Parties who have agreed in their contracts to arbitration with a seat in London should be aware of forthcoming changes to English arbitration law, which will apply to new arbitrations initiated from this year onwards.
Earlier this year, the Arbitration Act 2025 (the “2025 Act”) received Royal Assent and became law. However, its main provisions will only come into force on a date to be set out in a forthcoming regulation, which the Government has indicated will be “as soon as practicable”.[1]
The 2025 Act makes a number of important amendments to the Arbitration Act 1996 (the “1996 Act”), which has governed arbitrations seated in England, Wales, and Northern Ireland for almost 30 years. The amendments result from a thorough consultation conducted by the Law Commission in 2022–2023, which recommended a number of amendments that are implemented in the 2025 Act.
The amendments represent fine-tuning, rather than root-and-branch reform. They are carefully designed to confirm that arbitrations seated in England, Wales, and Northern Ireland have full support in legislation and from the courts – and should set London arbitration in good stead for many years.
This note provides an overview of the main amendments introduced by the 2025 Act. We are happy to discuss any queries that you have about these amendments and their effect.
1. Arbitrators’ duty of disclosure
The 2025 Act requires arbitrators and individuals approached about potential arbitrator appointments to disclose as soon as reasonably practicable any circumstances that may reasonably give rise to justifiable doubts as to their impartiality in relation to the arbitration or potential arbitration at issue.[2]
This codifies the existing English-law duty of disclosure defined by the Supreme Court in Halliburton v Chubb in 2020 into a concise statutory rule, which is in line with international best practice.
The 2025 Act further specifies that this duty applies not only to circumstances of which the arbitrator is aware, but also to ones of which the arbitrator ought reasonably to be aware.
This resolves a question left open in English case law of whether an arbitrator’s duty of disclosure was based only upon their actual knowledge or what they ought reasonably to know. The Law Commission considered that imposing a higher standard than actual knowledge was important given the importance of disclosure to maintaining the appearance of impartiality in arbitrators.[3]
These refinements are helpful in establishing clear principles as to what arbitrators should disclose and in reinforcing confidence in the fairness of English-seated arbitration, given the high standards of transparency required of arbitrators in fulfilling their continuing duty of disclosure.
2. Establishment of a statutory rule determining the law applicable to an arbitration agreement
The 2025 Act establishes a rule that the law governing an arbitration agreement will be the law of the seat of the arbitration, unless the parties have expressly agreed on a different law to govern their arbitration agreement (as distinct from the law governing the contract that includes the arbitration agreement).[4]
The law governing an arbitration agreement is significant in determining many matters critical to the conduct of an arbitration, including (1) the validity or scope of the agreement to arbitrate, (2) who is party to the arbitration agreement (e.g., whether the agreement extends to a subsidiary company), and (3) whether a particular dispute is ‘arbitrable’ (i.e., capable of being resolved by arbitration).
The 2025 Act changes the position under English law from that set out in the Supreme Court’s 2020 decision in Enka v Chubb. In that case, the Court held (by majority) that, where parties had expressly or impliedly agreed upon a law governing the contract in which the arbitration agreement is included, the law governing that contract would generally apply to the arbitration agreement.[5] It was only if there was no express or implied choice of law that the law of the seat of the arbitration would apply.
The purpose of the change is to simplify the law. The Law Commission considered that the law in Enka v Chubb was complex and unpredictable and gave rise to a risk of unnecessary cost and delay through argument about what law governed the arbitration agreement, which should be avoided by this simple default rule.[6] It further reasoned that the effect of this change in English-seated arbitrations would generally be to make the governing law of the arbitration agreement English law, which is more supportive of arbitration than many foreign laws, and which should, in turn, have the effect of upholding parties’ agreements to arbitrate and providing parties with the full protection and support of the English courts for arbitrations seated in England, Wales, and Northern Ireland.[7]
This simplification of the law is welcome and should reduce the scope for disputes, as well as reassuring parties who have chosen a seat for their arbitration in England and Wales that any dispute as to the scope or validity of their arbitration agreement will be determined in accordance with the law of a jurisdiction that seeks to uphold parties’ agreements to arbitrate as a policy matter.
Of course, if parties wish to opt for a different law to govern their arbitration agreement, they can still choose to specify this in their arbitration agreement. We are happy to advise about such choices.
3. Confirmation of tribunals’ powers to make awards on a summary basis
The 2025 Act introduces a specific power for tribunals to make awards on a “summary” basis on claims or issues if they conclude that a party has no real prospect of success on those claims or issues, provided the parties are allowed a reasonable chance to make representations to the tribunal.[8] Unless the parties agree otherwise, tribunals may exercise this power upon application by any party to the arbitration.
