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Arbitration Procedures and Practice in the UK (England and Wales): Overview by Justin Williams, Hamish Lal and Richard Hornshaw, Akin Gump LLP

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Arbitration Procedures and Practice in the UK (England and Wales): Overview by Justin Williams, Hamish Lal and Richard Hornshaw, Akin Gump LLP Arbitration procedures and practice in the UK (England..., Practical Law Country... Arbitration procedures and practice in the UK (England and Wales): overview by Justin Williams, Hamish Lal and Richard Hornshaw, Akin Gump LLP Country Q&A | Law stated as at 01-Dec-2018 | England, Wales A Q&A guide to arbitration law and practice in the UK (England and Wales). The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts' willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim. To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A Tool. This Q&A is part of the global guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration- guide. Use of arbitration and recent trends 1. How is commercial arbitration used and what are the recent trends? Use of commercial arbitration and recent trends Commercial arbitration remains the preferred dispute resolution procedure for international transactions. The full implications of Brexit for arbitration in the UK are being closely monitored by practitioners, but it does not appear to have had any immediate impact. In fact, Queen Mary University of London's 2018 International Arbitration Survey (Survey) has reported a predominant view that the use of London as a seat is unlikely to be affected. This is unsurprising, given that the primary attractions of London should remain the same, namely the reliability of the neutrality and impartiality of the English judiciary; the support for the arbitral process offered by English courts and the Arbitration Act 1996; and the UK's position as a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention). In recognition of these strengths, the Survey found that London is the "most preferred seat" in all regions globally. Where organisations were asked to identify their preferred seats, 64% included London, compared with 53% for Paris and 39% for Singapore. With 94% of its cases in 2017 seated in London, the London Court of International Arbitration's (LCIA) statistics are reflective of arbitration activity in London. It is therefore also noteworthy that the LCIA reported for 2017 a steady and diverse caseload, with non-UK parties accounting for more than 80% of its users. The LCIA also saw an increase in claims of US$20 million or more (now accounting for 31% of disputes), with trending industries including energy and natural resources (accounting for 24% of disputes). © 2019 Thomson Reuters. All rights reserved. 1 Arbitration procedures and practice in the UK (England..., Practical Law Country... In practice, the relative cost-efficiency and reliability of the LCIA rules operate to promote London as a leading choice of seat, albeit of course that those rules can be applied to any seat. A recent report covering the period from 2013 to 2016 suggested that arbitral costs and fees were lower for LCIA arbitrations than under certain other institutional rules. The same report indicated that the speed with which final LCIA awards are being produced has increased. The recent focus on transparency has continued, with the LCIA launching an online database of anonymised arbitrator challenge decisions in February 2018. More significantly, two recent court decisions have emphasised the importance of disclosure by arbitrators. A decision of the Privy Council in February 2018 noted that disclosure can serve as the sign of transparency that dispels concern and may prevent an objection being raised (Wael Almazeedi v Michael Penner and Stuart Sybermsa [2018] UKPC 3). In April 2018, the English Court of Appeal considered for the first time the scope of the duty of disclosure (Halliburton Company v Chubb Bermuda Insurance Ltd [2018] EWCA Civ 817) and found that it extends not only to circumstances that a fair-minded and informed observer would conclude to give rise to a real possibility of bias, but also to circumstances that merely might give rise to this conclusion. In a borderline case, where there is uncertainty as to whether facts would give rise to such a possibility, the court found that disclosure should be given. This sets the bar relatively low and places the test for arbitrators onto a similar footing as the test applied to English judges. Challenges to arbitrators on grounds of apparent bias are not uncommon, and this decision may make challenges more likely. Nevertheless, it remains the case that under English law, successful challenges to arbitrators are relatively rare. The Court of Appeal recently overturned the Commercial Court's decision to remove an arbitrator for lack of qualifications, on the grounds that he had not met the requirement of having "not less than ten years' experience of insurance and reinsurance" stipulated in the arbitration agreement. The court held that the arbitrator's experience of insurance and reinsurance law met this requirement (Allianz Insurance Plc and another v Tonicstar Ltd [2018] EWCA Civ 434). These decisions demonstrate the English courts' balance between imposing high standards of transparency and accountability on arbitrators, but equally not removing arbitrators lightly. Advantages/disadvantages The principal advantages of arbitration can include: • Greater certainty about the enforcement of awards. • Avoiding the specific legal systems/national courts of certain jurisdictions. • Flexibility in terms of the procedure. • The ability of parties to select arbitrators. • Confidentiality. • Limited grounds for challenges and appeals (which can also be a disadvantage, (see below)). The principal disadvantages of arbitration can include the: • Reluctance of tribunals to dispose of weak claims/defences on a summary basis. • Reluctance of tribunals to impose rigorous case management. • Length of time it can take from commencement of the arbitration to publication of the final award. © 2019 Thomson Reuters. All rights reserved. 2 Arbitration procedures and practice in the UK (England..., Practical Law Country... • Limited grounds for challenges and appeals, which, together with the confidential nature of the process, can create a risk of a lack of intellectual rigour in the award. Legislative framework Applicable legislation 2. What legislation applies to arbitration? To what extent has your jurisdiction adopted the UNCITRAL Model Law on International Commercial Arbitration 1985 (either with or without the amendments adopted in 2006) (UNCITRAL Model Law)? The Arbitration Act 1996 applies where the seat of the arbitration is in England, Wales or Northern Ireland. The following sections of the Arbitration Act may apply, where the seat of the arbitration is outside England, Wales or Northern Ireland: • Sections 9 to 11 (stay of legal proceedings). • Section 43 (securing the attendance of witnesses). • Section 44 (court powers exercisable in support of arbitral proceedings). • Section 66 (enforcement of arbitral awards). England and Wales has not adopted the UNCITRAL Model Law (either with or without the amendments adopted in 2006), although the drafting of the Arbitration Act was, in some respects, influenced by it. Mandatory legislative provisions 3. Are there any mandatory legislative provisions? What is their effect? There are a number of mandatory provisions in the Arbitration Act covering, for example: • Powers of the court. © 2019 Thomson Reuters. All rights reserved. 3 Arbitration procedures and practice in the UK (England..., Practical Law Country... • Immunity of an arbitrator. • Rights to challenge/appeal awards. The full list of the mandatory provisions is set out in Schedule 1 to the Arbitration Act. 4. Does the law prohibit any types of disputes from being resolved through arbitration? The courts have held that the purpose of the Arbitration Act is to allow parties to agree to have disputes determined by arbitration rather than in court. Most types of commercial disputes can be arbitrated (see, for example, Fulham Football Club (1987) Ltd v J. Sir David Richards and another [2011] EWCA Civ 855). The courts have been prepared to interpret arbitration agreements broadly to encompass non-contractual as well as contractual disputes (Fiona Trust & Holding Corporation v Privalov [2007] UKHL 40). In this case, Lord Hoffman held that construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of their relationship to be decided by the same tribunal. Nonetheless, the Fiona Trust principles must be applied carefully to the facts of the particular case. For example, the Court of Appeal recently considered an application for an anti-suit injunction restraining, among other claims, a company's claims against a "quasi-partner" in the New South Wales courts, in its capacity as assignee of the rights of certain third parties to contributions toward a monetary judgment from the quasi-partner. While the claims related to a partnership agreement, since the third parties were not parties to that agreement, the court deemed it highly unlikely that the partners had intended to include these claims within their arbitration clause. Accordingly, the assigned claims did not fall within the scope of the arbitration clause and could not be restrained (Michael
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