It is a pleasure to serve with you in the Chair, Ms Nokes.
On account of the Bill’s 18 clauses being grouped together, I will speak to them in numerical order. I begin with clause 1, which contains one of the Bill’s key reforms: provision for determining the governing law of an arbitration agreement. This is important because different governing laws may give different answers to important questions such as who is party to the agreement and whether the type of dispute is capable of being arbitrated.
Clause 1 will determine the governing law of the arbitration agreement by replacing the common law approach established in Enka v. Chubb with a new statutory rule. The law governing the arbitration agreement will be the law expressly chosen by the parties. Otherwise, it will be the law of the seat. By way of simple illustration, if someone arbitrates in London, by default the applicable law would be English law.
Whereas the common law approach is complex and uncertain, the new approach in clause 1 is simple and predictable. It reduces the prospect of satellite litigation to determine governing law, which can be slow and costly. Where the arbitration takes place in London, as is the choice in so many international arbitrations, by default the arbitration will be fully supported by English law.
For the avoidance of doubt, I would like to add that an express choice of law to govern the main contract rather than the arbitration agreement is not enough. Clause 1 will not apply where the agreement is derived from standing offers of arbitration contained in treaties or foreign domestic legislation, as with investor-state arbitration, for example, as these are better underpinned by international law and foreign domestic law respectively.
Clauses 2, 3 and 4 make provision in relation to the arbitral tribunal. Clause 2 requires an arbitrator to disclose circumstances that might reasonably give rise to justifiable doubts as to their impartiality. It will apply prior to the arbitrator’s appointment, when they are being approached with a view to appointment. It will be a continuing duty that also applies after their appointment. This codifies the duty of disclosure recognised by the Supreme Court in its decision in Halliburton v. Chubb and will enhance trust in arbitration.
Clauses 3 and 4 will reassure arbitrators that they can take the right decisions in their proceedings without fear of reprisal from a disappointed party. Clause 3 provides that an arbitrator will not be liable for the costs of an application to court for their removal unless the arbitrator has acted in bad faith. Clause 4 provides that an arbitrator’s resignation does not give rise to any liability unless the resignation is shown by a complainant to be unreasonable.
Clauses 5 and 6 both concern jurisdiction. There are two ways for a party to question the jurisdiction of the arbitral tribunal. One way is to wait until the tribunal has issued a ruling and then challenge that ruling under section 67 of the Arbitration Act 1996, which allows a challenge to an arbitral award on the basis that the tribunal lacked jurisdiction. The other is is by invoking section 32 of that Act, which allows the court to decide whether the tribunal has jurisdiction as a preliminary point.
Clause 5 makes clear that if the tribunal has already ruled on its jurisdiction, any challenge must be brought through section 67. Clause 6 provides that where the arbitral tribunal or court rules that the tribunal has no jurisdiction, that tribunal can nevertheless award the costs of the arbitration proceedings up until that point. This will ensure that if a party wrongly starts arbitration, they can still be held responsible for the wasted costs incurred.
Clauses 7, 8 and 9 deal with arbitral proceedings and the powers of the court. Clause 7 will confer an express power on arbitrators to make an award on a summary basis—that is, adopting an expedited procedure—to dispose of an issue where an arbitrating party has no real prospect of succeeding on that issue. This aligns with the summary judgments available in court proceedings and will deliver more efficient arbitrations. This power can be exercised on application by any of the parties. The procedure to be adopted is not prescribed. It will instead be a matter for the arbitrator to decide on a case by case basis after consulting with the arbitrating parties.
Clause 8 concerns emergency arbitrators. Arbitral rules sometimes provide a regime for the appointment of emergency arbitrators on an interim basis. Such arbitrators can make orders on urgent matters, such as the preservation of evidence, pending the constitution of the full arbitral tribunal. Emergency arbitrators were not commonplace when the 1996 Act was drafted, so it is important that we now expressly empower them. Clause 8 will provide that failing to comply with an order made by the emergency arbitrator will have the same consequences as those for a normal arbitrator.
Clause 9 concerns interim court powers exercisable in support of arbitral proceedings. Under section 44 of the 1996 Act, the court can make orders in support of arbitration proceedings on certain matters—for example, the taking of witness evidence, the preservation of evidence, sales of goods and interim injunctions. Clause 9 will amend section 44 to make it clear that such court orders are also available against third parties. For example, the court will be able to make an order preserving assets against a third party such as a bank. This will mirror the position in court proceedings.
Clauses 10, 11 and 12 concern powers of the court in relation to an arbitral award. An arbitral tribunal can issue an award on whether it has jurisdiction, and it can issue an award on the merits of the dispute. Either type of award can be challenged under section 67 of the Arbitration Act 1996 on the basis that the arbitral tribunal did not have jurisdiction. Clause 10 will equip the courts with the full suite of remedies for section 67 challenges. When the court has a jurisdiction challenge in front of it, it will have two new options: to declare the arbitral award to be of no effect, or to return the matter to the arbitral tribunal for consideration so that a revised award can be made. These remedies already exist for other challenges, for serious irregularities and for appeals on points of law, so this provision fixes something of an inconsistency in the 1996 Act.
Clause 11 also amends section 67 of the 1996 Act. It will confer a power for rules of court to provide that, unless necessary in the interests of justice, there should be no new grounds of objection and no new evidence put before the court unless it was not reasonably possible to put them before the tribunal. The amendments made to section 67 by clause 11 also provide that evidence taken by an arbitral tribunal should not be reheard by the court. This will avoid these challenges from becoming full re-hearings, departing from the precedent set in the case of Dallah v. Pakistan. Re-hearings can involve duplication of time and costs, and it can be unfair to allow a party who lost before the tribunal a complete rerun.
Clause 12 amends section 70 of the 1996 Act, which governs how arbitral awards can be challenged before the courts. It will clarify that the 28-day time limit for such a challenge will start running only after any arbitral process of appeal or correction has concluded.
Clause 13 concerns appeals from High Court decisions and corrects a rare drafting error in the 1996 Act. Section 18 of the Senior Courts Act 1981 and section 35 of the Judicature (Northern Ireland) Act 1978 were amended by the 1996 Act. When read at face value, those sections currently suggest that High Court decisions made under the 1996 Act can be appealed to the Court of Appeal only if expressly permitted in the 1996 Act.