In its previous response, the CCLDR raised the issue of the law governing the arbitration agreement as one that deserved attention. I am pleased to see that the Law Commission has decided to consult on the issue and is provisionally proposing a solution that is very much in line with research carried out at the CCLDR over the past few yearsProfessor Renato Nazzini, Director of the CCLDR
24 May 2023
Construction law experts respond to second consultation on Arbitration Act reform
A high-level taskforce of practitioners and academic experts, led by Professor Renato Nazzini and Aleksander Kalisz of the Centre of Construction Law & Dispute Resolution (CCLDR), responded to the Law Commission’s second consultation paper on the reform of the Arbitration Act 1996.
The taskforce responding to the consultation included leading construction law experts Professor John Uff KC, Professor Phillip Capper, former High Court judge Sir Vivian Ramsey KC, Shy Jackson and Dr Laura Lintott.
In December 2022, the CCLDR responded extensively to the first Law Commission consultation paper answering 38 questions relating to proposed reform of the Arbitration Act 1996.
Following recommendations made by the CCLDR and several other consultation participants, the Law Commission published a second consultation paper to consult on a new issue: (i) the law of the arbitration agreement; as well as to explore two issues more deeply (ii) section 67 (challenges to an award on grounds of substantive jurisdiction) and (iii) discrimination.
The CCLDR’s response makes the following key observations:
- The Arbitration Act should provide that the law of the seat applies the law of the arbitration agreement unless the parties agree otherwise. Such a principle should apply regardless of whether the seat is in England, Wales and Northern Ireland or elsewhere.
- The Arbitration Act should, as the Law Commission proposes, list limitations to bringing a challenge pursuant to section 67 so as to prevent a full rehearing of the case while still allowing a full appeal on the merits.
- Consistently with the existing provisions in many arbitration rules, the Arbitration Act should provide that it is justified for arbitrators to have nationality other than that of the parties.
- The CCLDR also invited the Law Commission to provide a concrete recommendation for the codification and enforcement of a prohibition of discrimination. Such a recommendation should be: (i) clear and comprehensive to international parties, (ii) uphold the party agreement wherever possible, (iii) ensure that England, Wales and Northern Ireland, and, particularly, London, continue to be attractive arbitration seats and (iv) to the largest extent possible, permit parties to select arbitrators, counsel and experts best suited to their case.
The members of the taskforce are:
- Professor Renato Nazzini PhD FCIArb, 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
- Dr Laura Lintott, Visiting Fellow at the CCLDR and Of Counsel at Watson Farley & Williams LLP.