Treating an issue on a “summary” basis means simply that it is not necessary to take every procedural step otherwise available as part of an arbitration procedure, where a full procedure will not improve a party’s prospects of success on the issue. It is a familiar mechanism in English court proceedings and empowers parties and tribunals, in appropriate cases, to expedite proceedings and dispose of baseless arguments in an efficient, cost-effective manner.
The 2025 Act removes any uncertainty as to whether tribunals had this power under the 1996 Act, which had been a debated point, and attempts to support tribunals in making use of such powers in appropriate cases.
By way of context, arbitrators have typically been hesitant to exercise powers to expedite proceedings in this way, due to a concern to ensure that parties should not challenge the awards made by arbitrator due to an alleged failure to give each party a proper right to be heard – out of what is often called ‘due process paranoia’.
Including an express provision allowing for tribunals to make awards on a summary basis is intended to reassure arbitrators that it is fair and appropriate to make use of this mechanism.[9]
This is a positive development in facilitating the efficient disposal of unmeritorious arguments in appropriate cases with their seat in England and is in line with provisions already included in some commonly adopted arbitration rules (e.g., the LCIA Rules and the SIAC Rules).
That said, it remains to be seen how far arbitrators will be emboldened by the inclusion of such provisions, particularly in high-value cases. LCIA practice demonstrates that it remains rare for such applications to be successful.[10]
4. Strengthening of Court powers to support arbitration and protecting arbitrators from liability
The 2025 Act also introduces a number of further Court powers to support arbitration, as well as bolstering the existing provisions in the 1996 Act protecting arbitrators from liability.
First, the 2025 Act makes clear that the courts may make a number of different kinds of order against third parties in support of arbitration proceedings.[11] These include orders for the preservation of evidence, the taking of witness evidence, the sale of goods, interim injunctions, appointment of a receiver, and orders about property that is the subject of proceedings (e.g., for its inspection).
This is a welcome resolution to an uncertainty in English case law as to whether such orders could be made against third parties.[12] The result is that the English courts can make in support of arbitrations any and all of the orders that they can make in support of domestic court proceedings.
Second, the 2025 Act provides that, where an emergency arbitrator is appointed under arbitral rules to which the parties have agreed (e.g., the ICC Rules, the LCIA Rules, or the SIAC Rules), the emergency arbitrator may make “peremptory” orders where a party fails to comply with her/his orders.[13] This means that, if the party still fails to comply, an application can be made to the court for (1) an order for compliance with the emergency arbitrator’s order or (2) an order by the court of its own to support the arbitration proceedings.[14]
Third, the 2025 Act strengthens the provisions of the 1996 Act about arbitrators’ immunity, so as to support arbitrators in making robust and impartial decisions without fear of being sued by the parties.[15]
It adds provisions that (1) a court may not order an arbitrator to pay costs in court proceedings relating to her/his removal, unless any act or omission on the part of the arbitrator is shown to have been in bad faith;[16] and (2) an arbitrator’s resignation does not give rise to any liability for the arbitrator, unless his/her resignation is shown to have been unreasonable in all the circumstances.[17]
5. Refinements relating to challenges to a tribunal’s jurisdiction
Finally, the 2025 Act makes a number of amendments to streamline and clarify the procedures available to challenge the “substantive jurisdiction” of a tribunal in an English-seated arbitration.
Under the 1996 Act, a tribunal has “substantive jurisdiction” where there is a valid arbitration agreement, where the tribunal was properly constituted, and where the matters submitted to arbitration are ones submitted in accordance with the arbitration agreement.
Where a party wishes to challenge a tribunal’s jurisdiction to decide a particular dispute, it has two options available to it under the 1996 Act:
- to apply to the English courts to decide as a preliminary point whether the tribunal has substantive jurisdiction (under section 32), before the tribunal has decided this itself.[18] Such an application may be made either (a) by agreement of the parties or (b) with the tribunal’s permission, if the court is satisfied that a number of threshold conditions are met; or
- to make its challenge before the tribunal in the arbitration and then, if it is unsuccessful, apply to the English courts to challenge the tribunal’s award on the basis that it did not have substantive jurisdiction (under section 67).
The 2025 Act makes the following main sets of amendments, which should streamline and clarify the procedures for any jurisdictional challenges under sections 32 and 67 of the 1996 Act.
First, the 2025 Act simplifies the procedure for applying to the English courts for a preliminary ruling as to the tribunal’s jurisdiction under section 32 by allowing for such an application to be made either by agreement between the parties or with the permission of the tribunal – without a further requirement that the court be satisfied that a number of threshold conditions are met as well.[19]
Second, the 2025 Act confers the power for the English courts to make rules that would streamline the procedure for challenges to an award under section 67 of the 1996 Act on the basis that the tribunal lacked substantive jurisdiction to render an award.[20]
It allows for rules to be made such that, unless a court rules otherwise in the interests of justice:
- a ground for objection to the tribunal’s jurisdiction that was not raised before the tribunal must not be raised before the court unless the applicant did not know and could not with reasonable diligence have discovered that ground during the arbitration;
- evidence that was not put before the tribunal must not be considered by the court unless the applicant could not with reasonable diligence have put that evidence before the tribunal during the arbitration; and
- evidence that was heard by the tribunal must not be reheard by the court.
