A common pitfall is that, where no institutional or other arbitration rules are specified, ad hoc proceedings can take longer and be more expensive. The ‘fall back’ provisions in the Arbitration Act 1996 (AA 1996/the Act) can lead to delay. There is also no statutory ‘expedited arbitration’ procedure. If parties want this, they must provide for it in a contract (e.g. by reference to institutional rules) or agree a short timetable at the time of the dispute. 

See Section 1.1 above.

The AA 1996 applies to all arbitrations (domestic and international, ad hoc and institutional) seated in England and Wales (or Northern Ireland) (legislative references throughout are to the AA 1996 unless otherwise stated). 

The UK is also party to: 

• the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) (see Section 12 below); 
• the Geneva Convention on the Execution of Foreign Arbitral Awards 1927, which covers a small number of additional countries that are not New York Convention signatories; and 
• the International Centre for Settlement of Investment Disputes Convention 1966 (ICSID Convention).

There are no special courts or chambers that hear arbitration matters exclusively: such cases fall within the remit of the Commercial Court in the High Court at first instance. 

The Act does not define “international” arbitration. By analogy with the “domestic arbitration agreement” definition, an international arbitration would be one in which a party is an individual whose nationality or habitual residence is outside of the UK, or a corporate entity incorporated, or whose central control and management is exercised, outside of the UK. That said, the ‘subject matter’ of a dispute might also be relevant to determining whether an arbitration is “international”. 

These include the London Court of International Arbitration; the London Maritime Arbitrators Association; the Chartered Institute of Arbitrators; the London Chamber of Arbitration and Mediation; and leading commodity bodies including the London Metal Exchange and the Grain and Feed Trade Association. 

An agreement to arbitrate is an agreement to submit to arbitration present or future disputes, both contractual and non-contractual (s.6 and s.82(1)). 

An arbitration agreement must be made “in writing” (s.5(1)), which is broadly defined: s.5(6) defines “anything being written or in writing” as “its being recorded by any means”, i.e., any exchange of written communications or communications evidenced in writing. There is no requirement for signature by the parties (see s.5(2)).

Fully oral arbitration agreements are not enforceable under the Act (although they could be under the common law). However, there are qualifications to this rule. For example, if the parties agree otherwise than in writing (e.g., orally) by reference to terms which are in writing, then that constitutes an agreement in writing (see s.5(3)). 

The usual common law requirements regarding formation of a valid contract apply, including the intention to create legal relations, certainty of terms and proper capacity of the parties.

There are no special formalities beyond those discussed above.

An arbitration agreement within a contract is distinct from the main contract (s.7) and may be governed by a different law. In Enka Insaat ve Sanayi A.S. v. OOO Insurance Company Chubb [2020] UKSC 38, the Supreme Court held that where the main contract contained a chosen applicable law but the arbitration agreement did not, the parties are presumed to have intended, by “implied choice”, that the chosen law would also apply to the arbitration agreement. Where no such choice is apparent, the law with “the closest and most real connection” to the arbitration agreement would be the applicable law, which is often the law of the seat.

The parties should be free to agree how their disputes are resolved, subject only to safeguards necessary in the public interest (s.1(b)). Disputes which raise issues of public rights or third party interests, or which concern matters with specific statutory regimes however are not arbitrable (e.g. criminal offences, certain family matters, certain aspects of competition law, insolvency proceedings, and certain employment tribunal proceedings). Compulsory consumer arbitration agreements relating to claims of GBP 5,000 or less are automatically unfair and unenforceable against an individual consumer (s.91(1)).

A party to an arbitration agreement against which court proceedings are brought can apply to the court to stay the proceedings under s.9 (n.b., the right will be lost if the party takes any step in the court proceedings to answer the substantive claim, s.9(3)). 

Where an application is made, unless satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed, the court shall grant the stay (s.9(4)). The court may stay proceedings even if the seat of the arbitration is outside of England and Wales or no seat has been designated or determined (s.2(2)(a)). 

The court also has inherent jurisdiction to stay proceedings brought in breach of an arbitration agreement, which it may deploy where the s.9 requirements cannot be met but litigation management and good sense make it desirable for an arbitrator to consider the matter first.

