Legal Practice Notes

For parties and counsel running arbitrations with a seat in England and Wales or Northern Ireland ( England being used here as a shorthand), and for those pursuing recognition or enforcement of domestic or overseas awards before the courts of England and Wales, a grasp of the Arbitration Act 1996 ( AA 1996) and the extent to which it may govern proceedings seated in England is essential. In contrast with the statutes of arbitral seats, such as Hong Kong’s Arbitration Ordinance ( Cap 609), the AA 1996 neither transposes nor is chiefly derived from the UNCITRAL Model Law on International Commercial Arbitration (the Model Law), though it owes much to that framework......

This Practice Note reviews the categories of arbitration award and their requirements where the seat of arbitration is in England, Wales or Northern Ireland and the Arbitration Act 1996 ( AA 1996) governs the process. Types of arbitral award Within arbitration, an award is the formal instrument that records the arbitral tribunal’s decision. Under English law, there are two principal types: a final award, which finally resolves some or all issues in dispute—see: Requirements of an award a provisional award, addressing matters pending a final award (eg an order for payment between the parties, disposition of property between the parties, or an interim payment on account of costs) pursuant to AA 1996, s 39—see Practice Note: AA 1996—provisional awards Unless the parties agree otherwise, every award is treated as final—see AA 1996, s 58(1). Accordingly, arbitrators have no authority to grant...

This Practice Note examines the deployment of anti-enforcement injunctions, sometimes termed anti-enforcement orders. At common law, this species of injunctive relief prevents the successful party from executing its judgment or arbitral award. Courts may grant such relief, for instance, where that party has breached a covenant, fallen short of fiduciary obligations, or offends public policy. For examples illustrating judicial treatment, see the Practice Note on illustrative decisions... Such injunctions are not available against EU court judgments covered by the transition arrangements in the Withdrawal Agreement between the UK and the EU. For guidance, see EU court judgments below... What is an anti-enforcement injunction? An anti-enforcement injunction is an equitable remedy designed to restrain enforcement of a foreign court order or judgment. Nonetheless, in Federal Government of Nigeria v Williams (2025), the court discerned no principled basis to withhold such relief to restrain efforts to enforce an...

This Practice Note covers: the impact of an insolvency process on ongoing litigation where the debtor, bankrupt or insolvent company is a claimant or defendant how an insolvency process interacts with an arbitration agreement binding the debtor, bankrupt or insolvent company additional considerations in a cross-border setting Personal insolvency What happens when the bankrupt is a claimant in ongoing proceedings? The presentation of a bankruptcy petition, whether by a creditor or by the debtor, has no legal consequence for proceedings already on foot where the debtor is the claimant. Once a bankruptcy order is made and a trustee in bankruptcy (the trustee) is appointed, most causes of action in which the bankrupt has an interest vest in the trustee under section 306 of the Insolvency Act 1986 ( IA 1986). In such circumstances, it is the trustee, rather than the bankrupt, who has standing to carry on the claim. The...

The concept of ‘security for costs’ is widely known and understood by common law practitioners but may well be less familiar to civil lawyers, as it is intimately connected to the common law principle that, in general, the legal expenses of conducting court proceedings should ‘follow the event’—put simply, the loser pays. In proceedings in England and Wales, the general default position, where a court elects to make a formal costs order, is that the unsuccessful party will be required to pay the successful party’s recoverable costs, although the court retains a broad and flexible discretion in this area—see: Costs orders—overview. To reinforce that principle, the device of security for costs enables a defendant (whether facing the main claim or a counterclaim) to seek an order that the claimant provide security for the likely recoverable costs the defendant will incur in...

This Practice Note explores the principal distinctions between institutional and ad hoc arbitration, as well as the areas where they coincide... Differences and overlaps between institutional and ad hoc arbitration An institutional arbitration is run by an arbitral institution chosen by the parties and proceeds under that institution’s arbitration rules. Some of the major international arbitral institutions include: London Court of International Arbitration ( LCIA) International Court of Arbitration of the International Chamber of Commerce ( ICC) Stockholm Chamber of Commerce ( SCC) Arbitration Institute Singapore International Arbitration Centre ( SIAC) Hong Kong International Arbitration Centre ( HKIAC) International Centre for Dispute Resolution ( ICDR) attached to the American Arbitration Association ( AAA) Swiss Arbitration Centre ( SAC) Other commercial arbitration institutions have emerged, particularly across the Middle East and Asia- Pacific. Among these, the following are covered by...

A definition of expropriation In the setting of investment treaty arbitration, expropriation arises where a state appropriates the property of a foreign investor and payment of compensation is required. A central safeguard found in almost all bilateral investment treaties ( BITs) and multilateral investment treaties ( MITs) is the bar on expropriation (or nationalisation) unless adequate compensation is provided. Yet the drafting of many treaties offers scant, express direction on what, precisely, is meant by expropriation. Consequently, numerous investment treaty arbitration tribunals have wrestled with drawing the boundaries of what amounts to a “taking” of property and identifying the minimum elements of what qualifies as “adequate” compensation. The effort to craft a stable definition is further hindered by the reality that the clauses in BITs are alike, though not the same. These fine textual variations have, in several investment treaty awards, become the subject of close...