This represents a departure from the current position under English law that, even where a jurisdictional issue has been fully debated before the tribunal, a challenge to the tribunal’s jurisdiction under section 67 involves a full rehearing of the objections and evidence before the Court.[21]
Third, the 2025 Act amends section 67 of the 1996 Act to make clear that a Court may not only confirm, vary or set aside an award, but can also (1) remit the award to the tribunal, in whole or in part, for reconsideration; or (2) declare the award to be of no effect, in whole or in part.[22] It further stipulates that a court must not exercise its power to set aside an award or declare it to be of no effect unless it would be inappropriate to remit the matters in question to the tribunal for reconsideration.[23]
This amendment clarifies that these remedies are available, as assumed in the case law and commentary on this provision, and aligns the remedies available with those available in relation to challenges to an award on the basis of a serious irregularity (under section 68 of the 1996 Act) and appeals on a point of law (under section 69 of the 1996 Act).[24]
To conclude, the adjustments made by the 2025 Act strike a careful balance between maintaining the successful framework of the 1996 Act and making modifications to modernise the legislation where this will be beneficial to users of English-seated arbitration.
This note has summarised how the Act (1) brings arbitrators’ duties of disclosure in line with international best practice, (2) simplifies the English rules about the law governing the arbitration agreement, (3) introduced numerous legislative changes to support tribunals in making robust and impartial decisions and ensure that they have the necessary support from the courts once they have done so, and (4) streamlined the procedures for any challenges to the jurisdiction of tribunals.
All of these changes should promote the confidence of parties in the fairness and efficiency of English-seated arbitration and the support of the English courts that underpins arbitration in this jurisdiction.
If you have any questions about these amendments or any other arbitration-related matters, please contact any of the following:
Tom Cameron, Partner
Charles Enderby Smith, Partner
Cameron Doley, Senior Partner
[1] UK Government Press Release, Boost for UK economy as Arbitration Act receives Royal Assent, dated 24 February 2025.
[2] Section 2 of the 2025 Act, introducing a new section 23A of the 1996 Act.
[3] Law Commission Report entitled ‘Review of the Arbitration Act 1996: Final report and Bill’ (the “Law Commission Report”), paras. 3.95–3.96.
[4] Section 1 of the 2025 Act, introducing a new section 6A of the 1996 Act. The provision does not apply to arbitration agreements derived from standing offers to arbitrate contained in treaties or non-UK legislation (section 6A(3) of the 1996 Act, introduced by the 2025 Act).
[5] Enka v Chubb [2020] UK SC 38.
[6] Law Commission Report, para. 12.74.
[7] Law Commission Report, para. 12.72.
[8] Section 7 of the 2025 Act, introducing a new section 39A to the 1996 Act.
[9] Law Commission Report, para. 6.18.
[10] For example, in 2023, there were 25 applications for “Early Determination”, of which only 3 were granted, 1 was partially granted, 17 were rejected, and 4 were withdrawn/superseded or are still pending (https://www.lcia.org/the-english-arbitration-act-2025.aspx).
[11] Section 9 of the 2025 Act, amending section 44(1) of the 1996 Act.
[12] Law Commission Report, paras. 7.6–7.8.
[13] Section 8(2) of the 2025 Act, adding a new section 39A to the 1996 Act.
[14] Sections 8(4)–(5) of the 2025 Act, amending sections 42 and 44 of the 1996 Act.
[15] Law Commission Report, para. 5.7.
[16] Section 3 of the 2025 Act, introducing a new section 24(5A) of the 1996 Act.
[17] Section 4 of the 2025 Act, introducing a new section 29(4) of the 1996 Act.
[18] Section 5 of the 2025 Act confirmed that the procedure under section 32 could be invoked only before a tribunal has ruled on its own jurisdiction, adding a new section 32(1A) to the 1996 Act to that effect.
[19] Section 14(2)(a) of the 2025 Act, amending section 32(2)(b) of the 1996 Act.
[20] Section 11 of the 2025 Act, introducing new sections 67(3B)–(3C) of the 1996 Act.
[21] Dallah v Pakistan [2010] UKSC 46.
[22] Section 10(3) of the 2025 Act, substituting new provisions in section 67(3) of the 1996 Act. The Law Commission stated that “setting aside [an award] allows a tribunal to issue another award” on the relevant issues, whereas “declaring an award to be of no effect means that the award nevertheless continues to exist so that the tribunal cannot revisit it” (Law Commission Report, para. 9.128).
[23] Section 10(3) of the 2025 Act, adding a new section 67(3A) to the 1996 Act.
[24] Law Commission Report, para. 9.143.
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