ARBITRATION IN

ENGLAND AND WALES

By Guy Pendell and David Bridge, CMS
 Arbitration in England and Wales

Table of Contents

1. The Arbitration Act 1996 299

2. Historical background 299

3. Scope of application and general provisions of the

English Arbitration Act 300
3.1 Arbitrability 300
3.2 Scope of application 301
3.3 General principles 302

4. The arbitration agreement 303

4.1 Formal requirements 303
4.2 Separability 303
4.3 Mandatory and non-mandatory provisions 304
4.4 Choice of law 305

5. Composition of the arbitral tribunal 306

5.1 Constitution of the arbitral tribunal 306
5.2 Removal of arbitrator 307
5.3 Appointment of substitute arbitrators  308
5.4 Arbitrators’ fees, expenses and immunity  308

6. Jurisdiction of the arbitral tribunal 308

6.1 Competence to rule on jurisdiction 308
6.2 Power to order interim measures 309

7. Conduct of proceedings 309

7.1 Common law tradition 309
7.2 Commencing an arbitration 310
7.3 General procedural principles 310
7.4 Seat, place of hearings and language of arbitration 312
7.5 Submissions 313
7.6 Oral hearings and written proceedings 313
7.7 Taking of Evidence 313

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8. Making of the award and termination of proceedings 314

8.1 Remedies 314
8.2 Interest 314
8.3 Decision-making by the arbitral tribunal 315
8.4 Form, content and effect of the award  315
8.5 Settlement  316
8.6 Costs  316
8.7 Correction and interpretation of the award 317

9. Role of the courts 317

9.1 Jurisdiction of the courts 317
9.2 Stay of court proceedings 318
9.3 Extension of time for commencement of arbitral proceedings 318
9.4 Preliminary rulings on points of jurisdiction and law 319
9.5 Interim protective measures 319
9.6 Obtaining evidence and other court assistance  320

10. Challenging and appealing the award through the courts 321
10.1 Loss of right to object to award 321
10.2 Challenging the award 321
10.3 Appeal on point of law 322

11. Recognition and enforcement of awards 323

11.1 Domestic awards 323
11.2 Foreign awards 323

12. Court proceedings 325

13. Questions not addressed by the English Arbitration Act 325

14. Conclusion 326

15. Contacts 327

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1. The Arbitration Act 1996

1.1.1 The Arbitration Act 1996 (English Arbitration Act) came into force on 31
January 1997. The English Arbitration Act:
—— 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;
—— is broadly based on the Model Law (1985),1 but applies equally to domestic
and to international arbitration;
—— goes beyond the scope of the Model Law (1985) and contains a near-
comprehensive statement of the English law of arbitration;
—— is intended to be user-friendly, has a logical structure and is written in plain
English;
—— states what the objective of arbitration is, although it does not attempt a
definition;
—— increases the scope of party autonomy;
—— strengthens the powers of the arbitral tribunal; and
—— limits judicial intervention in the arbitration process while preserving the
courts’ powers to provide assistance where this is necessary to make arbitration
a fair and efficient dispute resolution procedure.

2. Historical background
2.1.1 Before the English Arbitration 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. 

2.1.2 Historically, three broad criticisms were levelled at English arbitration:

—— it was slow and expensive: “litigation without wigs”;
—— the law was inaccessible to laypersons and to foreign users; and
—— the courts were too ready to intervene in the arbitral process.

2.1.3 As a result, arbitration became increasingly unattractive as an option for dispute

resolution and London lost out to other jurisdictions as a venue for international
commercial arbitrations.

1 For the full text of the Model Law (1985), see CMS Guide to Arbitration, vol II, appendix 2.1.

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2.1.4 In the 1980s, the Department of Trade and Industry established the Departmental
Advisory Committee on Arbitration Law (DAC) under the Chairmanship of Lord
Justice Mustill (as he then was). One of the key decisions for the DAC was whether
to recommend the enactment of the Model Law (1985). 

2.1.5 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.
Despite these aspirations, the first draft bill in February 1994 did little more than
consolidate the existing statutes of 1950, 1975 and 1979. 

2.1.6 Under the new chairmanship of Lord Justice Saville (as he then was), the DAC
produced an entirely new draft bill by December 1995. After extensive consultation,
but with relatively few changes, this became the English Arbitration Act. 

2.1.7 Many provisions of the English Arbitration Act appear familiar at first sight, but it
nevertheless implemented a number of radical reforms. The DAC also published
Reports on the Arbitration Bill in February 1996 and on the English Arbitration Act
in January 1997. These do not form part of the English Arbitration Act, but are
authoritative guides to its provisions, may be referred to in court and are frequently
relied on by arbitrators. 

2.1.8 The procedures for arbitration applications to the courts in England and Wales are
now set out in Part 62 and the Practice Direction to Part 62 of the Civil Procedure
Rules.2 (The courts of Scotland and of Northern Ireland follow their own procedure.)

