Response to the Law Commission’s consultation paper on the review of the Arbitration Act 1996

20/12/22

On 30 November 2021 the Law Commission of England and Wales announced a review of the Arbitration Act 1996 (“the Act”). Its consultation paper was published on 22 September 2022. Brick Court Chambers devoted its Annual Commercial Conference of 13 October 2022 to the reform of issues of jurisdiction and applicable law, and three panels consisting of eminent arbitration specialists from England & Wales, Singapore, the US, France and Switzerland concluded (i) that the Law Commission’s tentative proposal to change the standard of review on challenges to jurisdiction under section 67 should be answered in the negative; (ii) that the avenues of challenge to jurisdiction should be rationalised by amending sections 9(1) and 9(4) of the Act and repealing sections 32 and 72(1); and (iii) that the substantial problems created by Enka v Chubb [2020] UKSC 38 should be resolved by enacting a rule that the arbitration agreement is to be governed by the law of the seat save where the parties have made an express choice otherwise in the arbitration agreement itself. Information about the conference, including links to the recording, is here.

On 15 December 2022 Lord Phillips, Lord Hoffmann, Sir Christopher Clarke, Sir Richard Aikens, Hilary Heilbron KC, Vernon Flynn KC, Salim Moollan KC, Kyle Lawson, Zahra Al-Rikabi, Emilie Gonin, Jessie Ingle, Ali Al-Karim and Andris Rudzitis of Brick Court Chambers lodged a formal response to the consultation paper on those issues. That response was submitted also from Lord Mance, Sir Bernard Rix and Ricky Diwan KC and the further members of Brick Court Chambers listed in Annex 1 to the response.

The response can be found here.