Legal Practice Notes

Section 17 Commencement and transitional provisions The Arbitration Act 2025 (the AA 2025) is not a self‑contained, standalone piece of legislation; rather, it updates the already existing Arbitration Act 1996. Section 17(2) explains that the operative provisions of the AA 2025 ( Sections 1—15) come into force on such a day as the Secretary of State may appoint by regulations. Section 17(2) further provides: ‘ The Secretary of State may by regulations make transitional......

This Practice Note explores what is meant by the law governing an arbitration agreement and the manner in which that law is identified under the law of England and Wales (using England and English as convenient shorthand in this context). It further addresses the newly passed Arbitration Act 2025 and the changes it has introduced to the English law rules that govern deciding which law applies to arbitration agreements. The law of the arbitration agreement Under the Arbitration Act 1996 ( AA 1996), an arbitration agreement—where the seat is in England and Wales or Northern Ireland—is an agreement to refer existing or future disputes, contractual or otherwise, to arbitration ( AA 1996, s 6). Most often, this is set out as a clause in the principal contract, though it may equally be recorded in a separate agreement, either when the contract is made or once a...

This Practice Note reviews the general process for bringing arbitration claims before the courts of England and Wales under the Arbitration Act 1996 ( AA 1996) (in this Practice Note, English and England are adopted as convenient shorthand). Any further considerations specific to particular types of arbitration claim will be addressed in the Practice Notes or other materials that concentrate on those applications. What is an arbitration claim? For those contemplating an application to the court under AA 1996 for the first time, the phrases ‘starting an arbitration claim’ and using an ‘arbitration claim form’ can cause uncertainty, as they may imply the initiation of the substantive arbitration. In practice, arbitration is generally commenced by notices of arbitration (in ad hoc arbitration) or by requests/demands/notices for arbitration (in institutional arbitration), rather than by a claim form of the kind used to start...

This Practice Note presents section 39 of the Arbitration Act 1996 alongside new section 39A introduced by the Arbitration Act 2025. The Arbitration Act 2025 obtained Royal Assent on 25 February 2025. For the commencement date, see Practice Note: Arbitration Act 2025 commencement and transitional provisions. Section 39 of the 1996 Act Section 39 of the 1996 Act provides: 39 Authority to issue provisional awards. (1) The parties may agree that the tribunal has power to make, on an interim basis, any relief it would be empowered to award in a final decision. In essence, by party agreement, provisional orders may replicate relief available in a final award......

This Practice Note examines the situations in which a party to arbitral proceedings seated in England, Wales or Northern Ireland may forfeit the ability (or right) to object to the tribunal’s substantive jurisdiction or to the arbitral procedure. Section 73 of the Arbitration Act 1996 ( AA 1996) is intended to ensure that any such objections are made without delay, rather than being kept back to be deployed later (perhaps for perceived tactical advantage), thereby wasting time and costs. As Mr Justice Knowles observed in Balochistan v Tethyan Copper Company, with reference to a number of authorities, the basic principle, or policy, is fairness, and justice understood as openness and fair dealing between the parties. From a practical standpoint, AA 1996, s 73, together with the leading authorities, strongly emphasises the need for parties to articulate objections as promptly, fully and clearly as they can in their...

Appealing arbitral awards on points of law Section 69 of the Arbitration Act 1996 ( AA 1996) allows parties to an arbitration seated in London to challenge an award solely on a ‘question of law’. This Practice Note explores how, for AA 1996, s 69, a question of law is distinguished from a question of fact. In practical terms, s 69 appeals seldom succeed, and the threshold for securing permission to appeal (which must first be obtained) is high. These thresholds, together with the key practical considerations arising on any AA 1996, s 69 appeal, are considered in Practice Notes: AA 1996—appealing the award—leave to appeal (s 69) and AA 1996—appealing the award—appealing on a point of law (s 69) Questions of law v questions of fact Because the avenue under AA 1996, s 69 is available only for questions of law (assuming the parties have not...

Correction of an arbitral award under AA 1996 Once an award is delivered, parties and their solicitors should review it meticulously to identify any mistakes arising from an accidental slip or omission, or any ambiguity that ought to be clarified or removed. Naturally, they will also be looking for substantive errors that might ground a challenge or an appeal, but they must also ensure the tribunal is given the chance to address any error capable of correction under the ‘slip rule’ in section 57 of the Arbitration Act 1996 ( AA 1996). That rule operates as an exception to the position that the tribunal is functus officio once it has given its award—meaning it no longer has power or authority over the arbitration (eg H v W)......