3. Scope of application and general provisions of the

English Arbitration Act
3.1 Arbitrability
3.1.1 Most commercial disputes are capable of being arbitrated if the parties agree on
that form of dispute resolution.3 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

2 Civil Procedure Rules 1998 (CPR).

3 English Arbitration Act, s 1(b).

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wholly outside the commercial field”. 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. Recently 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.4

3.2 Scope of application

3.2.1 The English Arbitration Act applies to all arbitrations, the legal “seat” or “place”
of which is in England and Wales or Northern Ireland. Scotland has its own separate
legal system and arbitration law (see Arbitration in Scotland, sections 1 and 2). The
English Arbitration Act applies to institutional as well as to ad hoc arbitrations. 

3.2.2 Certain provisions of the English Arbitration Act apply even if the place of the
arbitration is outside England, Wales and Northern Ireland, or if no place has been
designated or determined5 in the arbitration agreement. These include provisions
concerning the:
—— stay of legal proceedings;6
—— enforcement of awards;7
—— securing of the attendance of witnesses;8 and
—— court’s powers in support of arbitral proceedings.9

3.2.3 The provisions of Part I of the English Arbitration Act apply to all arbitrations
conducted pursuant to an arbitration agreement. Part II of the English Arbitration
Act deals with consumer arbitrations10 and arbitrations conducted on a statutory
basis to which Part I of the English Arbitration Act does not apply. Part III deals with
the recognition and enforcement of foreign awards and Part IV contains general
provisions. This chapter will focus on the provisions of Part I and Part III of the
English Arbitration Act.

4 Clyde & Co LLP v Bates Van Winkelhof [2011] EWHC 668 (QB).
5 A distinction is made between “designated” and “determined” in the English Arbitration Act, s 3. “Designated” refers to
the express or implied agreement of the parties as to the seat, or the power of the arbitral institution or arbitrators to
determine the seat. In the absence of any such agreement, the court may itself “determine” the seat by reference to other
relevant circumstances.
6 English Arbitration Act, s 9 – 11.
7 I bid, s 66.
8 I bid, s 43.
9 I bid, s 44.
10 
An arbitration agreement is not binding on a consumer in relation to a claim for a pecuniary remedy of not more than
GBP 5,000 (see Unfair Arbitration Agreements (Specified Amount) Order 1999, SI 1999 / 2167).

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3.3 General principles

3.3.1 The English Arbitration Act is founded on and is to be construed in accordance
with three guiding principles: fairness, party autonomy and non-intervention by
the courts.11

Fairness
3.3.2 The English Arbitration Act states that the object of arbitration is to obtain the fair
resolution of disputes by an impartial tribunal without unnecessary delay or
expense.12 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 7.3.4 below). 

Party autonomy
3.3.3 The English Arbitration 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.13 

3.3.4 These “safeguards” are provided by the mandatory provisions of Part I of the
English Arbitration Act, which apply regardless of any agreement by the parties to
the contrary. The English Arbitration 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 (i.e. the parties have
“contracted in”); and, secondly, further provisions which apply automatically unless
the parties expressly agree otherwise (i.e. the parties have “contracted out”). 

Non-intervention by the courts

3.3.5 The English Arbitration 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 English Arbitration Act.14 At the same time, the English Arbitration
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;15
—— arbitral proceedings to continue and award may be made pending a decision
of the court on the arbitral tribunal’s jurisdiction;16

11 English Arbitration Act, s 1.

12 Ibid, s 1(a).
13 Ibid, s 1(b).
14 Ibid, s 1(c).
15 Ibid, s 9.
16 Ibid, s 32(4).

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—— the arbitral tribunal (not the court) can order security for costs;17
—— extension of an arbitral tribunal’s powers in case of party default;18 and
—— the court may exercise such powers as it has only if the arbitral tribunal has no
equivalent power.19

4. The arbitration agreement

4.1 Formal requirements
4.1.1 Section 5 of the English Arbitration 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 a written agreement as such, 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 (e.g. 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.20 

4.1.2 Section 6(2) of the English Arbitration 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. The incorporation of the
arbitration agreement by reference does, however, require the use of clear and
unambiguous wording.21

4.2 Separability
4.2.1 Pursuant to Section 7 of the English Arbitration 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.22 

17 Ibid, s 38(3).
18 Ibid, s 41.
19 Ibid, s 44(5).
20 Ibid, s 5(4).
21 Aughton Ltd v MF Kent Services Ltd [1991] 57 B.L.R. 1.
22 
The court has upheld the principle of separability in a series of cases, see Fiona Trust & Holding Corporation and ors v
Privalov and ors [2007] UKHL 40 and El Nasharty v J Sainsbury PLC [2007] EWHC 2618 (Comm).

