The legal framework for arbitration in England, Wales and Northern Ireland should be updated to ensure it ‘stays state-of-the-art’ and ‘continues to support global leadership of London in international arbitration,” said the advisers to the British Parliament.
The Law Commission for England and Wales has said major changes to the Arbitration Act 1996 are not necessary, but that “several separate matters” may merit reform “to ensure the law remains to the best”. It has detailed draft proposals for reform (159 pages / 1.13MB PDF) in a new consultation document and invites comments on them until December 15. He also published tentative proposals for reform (PDF of 15 pages / 6.1 MB).
Arbitration expert Madelaine Power of Pinsent Masons said: “Some 25 years after its adoption, practitioners and users of arbitration will welcome the opportunity to provide the Law Commission with feedback regarding the use of the law on the 1996 arbitration and to suggest mechanisms to guarantee England and Wales. remains the seat of choice.
“The Commission invites comments on a number of areas, many of which have the potential to reduce the costs of arbitration, including the use of summary resolution of unmerited issues, interim measures and judicial challenges to arbitral awards. “, she said.
Plans to introduce a new summary dispute resolution mechanism under the Arbitration Act would bring arbitration proceedings more in line with what already happens when disputes are brought in the courts of England and the United States. Wales.
The Law Commission stated: “The law (in section 33(1)(b)) requires the arbitral tribunal to adopt procedures which avoid unnecessary delay and expense. It gives the court the power to decide all questions of procedure and evidence, subject to the parties’ right to agree on any question. Together, this likely empowers arbitrators to adopt a summary procedure to decide issues that are without merit. However, there is no express provision in the law providing for the adoption of a summary procedure.
“In these circumstances, we have heard that some arbitrators are reluctant to adopt such a procedure for fear that their decision will be challenged in court. Indeed, arbitrators are also required to act fairly and to give each party a reasonable opportunity to present their case (under Article 33(1)(a)). Otherwise, the decisions of a referee can be challenged for serious irregularity. We believe that fairness can be achieved with summary process by combining due process and an appropriate threshold to resolve issues,” he said.
With respect to challenges to a court’s jurisdiction to hear a case, the Law Commission has proposed changes to the law in cases where the party challenging jurisdiction has previously participated in arbitral proceedings and the court has ruled on its jurisdiction in an award. In these circumstances, the role of the courts should be limited to hearing an appeal on the question of jurisdiction, he said. This would save the courts the opportunity to rehear arguments on other issues already raised and decided by the court.
The Law Commission’s Interim Proposals for Interim Measures address cases where emergency arbitrators are appointed, or where their appointment is provided for by contract, to deal with urgent matters that cannot await the formation of a full arbitral tribunal – such as the preservation of evidence. The proposals include options to address scenarios in which an arbitrating party ignores an interim order issued by an emergency arbitrator – including, potentially, strengthening the powers of courts to order compliance with an arbitrator’s peremptory order emergency.
Pinsent Masons was a member of the advisory committee that reported on the UK Arbitration Bill 1996. Pinsent Masons has also assisted the Dubai International Arbitration Center in revising its rules and has close links with other other major centers around the world.
Jason Hambury, International Arbitration Expert at Pinsent Masons, said: “We very much look forward to contributing to the discussion on the proposed amendments tabled in the Consultation Paper and will post more information about them in due course.