England and Wales - National Report - World Arbitration Reporter (WAR) - 2nd Edition

Originally from:  

World Arbitration Reporter - 2nd Edition - Looseleaf

World Arbitration Reporter - 2nd Edition - Electronic

ENGLAND AND WALES

Guy Pendell

I. INTRODUCTION: ARBITRATION IN ENGLAND AND
WALES – HISTORY AND INFRASTRUCTURE

A. History and Current Legislation on Arbitration

1. Historical evolution of law relating to arbitration

Before the Arbitration Act 1996 (the “Act”),1 the law of arbitration in England and Wales was dealt with by the Arbitration Acts 1950, 1975 and 1979 and a large body of case law. English arbitration was criticised for being inaccessible to lay and to foreign users. It was perceived to be slow and expensive, described as “litigation without wigs.” The English court was also considered to be too willing to intervene in the arbitral process. As a result, arbitration in England was seen as unattractive and London, as the centre for arbitration in England and Wales, was at risk of losing out to other jurisdictions as a venue for international commercial arbitration. The 1979 Act went some way to limit intervention by the court, by restricting the right of appeal, but it did not address the more fundamental problems.

In the 1980s, the Department of Trade and Industry set up the Departmental Advisory Committee on Arbitration Law (the “DAC”) under the Chairmanship of Lord Mustill (then Lord Justice Mustill). One of the priorities for the DAC was whether to recommend enactment of the 1985 UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”). The DAC decided against adopting the Model Law in its entirety, but recommended that the new English arbitration act should, so far as possible, adopt the structure and language of the Model Law and be clear and accessible. Despite those aspirations, the first draft Bill in February 1994 did little more than consolidate the existing statutes of 1950, 1975 and 1979. Thereafter, the DAC, under the new chairmanship of Lord Saville (then Lord Justice Saville), produced a completely new draft Bill in December 1995, which was widely praised. After extensive consultation, but with relatively few changes, this became the Act.

