International arbitration law and rules in England and Wales

1.1 The law of arbitration in England, Wales and Northern Ireland is found in the Arbitration Act 1996 (1996 Act), as amended by the Arbitration Act 2025 (2025 Act).

1.2 The 1996 Act came into force on 31 January 1997. It:

consolidated and updated the existing legislation on arbitration;
codified legal rules and principles established by case law;
brought English law more into line with internationally recognised principles of arbitration law;
sought to make arbitration in England more attractive both to domestic and to international users;
was broadly based on the Model Law (1985), 1 but applied equally to domestic and to international arbitration;
went beyond the scope of the Model Law (1985) and contained a near- comprehensive statement of the English law of arbitration;
was intended to be user-friendly, and has a logical structure and is written in plain English;
states what the objective of arbitration is, although it did not attempt a definition;
increased the scope of party autonomy;
strengthened the powers of the arbitral tribunal; and
limited judicial intervention in the arbitration process while preserving the courts’ powers to provide assistance where necessary to make arbitration a fair and efficient dispute resolution procedure.

1.3 The 2025 Act came into force on 1 August 2025 and updated and modernised the 1996 Act. Key provisions of the 2025 Act (discussed further below) include:

a new default rule on the law governing an arbitration agreement;
new rules of court in relation to jurisdictional challenges; and
codification of arbitrators’ duty of disclosure.

1.4 The 2025 Act also clarifies several procedural elements in relation to the court’s involvement in arbitration, in particular to address developments in arbitral procedure since 1996.

1.5 Arbitrations commenced before 1 August 2025 will continue to be governed by the previous version of the 1996 Act, including court challenges in those arbitral proceedings. 2 Where we refer below to the 2025 Act, the relevant provisions apply only to arbitrations commenced after 1 August 2025. However, note the amendments "otherwise [apply] in relation to an arbitration agreement whenever made”. 3

2.1 Before the 1996 Act came into force, English arbitration law was scattered over the Arbitration Acts 1950, 1975 and 1979. This legislation applied to different aspects of arbitration and was complemented by, interpreted by and built on a large body of case law. As such it was seen as somewhat inaccessible, and as a process through which the courts were too ready to intervene in the arbitral process.

2.2 In the 1980s, the Department of Trade and Industry established the Departmental Advisory Committee on Arbitration Law (DAC). One of the key decisions for the DAC was whether to recommend the enactment of the Model Law (1985). Whilst the DAC decided against adopting the Model Law (1985) wholesale, it did recommend that the new arbitration act should, so far as possible, adopt the structure and language of the Model Law (1985) and be clear and accessible.

2.3 The DAC published reports on the Arbitration Bill in February 1996 and on the 1996 Act in January 1997. These do not form part of the 1996 Act, but remain authoritative guides to its provisions, may be referred to in court and are frequently relied on by arbitrators.

2.4 The 2025 Act was the culmination of a multi-year review process by the Law Commission in England and Wales that included two consultation papers, as well as a final report with a proposed bill. The bill was initially introduced in November 2023, but its progress was delayed when Parliament was prorogued for the general election in 2024. The bill was re-introduced shortly after the King’s Speech in 2024. Its final reading was on 11 February 2025. It received royal assent on 24 February 2025 and came into force on 1 August 2025.

2.5 Whereas the 1996 Act implemented several radical reforms, the 2025 Act was not a significant overhaul of arbitration law. As the Law Commission noted in its 2023 report, there was a consensus in the arbitration community that the 1996 Act “works well”. 4 Accordingly, the 2025 Act made minor changes only, in order to provide clarity in the light of various decisions of the English courts on arbitration matters, and to confirm the pro-arbitration stance of the jurisdiction.

2.6 The procedures for arbitration applications to the courts in England and Wales are set out in Part 62 and the Practice Direction to Part 62 of the Civil Procedure Rules. (The courts of Scotland and of Northern Ireland follow their own procedures.)

3.1.1 Most commercial disputes are capable of being arbitrated if the parties agree on that form of dispute resolution. 5 Generally, the courts have not considered the circumstances in which disputes cannot be arbitrated. Where this issue is brought before the courts, however, only limited public policy considerations normally apply. As the DAC noted, “matters which are not arbitrable in England lie almost wholly outside the commercial field.” 6 There are a few exceptions to this rule – for example, where the courts are concerned that the arbitral process may breach one of the party’s statutory rights. The courts have held that where an employee has statutory rights entitling them to have their case heard before an employment tribunal, it is not possible to submit the dispute to arbitration as the sole means of deciding the dispute. 7

3.2.1 The 1996 Act applies to all arbitrations (whether ad hoc or institutional), the legal “seat” or “place” of which is in England and Wales or Northern Ireland.

3.2.2 Certain provisions of the 1996 Act apply even if the place of the arbitration is outside England, Wales and Northern Ireland, or if no place has been designated or determined 8 in the arbitration agreement. These include provisions concerning the:

stay of legal proceedings; 9
enforcement of awards; 10
securing of the attendance of witnesses; 11 and
court’s powers in support of arbitral proceedings. 12

3.2.3 The provisions of Part I of the 1996 Act apply to all arbitrations conducted pursuant to an arbitration agreement. Part II of the 1996 Act deals with consumer arbitrations and arbitrations conducted on a statutory basis to which Part I of the 1996 Act does not apply. Part III deals with the recognition and enforcement of foreign awards and Part IV contains general provisions.

3.2.4 This chapter will focus on the provisions of Part I and Part III of the 1996 Act, as well as any substantive amendments to those Parts by the 2025 Act.

3.3.1 The 1996 Act is founded on and is to be construed in accordance with three guiding principles: fairness, party autonomy and limited intervention by the courts. 13

3.3.2 The 1996 Act states that the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense. 14 This is primarily a reflection of the rules of natural justice, but there is an additional emphasis on avoiding unnecessary costs and delay. The principle is also given effect in the general duties imposed on the arbitral tribunal by Section 33 and on the parties by Section 40 (discussed in paragraphs 7.3.2 and 7.3.3 below).

3.3.3 The 1996 Act states that the parties shall be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest. 15

3.3.4 These “safeguards” are provided by the mandatory provisions of Part I of the 1996 Act and the 2025 Act, which apply regardless of any agreement by the parties to the contrary. The 1996 Act is structured in such a way as to complement the mandatory provisions with two types of additional provisions: first, those which apply only if the parties expressly agree (ie the parties have “contracted in”); and, secondly, further provisions that apply automatically unless the parties expressly agree otherwise (ie the parties have “contracted out”).

3.3.5 The 1996 Act limits the scope for court intervention in the arbitral process and provides that the courts shall not intervene except as expressly provided by the 1996 Act. 16 This principle is a corollary of party autonomy. At the same time, the 1996 Act reduces the scope for obstructive parties to delay arbitral proceedings by making applications to the courts through the following provisions:

mandatory stay of court proceedings in favour of arbitration; 17
arbitral proceedings to continue and award may be made pending a decision of the court on the arbitral tribunal’s jurisdiction; 18
the arbitral tribunal (not the court) can order security for costs; 19
the extension of an arbitral tribunal’s powers in case of party default; 20 and
the court may exercise such powers as it has only if the arbitral tribunal has no equivalent power. 21

3.3.6 The 2025 Act revised the framework for jurisdictional challenges brought under Section 67 of the 1996 Act, which allows parties to apply to the court to challenge an arbitral award on the basis that the tribunal lacked jurisdiction (explained further below at paragraph 10.3.2).

4.1.1 Section 5 of the 1996 Act stipulates that the arbitration agreement must be made in writing. This requirement is construed broadly so that it can be satisfied not only if there is an agreement contained in a written contract, but also if the agreement is contained in an exchange of communications in writing, or if the agreement is merely evidenced in writing or is reached otherwise than in writing but by reference to terms which are in writing (eg general terms and conditions). The writing requirement is also satisfied if there is an exchange of submissions in arbitral or legal proceedings in which the existence of an arbitration agreement is alleged by one party and not denied by the other. The exchange of written submissions between the parties is then taken to constitute the written arbitration agreement. Finally, an agreement is considered to be in writing even if it is recorded by any other means. 22

4.1.2 Section 6(2) of the 1996 Act clarifies that a reference in a main agreement to a separate written arbitration clause, or to a document containing an arbitration clause, constitutes an arbitration agreement if the reference is such as to make that clause part of the main agreement. However, the incorporation of the arbitration agreement by reference requires the use of clear and unambiguous wording. 23 Whether an arbitration clause has been effectively incorporated is an issue of construction and the intention of the parties is paramount. Hence, where the term to be incorporated is contained in a separate contract to which one or more of the contracting parties is not a party, incorporation by reference may not be effective unless the parties expressly refer to the arbitration clause itself rather than the contract in which it is contained. 24

4.2.1 Pursuant to Section 7 of the 1996 Act, the arbitration agreement is treated as separate from the main commercial agreement into which it has been incorporated and the arbitration clause therefore survives the invalidity, non-existence or ineffectiveness of the main agreement. A consequence of this principle was the potential for confusion about which law governs an arbitration agreement; the main contract might be governed by one system of law, the seat of arbitration might be in another country, and the arbitration agreement (being legally separate) might theoretically be governed by a third law. This has now been addressed by the 2025 Act. See further paragraph 4.4.4 below.

