Arbitration in England: key recent developments

We outline below a number of key arbitration developments in England in the last year as well as proposed changes to the Arbitration Act 1996.

1. Amendments to the Arbitration Act 1996: The Law Commission has reported on proposed changes to the Act, but it is a light touch. The highlights are:
   
   • The current position of no express provisions dealing with confidentiality should be maintained.
   • The Act very deliberately included an express duty of impartiality but not of independence. This should be maintained but supported by a statutory duty of disclosure codifying the law in Halliburton v Chubb.
   • The language of the Equality Act 2010 should be adopted so that, in broad terms, arbitral appointments cannot be challenged for reasons which are discriminatory.
   • Arbitrators have immunity from liability for anything done in the discharge of their functions as an arbitrator (although they can still incur liability for resigning). It is proposed to strengthen arbitrator immunity by precluding liability for costs in court proceedings arising out of an arbitration.
   • There should be a non-mandatory provision which gives arbitrators the power to adopt a summary procedure to decide issues which have no real prospect of success and no other compelling reason to continue to a full hearing.
   • Court orders, e.g. for document production, against third parties are to be slightly strengthened. Third parties should, however, have the usual rights of appeal against orders affecting them, rather than the restricted rights of appeal which parties have.
   • Moreover, it is proposed that court orders relating to the taking of evidence be amended to confirm that it relates to the taking of the evidence of witnesses by deposition only (and not also witness summonses).
   • The provisions of the Act should not apply generally to emergency arbitrators, but the Act might provide for the situation where an order of an emergency arbitrator has been ignored.
   • Where a party has participated in arbitral proceedings and has objected to the jurisdiction of the arbitral tribunal, and the tribunal has ruled on its jurisdiction in an award, then any subsequent challenge should be by way of an appeal and not a rehearing.
   • No reform is required to appeals to the courts on points of law.
   
2. NDK Ltd v HUO Holding Ltd [2022] claims between shareholders under a company’s articles ‘related to’ or were ‘in connection with’ matters in a shareholders’ agreement that mandated arbitration. Moreover, the claims were arbitrable as not falling within the limited exceptions of non-arbitrability.
   
3. Gol Linhas Aereas S.A v Matlin Patterson [2022] the standard of due process to resist enforcement under the New York Convention by reason of not being able to present its case is a standard capable of application to any international arbitration whatever the procedural law applicable and the nationality of the participants. This involves identifying basic minimum requirements which would generally, even if not universally, be regarded throughout the international legal community as essential to a fair hearing.
   
4. NWA v FSY [2021] a pre-arbitration requirement to mediate was a procedural requirement pertaining to the admissibility of the defendants’ arbitration claim, not the tribunal’s jurisdiction to hear it.
   
5. Re a GAFTA Arbitration [2021] a single notice of arbitration referring to, and making claims under, two separate contracts was valid as, in substance, the notice sought to commence two arbitrations, albeit to be heard by the same tribunal in the interest of efficiency and economy.
   
6. NIB v Eland [2022] a permissive arbitration agreement (i.e. one that stated that parties ‘may’ refer disputes to arbitration) allowed each party to commence litigation, but also meant they could commence arbitration by making an unequivocal request.
   
7. Fairpark v Heals [2022] a step in court proceedings amounting to a submission to the jurisdiction of the court and a waiver of an arbitration agreement can include merely seeking additional time for a defence.
   
8. Ducat Maritime v Lavender Shipmanagement [2022] the court set aside part of an award on the grounds that an “obvious accounting mistake” by an arbitrator had breached the duty of fairness. The decision is seen as blurring the focus of the provision where the enquiry is whether there has been a failure of due process, not whether the tribunal has reached the correct answer.
   
9. WSB v FOL [2022] challenges to awards are only be heard orally by the courts if there is good reason to do so or a real prospect of success.