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4.3 Mandatory and non-mandatory provisions

4.3.1 The mandatory provisions of Part I of the English Arbitration Act are listed in
Schedule 1 to the English Arbitration Act. They deal with such matters as the:
—— duty of the court to stay its proceedings;23
—— power of the court to extend time limits;24
—— power of the court to remove an arbitrator;25
—— joint and several liability of parties to arbitrators for fees and expenses;26
—— immunity of arbitrators;27
—— objections to the arbitral tribunal’s jurisdiction;28
—— general duties of the arbitral tribunal;29
—— general duties of the parties;30
—— enforcement of an award;31
—— challenges to the award;32 and
—— immunity of arbitral institutions.33

4.3.2 All other provisions of Part I of the English Arbitration 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 on a point by the parties.
The parties are free to deviate from such “model rules” and adopt the procedural
rules laid down by an arbitral institution or other body.34

4.3.3 Where parties agree to incorporate institutional rules into their arbitration
agreement, such as those published by the LCIA 35 or the ICC International Court of

23 English Arbitration Act, s 9.

24 English Arbitration Act, s 12, which applies where an arbitration agreement provides that a claim shall be barred, or the
claimant’s right extinguished, unless the claimant takes within a time fixed by the agreement some step (a) to begin arbitral
proceedings or (b) to begin other dispute resolution procedures which must be exhausted before arbitral proceedings can
be begun.
25 English Arbitration Act, s 24.
26 Ibid, s 28.
27 I bid, s 29.
28 Ibid, s 31.
29 I bid, s 33.
30 I bid, s 40.
31 Ibid, s 66.
32 Ibid, s 67 – 6 8.
33 Ibid, s 74.
34 Ibid, s 4(3).
35 F or the full text of the LCIA Arbitration Rules, see CMS Guide to Arbitration, vol II, appendix 3.12.

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Arbitration,36 the English Arbitration Act provides that this amounts to parties
making their own arrangements and displaces non-mandatory provisions in
circumstances where the arbitration rules are contrary to any such provisions.37

4.4 Choice of law

4.4.1 Regarding the law applicable to the arbitral proceedings, the courts have confirmed
their willingness to recognise and enforce choices of law in parties’ arbitration
agreements.38 If the parties choose England as the seat of the arbitration, they will
be taken to have agreed that the English courts shall have exclusive jurisdiction of
the arbitration and the mandatory provisions of the English Arbitration Act will
apply, including those relating to the parties’ ability to challenge the award under
Sections 67 and 68 of the English Arbitration Act.39 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.40

4.4.2 With respect to the law applicable to the substance of the dispute, Sections 46(1)
and (3) of the English Arbitration 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 which 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 country only. 

4.4.3 By the arbitration agreement (or on some other basis) the parties can also authorise
the arbitral tribunal 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 as to the scope of the lex mercatoria and the
principles to be applied in making a decision ex aequo et bono. 

36 F or the full text of the ICC Arbitration Rules, see CMS Guide to Arbitration, vol II, appendix 3.7.
37 English Arbitration Act, s 4(3).
38 C v D [2007] EWCA Civ 1282.
39 I bid.
40 Naviera Amazonica Peruana SA v Compania Internacional de Seguros de Peru [1988] 1 Lloyd’s Rep. 116. This applies other
than, of course, to enforcement proceedings.

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4.4.4 Under English conflict of law rules, the applicable law of a contract (in the absence
of an agreement by the parties) will in most cases be determined in accordance
with the Regulation on the Law Applicable to Contractual Obligations adopted by
the European Community on 17 June 2008 (Rome I), which came into force on 17
December 2009. In July 2007, the European Community also adopted a new
Regulation on the Law Applicable to Non-Contractual Obligations (Rome II),
which came into force on 11 January 2009. Rome II sets out new choice of law
rules for non-contractual obligations, such as torts and equitable claims and it is
anticipated that the English courts will determine non-contractual conflicts of laws
issues in accordance with Rome II. Where the arbitration agreement is drafted
widely to include disputes that arise from non-contractual obligations, then the
determination of the applicable law may also include reference to Rome II. 

5. Composition of the arbitral tribunal

5.1 Constitution of the arbitral tribunal
5.1.1 The parties are free to agree on the number of arbitrators and whether there is to
be a chair or umpire.41 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. If there is no
agreement as to the number of arbitrators, the arbitral tribunal shall consist of a
sole arbitrator. If the parties have agreed that there is to be a chair or umpire, they
are free to agree on his or her functions. Where there is no agreement as to the
function of the chair or umpire, Sections 20 and 21 of the English Arbitration Act
contain default provisions. Those default provisions 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.42 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.43

41 English Arbitration Act, s 15(1).

42 Ibid, s 20(3) and s 20(4).
43 I bid, s 21(3) and s 21(4).

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5.1.2 The procedure for the appointment of the arbitral tribunal is determined by the
arbitration agreement between the parties. Where the parties have not agreed an
appointment procedure, Section 16 of the English Arbitration Act makes detailed
provision for the appointment of the arbitral tribunal.

5.1.3 In the event that each of the two parties 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 make the required appointment and does not notify
the other party that it has done so within seven days of that notice, 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.44

5.1.4 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.45 

5.2 Removal of arbitrator

5.2.1 Pursuant to Section 23 of the English Arbitration Act, the authority of an arbitrator
can be revoked by the 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 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;
—— an arbitrator does not possess the agreed qualifications;
—— 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.46

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. 

44 Ibid, s 17.
45 Ibid, s 18.
46 Ibid, s 24.

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5.3 Appointment of substitute arbitrators 

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 English Arbitration Act provides that Section 16 or
Section 18 procedures (discussed at paragraphs 5.1.1 – 5.1.4 above) apply to the
filling of the vacancy as in relation to the original appointment. 

