Change Around the Corner? The Law Commission’s Review of the Arbitration Act 1996

The aim of the review is said to be to ‘maintain the attractiveness of England and Wales as a “destination” for dispute resolution and the pre-eminence of English Law as a choice of law’[2].

As the Law Commission acknowledges[3], the Arbitration Act 1996 plays a key part in the story of why the United Kingdom has become a centre for dispute resolution and commercial arbitrations. However, it notes that there is a need to ensure that the provisions of the legislation remain up-to-date to ‘compete with other jurisdictions’[4], particularly in light of the fact that ‘other jurisdictions have enacted more recent reforms’[5].

Currently, the project remains at the pre-consultation stage and it has stated[6] that some of the possible areas for potential reform include but are not limited to:

• The power to summarily dismiss ‘unmeritorious claims or defences in arbitration proceedings’;
• The powers of the court exercisable in support of arbitration proceedings;
• The process for the challenge of a jurisdiction award;
• The scope for appeals on points of law;
• The law dealing with confidentiality and privacy in arbitration proceedings and
• Electronic service of documents, electronic arbitration awards and virtual hearings.

The Law Commission has elsewhere said that it was interested to hear about possible reforms which might reduce the cost or length of arbitrations, such as the use of summary judgment powers and it has equally commented about a possible change to permit the arbitration of trust disputes noting that[7]:

‘While some trust disputes may be suitable for arbitration, it seems that at present those who create trusts cannot require trustees and beneficiaries to use arbitration, rather than litigation, to resolve their differences. Furthermore, although two or more people of full capacity can enter into a valid stand-alone arbitration agreement to settle a trust dispute, any award will not bind other interested parties. Developing the law in this area has the potential to offer a range of benefits to all those who set up, benefit from, administer and advise on trusts. Work in this area has in the past been proposed by the Trust Law Committee and has been supported by Government, but the issue has not been considered a priority as a stand-alone project.’

The Commission states that it will launch the review in the first quarter of 2022 and ‘aims to publish a consultation paper in late 2022’[8].

[1]             https://www.lawcom.gov.uk/project/review-of-the-arbitration-act-1996/

[2]             https://www.lawcom.gov.uk/project/review-of-the-arbitration-act-1996/

[3]             https://www.lawcom.gov.uk/arbitration/

[4]             https://www.lawcom.gov.uk/arbitration/

[5]             https://www.lawcom.gov.uk/project/review-of-the-arbitration-act-1996/

[6]             https://www.lawcom.gov.uk/project/review-of-the-arbitration-act-1996/

[7]             https://www.lawcom.gov.uk/arbitration/

[8]             https://www.lawcom.gov.uk/project/review-of-the-arbitration-act-1996/