7 November 2023 saw the first King's Speech for seventy-two years. This historic event was of particular interest to international arbitration practitioners, as King Charles III's speech included the announcement that Parliament's business for the current legislative session will include consideration of the Law Commission’s recommendations for the reform of the Arbitration Act 1996 (the "Act").

Following on from the speech, on 21 November 2023 the new Arbitration Bill (the "Bill") was introduced to the House of Lords for its first reading. On 4 December 2023 the House agreed to commit the bill to a second reading committee. As anticipated, based on the Law Commission's Consultation and Final Report, the contents of the Bill represent incremental improvements rather than sweeping reform. Indeed, the Commission's recommendations spoke to the success of the Act, emphasising a consensus among respondents to the Consultation that "the Act works well, and that root and branch reform is not needed or wanted".

The Bill nevertheless proposes several significant changes to arbitration law in England & Wales and Northern Ireland. (Scotland has its own, separate arbitration legislation, the Arbitration Act 2010.)

The Arbitration Bill proposes reform in the following areas, described as major initiatives by the Law Commission:

  • Formalising arbitrators' powers of summary disposal. Empowering arbitrators to expedite decisions on issues that have no real prospect of success (akin to summary judgment before the English courts) has the potential to make arbitration more efficient and cost effective.
  • Introducing a new arbitrators' duty of disclosure, requiring arbitrators to disclose circumstances which might give rise to justifiable doubts about their impartiality. This will codify the common law and align English arbitration law with international best practice with a view to promoting trust in arbitration.
  • Extending arbitrator immunity. Under the new Bill, arbitrators will be immune from liability for resignations, unless their resignation can be shown to be unreasonable, and the costs of an application to court for their removal, unless they have acted in bad faith. This will support arbitrators to make robust and impartial decisions without undue fear of being sued by an aggrieved party.
  • Clarifying the law governing arbitration agreements, creating a default position that the law applicable to an agreement to arbitrate will be that of the seat of arbitration, unless the parties expressly agree otherwise. This will ensure that, where arbitration is seated in England and Wales, it will be fully supported by English law, which is among the most supportive of arbitration globally.
  • Streamlining the procedure for challenging arbitral awards on substantive jurisdiction, by providing for rules of court that would mean these applications should contain no new evidence or new arguments. This will avoid challenges based on jurisdiction becoming a full rehearing, reducing the delay and costs involved in court hearings repeating what has already been argued before the arbitral tribunal.
  • Empowering the court to make orders supporting emergency arbitrators. This will give emergency arbitrators the same pathways to enforce their orders as other arbitrators and enhance their effectiveness.

One area in which the Law Commission has not recommended any change is in relation to confidentiality. Here, again, they favoured the view of the majority of consultees. We discussed the issues under consideration by the Commission in the previous edition of this newsletter. We observed that the uniquely rich jurisprudence on confidentiality in arbitrations in England and Wales - creating sufficient certainty, whilst also retaining flexibility - perhaps explained why the Law Commission's preliminary conclusion was not to recommend codifying the law on confidentiality.

The Final Report observes that the myriad approaches to confidentiality in arbitration – and the numerous legal bases on which confidentiality can attach to arbitral proceedings – weigh against attempting a comprehensive statutory codification or introducing a "default" position.

As the Arbitration Bill continues its legislative journey through Parliament, the final form and scope of the reforms remains to be seen. We will revisit the progress of the Bill in future editions of this newsletter.


Jared Oyston


Peter Begbie