4.3.1 The mandatory provisions of Part I of the 1996 Act are listed in Schedule 1 to the 1996 Act. They deal with such matters as:

the duty of the court to stay its proceedings; 25
the power of the court to extend time limits; 26
the power of the court to remove an arbitrator; 27
the joint and several liability of parties to arbitrators for fees and expenses; 28
the immunity of arbitrators; 29
objections to the arbitral tribunal’s jurisdiction; 30
the general duties of the arbitral tribunal; 31
the general duties of the parties; 32
enforcement of an award; 33
challenges to the award; 34 and
the immunity of arbitral institutions. 35

4.3.2 In addition, an arbitrator’s duty of disclosure in respect of their impartiality was inserted into the 1996 Act by the 2025 Act as a mandatory provision, amending Schedule 1 of the 1996 Act. 36

4.3.3 All other provisions of Part I of the 1996 Act are non-mandatory and the parties are free to make their own arrangements. If the parties do not make any such arrangements, the non-mandatory provisions form a set of “model rules”, which will apply in the absence of any express agreement by the parties. The parties are free to deviate from such “model rules” and adopt the procedural rules of an arbitral institution or other body. 37

4.3.4 Where the parties agree to incorporate institutional rules into their arbitration agreement, such as those of the London Court of International Arbitration (LCIA) 38 or the ICC International Court of Arbitration (ICC), 39 the 1996 Act provides that this amounts to parties making their own arrangements and therefore displaces non-mandatory provisions in circumstances where the arbitration rules are contrary to those provisions. 40

4.4.1 In international arbitration, three distinct systems of law operate simultaneously. Although they may sometimes be the same, they perform different legal functions and are analysed by courts and tribunals separately:

the law governing the arbitration agreement, ie matters such as the validity and scope of the arbitration agreement;
the law of the seat (lex arbitri), which governs the arbitral procedure and the supervision of the courts; and
the law governing the underlying contract (substantive law), ie its rights and obligations.

4.4.2 The courts have confirmed their willingness to recognise and enforce choices of law in parties’ arbitration agreements.

Law governing the arbitration agreement

4.4.3 Perhaps the most significant change brought about by the 2025 Act is the new default rule for determining the law applicable to an arbitration agreement. 41 Unless the arbitration agreement is found in a treaty or foreign legislation, 42 the law governing an arbitration agreement will be the law the parties have expressly agreed will govern the agreement, or absent such agreement, the law of the seat of arbitration. This means the arbitration agreement and the contract in which it is contained may be governed by different laws. This amendment came about in response to criticism of the Supreme Court’s decision in Enka v Chubb, 43 which set out a list of principles for determining the governing law of an arbitration agreement. The Law Commission considered that a clear-cut default rule would be easier and more consistently applied.

Law of the seat

4.4.4 If the parties choose England as the seat of the arbitration, the parties will be taken to have agreed that the English courts shall have exclusive jurisdiction over the arbitration and the mandatory provisions of the 1996 Act will apply, including those relating to the parties’ ability to challenge the award under Sections 67 and 68 of the 1996 Act (amended and supplemented by Sections 10 and 11 of the 2025 Act for arbitrations after 1 August 2025). 44 Specifically, the courts have confirmed that if England is chosen as the seat of an arbitration, the lex arbitri of any court proceedings regarding the award given by an arbitral tribunal will be English law and the proper jurisdiction of such proceedings is the English courts, even if the underlying contract is governed by the laws of a different jurisdiction. 45

Substantive law

4.4.5 With respect to the law applicable to that underlying contract (ie to the substance of the dispute), Sections 46(1) and (3) of the 1996 Act provide that the arbitral tribunal shall decide the dispute in accordance with the law chosen by the parties as applicable to the substance of the dispute, or, if and to the extent that there is no such choice or agreement, it shall apply the law determined by the conflict of law rules it considers applicable. The parties’ choice of law will be taken to exclude conflict of law rules and to refer to the substantive laws of that particular jurisdiction only.

4.4.6 By the arbitration agreement (or on some other basis) the parties can also grant the arbitral tribunal the power to decide the dispute on the basis of the lex mercatoria or ex aequo et bono (also referred to as amiable composition where arbitrators dispense with the consideration of law and consider solely what would be a fair and equitable resolution to the dispute). However, these are very rarely agreed upon in practice, given the uncertainties over the scope of the lex mercatoria and the principles to be applied in making a decision ex aequo et bono.

4.4.7 The procedure for determining the applicable law of the underlying contract in the absence of the parties’ choice remains largely unchanged following Brexit and the end of the transition period. 46 Prior to Brexit, under English conflict of law rules, the applicable law of a contract (in the absence of an agreement between the parties) would in most cases be determined in accordance with the Regulation on the Law Applicable to Contractual Obligations (Rome I), which came into force on 17 December 2009. The Regulation on the Law Applicable to Non-Contractual Obligations (Rome II), which came into force on 11 January 2009, sets out choice of law rules for non-contractual obligations such as torts and equitable claims. Where the arbitration agreement is drafted widely to include disputes that arise from non-contractual obligations, the determination of the applicable law may also include reference to Rome II.

4.4.8 The UK retained Rome I and Rome II as they do not require reciprocity for their operation. Accordingly, with effect from 1 January 2021, Rome I, Rome II and EU-derived domestic legislation dealing with the law applicable to contractual and non-contractual obligations became “retained EU law” within the meaning of the European Union (Withdrawal) Act 2018 (Withdrawal Act) and the UK applies retained versions of Rome I and Rome II when determining the governing law of contractual and non-contractual obligations.

4.4.9 The Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc) (EU Exit) Regulations 2019 make technical amendments (mostly in relation to terminology, eg replacing “Member States” with “relevant states”) to the statute and regulations implementing Rome I and II in the UK in order to ensure that, after Brexit, they continue to function as before.

4.4.10 Even if the relevant sections of the Withdrawal Act were to be repealed, English courts would continue to recognise foreign governing law clauses at common law.

5.1.1 The parties are free to agree on the number of arbitrators and whether there is to be a chair or umpire. 47 However, an agreement that determines the number of arbitrators as two or any other even number shall be understood as requiring the additional appointment of a chair, unless the parties agree otherwise. 48 If there is no agreement on the number of arbitrators, the arbitral tribunal shall consist of a sole arbitrator. 49 If the parties have agreed that there is to be a chair or umpire, they are free to agree on his or her functions.

5.1.2 Where there is no agreement on the function of the chair or umpire, Sections 20 and 21 of the 1996 Act contain default provisions. These provide, in the case of a chair, that decisions, orders and awards shall be made by all or a majority of the arbitrators (including the chair) and that the view of the chair shall prevail in relation to a decision, order or award, in respect of which there is neither unanimity nor a majority. 50 For an umpire, the default position is that the umpire shall attend the arbitral proceedings and be supplied with the same documents and other materials as supplied to the other arbitrators, with decisions being made by the arbitrators unless and until they cannot agree, in which case the umpire shall replace the arbitral tribunal and make decisions, orders and awards as if he or she were sole arbitrator. 51

5.1.3 The procedure for the appointment of the arbitral tribunal is determined by the parties’ arbitration agreement. Where the parties have not agreed an appointment procedure, Section 16 of the 1996 Act makes detailed provision for the appointment of the arbitral tribunal.