The courts may order an anti-suit injunction, which restrains a party from commencing or continuing legal proceedings abroad in breach of an arbitration agreement. The court must be satisfied that there is a binding agreement to arbitrate, or there is a high probability that an agreement exists (see Transfield Shipping Inc. v. Chiping Xinfa Huaya Alumina Co Ltd [2009] EWHC 3629 (QB) at 51-52). This is an equitable remedy, which must be applied for promptly (delay can operate as a bar depending on the facts of the case) and the injunction will only be granted by the court when it is “just and convenient to do so” (s.37 Senior Courts Act 1981).

There are no restrictions on the parties’ freedom to choose arbitrators and any person may act as an arbitrator. The parties may also agree to qualifications, characteristics or relevant experience required of the arbitrators and stipulate these within the arbitration agreement, for example nationality, knowledge of a specific industry or position held. In Jivraj v. Hashwani [2011] UKSC 40 the Supreme Court confirmed that arbitrators are “independent providers of services” to the parties and, as such, specifying an arbitrator’s nationality or even religious affiliation would not fall foul of anti-discrimination legislation or render an arbitration agreement invalid.

An arbitrator must be impartial (see s.33(1)). There is no statutory requirement for an arbitrator to be independent. The relevant test for bias is whether the “fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased” (Porter v. Magill [2001] UKHL 67). 

There are no mandatory rules applicable to the appointment process. 

The AA 1996 contains ‘fall back’ rules. The provisions in s.16 apply in the absence of party agreement on the appointment mechanism, which vary depending upon the proposed composition of the tribunal (e.g., sole arbitrator, two arbitrators, two arbitrators and an umpire or three arbitrators):

• if the tribunal is to consist of a sole arbitrator, the parties are to jointly appoint the arbitrator no later than 28 days after service of a request in writing by either party to make an appointment;
• if the tribunal is to consist of two arbitrators, each party shall appoint one arbitrator no later than 14 days after service of a request in writing by either party to do so;
• if the tribunal is to consist of three arbitrators, each party is to appoint one arbitrator no later than 14 days after a request to do so in writing by either party and the two arbitrators who are appointed shall appoint a third arbitrator as chairman of the tribunal;
• if the tribunal is to consist of two arbitrators and an umpire, each party is to appoint one arbitrator no later than 14 days after a request to do so in writing by either party and the two arbitrators who are appointed may appoint an umpire at any time after their appointment but before any substantive hearing or immediately if they cannot agree on a matter relating to the arbitration.

There are no mandatory rules applicable to the replacement process.

Where an arbitrator ceases to hold office (e.g., they become incapable of acting or refuse to act) the parties are free to agree how the vacancy is to be filled and to what extent the previous proceedings should stand (s.27(1)). In the absence of agreement, s.16 and s.18 apply to fill that vacancy (see Section 6.4, above) and the reconstituted tribunal will determine the extent to which the previous proceedings should stand.

The Supreme Court recently confirmed in Halliburton Co v. Chubb Bermuda Insurance Ltd [2020] UKSC 48 that arbitrators are under a continuing duty to disclose matters which would, or might reasonably, give rise to justifiable doubts as to their impartiality. 

A party may apply to court to remove an arbitrator on the grounds in s.24, which include: 

• circumstances giving rise to justifiable doubts as to the arbitrator’s impartiality; 
• the arbitrator lacking the qualifications required by the arbitration agreement; 
• the arbitrator being physically/mentally incapable of conducting the proceedings (or there are justifiable doubts as to his or her capacity to do so); 
• the arbitrator having refused/failed to: 
  • properly conduct the proceedings; or 
  • use all reasonable despatch in conducting the proceedings or making an award, and that substantial injustice has been or will be caused to the applicant. 

S.24, which governs challenges to appointments, is a mandatory provision (see Section 6.7, above). 

A court cannot exercise its power to remove an arbitrator under s.24 unless it is satisfied that the applicant has exhausted any available recourse to the relevant arbitral institution (in other words, a removal procedure under the applicable institutional rules). Where an arbitral institution has already considered the matter and determined that there are no grounds for removal, the English courts have found they should be “very slow to differ” from the findings of the relevant institution, as that was “the parties’ chosen forum for resolution” and such an institution will have “considerable experience” and is “well placed to judge” matters relevant to whether an arbitrator or tribunal has acted properly (see P v. Q [2017] EWHC 194 (Comm)). Furthermore, the Report on the Arbitration Bill by the Departmental Advisory Committee (February 1996) commented at paragraph 107 on s.24 as follows: “[we] have also made the exhaustion of any arbitral process for challenging an arbitrator a pre-condition to the right to apply to the court. Again it will be a very rare case indeed where the court will remove an arbitrator notwithstanding that that process has reached a different conclusion.” An arbitral tribunal may continue proceedings and make an award whilst an application under s.24 is being determined by the court (s.24(3)). 