ENGLAND AND WALES

I. INTRODUCTION: ARBITRATION IN ENGLAND AND WALES – HISTORY AND INFRASTRUCTURE

A. History and Current Legislation on Arbitration 

1. Historical evolution of law relating to arbitration 

2. Current law

a) Domestic arbitration law

b) International arbitration law

3. Law reform projects

4. Confidentiality and publication of awards

a) Privacy of proceedings

b) Publication of awards

B. Arbitration Infrastructure and Practice in England and Wales

1. Major arbitration institutions

2. Number of cases and other statistics

3. Development of arbitration compared with litigation

II. CURRENT LAW AND PRACTICE

A. Arbitration Agreement

1. Types and validity of agreement

a) Clauses and submission agreements

b) Minimum essential content

c) Form requirements

d) Incorporation by reference

e) Interpretation

2. Enforcing arbitration agreements

a) Declaratory action in court

b) Applications to compel or stay arbitration

c) Anti-suit and other injunctions

3. Effects on third parties

a) a. Extension of the agreement over third parties

b) b. Other effects

4. Termination and breach

B. Doctrine of Separability

1. Statutory provisions

2. Practice and case law

C. Jurisdiction

1. Which forum decides jurisdiction

2. Prima facie determination

3. Competence-competence

4. Interaction of national courts and tribunals

D. Arbitrability

1. Notion and functions of arbitrability

2. Applicable law

3. Subjective arbitrability

a) Natural persons

b) Legal persons

c) States and state entities

4. Objective arbitrability

a) Examples of restrictions to objective arbitrability at law

b) Cases restricting objective arbitrability

E. Arbitral Tribunal

1. Status and qualifications of arbitrators

a) Number of arbitrators

b) Legal status

c) Qualifications and accreditation requirements

d) Arbitrators’ rights and duties

e) Relevant codes of ethics

2. Appointment of arbitrators

a) Methods of appointment

b) Appointing authorities

c) Payment agreements

d) Resignation and its consequences

3. Challenge and removal

a) Grounds for challenge

b) Procedure for challenge

c) Removal procedure

d) Replacement by arbitrators

4. Arbitrator-liability and immunity

F. Conducting the Arbitration

1. Law governing procedure

a) Determination of law and rules governing procedure

b) Notion and role of seat of arbitration

c) Methods for selection of seat absent party choice

d) Mandatory rules of procedure

2. Conduct of arbitration

a) Basic procedural principles

i. Fairness

ii. Non-intervention by the court

b) Party autonomy and arbitrators’ power to determine procedure

c) Style and characteristics of the oral hearing

d) Documents only arbitrations

e) Submissions and notifications

f) Deadlines, and methods for their extension

g) Legal representation

h) Default proceedings

3. Taking of evidence

a) Admissibility

b) Burden of proof

c) Standards of proof

d) Evidentiary means- in general

e) Documentary evidence and privilege

f) Production of documents

g) Witnesses

h) Tribunal-appointed experts

i) Party-appointed experts

4. Interim measures of protection

a) Jurisdiction for granting interim measures

b) Availability of preliminary or ex parte orders

c) Types of measures

d) Form of measures

e) Security for costs

f) Enforcement mechanisms

5. Interaction between national courts and arbitration tribunals

a) Court assistance before the arbitration begins

b) Court assistance during the arbitration

c) Court assistance after the arbitration

d) Case law examples of best and worst practices

6. Multiparty, multi-action, and multi-contract arbitration

a) Consolidation of arbitrations

b) Joinder of third parties

c) Parallel and concurrent proceedings

7. Law and rules of law applicable to the merits

a) Determining the applicable law and rules

b) Party autonomy

c) Determination by arbitrators

d) Non-national substantive rules, general principles of law and transnational rules

e) Mandatory rules

8. Costs

a) Arbitration costs

b) Legal costs

c) Security for costs

G. Arbitration Award

1. Types of awards

a) Partial awards

b) Final awards

c) Interim awards

d) Consent awards

e) Default awards

f) Awards and other decisions of the tribunal

2. Form requirements

a) Essential content

b) Reasons

c) Time limits for making award

d) Notification to parties and registration

3. Remedies

a) Damages

b) Specific performance

c) Other typical remedies

d) Interest

4. Decision making

a) Deliberations

b) Majority or consensus?

c) Dissenting and concurring opinions

d) Signature

5. Settlement

a) Settlement recorded in an award

b) Settlement without an award

c) Use of settlement techniques by arbitrators

6. Effects of award

a) Effects between parties

b) Effects against third parties

c) Res judicata

7. Correction, supplementation, and amendment

a) Correcting the award

b) Additional award

c) Interpretation of award

H. Challenge and Other Actions against the Award

1. Setting aside

a) Grounds

b) Time limits

c) Procedure

d) Limiting judicial review of awards by contract

e) Effects of successful challenge

2. Appeal on the merits

a) Is it allowed?

b) Grounds

c) Excluding the right to appeal by agreement

III. RECOGNITION AND ENFORCEMENT OF AWARDS

A. Domestic Awards

1. Statutory or other regime

a) Distinction between recognition and enforcement

b) Grounds for refusing recognition and enforcement

c) Formal requirement for enforcement of awards

d) Enforcement procedure

e) Execution

2. Practice

a) Grounds for refusing recognition and enforcement

b) Enforcement procedure

B. Foreign Awards

1. Various regulatory regimes

a) Domestic rules

b) New York Convention

c) Other international conventions

d) Court practice applying regimes other than the New York Convention

2. Distinction between recognition and enforcement

3. Application of New York Convention by local courts

a) Grounds for refusing recognition and enforcement

b) Enforcement procedure

c) Public policy as a ground to refuse enforcement

d) Examples from practice

IV. APPENDICES AND RELEVANT INSTRUMENTS

A. National Legislation (See CD-ROM)

B. Major Arbitration Institutions

C. Cases

D. Bibliography

Guy Pendell is a solicitor advocate and has been a Partner at CMS Cameron McKenna LLP since 2005. He is the Head of the CMS Dispute Resolution Practice Area Group and former Chair of the CMS International Arbitration Group. He has disputes experience across many industry sectors, including financial services, manufacturing, chemicals and engineering, energy, healthcare and hotels & leisure. In international arbitration, Mr. Pendell has acted in many large complex ad hoc and institutional commercial proceedings and has advised on disputes under the following arbitration rules: ICC, LCIA, SCC, UNCITRAL and ICSID. Although Mr. Pendell’s main experience is in English law disputes, he has acted in cases involving many foreign laws (including Austrian, Czech, German, Greek, Russian, Bermudan, Cayman Islands, BVI). Mr. Pendell is the UK rapporteur to the standing ICC Task Force on the New York Convention and a member of the Task Force Working Group. He is a co-author of the CMS Guide to Arbitration and sits as an arbitrator.