5.1.4 In the event that each party to an arbitration agreement is to appoint an arbitrator but one party refuses or fails to do so within the time specified, the other party, having duly appointed its arbitrator, may give notice in writing to the party in default that it proposes to appoint its arbitrator to act as sole arbitrator. If the party in default does not, within seven days of that notice, make the required appointment and notify the other party that it has done so, the other party may appoint its arbitrator as sole arbitrator and the arbitrator so appointed may proceed to make an award, which is binding on both parties. 52

5.1.5 If the agreed appointment procedure fails to constitute an arbitral tribunal, the courts have specific powers to appoint, or assist with securing the constitution of, an arbitral tribunal upon application by one of the parties. 53

5.2.1 Pursuant to Section 23 of the 1996 Act, the authority of an arbitrator can be revoked by agreement of the parties in writing or by an arbitral or other institution or person vested by the parties with powers in that regard.

5.2.2 The court may order the removal of an arbitrator upon the application by one of the parties on any of the following grounds:

circumstances exist which may give rise to justifiable doubts as to an arbitrator’s impartiality (discussed further at paragraph 10.3.8 below); 54
an arbitrator does not possess the agreed qualifications required by the arbitration agreement;
an arbitrator is physically or mentally incapable of conducting the arbitral proceedings or there are justifiable doubts as to his or her capacity to do so; or
an arbitrator fails to conduct the arbitral proceedings properly or with reasonable speed and substantial injustice has been or will be caused to the applicant. 55

5.2.3 The arbitral tribunal may, however, continue the arbitral proceedings in the meantime and proceed to make an award while the application to the court is pending. The challenge procedure cannot, therefore, be abused to delay the arbitral proceedings for tactical reasons.

5.3.1 Where an arbitrator ceases to hold office (whether it is due to resignation, removal or death) and the parties have not agreed whether, and if so how, the vacancy is to be filled, Section 27 of the 1996 Act provides that Section 16 or Section 18 procedures (discussed at paragraphs 5.1.3 and 5.1.5 above) apply to the filling of the vacancy as they would apply to the original appointment.

5.4.1 Section 28 of the 1996 Act makes express provision for the parties’ liability to the arbitrators for fees and expenses. It provides that the “parties are jointly and severally liable to pay to the arbitrators such reasonable fees and expenses (if any) as are appropriate in the circumstances.”

5.4.2 Section 29 provides that arbitrators enjoy immunity from claims unless they act in bad faith. For arbitrations commenced after 1 August 2025, the 2025 Act amends the 1996 Act to provide that the court cannot order an arbitrator to pay costs in relation to their removal unless they have acted in bad faith. 56 While not strictly defined, in the contractual context, “bad faith” under English law implies behaviour more serious than negligence, generally involving fraud, dishonesty, malicious intent or conduct motivated by reprehensible or unconscionable conduct. 57 The situations in which an English court would consider it appropriate to award costs against an arbitrator in removal proceedings are therefore likely to be rare.

5.4.3 Arbitrators’ resignations are treated differently, and do not generally give rise to any liability for the arbitrator unless their resignation was “unreasonable”. 58 The meaning of an unreasonable resignation is less clear compared with bad faith, and will likely require further elucidation by the courts. 59

6.1.1 Section 30 of the 1996 Act gives the arbitral tribunal the power to rule on its own jurisdiction. It is up to the arbitral tribunal to decide if there is a valid arbitration agreement, whether the arbitral tribunal is properly constituted and which, if any, of the disputes referred to arbitration are within the scope of the arbitration agreement.

6.1.2 However, if agreed in writing by the parties or in certain circumstances with the permission of the arbitral tribunal, the courts may determine preliminary points of jurisdiction upon the application by one of the parties (unless it relates to a question on which the tribunal has already ruled). 60

6.1.3 Section 31 of the 1996 Act requires that any objection that a party may have to the substantive jurisdiction of the arbitral tribunal must be raised at the earliest possible stage in the proceedings, ie before that party takes any steps in the proceedings to contest the merits of any matter in relation to which the arbitral tribunal may have jurisdiction.

6.1.4 The right to object to the arbitral tribunal’s lack of substantive jurisdiction (and to other irregularities affecting the arbitral tribunal or proceedings) may be lost if the objection is not made at the earliest opportunity. 61

6.1.5 However, where a party does not take part in the proceedings whatsoever, Section 72 of the 1996 Act contains a “savings” provision, permitting that party to raise jurisdiction arguments before a court, such as whether there is a valid arbitration agreement, whether the tribunal was properly constituted or whether matters have been submitted to arbitration in accordance with the arbitration agreement. Further, that person has the same right as a party to the arbitral proceedings to challenge the award for lack of substantive jurisdiction under Section 67 or for serious irregularity under Section 68.

6.2.1 The rules governing an arbitral tribunal’s jurisdiction to hear an investment treaty arbitration are set out in the relevant bilateral investment treaty (BIT) or multilateral investment treaty (MIT) 62 and arbitration rules. The most commonly used rules in investment arbitration are the International Centre for Settlement of Investment Disputes (ICSID) Arbitration Rules (ICSID Rules) 63 and the United Nations Commission on International Trade Law (UNCITRAL) Rules. 64

6.2.2 On 6 March 2018, the Court of Justice of the European Union (CJEU) held that Articles 267 and 344 of the Treaty on the Functioning of the European Union (TFEU) must be interpreted as precluding arbitration clauses in BITs between EU member states, such as the arbitration provision in the Netherlands-Slovakia BIT. 65 The CJEU noted that under Article 344 of the TFEU, member states undertake not to submit a dispute relating to the interpretation or application of the EU treaties to any method of settlement other than those provided for in the treaties. Article 344 of the TFEU enshrines the principle that an international agreement cannot affect the allocation of powers fixed by the Treaty on the European Union (TEU) 66 and the TFEU as the observance of the EU legal system should be ensured by the CJEU.

6.2.3 The CJEU also emphasised that the judicial system in the treaties aims at ensuring the consistent and uniform application and interpretation of EU law across the member states, and the preliminary reference system under Article 267 of the TFEU plays a crucial role in this regard. However, as an arbitral tribunal cannot be classified as a court or tribunal “of a Member State” within the meaning of Article 267 of the TFEU, it is not entitled to request a preliminary ruling on the interpretation of EU law from the CJEU. Yet, as noted by the CJEU, when deciding a case under a BIT such as the Netherlands-Slovakia BIT, the arbitral tribunal must take into account both the BIT provisions and the law of the contracting state party, so the arbitral tribunal may be called upon to interpret and apply EU law. The CJEU concluded that the dispute settlement mechanism in such a BIT could prevent disputes concerning EU law from being resolved in a manner ensuring the full effectiveness of EU law, which would have an adverse effect on the autonomy of the EU legal order. Therefore, the CJEU held that BIT arbitration mechanisms such as that in the Netherlands-Slovakia BIT are precluded by the TFEU.

6.2.4 On 15 and 16 January 2019, the EU member states (including the UK) issued declarations stating their views on the implications of Achmea (namely that all arbitration clauses in existing intra-EU BITs are inapplicable) and undertook to terminate all intra-EU BITs (January declarations). On 24 October 2019, the European Commission announced that EU member states had reached agreement on a treaty for the termination of all intra-EU BITs, giving effect to the January declarations. The text of the treaty provides (in summary) that:

all intra-EU BIT arbitrations that were concluded prior to the Achmea judgment would not be affected;
intra-EU BIT arbitrations that were initiated prior to the Achmea judgment and which had not yet been concluded would be subject to a “structured dialogue” settlement procedure within six months of the termination of the relevant BIT; and
any intra-EU BIT arbitrations that were initiated on or after the date of the Achmea judgment are null and void.

6.2.5 On 5 May 2020, 23 EU member states signed an agreement to terminate all existing intra-EU BITs including their sunset clauses (Termination Treaty) (despite concerns raised about the compatibility of the Termination Treaty with the rule of law and the principle of non-retroactivity). The UK did not sign the Termination Treaty and, in 2024, the EU commenced infringement proceedings against the UK for its failure to terminate its BITs (despite Brexit). These proceedings are still pending as at 7 May 2026.

6.2.6 The EU and Member States have consistently maintained that intra-EU investment arbitration is incompatible with EU law (including in a March 2026 agreement on the interpretation and application of the Energy Charter Treaty between EU Member States, in which those states confirmed that the investment arbitration provisions at Article 26 of the ECT “cannot and never could have” served as a legal basis for intra-EU arbitration proceedings). 67 However, in a UK Supreme Court decision also of March 2026, the court left open the possibility of the enforcement in England and Wales of an ICSID award arising from intra-EU disputes. 68 The Supreme Court upheld the High Court decision in Infrastructure Services Luxembourg and Energia Termosolar v Spain 69 that, by consenting to the ICSID Rules and the ECT, Spain had submitted to the jurisdiction of the English courts by prior written agreement and could not therefore rely on the State Immunity Act 1978 for immunity from the jurisdiction of the English courts in order to oppose the registration of the award against it.