Section 6 of the 1996 Act This Practice Note outlines section 6 of the Arbitration Act 1996 together with the new section 6A brought in by the Arbitration Act 2025. It also includes links to commentary that explains the changes. Section 6 states: The arbitration agreement — 6 Definition of arbitration agreement. (1) In this Part, an “arbitration agreement” is an agreement to refer to arbitration any present or future disputes, whether they are contractual or otherwise within the Act......

Ad hoc arbitration An ad hoc arbitration is any arbitral process where the parties have not chosen an institution to manage it. This gives parties latitude over how the arbitration is run, but provides less outside assistance throughout the process. It can be faster than institutional arbitration, though not if the parties encounter problems constituting or running the tribunal at any stage. Many parties and their lawyers are accustomed to this and do not believe an institution would bring benefit to their arbitrations. Arbitration clauses can be revised once a dispute has arisen, or even after an arbitration has begun, to take the proceedings out of institutional hands and have them proceed on an ad hoc footing instead, should they so choose. Without an institution supervising tribunal appointments under its rules, the parties may nominate an appointing authority in case their...

Confidentiality is often portrayed as a fundamental feature of arbitration and a key reason why parties select it over court litigation. In reality, however, confidentiality is not automatic; it depends on a combination of national laws, judicial decisions and the relevant arbitral rules. It should not be presumed, and parties should consider an express agreement to achieve the level of protection required. For further guidance on confidentiality in arbitration, see the Practice Notes: Arbitration and confidentiality at common law ( England and Wales) and Confidentiality in international arbitration. Most leading arbitration rule-sets include confidentiality provisions in some form, so it is essential to identify the applicable terms in each case. This Practice Note highlights the principal confidentiality clauses in those rules, listed...

Singapore’s dual arbitration regime Singapore operates a dual-track arbitration framework (as noted in Dalian Hualiang Enterprise Group Co Ltd v Louis Dreyfus Asia Pte Ltd [2015] 4 SLR 646 at [32] (not reported by Lexis Nexis® UK)). This reflects the coexistence of two statutes that address distinct categories of arbitration within and beyond Singapore. The Singapore Arbitration Act 2001 (2020 Rev Ed) governs domestic references, while the Singapore International Arbitration Act 1994 (2020 Rev Ed.) regulates international arbitrations, whether the seat is Singapore or elsewhere, including cases seated abroad as appropriate. Section 5(2) of the IAA prescribes when an arbitration counts as international. Under both s 6 of the AA and s 6 of the IAA, the Singapore courts may stay court proceedings where a party to an arbitration agreement brings litigation against another party to that agreement. The court’s power is...

This Practice Note outlines the concept of privilege in arbitral proceedings and its treatment under English law, certain commonly adopted arbitration rules, and the IBA Rules on the Taking of Evidence in International Arbitration ( IBA Rules). Privilege in arbitration The approach to assembling and presenting documentary evidence in arbitration differs from English court litigation. In a domestic arbitration between English parties applying English law, English evidential rules will govern, and anything privileged in litigation will likewise be privileged in that arbitration—see: Privilege under English law. By contrast, the position in international arbitration is more complex. Tribunals frequently face parties from multiple jurisdictions; the arbitration agreement may be subject to a different system of law; the dispute may be most closely connected to another forum; arbitrators and counsel may hail from diverse legal traditions; and the process may follow...

This Practice Note explains how proceedings are run under the PCA Arbitration Rules 2012 (including the Optional Protocols adopted in 2024) (the PCA Rules). It identifies the core provisions governing the presentation of parties’ submissions and evidence, the handling of jurisdictional challenges and requests for interim measures, the conduct of hearings, and the steps for closing the proceedings... General provisions Under PCA Rules, art 17, the general framework for the conduct of arbitral proceedings is prescribed, mirroring to a large extent art 17 of the UNCITRAL Arbitration Rules ( UNCITRAL Rules). Article 17(1) of the PCA Rules authorises the tribunal to manage the arbitration as it considers suitable, provided the parties are treated equally and each is afforded a reasonable chance to present its case. The same provision further requires the tribunal to run the case so as to prevent unnecessary delay and cost, and to...

This Practice Note explains what constitutes an actionable misrepresentation, outlines the essential components for advancing a misrepresentation claim, highlights the function of the Misrepresentation Act 1967 ( MA 1967), and contrasts it with related causes of action, providing a comparison with other, similar claims. For connected guidance on the fundamental elements needed to found a misrepresentation claim, see Practice Notes: Misrepresentation—what statements will establish a claim? Misrepresentation—what is inducement? Misrepresentation—falsity (fraudulent, innocent or negligent misrepresentation) For an overview of practical issues in misrepresentation claims, set against negligent misstatement claims, see Practice Note: Claiming negligent misrepresentation or negligent misstatement—practical considerations. What is a claim for misrepresentation? A misrepresentation claim arises where one party to a contract (the representor) makes an untrue statement that leads the other party (the representee) to enter the contract. A claim can also be brought where the statement is made by an agent of a...