5.4 Arbitrators’ fees, expenses and immunity 

5.4.1 Section 28 of the English Arbitration Act makes express provision for the parties’
liability to the arbitrators for fees and expenses. Section 29 provides that arbitrators
enjoy immunity from claims unless they act in bad faith. 

6. Jurisdiction of the arbitral tribunal

6.1 Competence to rule on jurisdiction
6.1.1 Section 30 of the English Arbitration Act gives the arbitral tribunal the power to
rule on its own jurisdiction. It is up to the arbitral tribunal to decide 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 application by one of the parties.47 The arbitral tribunal’s decision
on jurisdiction may also be subject to a full rehearing by the courts.48

6.1.3 Section 31 of the English Arbitration Act requires that any objection to the
substantive jurisdiction of the arbitral tribunal that a party may have, must be
raised at the earliest possible stage in the proceedings, i.e. 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.49 

47 I bid, s 32.
48 English Arbitration Act, s 67 and see below at paragraph 10.2.2.
49 English Arbitration Act, s 73.

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6.2 Power to order interim measures

6.2.1 Under Section 38(1) of the English Arbitration 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 a major arbitral institution such as
the ICC into their arbitration agreement or by express provision in the arbitration
agreement.

6.2.2 In the absence of any agreement by the parties on the issue of interim measures,
Section 38(4) of the English Arbitration Act empowers the arbitral tribunal to give
directions relating to property which is the subject of the arbitral proceedings and
which is owned by or is in the possession of a party to the dispute. Additionally,
the arbitral tribunal may “give directions to a party for the preservation for the
purposes of the proceedings of any evidence in his or her custody or control”.50

6.2.3 Unless otherwise agreed by the parties, the English Arbitration Act does not confer
upon arbitrators the power to secure the sum in dispute by an order taking effect
as an injunction, although it is possible to seek a freezing injunction from the High
Court.51

7. Conduct of proceedings
7.1 Common law tradition
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. Those concepts are not part of the continental European civil
law tradition, although they are familiar in other common law jurisdictions such as
the United States, 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 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 (i.e. party-driven with the judge adopting the position of
arbiter between the opposing parties) rather than inquisitorial (i.e. more reliant on

50 Ibid, s 38(6).
51 English Arbitration Act, s 44(2)(e) and see below at section 9.5.

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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. English
arbitral proceedings under the English Arbitration Act are not tied to English court
procedure. The English Arbitration Act enables arbitrators to use wide-ranging
powers (which are much more akin to the case management techniques employed
under the continental European procedural system) to ensure that the arbitration
progresses efficiently, proportionately and in the interests of the parties. 

7.2 Commencing an arbitration

7.2.1 Unless otherwise agreed by the parties, Section 14(4) of the English Arbitration
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.52 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. 

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 be drafted
widely enough to ensure all potential matters in dispute are referred to arbitration. 

7.3 General procedural principles

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

General duties of the arbitral tribunal

7.3.2 Section 33(1) is one of the key provisions in the English Arbitration 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 English Arbitration 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. 

52 Charles M Willie Co (Shipping) Ltd. v Ocean Laser Shipping Ltd, The Smaro [1999] 1 Lloyd’s Rep 225.

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General duties of the parties

7.3.4 Under Section 40 of the English Arbitration 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. 

Procedural powers of the arbitral tribunal

7.3.5 Procedural and evidential matters are decided by the arbitral tribunal unless the
parties agree otherwise.53 Section 34(2) of the English Arbitration 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;54
—— disclosure;55
—— interrogatories (i.e. questions put to and answered by the parties prior to
trial);56
—— oral evidence;57 and
—— oral hearings.58

7.3.6 The arbitral tribunal may refer to Section 34 as a guideline and may dispense with
procedures which are not appropriate in the circumstances of a particular case.
Nevertheless, arbitrators have to 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.59 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 English Arbitration
Act.60 However, the courts have generally approached this issue in favour of
arbitrators actively managing their arbitrations.61 

53 English Arbitration Act, s 34(1).

54 I bid, s 34(2)(c).
55 Ibid, s 34(2)(d).
56 Ibid, s 34(2)(e).
57 Ibid, s 34(2)(f).
58 Ibid, s 34(2)(h).
59 O ne of the arbitral tribunal’s general duties under s 33(1)(a) of the English Arbitration Act.
60 S ee below at section 10.2.
61 Margulead Ltd v Exide Technologies [2004] EWHC 1019 (Comm).

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7.3.7 The English Arbitration Act provides the arbitral tribunal with further express
powers, including the power to:
—— appoint its own expert(s);62
—— order the claimant to provide security for costs;63
—— direct that a party or witness shall be examined on oath and, for that purpose,
to administer the necessary oath;64
—— 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;65
—— 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;66
—— 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;67
—— 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 English Arbitration Act;68
—— make awards on different issues at different times;69
—— award compound interest;70 and
—— direct that the recoverable costs of the arbitration be limited to a specified
amount.71

7.3.8 Unless the parties specifically agree, the arbitral tribunal has no power to
consolidate different arbitral proceedings or to order concurrent hearings.72 

7.4 Seat, place of hearings and language of arbitration

7.4.1 Pursuant to Section 3 of the English Arbitration Act, the term “seat” of the
arbitration means only its “juridical” seat. The fact that the parties have agreed
that the seat of the arbitration shall be, for example, London, does not prevent

62 English Arbitration Act, s 37.

63 Ibid, s 38(3).
64 Ibid, s 38(5).
65 I bid, s 39.
66 Ibid, s 41(3).
67 Ibid, s 41(4).
68 I bid, s 41(5).
69 I bid, s 47.
70 Ibid, s 49.
71 Ibid, s 65.
72 Ibid, s 35(2).