6.2.7 The Supreme Court declined to deal with the intra-EU issues raised by Spain’s appeal, given its conclusion that there was an agreement to submit to jurisdiction under the ICSID Convention. The decision will be encouraging to investors seeking to enforce intra-EU ICSID awards, who may find England and Wales to be a more favourable jurisdiction for enforcement than EU member states, notwithstanding the Achmea decision that such awards have no legal effect. 70

6.2.8 Post-Brexit, disputes between investors from the UK against EU member states whether under BITs (assuming they remain in place) or MITs such as the Energy Charter Treaty, and vice versa, are no longer intra-EU. Therefore, a jurisdictional objection on that basis should fail. The UK-EU Trade and Cooperation Agreement (TCA), which governs the relationship following the end of the Brexit transition period on 31 December 2020, is silent on the future of the UK’s BITs with EU member states and preserves that position. The effect is continued protection in the UK for investors with investments in the current two EU member states with which the UK still has BITs (Lithuania and Slovenia). 71

7.1.1 England and Wales is a common law jurisdiction. The legal process has traditionally emphasised the importance of procedural issues and a number of English procedural concepts. These concepts are not part of the continental European civil law tradition, although they are familiar in other common law jurisdictions such as the US, Canada, Australia and most Commonwealth member states. These procedural elements include the disclosure and inspection of documents, the exchange of witness statements, cross-examination of witnesses and use of party-appointed expert witnesses.

7.1.2 There was intended to be a significant shift in approach under the Civil Procedure Rules (CPR) which govern the conduct of cases in the English courts, towards more proactive case management by the courts. However, English legal proceedings in essence remain adversarial in approach (ie party-driven with the judge adopting the position of arbiter between the opposing parties) rather than inquisitorial (ie more reliant on the judge taking charge of progressing a case). One of the advantages of arbitration over litigation as a means of settling international commercial disputes is that, because of its flexibility, arbitration can transcend the confines of national legal systems, and the parties can tailor a procedure to suit their particular needs.

7.1.3 English arbitral proceedings under the 1996 Act are not tied to English court procedure. The 1996 Act enables arbitrators to use wide-ranging powers akin to the case management techniques employed under the continental European procedural system to ensure that the arbitration progresses efficiently, at proportionate cost and in the interests of the parties.

7.2.1 Unless otherwise agreed by the parties, Section 14(4) of the 1996 Act provides that arbitral proceedings are commenced when one party serves on the other a written notice requiring it to appoint an arbitrator or to agree to the appointment of an arbitrator. The court will interpret this broadly and flexibly and an implied request to appoint an arbitrator has been found to be sufficient for the commencement of an arbitration. 72 However, in order to avoid any uncertainty in this respect, the written notice of arbitration should expressly call upon the other party to appoint an arbitrator. Care should also be taken when a party is seeking to commence arbitration proceedings against more than one respondent to avoid a challenge to the award if the parties disagree on the interpretation of the arbitration notice. 73

7.2.2 Section 14 does not deal with the matters in dispute that a party wishes to refer to arbitration. A written notice should clearly specify such matters but also be drafted widely enough to ensure all potential matters in dispute are referred to arbitration.

7.3.1 The 1996 Act expressly defines and imposes duties on the parties and the arbitrators.

7.3.2 Section 33(1) is one of the key provisions in the 1996 Act and provides that the arbitral tribunal shall act fairly and impartially, shall give each party the right to be heard and shall adopt procedures that are suitable for a particular case to avoid unnecessary delay or expense.

7.3.3 The express duty to avoid unnecessary delay and expense was first introduced by the 1996 Act and is an important provision. It is intended to encourage arbitrators to impose strict timetables to ensure that the arbitral proceedings are progressed with all due expedition.

7.3.4 Under Section 40 of the 1996 Act, the parties have a general duty to do everything necessary for the proper and expeditious conduct of the arbitral proceedings and, corresponding to the duties imposed on the arbitral tribunal by Section 33, a duty to comply with the arbitral tribunal’s directions without delay.

7.3.5 Procedural and evidential matters are decided by the arbitral tribunal unless the parties agree otherwise. 74 Section 34(2) of the 1996 Act sets out a non-exhaustive list of the procedural issues to be determined by the arbitral tribunal. Those powers give arbitrators the ability to impose expedited procedures in suitable cases and to dispense with, for example:

written submissions; 75
disclosure; 76
interrogatories (ie questions put to and answered by the parties prior to trial); 77
oral evidence; 78 and
oral hearings. 79

7.3.6 The arbitral tribunal may refer to Section 34 as a guide and may dispense with procedures that are not appropriate in the circumstances of a particular case. Nevertheless, arbitrators must exercise these powers with care so as not to deprive a party of a reasonable opportunity to put its own case or to respond to its opponent’s case. 80 If the arbitral tribunal acts contrary to this obligation, the aggrieved party may be able to challenge any subsequent award in the courts on the grounds of “serious irregularity” under Section 68 of the 1996 Act. 81 However, the courts have generally approached this issue in favour of arbitrators actively managing their arbitrations. 82 The threshold of “serious irregularity” is a high bar to meet. It concerns a failure to adhere to due process as opposed to whether the arbitral tribunal came to the right conclusion.

7.3.7 The 1996 Act provides the arbitral tribunal with further express powers, including the power to:

appoint its own expert(s); 83
order the claimant to provide security for costs; 84
direct that a party or witness shall be examined on oath and, for that purpose, to administer the necessary oath; 85
order interim payments to be made or to make other provisional awards where the parties have agreed that the arbitral tribunal should have such powers; 86
make an award dismissing a claim for want of prosecution where there has been an inordinate and inexcusable delay on the part of the claimant in pursuing the claim and where the delay prejudices the respondent; 87
continue the proceedings in the absence of a party who fails to attend a hearing of which proper notice was given without showing sufficient cause; 88
make a peremptory order where a party fails to comply with an order or direction of the arbitral tribunal, which order may be enforceable by the court pursuant to Section 42 of the 1996 Act; 89
make awards on different issues at different times; 90
award compound interest; 91 and
direct that the recoverable costs of the arbitration be limited to a specified amount. 92

7.3.8 Unless the parties specifically agree, the arbitral tribunal has no power to consolidate different arbitral proceedings or to order concurrent hearings. 93

7.4.1 Under Section 38(1) of the 1996 Act, the parties are free to agree on the powers exercisable by the arbitral tribunal. It is therefore possible for the parties to confer on the arbitral tribunal the power to order interim measures, either by incorporating the institutional rules of an arbitral institution into their arbitration agreement or by express provision in the arbitration agreement.

7.4.2 In the absence of any agreement by the parties on the issue of interim measures, Section 38(4) of the 1996 Act empowers the arbitral tribunal to give directions relating to property that is the subject of the arbitral proceedings and that is owned by or in the possession of a party to the dispute. Additionally, the arbitral tribunal may give directions to a party for the preservation of evidence for the purposes of the proceedings. 94

7.4.3 Unless otherwise agreed by the parties, the 1996 Act does not confer upon arbitrators the power to secure the sum in dispute by an order taking effect as an injunction, although it may be possible to seek a freezing injunction from the High Court, in support of arbitral proceedings. 95

7.5.1 The 2025 Act confirms an arbitrator’s power to make awards on a summary basis if a party has “no real prospect” of success on that issue (unless the parties agree otherwise). 96 The Law Commission acknowledged in its final report that arbitrators already “probably did have an implicit power to use summary disposal”, but that the issue of “due process paranoia” discouraged arbitrators from using that power; they were concerned that their awards would be challenged for failure to give one or more parties a reasonable opportunity to put their case. 97 If the express nature of the power encourages arbitrators to use it more readily, it could be a significant tool for arbitrators in seeking to improve efficiency in the arbitral process. This is, however, a non-mandatory provision and the parties can opt out of it by agreement. 98

7.6.1 Pursuant to Section 3 of the 1996 Act, the term “seat” of the arbitration means only its “juridical” seat. The fact that the parties have agreed that the place of the arbitration shall be, for example, London, does not prevent the parties or the arbitrators from deciding to hold any part of the arbitral proceedings elsewhere if this is more convenient. 99

7.6.2 The language or languages to be used in the arbitral proceedings and the question of whether translations of documents are to be supplied is equally a matter for the parties to decide or, in the absence of any agreement by the parties, for the arbitral tribunal to determine. 100

7.7.1 The format and timetable for submissions will be determined by the arbitral tribunal unless agreed by the parties. 101 In English arbitral proceedings, the parties’ submissions usually take the form of either (i) formal statements of case, similar but not identical to those used in court proceedings and limited to identifying the issues between the parties, or (ii) more complete submissions (often referred to as memorials) which also deal with the relevant facts, evidence and law, similar to continental European court and arbitral submissions.