Arbitrators have immunity from any claims against them unless it can be shown that the arbitrator's act or omission was in bad faith (s.29(1)). This immunity extends to an employee or agent of the arbitrator (s.29(2)) but will not cover liabilities incurred by an arbitrator as a result of his or her resignation (s.29(3)). Case law exists in which arbitrators were held liable for the costs of court applications for their removal, even if such applications were unsuccessful.

Overview of interim measures

The court’s powers to grant interim relief are limited under the Act. First, unless urgent, the court can only act on an on-notice application made with the permission of the tribunal or with written agreement of the other parties to the arbitration (s.44(4)). Second, the court can only act if and to the extent that the tribunal lacks the power or is unable to provide the same interim relief (s.44(5)). 

The court has the power to make orders on certain matters in support of arbitral proceedings, equivalent to those it can make in court proceedings (s.44), including orders for the preservation of evidence or assets (s.44(2)(b)) and interim injunctions (s.44(2)(e)). Further, the court can make orders in cases of urgency as it thinks necessary to preserve evidence or assets (s.44(3)). The powers exercisable by the tribunal are in s.38, for example only the tribunal (not the court) may order security for costs (s.38(3)).

Relevance of availability of emergency arbitrator mechanism

Emergency arbitrators (EAs) are not mentioned in the Act. However, the interaction between an EA’s powers and the court’s s.44 powers was considered by the English court in Gerald Metals SA v. The Trustees of the Timis Trust and others [2016] EWHC 2327. It was held that while the availability of an EA mechanism does not preclude the making of a s.44 application, a court will not act even in cases of urgency if the arbitral tribunal or EA has the power and practical ability to grant effective relief within the relevant timescale (i.e., the time required for expedited formation or EA appointment). 

Where arbitral proceedings are being conducted in England and Wales (or Northern Ireland), a party may use the same procedures available in court proceedings (contained in CPR 34) to secure attendance before the tribunal of a witness in the UK to give oral testimony or produce documents (s.43). The court can exercise its powers under s.43 even if the seat is outside of England and Wales or Northern Ireland or is not yet determined, unless the court thinks it “inappropriate” to do so (s.2(3)). However, a party can only act under s.43 with the permission of the tribunal or the agreement of the parties (s.43(2)). 

Where s.43 cannot be used, for example a witness is outside of the UK, a party may also apply to the court for an order relating to “the taking of evidence of witnesses” under s.44(2)(a). 

The parties are free to agree what happens where there is a failure of the procedure for appointment. To the extent that there is no agreement, a party can apply to court under s.18(2). The court’s powers include revoking any appointments already made and making any necessary appointments itself. Any such appointment has effect as if made with the agreement of the parties. 

A party to the arbitration agreement can also apply to court to remove an arbitrator on various grounds under s.24 (see Section 6.7 above).

The court may: 

• extend time for beginning arbitral proceedings, where those proceedings would otherwise be time-barred because proceedings were not commenced in time (s.12); 
• extend time limits agreed by the parties in relation to the conduct of the arbitral proceedings (s.79); 
• vary the way in which documents should be served (including dispensing with service) (s.77); and 
• determine any question of law arising in the course of proceedings, which the court is satisfied substantially affects the rights of one or more of the parties (s.45).

The Act does not set out any procedural or evidential requirements. Such matters fall within the jurisdiction of the arbitrators to decide. S.33 requires the tribunal to adopt procedures which are suitable to the circumstances of the case, avoiding unnecessary delay or expense, so that matters can be resolved fairly. There is a great deal of flexibility, with no restriction preventing hearings from being held in a different country from the seat and no requirement that hearings be held in person (virtual hearings are a growing trend in the UK), or at all. A case may be decided ‘on the papers’ where appropriate (e.g., s.34(2)(h) gives the tribunal the right to decide whether and to what extent there should be oral evidence or submissions). There are no rules to prevent an arbitration continuing where a party does not participate (best procedural practice in this situation is set out in guidelines published by the Chartered Institute of Arbitrators (CIArb) in 2015). 

English case law recognises that arbitrations seated in England and Wales are, by default, private and confidential.

There are a number of limited exceptions to the common law duty of confidentiality: 

• where it is dispensed with by the consent of the parties; 
• where it is dispensed with by order of the court; 
• where the court considers that making an exception is reasonably necessary for the protection of the legitimate interests of an arbitrating party (e.g., to defend a claim brought by a third party); or 
• where the court considers that making an exception is in the interests of justice.