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the parties or the arbitrators from deciding to hold any part of the arbitral
proceedings elsewhere if this is more convenient.73 

7.4.2 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.74 

7.5 Submissions
7.5.1 The format and timetable for submissions will be determined by the arbitral
tribunal unless agreed by the parties.75 In English arbitral proceedings, the parties’
submissions frequently take the form of formal statements of case, similar but not
identical to those used in court proceedings and limited to identifying the issues
between the parties. They may, however, take the form of more complete
submissions which also deal with the relevant facts, evidence and law, similar to
continental European court submissions. 

7.6 Oral hearings and written proceedings

7.6.1 Before the English Arbitration Act came into force, either party could effectively
require that an oral hearing be held. Under the English Arbitration 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.76 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. 

7.7 Taking of Evidence

7.7.1 Evidential matters will be determined by the arbitral tribunal, subject to any
agreement between the parties.77 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;78 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

73 Ibid, s 34(2)(a).
74 Ibid, s 34(2)(b).
75 Ibid, s 34(2)(c).
76 Ibid, s 34(2)(h).
77 Ibid, s 34(1).
78 Ibid, s 34(2)(d).

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evidence adduced by the parties.79 The English Arbitration 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.80 

8. Making of the award and termination of proceedings

8.1 Remedies
8.1.1 Subject to any agreement by the parties as to the powers which the arbitral
tribunal may exercise, Section 48 of the English Arbitration Act provides that the
arbitral tribunal may:
—— make a declaration as to any matter to be determined in the arbitral
proceedings;81 or
—— order the payment of a sum of money in any currency.82

8.1.2 Furthermore, the arbitral tribunal has the same powers as the courts to:
—— grant a permanent injunction;83
—— order specific performance of a contract;84 or
—— order the rectification, cancellation or setting aside of a deed or other
document.85

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

8.2 Interest
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:

79 Ibid, s 34(2)(f).
80 Ibid, s 37.
81 Ibid, s 48(3).
82 I bid, s 48(4).
83 English Arbitration Act, s 48(5)(a). Note that Section 48(5)(a) does not confer a power to grant an interim injunction in the
form of an award, since an award must finally dispose of the issues with which it deals. The parties may, however, have
agreed pursuant to Section 39 that the arbitral tribunal should have the power to make provisional awards, in which case
the arbitral tribunal may issue an interim injunction in the form of a provisional award under that section.
84 English Arbitration Act, s 48(5)(b).
85 Ibid, s 48(5)(c).

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—— the amount awarded, in respect of any period up to the date of the award;86
—— 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;87 and / or
—— the outstanding amount of any award from the date of the award until
payment.88

8.2.2 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 Decision-making by the arbitral tribunal

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.89
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) 90 and the
view of the chair shall prevail where there is neither unanimity nor a majority.91

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.92

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.93

8.4 Form, content and effect of the award 

8.4.1 Pursuant to Section 58 of the English Arbitration Act, an award made by the
arbitral tribunal pursuant to an arbitration agreement is final and binding on the

86 Ibid, s 49(3)(a).
87 Ibid, s 49(3)(b).
88 Ibid, s 49(4).
89 I bid, s 20(1).
90 Ibid, s 20(3).
91 Ibid, s 20(4).
92 Ibid, s 21(1).
93 English Arbitration Act, s 22(2). For an explanation of the position where the parties have agreed on an even number of
arbitrators, see paragraph 5.1.1. above.

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parties to the arbitration, subject to the limited rights the English Arbitration Act
provides for challenge or appeal to the courts.94 

8.4.2 Section 52 of the English Arbitration 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 place of the arbitration and the date on which the award was made. 

8.4.3 Once an award has been made, parties shall be notified without delay,95 but the
arbitral tribunal has power to withhold the award until the arbitrators’ fees and
expenses are paid in full.96 

8.5 Settlement 
8.5.1 If the parties settle their dispute during the course of the arbitration, the arbitral
tribunal shall terminate the substantive proceedings and shall record the settlement
in the form of an agreed award if requested to do so by the parties.97 

8.6 Costs 
8.6.1 Unlike the Model Law (1985), Sections 59 – 65 of the English Arbitration Act make
express provision for the allocation of the costs of the arbitration as between the
parties. The English Arbitration 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.

8.6.2 Generally, an award of costs will “follow the event”,98 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

94 English Arbitration Act, s 67 – 69. See also sections 10.2 and 10.3 below.
95 English Arbitration Act, s 55(2).
96 Ibid, s 56.
97 Ibid, s 51(2).
98 This means that the losing party pays the reasonable costs of the arbitration. If a claimant is successful only in part, the
costs of the arbitration may be allocated between the parties on a pro rata basis.