7.8.1 Before the 1996 Act came into force, either party could effectively require that an oral hearing be held. Under the 1996 Act, it is now for the arbitral tribunal to decide whether there should be an oral hearing including submissions and evidence, subject to the parties’ right to agree otherwise. 102 In suitable cases the arbitral tribunal can, therefore, make an award on the basis of written proceedings alone. However, in practice it would be rare for the arbitral tribunal to proceed on this basis unless agreed by the parties.

7.9.1 Evidential matters will be determined by the arbitral tribunal, subject to any agreement between the parties. 103 These matters might include:

whether disclosure and inspection of documents should take place between the parties and, if so, whether the scope of disclosure should in any way be restricted to certain documents or classes of documents; 104
whether there should be an exchange of witness statements or expert reports; and
whether strict rules of evidence should be followed as to admissibility, or the relevance of, or weight to be given to, the evidence adduced by the parties. 105

7.9.2 The 1996 Act expressly authorises the arbitral tribunal to appoint experts and advisers, but the parties must be given an opportunity to comment on the opinion, information or advice provided by any arbitral tribunal-appointed expert. 106

8.1.1 Subject to any agreement by the parties on the powers that the arbitral tribunal may exercise, Section 48 of the 1996 Act provides that the arbitral tribunal may:

make a declaration as to any matter to be determined in the arbitral proceedings; 107 or
order the payment of a sum of money in any currency. 108

8.1.2 Furthermore, the arbitral tribunal has the same powers as the courts to:

grant a permanent injunction; 109
order specific performance of a contract; 110 or
order the rectification, cancellation or setting aside of a deed or other document. 111

8.1.3 The arbitral tribunal’s powers to grant interim measures are discussed in paragraph 7.4 above.

8.2.1 In the absence of any agreement between the parties, the arbitral tribunal has a discretionary power to award simple or compound interest, from such dates and at such rates as it considers just, on the whole or part of:

the amount awarded, in respect of any period up to the date of the award; 112
any amount claimed in the arbitration and outstanding at the date of commencement of the arbitration but paid before the award was made, in respect of any period up to the date of payment; 113 and/or
the outstanding amount of any award from the date of the award until payment, including any award of interest and any award as to costs. 114

8.2.2 A party seeking an award of interest must ask for it in its pleadings, but the tribunal is not obliged to award it. 115 The fact that the arbitral tribunal has a discretionary power to award interest does not affect the parties’ rights to claim contractual interest.

8.3.1 Where the parties have agreed that there is to be a chair, they are free to agree the functions of the chair in relation to the making of decisions, orders and awards. 116 If, or to the extent that there is no such agreement, decisions, orders and awards shall be made by all or a majority of the arbitrators (including the chair) 117 and the view of the chair shall prevail where there is neither unanimity nor a majority. 118

8.3.2 If the parties have agreed that there is to be an umpire, they are free to agree what the functions of the umpire are to be and, in particular, whether he or she is to attend the arbitral proceedings and when the umpire is to replace the other arbitrators as the arbitral tribunal with power to make decisions, orders and awards. 119

8.3.3 Where the parties agree that there shall be two or more arbitrators with no chair or umpire, the default position (unless agreed between the parties) is that decisions, orders and awards shall be made by all or a majority of the arbitrators. 120

8.4.1 Pursuant to Section 58 of the 1996 Act, an award made by the arbitral tribunal pursuant to an arbitration agreement is final and binding on the parties to the arbitration, subject to the limited rights the 1996 Act provides for challenge or appeal to the courts. 121

8.4.2 Section 52 of the 1996 Act provides that, unless otherwise agreed by the parties, an award shall:

be in writing;
be signed by all the arbitrators or a majority of those arbitrators assenting to the award;
contain reasons (unless it is an agreed award or the parties have agreed to dispense with reasons); and
state the seat of the arbitration and the date on which the award was made.

8.4.3 Once an award has been made, the parties shall be notified without delay, 122 but the arbitral tribunal has the power to withhold the award until the arbitrators’ fees and expenses are paid in full. 123

8.5.1 If the parties settle their dispute during the course of the arbitration, the arbitral tribunal shall terminate the substantive proceedings and may record the settlement in the form of an agreed award if requested to do so by the parties. 124

8.6.1 Unlike the Model Law (1985), Sections 59-65 of the 1996 Act make express provision for the allocation of the costs of the arbitration as between the parties. The 1996 Act also provides that, unless the parties agree otherwise, the arbitral tribunal may make an award of costs. The costs of the arbitration include the:

fees and expenses of the arbitrators;
fees and expenses of any arbitral institution concerned; and
legal or other costs of the parties. 125

8.6.2 Generally, an award of costs will “follow the event”, 126 but the arbitral tribunal has discretion to take other relevant factors into account when making its award on costs. Only reasonably incurred costs of the arbitration and fees and expenses of arbitrators are recoverable. Any doubt as to whether costs were reasonably incurred or were reasonable in amount shall, in general, be resolved in favour of the paying party. 127

8.6.3 Pursuant to Section 60 of the 1996 Act, an agreement between the parties that a party is to pay the whole or part of the costs of the arbitration is only valid if it has been made after the dispute has arisen. Section 60 is a mandatory provision, the purpose of which is to prevent a party who wishes to pursue its claim finding that it is unable to do so because, whatever the result, it has agreed to bear some or all of its own costs. Section 60 does, however, permit such an agreement to be made where the decision to go to arbitration is taken after the dispute has arisen, as it is assumed that in such a case the costs agreement can be at arm’s length. 128 An arbitrator’s general power to award costs also includes the power to award the costs of third party litigation funding, which it can deem as “other costs” under Section 59(1)(c). 129

8.7.1 The 1996 Act makes provision in Section 57 for the arbitral tribunal to correct obvious errors, mistakes, omissions or ambiguities in the award, or to make an additional award in respect of claims which were presented to the arbitral tribunal but not dealt with in the award. 130 These powers may be exercised by the arbitral tribunal either on its own initiative, or upon the application of a party, and after hearing representations from the other party. Before a party seeks to challenge an award on the grounds that it is ambiguous or uncertain, they should first seek to ask the arbitral tribunal to correct the award under Section 57(3)(a). Otherwise, their challenge may be barred under Section 70(2). 131

9.1.1 The extent to which the courts may supervise the arbitral process is one of the most important issues for parties to international arbitration proceedings. The 1996 Act follows the scheme of the Model Law (1985) in this regard: the courts have no jurisdiction in matters relating to arbitration unless expressly provided by the 1996 Act. A distinction can be drawn between the role of the courts:

before and during the arbitral proceedings; and
after the award has been made.