S.52 provides that the parties are free to agree the form of an award. In the absence of agreement, the award must: 

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

If the parties were to agree to it, the award could in principle be made orally (although the parties would also have to agree that the award will not contain reasons); for example, at the end of the hearing, the arbitrator makes their award orally by confirming which of the parties has been successful. Such an award is still enforceable under English common law, though it is now very rare for such awards to be made in practice.

There is no time limit for making an award, unless: 

• an award is remitted by the court (then the award must be made within 3 months of the date of the remission order, unless the court directs otherwise, s.71(3)); 
• an award is corrected, then it must be made within 28 days of a party’s application or the date of the award if there is no application (or such longer period as the parties may agree, s.57(5)); or 
• an additional award is to be made, then it must be made within 56 days of the original award (or such longer period as the parties may agree, s.57(6)). 

However, the Act requires a tribunal to make an award without unnecessary delay and an arbitrator can be removed if they fail to use all reasonable despatch in making an award.

Unless the parties agree otherwise, arbitrators have the power to: 

• make declarations;
• order the payment of money; 
• order a party to do or refrain from doing something; 
• order specific performance of a contract; and 
• order the rectification, setting aside or cancellation of a document (s.48). 

English law does not generally allow exemplary or punitive damages to be awarded. Arguably, under the Act the parties are free to agree that the arbitrators have the power to award such damages, although some commentators suggest that such an award would be contrary to public policy.

Parties are free to agree on the powers of the tribunal to correct an award (institutional rules will cover this), otherwise the default position is set out in s.57, which provides that a tribunal may, either of its own initiative or on the application of a party, correct a clerical mistake in an award or an error arising from an accidental slip or omission or clarify or remove any ambiguity in the award. A tribunal may also make an additional award in respect of any claim presented to the tribunal but not dealt with in the award. 

A party must make an application for correction or an additional award within 28 days of the date of the award, unless the parties agree to a longer period (s.57(4)).

Awards can be challenged on the grounds that the tribunal lacked substantive jurisdiction or that there is a serious irregularity affecting either the tribunal, the proceedings or the award (ss.67 and 68). Serious irregularity includes the tribunal failing to comply with its duty to act fairly or failing to deal with all the issues that were put to it. An award can also be appealed on a point of law (s.69), although by choosing to arbitrate under institutional rules such as those of the LCIA or ICC parties will waive this right.

Challenges and appeals must be brought within 28 days of the date of the award. However, if there has been an appeal or review or the tribunal has corrected the award or made an additional award, the time limit is extended to 28 days from the date when the party was notified of the outcome.

Domestic awards are usually enforced by the court by summary procedure (s.66). Where permission to enforce is granted, the award debtor will usually have 14 days from the date of service of the order to set it aside. 

A New York Convention award can be enforced in the same way as an English court judgment, provided leave is given by the English courts. The procedure is largely the same as for domestic awards (see Section 12 below).

The time limit within which an action to recognise and enforce an award must be brought is usually six years from the date when the other party fails to honour the award (Agromet Motoimport Ltd v. Maulden Engineering Co (Beds) Ltd [1985] 1 WLR 762), or 12 years if the arbitration agreement is under seal (ss.7-8, Limitation Act 1980).

The fee for an application for permission to enforce an arbitration award in the High Court is currently GBP 71. Lawyers’ fees and disbursements will also usually be incurred.

English law lacks clarity in this area. EAs are not mentioned in the Act and while s.41 allows “the tribunal” to make peremptory orders, which the court may enforce pursuant to s.42, it is not clear whether an EA falls within the definition of “tribunal” (n.b., these provisions do not apply to arbitrations seated outside of the jurisdiction). An EA’s order(s) might be contained within an “award”. However, since these would not be a “final disposition” of an issue (any EA award will not bind the constituted tribunal), the award and its orders would likely not be enforced by an English court.

Foreign awards may be enforced in England and Wales either under s.66 (which provides for enforcement of all awards, regardless of seat) or ss.100-103 which cover enforcement of awards made in a country which is a party to the New York Convention. Awards must be recognised before they can be enforced. Enforcement of an ICSID award does not fall under the New York Convention: it is instead enforced in England under the Arbitration (International Investment Disputes) Act 1966.