This Practice Note This Practice Note addresses applications and referrals to the courts of England and Wales (using English and England for convenience) that seek the determination of preliminary questions of law under section 45 of the Arbitration Act 1996 ( AA 1996). Ordinarily, in arbitral proceedings, legal issues are determined by the tribunal itself, subject always to any appeal to the court under AA 1996, s 69 (a route frequently, in practice, waived either expressly by the parties or via their selected rules, eg LCIA Arbitration Rules, art 26.8). Section 45 is not compulsory and, if not disapplied by the arbitration agreement (and the chosen rules), its scope is confined and exceptional; it ought not to be used, or appear to be used, as a device for sidestepping the parties’ commitment to arbitrate. The court’s jurisdiction is...

This Practice Note sets out how to apply to the courts of England and Wales for interim and/or emergency relief in support of arbitration, and should be read alongside Practice Note: AA 1996—interim and/or emergency relief—powers of the English court. The procedure for seeking relief from the court Claims to the court for assistance in aid of arbitral proceedings are made under section 44 of the Arbitration Act 1996 ( AA 1996). The process for securing interim or emergency relief (the expressions are used interchangeably) is the same whether or not arbitration has been commenced. Where no arbitration is yet underway, an undertaking to commence proceedings will typically form a necessary element of the application. A claim for emergency relief in support of an arbitration must be initiated by issuing an arbitration claim form in accordance with the CPR Part 8 procedure. The...

This Practice Note explores the treatment of costs under the Arbitration Act 1996 ( AA 1996), covering the tribunal’s cost-related powers and the manner in which costs are addressed in an award. Understanding costs Recovering costs is a significant feature of most arbitrations. When seeking, or opposing, a costs award before the tribunal, it is essential to be clear about: any agreement on costs between the parties what amounts to ‘the costs of the arbitration’ the tribunal’s jurisdiction to award costs and the principles on which they do so how interest is to be awarded the form of the costs award the avenues to challenge a costs award Costs agreements between the parties The parties may not conclude, before any dispute arises, an agreement allocating arbitration costs so that one side must bear them whatever the outcome ( AA 1996, s 60). This is the sole mandatory costs provision in the AA 1996......

This Practice Note now reflects the changes introduced by the Arbitration Act 2025. All references to the AA 1996 are to that legislation as amended, and applied consistently throughout this updated guidance note. Before any award is made, a party may contest an arbitral tribunal’s substantive jurisdiction by applying to the tribunal under section 31 of the Arbitration Act 1996 ( AA 1996) or to the court under AA 1996, s 32. Section 1A, added by the AA 2025, clarifies that an application under s 32 is confined to issues that have not yet been determined by the tribunal (s 32(1A))......

This Practice Note examines challenges to arbitral jurisdiction and the availability of anti-suit relief under Austrian law. Note: the decisions of the Austrian Supreme Court ( Oberster Gerichtshof) ( OGH) referenced below are not reported by Lexis Nexis®. Determination of jurisdiction by the arbitral tribunal Power of arbitrators to rule on their own jurisdiction/ Principle of Kompetenz- Kompetenz In keeping with international arbitral practice, Austrian Arbitration Law—specifically section 592(1) of the Austrian Civil Code of Procedure ( Zivilprozessordnung, the ACCP)—which in substance follows Article 16 of the United Nations Commission on International Trade Law ( UNCITRAL) Model Law, recognises the arbitral tribunal’s authority to decide on its own jurisdiction (the principle of Kompetenz- Kompetenz). This authority encompasses determinations on the existence and validity of the arbitration agreement. ACCP, s 592 ( Competence of the Arbitral Tribunal to Rule on its own...

This Practice Note addresses arbitrations under the London Court of International Arbitration ( LCIA) Rules 2020, which took effect on 1 October 2020 (the LCIA Rules). For practical guidance on arbitrations conducted under the 2014 and 1998 LCIA Rules, the earlier iterations, please consult the relevant Practice Notes here: LCIA arbitration—overview. Appointing the tribunal Selecting the tribunal is a crucial stage. The appropriate tribunal underpins an efficient process and maximises the prospects of achieving a fair and attainable outcome overall. Generally, how the arbitral tribunal is constituted hinges on multiple considerations, above all any arrangements set out by the parties in their arbitration clause or in another written instrument—see Practice Note: Choosing your arbitral tribunal for further discussion of those options. As regards arbitrations governed by the LCIA Rules, the default approach is for the LCIA Court to choose and appoint the tribunal itself in...

This Practice Note considers the appointment of the arbitral tribunal under the Arbitration Act 1996 ( AA 1996). Under the AA 1996: Parties may determine both the number of arbitrators and the procedure by which they are appointed. Unless the parties provide otherwise, any agreement for two arbitrators or another even total is construed as requiring an additional arbitrator to act as chair for the tribunal in such a case. Where no agreement on numbers exists, the dispute is to be decided by a sole arbitrator by default. Any appointee must be impartial and physically as well as mentally capable of performing the office effectively. AA 1996 governs the tribunal’s constitution only where the arbitration is seated in England or Wales, as emphasised in Gmb H v Enercon. It does not apply to appointments where the seat lies...

