The Amendments to the English Arbitration Act of 1996 have now received Royal Assent with the same being enacted as the English Arbitration Act 2025. The purpose of the amendments was to ensure that the Act stays abreast with the recent emerging issues and court decisions. It is important to note that the amendments under the 2025 Act do not apply to pre-commencement arbitration proceedings or court proceedings (whenever commenced) in connection with pre-commencement arbitral proceedings or awards made in pre-commencement arbitral proceedings. The Act makes the following key changes:
1. Law applicable to the arbitration agreement
The 2025 Act introduces a new section 6A which provides that unless parties agree otherwise, the law applicable to an arbitration agreement is the law of the seat of the arbitration. Section 6A also clarifies that the law of the underlying contract, of which the arbitration agreement is a part, does not constitute an express agreement that the same law applies to the arbitration agreement. This section resolves many complexities that have arisen in light of the Supreme Court decision in Enka Insaat Ve Sanayi AS v OOO Insurance Company Chubb [2020] 1 W.L.R. 411.
2. Impartiality: duty of disclosure
The 2025 Act introduces section 23A. This new section requires arbitrators to, as soon as it’s reasonably practical, disclose any circumstances that might reasonably give rise to justifiable doubts as to their impartiality. The duty to disclose is continuous. Most importantly, this duty is mandatory, and parties cannot agree to it being dispensed with. The 2025 Act codifies the common law position in Halliburton v Chubb.
3. Immunity of arbitrators
The 2025 Act provides that an arbitrator shall not pay the costs of an application for their removal unless ‘any act or omission of the arbitrator in connection with the proceedings is shown to have been in bad faith’. In addition, an arbitrator’s resignation will not give rise to any liability unless it is shown that their resignation was unreasonable in all circumstances.
4. Jurisdiction of the tribunal
The 2025 Act amends section 32 of the 1996 Act so that parties can only make an application for (determination of a preliminary point of jurisdiction) where the tribunal has not made a ruling on jurisdiction.
5. Power to make an award on summary basis
In Section 39A, the tribunal may (on application by a party) make an award on a summary basis in relation to a claim if the tribunal considers that a party has no real prospect of succeeding on the claim or the party has no real prospect of succeeding in the defence of the claim provided both parties have had a reasonable opportunity to present their case.
6. Emergency arbitrators
Previously, there was no express reference to emergency arbitrators in the Arbitration Act of 1996. Section 41A provides that where parties have agreed to the application of rules that provide for the appointment of an emergency arbitrator (such as Article 9B of the LCIA Rules 2020) and such appointment has taken place, the emergency arbitrator has powers (where there is non-compliance with the emergency arbitrator’s orders or directions) to make peremptory orders which are enforceable by the court. Section 44 of the 1996 Act has also been amended to allow an emergency arbitrator to give permission to a party who intends to make an application to the court for example for the taking of witness evidence.
7. Challenging the award
Under section 67, the amendments provide for two new remedies: remitting the award to the tribunal in whole or in part for reconsideration or declaring the award to be of no effect in whole or in part.
Where a challenging party has taken part in the arbitral proceedings, that party will be unable to (unless the court rules otherwise in the interests of justice) raise a new ground for objection that was not raised before the arbitral tribunal or introduce new evidence that was not put before the tribunal. Evidence that was heard by a tribunal must not be reheard by the court.