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16 December 2022

Construction law experts respond to proposed reforms of Arbitration Act

A high-level taskforce of practitioners and academic experts has responded to recent proposals from the Law Commission.

Cranes viewed from below against a blue sky.

The taskforce, which was led by Professor Renato Nazzini with Research Associate Aleksander Kalisz, includes Professor John Uff KC, Professor Phillip Capper, former High Court judge Sir Vivian Ramsey KC, Shy Jackson and Laura Lintott.

Working through the Centre of Construction Law & Dispute Resolution (CCLDR), the group has published its response to the Law Commission’s consultation paper on reform of the Arbitration Act 1996.

The group’s paper provides a construction arbitration perspective on the issues raised, suggesting improvements and making comparative observations. 

The Law Commission set out a number of interesting proposals. While we agree with many of them, it is important that any reforms of the Act do not undermine the balance that has been achieved by statute and case law between party autonomy and a robust framework for court intervention and review. There are also further issues that, in our view, deserve to be considered, such as the law governing the arbitration agreement.

Professor Renato Nazzini, Director of the CCLDR

In its consultation paper, the Law Commission asked 38 questions and made provisional proposals on issues ranging from confidentiality to appeals on a point of law. The taskforce response answers all the consultation questions, and makes additional observations, comments and proposals.

The CCLDR’s response makes the following key proposals:

  • The Arbitration Act should not codify confidentiality as the existing rules are clear and exhaustive. However, the CCLDR noted that there are models in other jurisdictions for doing so without the need to list all possible exceptions.
  • While tackling discrimination in arbitration is a laudable objective, implementing the Equality Act 2010 into a reformed Arbitration Act would create practical difficulties and give rise to unmeritorious challenges, not least because protected and non-protected characteristics are often intertwined. Instead, the CCLDR proposes to promote non-discrimination in arbitration by focusing on strong and effective measures other than legislation.
  • Amending appeals on a point of law, pursuant to section 69, into an opt-in mechanism is a better default rule. This would better reflect international practice and party autonomy.
  • The CCLDR invites the Law Commission to consider codifying the principles on the law applicable to the arbitration agreement and overruling the Supreme Court’s decision in Enka v Chubb. The law most closely connected with the arbitration agreement is the law of the seat. It would make much sense, therefore, if that law applied to the arbitration agreement by default.

The members of the taskforce are:

  • Professor Renato Nazzini, Director of the CCLDR
  • Aleksander Kalisz, Research Associate in Dispute Resolution at the CCLDR
  • Professor John Uff KC, Emeritus Professor at the CCLDR, Arbitrator at Keating Chambers and former member of the Departmental Advisory Committee on Arbitration Law
  • Professor Phillip Capper, Emeritus Professor at the CCLDR and Partner and Head of International Arbitration at White & Case LLP in London
  • Sir Vivian Ramsey KC, Visiting Professor at the CCLDR and former Judge of the High Court of England and Wales
  • Shy Jackson, Visiting Fellow at the CCLDR and Partner at Bryan Cave Leighton Paisner LLP
  • Laura Lintott, Visiting Fellow at the CCLDR and Of Counsel at Watson Farley & Williams LLP

In this story

Renato Nazzini

Director of the Centre of Construction Law and Dispute Resolution

Aleksander  Godhe

Research Associate