Selecting the appropriate arbitral tribunal is crucial to the success of an arbitration, both administratively and legally. Anyone involved in the selection or nomination should treat this phase with care to ensure the right individuals are chosen. In-house counsel will often contribute to this process—see Practice Note: The role of in-house counsel in international arbitration. The relevance of the arbitration agreement The first step is to review what, if anything, the arbitration agreement sets out regarding the constitution of the tribunal: What does your arbitration agreement stipulate? Are there defined criteria concerning qualifications, skill set, language, level of experience or, critically, the nationality of your arbitrator(s)? Does the chosen seat or legal place of arbitration affect this (eg a requirement to be a lawyer, or to be a national of a particular jurisdiction)? Provisions of any applicable arbitration rules—if the...

ARCHIVED : This Practice Note is archived and is not being updated or maintained. CORONAVIRUS ( COVID-19): Many arbitral organisations have addressed the coronavirus pandemic by issuing practical guidance and by adapting their standard procedures and ways of working. For details on how this material and connected arbitral processes might be affected, see Practice Note: Arbitral organisations and coronavirus ( COVID-19)—practical impact. For further background and context, see: Coronavirus ( COVID-19) and arbitration—overview. Selecting the tribunal is a critical stage in any arbitration. The suitability of the tribunal underpins procedural efficiency and a fair outcome. It helps the process run effectively and supports a just result. How an arbitral tribunal is appointed will turn on various considerations, above all any arrangements the parties have set out in their arbitration clause or another written instrument; see Practice Note: Choosing your arbitral tribunal. This Practice Note covers matters...

Appointment of replacement arbitrators This Practice Note addresses the appointment of substitute arbitrators under the Arbitration Act 1996 ( AA 1996) and under particular arbitration rules. Where an arbitrator ceases to hold office—creating what is commonly termed a 'casual vacancy'—a replacement arbitrator may, or will, need to be appointed. The method of appointment depends on the applicable procedural framework involved. For guidance on when an arbitrator may cease to hold office, see Practice Note: Tribunal—resignation, revocation or death of an arbitrator. For guidance on removing an arbitrator under AA 1996, s 24, see Practice Note: AA 1996—applying to remove an arbitrator (s 24)......

This Practice Note now mirrors the changes made to the Arbitration Act 1996 by the Arbitration Act 2025 ( AA 2025). References to the AA 1996 are to the statute in its amended form. For further information see: Arbitration Act 2025 commencement and transitional provisions. This Practice Note considers anti-suit injunctions (or ASI(s)) granted by the courts of England and Wales ( England and English are used as shorthand) in support of ongoing arbitration proceedings, and explains how and when they might be invoked to restrain breaches of an arbitration agreement. Restraining breach of an arbitration agreement As a private, consensual process, disputes agreed to be subject to arbitration are to be decided by an appointed arbitral tribunal, not national courts. Nevertheless, when confronted with an arbitration (or the possibility of one), a party, for various reasons, may seek to commence litigation in national courts in order to...

This Practice Note explores matters concerning arbitral tribunal jurisdiction under Russian law. Note: the Russian court judgments cited in this Practice Note are not reported by Lexis Nexis®. Determining tribunal jurisdiction under Russian law Russian law recognises the kompetenz-kompetenz principle, enabling arbitral tribunals to decide for themselves whether they have authority to hear a dispute. This principle is reflected in paragraph 1 of Article 16 of the Law of 7 July 1993 No. 5338- I On International Commercial Arbitration (as amended) (the Law on ICA), which, in translation, states that an arbitral tribunal may determine its own jurisdiction and address objections regarding the existence or validity of an arbitration agreement, and that an arbitration clause within a contract is to be treated as an independent provision......

Anti-suit injunctions under Brazilian law Anti-suit injunctions are a device to curb court and/or arbitral proceedings. In international arbitration, the label typically denotes an application seeking to stop a party from pursuing court litigation contrary to an arbitration agreement. For example, where a recalcitrant party tries to place a dispute falling within an arbitration pact before a domestic bench, the counterparty may ask a court or an arbitral tribunal to issue an anti-suit injunction preventing the filing or continuation of that claim, so as to safeguard the effectiveness of the arbitration agreement. Though common across numerous legal systems, it is widely understood that this particular remedy is unavailable under Brazilian law, especially in view of the constitutional guarantee of access to justice in the Brazilian Federal Constitution (art 5, XXXV). On this basis, an anti-suit order in Brazil aimed at stopping a party from...