9.1.2 Prior to and during the arbitral proceedings, the powers of the court in relation to arbitral proceedings include:

stays of proceedings and extensions of time for the commencement of arbitration (mandatory provision); 132
the appointment or removal of an arbitrator (mandatory provision); 133
the determination of preliminary points of jurisdiction or law (mandatory provision); 134
the enforcement of peremptory orders made by the arbitral tribunal 135 (or emergency arbitrator) 136 ; and
making preservation orders in relation to evidence and assets. 137

9.2.1 Section 9 of the 1996 Act provides that, upon the application by a party to an arbitration agreement against whom court proceedings are brought in regard to the same matter, the court must grant a stay of the court proceedings unless satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed. There is a two-part test for establishing whether a dispute pertains to a matter that is subject to an arbitration agreement (and should therefore be stayed):

first, the court must identify the matter or matters in respect of which the legal proceedings are brought; and
second, the court must ascertain whether the matter or matters fall within the scope of the arbitration agreement on its true construction. 138

9.2.2 The court has provided guidance on identifying whether the matter/s fall within the scope of the arbitration agreement, as follows:

It is necessary to focus upon “the substance of the dispute”, taking into account defences that will reasonably foreseeably be raised.
The matter to be referred to arbitration need not encompass the whole dispute raised in court proceedings.
The matter to be referred to arbitration must be “a substantial issue” which is “legally relevant to a claim or defence, or foreseeable defence” and be susceptible to determination “as a discrete dispute”. It must be an essential element of the claim or defence, and not simply a “mere issue or question” that might fall for decision.
Identification of a matter to be referred to arbitration requires judgement and common sense, and is not a mechanistic exercise.
It is necessary to have regard to “the context in which the matter arises in the legal proceedings”. 139

9.2.3 The court also has an inherent jurisdiction to order a stay of its proceedings in exceptional circumstances (i.e where the court deems proceedings to be vexatious or oppressive) 140 or on grounds of forum non conveniens. 141 The absence of jurisdiction under Section 9 of the 1996 Act to order a stay does not preclude the court’s exercise of this inherent jurisdiction.

9.2.4 Although Section 9 of the 1996 Act is silent on the point, the court decision granting or refusing a stay of court proceedings can be appealed, provided permission to appeal is granted either by the High Court judge hearing the application for a stay and, if not, by the Court of Appeal. 142

9.2.5 Many cases on the stay of court proceedings under Section 9 have reached the courts since the 1996 Act came into force. 143 The case law confirms that the courts’ general approach is to enforce arbitration agreements strictly, even in circumstances where the agreement containing the arbitration clause might have been procured by bribery, 144 and this is also the case under the Bribery Act 2010.

9.3.1 An arbitration agreement may provide that a claim shall be time barred, or that the claimant’s right shall be extinguished, unless the claimant begins, within the time fixed by the agreement, either arbitral proceedings or another dispute resolution procedure which must be exhausted before arbitral proceedings may be commenced. In such cases the court may, in limited circumstances, extend the time for taking these steps pursuant to Section 12 of the 1996 Act, provided that one of two conditions are met. These are either:

the circumstances arising were outside of the parties’ reasonable contemplation at the time of agreeing the time bar and it would be just to grant an extension; or
the conduct of one party renders it unjust to uphold the time bar in question. 145 Any order under Section 12 does not affect the operation of the Limitation Acts 146 with regards to time limits for bringing claims. 147

9.4.1 Under Section 32 of the 1996 Act, the courts have the power to determine preliminary points on the substantive jurisdiction of the arbitral tribunal upon the application of a party.

9.4.2 Pursuant to Section 45 of the 1996 Act and unless the parties agree otherwise, the courts may also, on the application of a party to arbitral proceedings, determine any preliminary points of law arising in the course of the proceedings if satisfied that it substantially affects the rights of one or more of the parties. 148 This has rarely been used in practice. 149 The court will only consider the application if it is made either with the agreement of all other parties or with the permission of the arbitral tribunal, and if the court is satisfied that the determination of the question is likely to produce substantial cost savings and that the application was made without delay.

9.4.3 While Section 32 of the 1996 Act is a mandatory provision, the parties are free to exclude the courts’ jurisdiction under Section 45 of the 1996 Act by agreement between the parties to the proceedings or with the permission of the tribunal. 150 An agreement by the parties to dispense with the requirement that the arbitral tribunal give reasons in support of its award will be considered an agreement also to exclude the courts’ jurisdiction under Section 45. 151

9.5.1 Unless otherwise agreed by the parties, the courts have the power under Section 44(2) of the 1996 Act to order certain defined interim measures in support of arbitral proceedings, including orders preserving evidence and interim injunctions. If the case is urgent, Section 44(3) of the 1996 Act also empowers the English court, on the application of a party or proposed party to the arbitral proceedings, to make such orders as it thinks necessary for the purpose of preserving evidence or assets. However, Section 44 of the 1996 Act is a non-mandatory provision, and the parties may agree that the courts shall have wider powers than those set out in Section 44. If the parties wish to agree that interim relief is to be granted free from the restrictions of Section 44, a clear contractual provision needs to be made to that effect. 152

9.5.2 The interim measures that the court may order include freezing orders, 153 search orders 154 and anti-suit injunctions. Anti-suit injunctions restrain a person over whom the arbitral tribunal has jurisdiction from continuing with or commencing proceedings in a foreign court that are vexatious or oppressive, or that are in breach of the arbitration agreement. 155

9.5.3 Prior to Brexit, the UK was bound by the CJEU’s decision in West Tankers, 156 which effectively precluded national courts in EU member states from granting anti-suit injunctions. The CJEU held that Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of civil and commercial matters (Brussels Regulation) 157 did not permit the issuance of anti-suit injunctions by courts of an EU member state to restrain proceedings commenced in another member state in contravention of an arbitration agreement. 158

9.5.4 The subsequent Recast Brussels Regulation did not expressly provide that the courts may grant anti-suit injunctions in favour of arbitration. Nonetheless, it clarified in Recital 12 (unlike its predecessor) that the Recast Brussels Regulation is not intended to prevent member state courts from staying court proceedings where the parties concerned have entered into an arbitration agreement regarding the matter in respect of which the court is seised. However, the CJEU has not yet been called upon to consider the issue of anti-suit injunctions in the context of the Recast Brussels Regulation. In the meantime, the English court in Nori Holdings Ltd v Bank Otkritie Financial Corporation 159 confirmed that West Tankers is good law. 160

9.5.5 Brexit has arguably made arbitration more attractive for commercial parties because court judgments are no longer enforceable under the Recast Brussels Regulation. Further, as the UK has not re-acceded to the Lugano Convention 161 and has instead reverted to the common law approach, the English courts can (and do) issue anti-suit injunctions to restrain parties from bringing proceedings before courts of an EU member state, in support of arbitration. 162

9.5.6 The courts only have the power to grant interim measures if, or to the extent that, the arbitral tribunal 163 (or emergency arbitrator 164 ) has no power or is unable at that time to act effectively. In practice, the court is most commonly called upon to exercise this power to order interim measures in circumstances where the arbitral tribunal has not yet been constituted. However, the availability of emergency arbitrators may make it harder for parties to satisfy this threshold. 165 Section 44 of the 1996 Act applies to all arbitral proceedings regardless of whether the place of the arbitration is in England and Wales. The courts may, therefore, in appropriate circumstances, grant interim measures in aid of foreign arbitral proceedings which would not otherwise fall within the scope of the 1996 Act, if there is a good reason for the court to exercise its discretion and intervene. 166

9.5.7 Finally, the 2025 Act clarifies that court orders made under Section 44 of the 1996 Act may now be issued against third parties (ie those who are not party to the arbitration proceedings). 167

9.6.1 An arbitral tribunal has no power to compel witnesses to attend before it to give evidence. Section 43 of the 1996 Act therefore provides that a party to arbitral proceedings can use the usual court procedures to secure the attendance of witnesses. Under English civil court procedure this means that the party may serve a witness summons on the witness to secure attendance before the arbitral tribunal, either for the purpose of giving oral evidence or for the purpose of producing documents or other evidence. Applications for the preservation of evidence or the taking of witness evidence may also be made to the court under Section 44 of the 1996 Act.

10.1.1 An application to the tribunal to correct an award or make an additional award must be made within 28 days of the date of the award. 168 Similarly, an application to the court to challenge or appeal a final award must be brought within 28 days 169 of the date of the award (for arbitrations commenced before 1 August 2025) 170 or (for arbitrations commenced after 1 August 2025) the “applicable date”. 171 The latter is defined as the date a party is notified of the outcome of any arbitral appeal or review, the date of a “material” correction to an award (ie, not a minor correction but one that is necessary to allow the applicant to determine whether it has grounds to challenge the award), 172 the date of notification that the tribunal has decided not to grant an application for a material correction, or in any other case, the date of the award. 173

10.1.2 If a party fails to apply to the arbitral tribunal within the relevant time limit, apart from losing its right to make such an application, it will also lose its ability to apply to the court on the basis it has not exhausted the arbitral procedure. 174 Also with respect to an application to the court, the time limit is strict and reflects the purpose of the 1996 Act, namely to obtain a fair resolution of disputes by an arbitral tribunal without unnecessary delay or expense and to promote the finality of arbitration awards.