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arbitrators are recoverable. Pursuant to Section 60 of the English Arbitration 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.99

8.7 Correction and interpretation of the award

8.7.1 The English Arbitration 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. 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. 

9. Role of the courts

9.1 Jurisdiction of the courts
9.1.1 The extent to which the courts may interfere in the arbitration process is one of the
most important issues for parties to international arbitral proceedings. The English
Arbitration 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 English Arbitration 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 The powers of the court in relation to arbitral proceedings are limited to those
expressly conferred by the English Arbitration Act. Those powers include:
—— the enforcement of peremptory orders made by the arbitral tribunal;100
—— making preservation orders in relation to evidence and assets;101 and
—— the determination of preliminary points of law.102

99 V irdee v Virdi [2003] EWCA (Civ) 41.

100 English Arbitration Act, s 42.
101 I bid, s 44.
102 I bid, s 45.

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9.2 Stay of court proceedings

9.2.1 Section 9 of the English Arbitration Act provides that, upon 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. The court has established two threshold
requirements for granting a stay of court proceedings under Section 9:
—— there must be a concluded arbitration agreement; and
—— the issue in the court proceedings must be a matter that, under the arbitration
agreement, is to be referred to arbitration.103

9.2.2 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).104 The absence of jurisdiction under Section 9 of the English
Arbitration Act to order a stay does not preclude the court’s exercise of this
inherent jurisdiction.

9.2.3 Although Section 9 of the English Arbitration 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 or by the Court of Appeal.105 

9.2.4 A significant number of cases on the stay of court proceedings under Section 9
have reached the courts since the English Arbitration Act came into force. 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.106 This is still the case under the new
Bribery Act 2010.

9.3 Extension of time for commencement of arbitral proceedings

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 extend the time for taking these steps
pursuant to Section 12 of the English Arbitration Act.

103 A lbon v Naza Motor Trading SDN BHD [2007] EWHC 665 (Ch).
104 S enior Courts Act 1981, s 49(3). See also Reichhold Norway ASA v Goldman Sachs International [1999] 2 Lloyd’s Rep 567.
105 I nco Europe Ltd v First Choice Distribution [2000] 1 Lloyd’s Rep 467.
106 Fiona Trust and Holding Corporation & Ors v Privalov & Ors [2007] EWCA Civ 20.

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9.4 Preliminary rulings on points of jurisdiction and law

9.4.1 Under Section 32 of the English Arbitration Act, the courts have the power to
determine preliminary points on the substantive jurisdiction of the arbitral tribunal
upon the application of a party. Pursuant to Section 45 of the English Arbitration
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.107 The court will only consider such applications if
they are 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. In the case of applications under Section 32, there must also
be a good reason why the matter should be decided by the court. 

9.4.2 While Section 32 of the English Arbitration Act is a mandatory provision, the
parties are free to exclude the courts’ jurisdiction under Section 45 of the English
Arbitration Act by agreement. An agreement by the parties to dispense with
the requirement that the arbitral tribunal give reasons in support of its award will
be considered as an agreement also to exclude the courts’ jurisdiction under
Section 45.108

9.5 Interim protective measures

9.5.1 Unless otherwise agreed by the parties, the courts have the power under Section
44(2) of the English Arbitration Act to order certain defined interim measures in
support of arbitral proceedings, including orders preserving evidence and interim
injunctions. If the case is one of urgency, Section 44(3) of the English Arbitration
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. Section 44 of the English Arbitration Act
is, however, 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,
then a very clear contractual provision needs to be made to that effect.109

107 T he
court has, for example, been asked to consider as a preliminary legal issue the construction of documents; see Beegas
Nominees v Decco Ltd [2003] EWHC 1891 (Ch).
108 English Arbitration Act, s 45(1).
109 S AB Miller Africa v East African Breweries Ltd [2009] EWCA Civ 1564.

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9.5.2 The interim measures which the court may order include freezing orders,110 search
orders111 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. Following a referral of a case by the House of Lords (as
it then was), the ECJ considered whether it is consistent with Brussels I Regulation
for a court of a Member State to make an order to restrain a person from commencing
or continuing proceedings in another Member State on the ground that such
proceedings are in breach of an arbitration agreement. The ECJ determined that
anti-suit injunctions are inconsistent with the Brussels I Regulation, thereby curtailing
the courts’ ability to grant anti-suit injunctions to prevent parties from continuing
with or commencing proceedings before the courts of EU Member States.112 

9.5.3 It is important to note that the courts only have the power to grant interim
measures if, or to the extent that, the arbitral tribunal 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. Section 44 of the English Arbitration 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 English Arbitration Act if there is a good
reason for the court to exercise its discretion and intervene.113 

9.6 Obtaining evidence and other court assistance 

9.6.1 An arbitral tribunal has no power to compel witnesses to attend before it to give
evidence. Section 43 of the English Arbitration Act therefore provides that a party