LMAA Terms 2021 The London Maritime Arbitrators Association ( LMAA) Terms 2021 (the Terms) govern arbitrations begun on or after 1 May 2021 where the parties have agreed to their use by agreement between them. They supersede the LMAA Terms 2017, which apply to arbitrations commenced between 1 May 2017 and 30 April 2021. The Terms impose an express duty on both the parties and the tribunal to 'actively consider ways to make the arbitral process as cost-effective and efficient as possible' ( Second Schedule, paragraph 13). Among other things, this entails the parties following the procedures in the Second and Fourth Schedules, unless a different course can be justified on efficiency grounds in the particular case. The overall cost of an LMAA arbitration may vary considerably, reflecting the nature of the dispute and the conduct of both the parties and the...

This Practice Note offers practical guidance on managing document production in international arbitration proceedings. It covers the two principal pathways by which documents are produced: the production of documents in reply to a request for production (or request(s) to produce), the voluntary production of materials accompanying the parties’ written submissions, including their pleadings (statements of case), witness statements and/or expert reports. As every arbitration differs, practitioners should assess any case-specific features that may influence document production. Throughout, it refers to soft law and arbitration rules that can inform or illustrate how production commonly occurs, with particular emphasis on the IBA Rules on the Taking of Evidence in International Arbitration. It reflects the latest version of the IBA Rules, issued in December 2020. Related Practice Notes of interest include: The role of documentary evidence in arbitration Disputes over documentary evidence in...

The American Arbitration Association ( AAA) Commercial Arbitration Rules and Mediation Procedures, including the Procedures for Large, Complex Commercial Disputes (together, the Commercial Rules or AAA Commercial Rules), took effect in revised form on 1 September 2022. A Fee Schedule has applied to arbitrations under the AAA Commercial Rules since 1 May 2018. This Practice Note reflects those revisions. For an introduction to the AAA and the Commercial Rules, refer to Practice Note: AAA Commercial Rules. Note: each Commercial Rule carries a letter prefix, eg ‘ R’ or ‘ L’. Relevant rule designations are identified below. Evidence General Principles The arbitrator holds discretion to rule on the admissibility, relevance and materiality of any evidence, and may exclude material considered cumulative or irrelevant ( R.34(b)). Arbitrators are expressly empowered to receive witness evidence by declaration or affidavit ( R.34(d)), which in practice can include expert reports and...

How electronic disclosure is used in arbitration There is no single mandatory framework governing e-disclosure in arbitration. This aligns with the overarching principle that arbitral procedure remains adaptable, and that the tribunal is empowered to set the evidential rules in each individual case, subject to any agreement between the parties. As electronically stored information ( ESI) will typically comprise a large share of the material in many arbitrations, careful planning is required to manage and deploy it throughout the proceedings so that parties can present their cases effectively without the exercise of producing the evidence becoming unduly burdensome. Note: in arbitration the phrase ‘document production’ is more commonly used than ‘disclosure’, although ‘e-disclosure’ is frequently applied in both senses and contexts. Ordinarily, parties in arbitration provide at an early stage the documents on which they rely. The opposing side may then seek any...

For any dispute resolution lawyer scrutinising a contract during a dispute, two central questions arise: what does the contract signify? what rights and obligations do the parties hold under it? This Practice Note explains the five interpretative principles the courts employ to address those questions, first articulated by Lord Hoffmann in 1998 in the leading case Investors Compensation Scheme v West Bromwich Building Society ( ICS), with additional guidance from later Supreme Court authorities: Rainy Sky v Kookmin (2011), Arnold v Britton (2015) and Wood v Capita (2017), as outlined further below. Read this alongside Practice Note: Contract interpretation—rules of contract interpretation. Depending on the forum in which your case is heard, you should also consider any extra requirements—see below: Court specific guidance. ICS v West Bromwich Building Society— Lord Hoffman's guiding principles In 1998, in Investors Compensation Scheme v West Bromwich Building Society, Lord...

This Practice Note This Practice Note examines how typical difficulties in disputes involving multiple parties (multi-party disputes) and/or several contracts (multi-contract disputes) can be addressed within arbitration proceedings. Such matters are sometimes described as ‘complex arbitrations’, though that label is also used in other contexts. Multi-party and multi-contract disputes are widespread, reflecting the intricacy of international commercial dealings. As outlined in Practice Notes: Arbitration—an introduction to the key features of arbitration and Arbitration—new starter guide, arbitration is usually a private, contractual process for resolving disputes, affording parties real control over who decides their case and the procedure to be followed. The opportunity to shape how proceedings are organised and run is frequently cited as a key reason why parties—particularly commercial entities engaged in cross-border transactions and/or projects—select arbitration rather than litigation in national courts. However, unlike a two-party dispute under a single...