10.1.3 Section 79 of the 1996 Act gives the court the power to extend the deadline if satisfied that a substantial injustice otherwise would be done. This was considered in Terna v Al Shamsi, 175 which held that the primary factors to consider when deciding whether to extend a deadline are:

the length of the delay;
whether the delaying party was acting reasonably in allowing the time limit to expire; and
whether others had contributed to the delay.

10.1.4 For example, a failure to pay the arbitrator’s fees, without any explanation, is not a reasonable excuse for delay in issuing a challenge. The applicant should take appropriate steps to ensure that it preserves any right to challenge the award. 176

10.2.1 The right of a party to object to an award on any of the following grounds may be lost if the aggrieved party did not raise such objections at the earliest possible opportunity in the arbitral proceedings:

the arbitral tribunal lacked substantive jurisdiction;
the arbitral proceedings were improperly conducted;
there was a failure to comply with the terms of the arbitration agreement; or
there was any other irregularity affecting the arbitral tribunal or the arbitral proceedings. 177

10.3.1 An award once made can only be challenged pursuant to:

Section 67 of the 1996 Act, on the ground that the arbitral tribunal lacked substantive jurisdiction; 178 or
Section 68 of the 1996 Act, on the ground that there was a serious irregularity affecting the arbitral tribunal, the proceedings or the award which has caused or will cause substantial injustice to the applicant.

10.3.2 For arbitrations commenced after 1 August 2025, the 2025 Act has revised the framework for jurisdictional challenges brought under Section 67 of the 1996 Act. This is in response to Dallah v Pakistan, 179 in which the UK Supreme Court held that any challenge under Section 67 is potentially by way of a full rehearing. Even if there was a full hearing before the tribunal, that does not bind the court. A considerable number of stakeholders viewed this process as unnecessarily increasing costs and delays and further allowing a party that had previously made jurisdictional objections to have a ‘second bite at the cherry’.

10.3.3 To address these criticisms, the 2025 Act conferred upon the Civil Procedure Rules Committee (CPRC) the power to draft new CPR rules that would change the basis on which challenges to awards under Section 67 of the 1996 Act are determined. 180 If brought into force, these changes would effectively shift a Section 67 challenge from a full re‑hearing to a review conducted by the court. Where a tribunal had ruled on its own jurisdiction following an objection, the court would not entertain new jurisdictional objections or new evidence (unless it could not have been put before the tribunal even with reasonable diligence), and the evidence put before the tribunal would not be reheard by the court (unless in the interests of justice). 181

10.3.4 The Ministry of Justice is considering the necessity and timescale for the introduction of new court rules that depart from current case law. 182

10.3.5 On Section 67 applications, the court may either confirm the award, vary the award or set the award aside in whole or in part. For arbitrations commenced after 1 August 2025, the 2025 Act also allows the court to remit the award to the tribunal, in whole or in part, for reconsideration, or declare the award to be of no effect, in whole or in part. 183

10.3.6 Section 68 (serious irregularity) is concerned with a failure in the arbitral process rather than whether the arbitral tribunal’s decision was correct. Section 68(2) of the 1996 Act sets out an exhaustive list of the circumstances that may constitute a serious irregularity:

breach of Section 33 of the 1996 Act (general duties of the arbitral tribunal);
the arbitral tribunal exceeding its powers;
failure to conduct the arbitral proceedings in accordance with the arbitration agreement;
failure by the arbitrators to resolve all matters in dispute referred to them;
uncertainty or ambiguity of the award;
the award being obtained by fraud or in a manner contrary to public policy;
failure to comply with formal requirements relating to the award; or
admitted irregularity in the arbitral proceedings or the award.

10.3.7 Historically there have been very few successful challenges for serious irregularity. Indeed, the DAC explained in its report on the Arbitration Bill 1996 that it should be “only available in extreme cases where the tribunal has gone so wrong in its conduct of the arbitration that justice calls out for it to be corrected”. This has been highlighted in cases where Section 68 challenges have been made. 184 There have been a number of challenges to awards on the grounds of bias, on the basis that it involves a breach of Section 33 of the 1996 Act (which requires the arbitral tribunal to, inter alia, act fairly and impartially between the parties). 185

10.3.8 The Supreme Court’s decision in Halliburton v Chubb 186 is reflected in the 2025 Act. An arbitrator now has a statutory duty to disclose any circumstances that reasonably give rise to justifiable doubts as to their impartiality. 187 This duty applies both to situations known to the arbitrator and matters the arbitrator should reasonably know. The duty to disclose applies to pre-appointment discussions, rather than only to disclosures made at the time of appointment. This is a mandatory provision. The 2025 Act does not prescribe what the arbitrator should disclose, in what circumstances this applies and indeed what an arbitrator ought to reasonably know for the purposes of disclosure, leaving flexibility for different industries and sectors. 188

10.3.9 In order to establish that there has been a serious irregularity in the proceedings pursuant to Section 68, a party must show that, but for the irregularity, the arbitral tribunal might well have reached a different conclusion, which means establishing that such a conclusion is at least reasonably arguable. 189 In Symbion Power LLC v Venco Imtiaz Construction Co, 190 the court considered it was wholly inappropriate for an arbitrator to communicate with one party without notice to the other members of the arbitral tribunal and the other party. Such communications may give rise to concerns that the arbitrator is not acting fairly or impartially. The arbitral tribunal, however, appeared to have worked effectively together for two years and whilst the disclosure of the email concerned might have created a somewhat awkward working environment, it was not something that experienced, professional people could not deal with. Similarly, the court deemed it inappropriate for an arbitrator to have emailed a third party about an issue that needed to be determined in the arbitration where the arbitrator had failed to tell the parties or grant them an opportunity to make representations on the issue. 191

10.3.10 If an award is successfully challenged on grounds of serious irregularity under Section 68 of the 1996 Act, the court may either remit the award (in whole or in part) to the arbitral tribunal for reconsideration, set the award aside or declare it to be of no effect. 192 A finding of serious irregularity will not preclude the issues from being remitted to the same tribunal for (re)consideration. 193

10.3.11 Section 68 is a mandatory provision, so the parties cannot contract out of it. 194

10.4.1 Awards can be appealed on points of law only. An award may only be appealed after permission has been granted by the court or by the parties' agreement. The grounds on which such permission to appeal will be granted derive from the pre-1996 Act common law guidelines. Leave to appeal shall be given only if the court is satisfied that:

the determination of the question will substantially affect the rights of one or more of the parties;
the question is one which the arbitral tribunal was asked to determine;
on the basis of the findings of fact in the award, the decision of the arbitral tribunal on the question is obviously wrong;
on the basis of the findings of fact in the award, the question is one of general public importance and the decision of the arbitral tribunal is at least open to serious doubt; and
despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question. 195

10.4.2 On an appeal under Section 69 of the 1996 Act, the court may either confirm the award, vary the award, remit the award to the arbitral tribunal for reconsideration (in whole or in part) or set the award aside (in whole or in part). The court will generally remit the matters in question to the arbitral tribunal for reconsideration unless it is satisfied that this would be inappropriate under the circumstances. 196

10.4.3 Unlike challenges under Sections 67 and 68 of the 1996 Act, the parties’ right to appeal on points of law can be excluded by agreement between the parties, either in the arbitration agreement or at a later stage. Where the parties choose to arbitrate under the ICC Rules or the LCIA Rules, the parties’ right to appeal under Section 69 of the 1996 Act is waived automatically. 197 Where the parties opt for ad hoc arbitration or institutional rules that do not contain waiver language akin to the ICC Rules and LCIA Rules, the parties can exclude the application of Section 69 by stating so expressly in the arbitration agreement. Pursuant to Section 69(1) of the 1996 Act, the parties’ agreement to dispense with the requirement that the arbitral tribunal give reasons for its award will be considered an agreement to exclude the right of appeal. 198 Sections 70–73 of the 1996 Act contain supplementary provisions and restrictions in relation to the challenge or appeal of awards (in addition to Section 12 of the 2025 Act, which amends Section 70 of the 1996 Act).