110 Freezing orders are interlocutory injunctions granted by the court (normally ex parte and on the basis of affidavit evidence)
restricting the respondent’s right to dispose of or deal with its assets, requiring the respondent to disclose the nature,
value and location of such assets and to provide other information to the applicant. Freezing orders can not only be made
in relation to assets located in England and Wales but, in appropriate circumstances, also on a worldwide basis.
111 
Search orders are also interlocutory injunctions granted by the court (normally ex parte and on the basis of affidavit
evidence) entitling the applicant to ‘raid’ and search the respondent’s premises for certain evidence in relation to the
subject matter of court proceedings. Search orders are of particular importance in cases of infringement of intellectual
property rights but have a wider scope of application. Both freezing and search orders have been described as ‘nuclear
weapons of the law’ and will only be granted in exceptional circumstances and upon various cross-undertakings by the
applicant, including a cross-undertaking in damages. Service of an arbitration claim form seeking relief under Section 44
of the English Arbitration Act can be effected outside the jurisdiction and in relation to evidence outside of England and
Wales, i.e. a party to an arbitration agreement which is subject to the English Arbitration Act may apply to an English court
for an order assisting it with obtaining evidence which is located outside of England and Wales.
112 A llianz SpA v West Tankers Inc. (Case C-185 / 07).
113 S ee, for example, Mobil Cerro Negro Ltd v Petroleos de Venezuela SA [2008] EWHC 532 (Comm) (the court set aside a
freezing injunction in relation to foreign proceedings, as, inter alia, the applicant failed to demonstrate a sufficient
connection to the English jurisdiction).

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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 be made to the court under
Section 44 of the English Arbitration Act.

10. Challenging and appealing the award through

the courts
10.1 Loss of right to object to award
10.1.1 The right of a party to object to an award on any of the following grounds may be
lost if the aggrieved party had not raised such objections at the earliest possible
opportunity in the arbitral proceedings, namely that:
—— 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.114

10.2 Challenging the award

10.2.1 An award once made can only be challenged pursuant to:
—— Section 67 of the English Arbitration Act, on the ground that the arbitral
tribunal lacked substantive jurisdiction; or
—— Section 68 of the English Arbitration Act, on the ground that there was a
serious irregularity affecting the arbitral tribunal, the proceedings or the
award.

10.2.2 On applications challenging the award on the grounds that the arbitral tribunal
lacked jurisdiction under Section 67 of the English Arbitration Act, the court may
either confirm the award, vary the award or set the award aside in whole or in
part. Section 68(2) of the English Arbitration Act sets out an exhaustive list of the
circumstances which constitute a serious irregularity if they cause substantial
injustice to the applicant, namely:
—— breach of Section 33 of the English Arbitration Act (general duties of the
arbitral tribunal);

114 English Arbitration Act, s 73.

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—— 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.

10.2.3 In recent years, 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 English Arbitration
Act (which requires the arbitral tribunal to, inter alia, act fairly and impartially
between the parties).115 The court has held that actual or apparent bias of an
arbitrator is a substantial injustice and can amount to a serious irregularity for the
purposes of Section 68 of the English Arbitration Act.116 

10.2.4 If an award is successfully challenged on grounds of serious irregularity under

Section 68 of the English Arbitration 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. 

10.3 Appeal on point of law

10.3.1 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 agreement of the parties.
The grounds on which such permission to appeal will be granted derive from the
pre-English Arbitration 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.117

115 S ee above at paragraph 7.3.2.

116 A SM Shipping Ltd v TTMI Ltd [2006] EWCA Civ 1341.
117 English Arbitration Act, s 69(3).

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10.3.2 On an appeal under Section 69 of the English Arbitration 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. 

10.3.3 Unlike challenges under Sections 67 and 68 of the English Arbitration 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 English Arbitration Act is waived automatically.118
Where the parties opt for ad hoc arbitration or institutional rules which do not
contain waiver language akin to the ICC Rules and LCIA, the parties can exclude
the application of Section 69 by stating so expressly in the arbitration agreement.
Pursuant to Section 69(1) of the English Arbitration 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.119 Sections 70 – 73
of the English Arbitration Act contain supplementary provisions and restrictions in
relation to the challenge or appeal of awards. 

11. Recognition and enforcement of awards

11.1 Domestic awards
11.1.1 Section 66 of the English Arbitration 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. It has recently been confirmed that this right of enforcement under
Section 66 also applies to declaratory awards, where the victorious party’s
objective in obtaining an order for enforcement is to establish the primacy of a
declaratory award over an inconsistent judgment.120

11.2 Foreign awards

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

118 S ee Article 28.6 of the ICC Rules and Article 26.9 of the LCIA Rules.
119 See paragraph 9.4.2 above on the effect of such an agreement on the courts’ jurisdiction under Section 45 of the English
Arbitration Act.
120 West Tankers Inc v Allianz SpA and Generali Assicurazione Generali SpA [2011] EWHC 829 (Comm).

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11.2.2 Pursuant to Section 99 of the English Arbitration 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 which
cannot be enforced under the New York Convention. 

11.2.3 Most foreign awards are today enforced under the New York Convention.121 This
requires the award to be a “New York Convention Award”, i.e. an award made
pursuant to a written arbitration agreement in a state which is a signatory to the
New York Convention.