The enforcing party must apply to the High Court using an arbitration claim form, supported by a witness statement, applicable court fee, the draft order sought, the duly authenticated original award and the original arbitration agreement (or duly certified copies). If the award or agreement is not in English, a certified translation must be provided. The English courts only recognise and enforce New York Convention awards made in the territory of another contracting state. 

The grounds for resisting recognition and enforcement of a New York Convention award are, in summary, that: 

• a party was under some incapacity; 
• the arbitration agreement was invalid; 
• proper notice of the arbitrator appointment or the proceedings was not given, or a party was otherwise unable to present its case; 
• the award dealt with matters outside the scope of the submission to arbitration; 
• the composition of the tribunal did not accord with the parties’ agreement or the award has not yet become binding, has been set aside or has been suspended by a competent authority. 

Enforcement may also be refused if that would be contrary to public policy. This is interpreted narrowly by the English courts and usually requires a universally condemned activity such as terrorism (see Westacre Investments Inc v. Jugoimport SDRP Holding Co Ltd [1999] Q.B. 740 (upheld on appeal)). 

Where the New York Convention does not apply, it may be possible to rely on another regime, such as the Geneva Convention on the Execution of Foreign Arbitral Awards and the Foreign Judgments (Reciprocal Enforcement) Act 1933 (s.99). Under the common law, in principle, awards made in any other country can be enforced in England. This is done by bringing an “action on the award”, which is a new contractual claim based on a party’s breach of its implied obligation to satisfy the award. For ICSID awards, the default position is that the English courts will recognise them as enforceable without further review.

The Act does not impose standards for the conduct of arbitration counsel but other professional rules are relevant. Barristers must comply with the Bar Standards Board Code of Conduct. These contain general core duties (e.g., acting with honesty and integrity), as well as conduct rules which apply when conducting litigation, although there is no specific reference to conducting arbitrations. 

Solicitors must comply with the Solicitors Regulation Authority’s Principles and Code of Conduct. Again, there is no specific reference to arbitration but they are relevant, for example solicitors must not generate false evidence or offer benefits to witnesses dependent on their evidence or the outcome of the case. However, institutional rules may impose express powers to sanction misconduct. For example, the LCIA Rules have an annex setting out the ethical standards expected of counsel, with LCIA tribunals having the power to sanction misconduct.

The Act does not prescribe specific professional or ethical rules for arbitrators beyond the general duty to act fairly and impartially (see Section 6.2, above), to adopt suitable procedures and not to exceed their jurisdiction or powers. Arbitral institutions and bar associations have also published codes of conduct for arbitrators (e.g., CIArb Code of Professional and Ethical Conduct). The IBA’s Guidelines on Conflicts of Interest have frequently been taken into account by English courts, albeit they are not binding.

There is no specific legislative regime and third party funding is self-regulated by the Association of Litigation Funders (ALF). A voluntary Code of Conduct for Litigation Funders was published by the Civil Justice Council and ALF is responsible for administering self-regulation of the industry in accordance with the terms of the Code. All members of ALF, and those seeking to join ALF, are required to abide by the Code but it is not binding on non-members.

This is a fast growing area in the UK, with funders involved inter alia in the funding of arbitrations and the enforcement of awards. There are now established professional funders and frequent ‘new entrants’ (consolidation in the market has also seen funders being bought out by investment companies). Funders often look to fund a number of arbitration claims held by a company (“portfolio financing”). There is also a secondary market in the purchase of arbitration awards (e.g., claimants might 'sell' their award, at a discount on its 'face value', to a third party which assumes the risks and costs of enforcement).

The Law Commission is consulting on reforming the AA 1996 (at the time of writing the consultation was still ongoing) in several areas, including: arbitrator independence (codifying an arbitrator’s obligation to disclose circumstances that may give rise to doubts about their impartiality); arbitrator immunity (to bolster existing protections); the adoption of a summary procedure by arbitrators; and challenges to the tribunal’s jurisdiction (if a party’s jurisdiction challenge has been rejected by the tribunal, any subsequent challenge to the court would be by an appeal, not a rehearing). 

Also significant are the two Supreme Court decisions in Halliburton Co v. Chubb Bermuda Insurance Ltd (see Section 6.6 above) and Enka Insaat Ve Sanayi AS v. OOO Insurance Company Chubb (see Section 3.4 above).

Further developments include initiatives to reduce the environmental impact of international arbitrations (e.g., Campaign for Greener Arbitrations founded by Lucy Greenwood) and to promote greater diversity with institutions, such as the LCIA starting to track the nationality of arbitrators.