11.1.1 Section 66 of the 1996 Act provides that domestic awards may be enforced with the permission of the court as if they were court judgments. Permission shall only be refused if the person against whom the award is to be enforced shows that the arbitral tribunal lacked substantive jurisdiction to make the award. The right of enforcement under Section 66 also applies to declaratory awards, where the successful party’s objective in obtaining an order for enforcement is to establish the primacy of a declaratory award over an inconsistent judgment. 199

11.2.1 The procedure for recognition and enforcement of foreign awards is covered in Part III of the 1996 Act.

11.2.2 Most foreign awards in commercial arbitration are today enforced under the New York Convention. This requires the award to be a “New York Convention Award”, ie an award made pursuant to a written arbitration agreement in a state which is a signatory to the New York Convention. 200

11.2.3 Pursuant to Section 99 of the 1996 Act, the Arbitration Act 1950 continues to apply to the recognition and enforcement of awards under the 1927 Geneva Convention, which continues to apply in relation to certain awards that cannot be enforced under the New York Convention.

11.2.4 The recognition and enforcement of New York Convention awards are governed by Sections 100-104 of the 1996 Act. A New York Convention award may only be refused enforcement if the party against whom it is to be enforced proves one or more of the following grounds, which are exhaustive 201 :

incapacity of a party to the arbitration agreement;
invalidity of the arbitration agreement;
lack of due notice 202 or opportunity to present its case;
lack of substantive jurisdiction of the arbitral tribunal;
irregularity in the composition of the arbitral tribunal or conduct of the arbitral proceedings;
award not binding on parties, set aside or suspended;
the subject matter of the arbitration is not capable of settlement by arbitration; or
recognition and enforcement of the award would be contrary to public policy. 203

11.2.5 Section 101(2) of the 1996 Act provides that a New York Convention Award may be enforced in the same manner as a judgment or order of the court to the same effect. CPR rule 62.18 provides for the procedure for enforcement, which includes submitting an arbitration claim form supported by witness evidence and exhibiting the documents required to be produced under Section 102 of the 1996 Act. The application for permission to enforce the award may be made without notice, although the court may require the claim form to be served on specified parties before hearing the application. If leave to enforce is granted, the defendant may subsequently apply, within 14 days of service of the order or, if the order is to be served out of the jurisdiction, within such other period as the court may set, to set that leave aside. Until expiry of that period, or final disposal of any application made by the defendant within it, the claimant must not take any step to enforce the order.

11.2.6 It is rare for the English courts to refuse to enforce a foreign award under the New York Convention. If none of the grounds for refusal of recognition or enforcement is present, a New York Convention Award will be enforced. 204 However, the Supreme Court has ruled that an award given against an entity which was found not to be a party to an agreement under which the arbitration was brought (but which the arbitral tribunal concluded was bound by the arbitration agreement) was not enforceable under English law. 205 The Supreme Court also determined that it was entitled to revisit the arbitral tribunal’s decision on jurisdiction for the purposes of considering enforcement under the New York Convention.

11.2.7 The enforcement of certain ICSID investment awards is not governed by the New York Convention, but rather the ICSID Rules. Article 54(1) of the ICSID Rules provides that each contracting state shall recognise an award rendered pursuant to the Convention as binding and enforce the pecuniary obligations imposed by the award within its territories as if it were a final judgment of a court in that state. Non-pecuniary awards must be enforced by other methods, such as the New York Convention. In the UK, the Arbitration (International Investment Disputes) Act 1966 implements the ICSID Convention. Under that Act, a person seeking recognition or enforcement of an arbitration award rendered pursuant to the ICSID Convention shall be entitled to have the award registered in the High Court upon following the procedure set out in CPR Part 62.21, the effect of which is that the award will be of the same force and effect for the purposes of execution as if it had been a judgment of the High Court. 206

12.1.1 Arbitration applications are generally dealt with by the Commercial Court or, in relation to cases where the subject matter relates to technology or construction, the Technology and Construction Court (TCC), both forming part of the Business & Property Courts of the King’s Bench Division of the High Court of Justice. They are governed by Part 62 and the Practice Direction to Part 62 of the CPR. Appeals in arbitration matters from decisions of the Commercial Court or TCC may be heard by the Court of Appeal, but permission to appeal will first be required. As noted above, whether permission to appeal may be sought from the Court of Appeal or from the first instance court ie either (the Commercial Court or TCC) depends on the specific wording of the relevant section of the 1996 Act. Appeals from the Court of Appeal will be made to the Supreme Court. 207

13.1.1 A number of questions have not been addressed by the 1996 Act and subsequently the 2025 Act and have instead been left open to developments in the jurisprudence. These include the following issues:

13.2.1 Multi-party disputes and consolidation of separate arbitration proceedings give rise to potentially complex issues and require careful consideration on a case-by-case basis at the contract drafting stage. Parties should ensure that adequate provision is made in relation to the appointment procedure for the arbitral tribunal, the arbitral tribunal’s jurisdiction and procedural matters. Some institutional arbitration rules, for example the ICC Rules, 208 have been drafted to accommodate multi-party disputes and the joinder of additional parties.

13.3.1 Privacy and confidentiality of the arbitral proceedings and of the subsequent award are traditionally perceived as advantages of arbitration over court litigation. The 1996 Act does not address confidentiality. This was deliberate as the DAC took the view that the task of setting out the scope of the confidentiality obligations, and exceptions to it, was both difficult and controversial and would be better suited to case-by-case development by the courts. 209

13.3.2 Under English law, the confidentiality of arbitration is an implied term of every arbitration agreement, 210 despite conflicting decisions in the Commonwealth. 211 The court has held that the obligation includes any documents prepared for and used in the arbitration, or disclosed or produced in the course of the arbitration or transcripts or notes of the evidence in the arbitration or the award. 212 Notwithstanding the position taken by the English courts, it is advisable for the arbitration agreement expressly to stipulate confidentiality in relation to the arbitral proceedings and the award.

13.3.3 There are a limited number of exceptions to the implied duty of confidentiality, namely:

consent of the parties;
order or leave of the court;
where the court considers that making an exception is reasonably necessary (to establish or protect a party’s rights against a third party); or
where the court considers that making an exception is in the interests of justice (eg prior inconsistent views expressed by an expert in arbitral proceedings). 213

International arbitration law and rules in England and Wales

jurisdiction

1. THE ARBITRATION ACTS 1996 AND 2025

2. HISTORICAL BACKGROUND

3. SCOPE OF APPLICATION AND GENERAL PROVISIONS OF THE ARBITRATION ACTS

3.1 Arbitrability

3.2 Scope of application

3.3 General principles

Fairness

Party autonomy

Limited intervention by the courts

4. THE ARBITRATION AGREEMENT

4.1 Formal requirements

4.2 Separability

4.3 Mandatory and non-mandatory provisions

4.4 Choice of law

5. COMPOSITION OF THE ARBITRAL TRIBUNAL

5.1 Constitution of the arbitral tribunal

5.2 Removal of arbitrator

5.3 Appointment of substitute arbitrators

5.4 Arbitrators’ fees, expenses and immunity

6. JURISDICTION OF THE ARBITRAL TRIBUNAL

6.1 Competence to rule on jurisdiction

6.2 Impact of Achmea on investment treaty arbitrations

7. CONDUCT OF PROCEEDINGS

7.1 Common law tradition

7.2 Commencing an arbitration

7.3 General procedural principles

General duties of the arbitral tribunal

General duties of the parties

Procedural powers of the arbitral tribunal

7.4 Power to order interim measures

7.5 Summary disposal

7.6 Seat, place of hearings and language of arbitration

7.7 Submissions

7.8 Oral hearings and written proceedings

7.9 Taking of evidence

8. AWARDS AND TERMINATION OF PROCEEDINGS

8.1 Remedies

8.2 Interest

8.3 Decision-making by the arbitral tribunal

8.4 Form, content and effect of the award

8.5 Settlement

8.6 Costs

8.7 Correction and interpretation of the award

9. THE ROLE OF THE COURTS

9.1 Jurisdiction of the courts

9.2 Stay of court proceedings

9.3 Extension of time for commencement of arbitral proceedings

9.4 Preliminary rulings on points of jurisdiction and law

9.5 Interim protective measures

9.6 Obtaining evidence and other court assistance

10. CHALLENGING AND APPEALING THE AWARD THROUGH THE COURTS

10.1 Time limits

10.2 Loss of right to object to award

10.3 Challenging the award

10.4 Appeal on point of law

11. RECOGNITION AND ENFORCEMENT OF AWARDS

11.1 Domestic awards

11.2 Foreign awards

12. COURT PROCEEDINGS

13. QUESTIONS NOT ADDRESSED BY THE 1996 ACT OR 2025 ACT

13.2 Multi-party disputes and consolidation

13.3 Privacy and confidentiality

Last updated · 04 Nov 2026

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