11.2.4 The recognition and enforcement of New York Convention awards are governed
by Sections 100 – 104 of the English Arbitration Act and may only be refused if the
party against whom it is to be enforced proves one or more of the following:122
—— incapacity of a party to the arbitration agreement;
—— invalidity of the arbitration agreement;
—— lack of due notice 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.123

11.2.5 It is rare for the English Courts to refuse to enforce a foreign award under the New
York Convention. However, the Supreme Court has recently ruled that an award
given against an entity which the Supreme Court found was not a party to an
agreement under which the arbitration was brought (but which the arbitral
tribunal concluded was bound by the arbitration agreement) is not enforceable
under English law.124 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.

121 For the full text of the New York Convention, see CMS Guide to Arbitration, vol II, appendix 1.1.
122 English Arbitration Act, s 104.
123 F or example, in cases where the underlying contract involved illegality. See Soleimany v Soleimany [1999] QB 785.
124 D allah Real Estate & Tourism Holding Co v Pakistan [2010] UKSC 46.

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12. Court proceedings

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 Queen’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 are heard by the Court of Appeal, but
permission to appeal will first be required from the first instance court i.e. either
the Commercial Court or TCC. Appeals from the Court of Appeal will be made to
the Supreme Court.125

13. Questions not addressed by the English Arbitration Act

13.1.1 A number of questions have not been addressed by the English Arbitration Act
and have instead been left open to developments in the jurisprudence. These
include, in particular, the following issues.

13.1.2 Multi-party disputes and consolidation of separate arbitral proceedings give rise to
a number of 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 new ICC Rules,126 have been drafted
to accommodate multi-party disputes and the joinder of additional parties.

13.1.3 Privacy and confidentiality of the arbitral proceedings and of the subsequent
award are traditionally perceived as typical advantages of arbitration over court
litigation. The English Arbitration 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.127

125 
Permission of the “court” is required for any appeal from a decision of the court under either Sections 67(4) or 68(4)
of the English Arbitration Act. At first sight, this appears to suggest that unless the judge at first instances gives leave
to appeal there can be no appeal. However, two separate lines of decisions of the Court of Appeal have weakened
the proposition that the first instance judge alone is competent to grant leave to appeal from his own decision: see
Cetelem SA v Roust Holdings Ltd [2005] EWCA Civ 618 and Lesotho Highlands Development Authority v Impregilo SpA
[2006] 1 A.C. 221.
126 W hich are in force since January 2012. For the full text of the ICC Rules, see CMS Guide to Arbitration, vol II, appendix 3.7.
127 S ee para 17, February 1996 DAC Report.

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13.1.4 Under English law, the confidentiality of arbitration is an implied term of every
arbitration agreement,128 despite conflicting decisions in the Commonwealth.129
The court has held that the obligation includes any documents prepared for and
used in the arbitration, or disclosed or produced in course of the arbitration or
transcripts or notes of the evidence in the arbitration or the award.130 Notwith­
standing 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. 

13.1.5 There are a number of exceptions to the duty of confidentiality, namely:

—— by consent of the parties;
—— by 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
(e.g. prior inconsistent views expressed by an expert in arbitral proceedings).131

14. Conclusion
14.1.1 The English Arbitration Act has contributed significantly to revitalising English
arbitration and to ensuring that London remains one of the leading centres for
international commercial arbitrations. 

14.1.2 The English Arbitration Act has made arbitration a more attractive option for
dispute resolution by increasing party autonomy, as well as reducing the scope for
court interference in the arbitral process. Arbitrators have been given wider
procedural powers which can contribute to making arbitration more efficient. The
success of these provisions depends on arbitrators exercising their powers in
practice fairly and imaginatively, distinguishing the parties’ choice of arbitration as
their preferred method of dispute resolution from more formal and rule-bound
court proceedings. 

128 A li Shipping Corporation v Shipyard Trogir [1998] 1 Lloyd’s Rep 643.

129 S ee,for example, Esso Australia Resources Ltd v Plowman (Minister for Energy and Minerals) [1995] 183 CLR 10 (in which
the Australian High Court held that confidentiality is not an essential attribute of private arbitration).
130 Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184.
131 In London & Leeds Estate v Paribas Ltd [1995] 2 EG 134 Mance J permitted disclosure of an expert’s reports from earlier
arbitrations which were said to be inconsistent with his evidence in the current rent review arbitration. Mance J took the
view that the public interest in ensuring that the expert’s inconsistent views were exposed outweighed the parties’ rights
to confidentiality.

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15. Contacts
CMS Cameron McKenna LLP
Mitre House
160 Aldersgate Street
London EC1A 4DD
United Kingdom

Guy Pendell
Head of the CMS Dispute Resolution Practice Area Group
T +44 20 7367 2404
E guy.pendell@cms-cmck.com

Rupert Choat
Construction
T +44 20 7367 3573
E rupert.choat@cms-cmck.com

Ben Holland
Energy Disputes
T +44 20 7367 3682
E ben.holland@cms-cmck.com

Stephen Netherway
Insurance /  Reinsurance
T +44 20 7367 3573
E stephen.netherway@cms-cmck.com

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