Arbitration Act 1996

Part I — Arbitration pursuant to an arbitration agreement

Introductory

General principles.

1

The provisions of this Part are founded on the following principles, and shall be construed accordingly—

• (a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;

• (b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;

• (c) in matters governed by this Part the court should not intervene except as provided by this Part.

Scope of application of provisions.

2

• (1) The provisions of this Part apply where the seat of the arbitration is in England and Wales or Northern Ireland.

• (2) The following sections apply even if the seat of the arbitration is outside England and Wales or Northern Ireland or no seat has been designated or determined—

• (za) section 6A (law applicable to arbitration agreement),

• (a) sections 9 to 11 (stay of legal proceedings, &c.), and

• (b) section 66 (enforcement of arbitral awards).

• (3) The powers conferred by the following sections apply even if the seat of the arbitration is outside England and Wales or Northern Ireland or no seat has been designated or determined—

• (a) section 43 (securing the attendance of witnesses), and

• (b) section 44 (court powers exercisable in support of arbitral proceedings);

but the court may refuse to exercise any such power if, in the opinion of the court, the fact that the seat of the arbitration is outside England and Wales or Northern Ireland, or that when designated or determined the seat is likely to be outside England and Wales or Northern Ireland, makes it inappropriate to do so.

• (4) The court may exercise a power conferred by any provision of this Part not mentioned in subsection (2) or (3) for the purpose of supporting the arbitral process where—

• (a) no seat of the arbitration has been designated or determined, and

• (b) by reason of a connection with England and Wales or Northern Ireland the court is satisfied that it is appropriate to do so.

• (5) Section 7 (separability of arbitration agreement) and section 8 (death of a party) apply where the law applicable to the arbitration agreement is the law of England and Wales or Northern Ireland even if the seat of the arbitration is outside England and Wales or Northern Ireland or has not been designated or determined.

The seat of the arbitration.

3

In this Part “the seat of the arbitration” means the juridical seat of the arbitration designated—

• (a) by the parties to the arbitration agreement, or

• (b) by any arbitral or other institution or person vested by the parties with powers in that regard, or

• (c) by the arbitral tribunal if so authorised by the parties,

or determined, in the absence of any such designation, having regard to the parties’ agreement and all the relevant circumstances.

Mandatory and non-mandatory provisions.

4

• (1) The mandatory provisions of this Part are listed in Schedule 1 and have effect notwithstanding any agreement to the contrary.

• (2) The other provisions of this Part (the “non-mandatory provisions”) allow the parties to make their own arrangements by agreement but provide rules which apply in the absence of such agreement.

• (3) The parties may make such arrangements by agreeing to the application of institutional rules or providing any other means by which a matter may be decided.

• (4) It is immaterial whether or not the law applicable to the parties’ agreement is the law of England and Wales or, as the case may be, Northern Ireland.

• (5) The choice of a law other than the law of England and Wales or Northern Ireland as the applicable law in respect of a matter provided for by a non-mandatory provision of this Part is equivalent to an agreement making provision about that matter.

For this purpose an applicable law determined in accordance with the parties’ agreement, or which is objectively determined in the absence of any express or implied choice, shall be treated as chosen by the parties.

Agreements to be in writing.

5

• (1) The provisions of this Part apply only where the arbitration agreement is in writing, and any other agreement between the parties as to any matter is effective for the purposes of this Part only if in writing.

The expressions “agreement”, “agree” and “agreed” shall be construed accordingly.

• (2) There is an agreement in writing—

• (a) if the agreement is made in writing (whether or not it is signed by the parties),

• (b) if the agreement is made by exchange of communications in writing, or

• (c) if the agreement is evidenced in writing.

• (3) Where parties agree otherwise than in writing by reference to terms which are in writing, they make an agreement in writing.

• (4) An agreement is evidenced in writing if an agreement made otherwise than in writing is recorded by one of the parties, or by a third party, with the authority of the parties to the agreement.

• (5) An exchange of written submissions in arbitral or legal proceedings in which the existence of an agreement otherwise than in writing is alleged by one party against another party and not denied by the other party in his response constitutes as between those parties an agreement in writing to the effect alleged.

• (6) References in this Part to anything being written or in writing include its being recorded by any means.

The arbitration agreement

Definition of arbitration agreement.

6

• (1) In this Part an “arbitration agreement” means an agreement to submit to arbitration present or future disputes (whether they are contractual or not).

• (2) The reference in an agreement to a written form of arbitration clause or to a document containing an arbitration clause constitutes an arbitration agreement if the reference is such as to make that clause part of the agreement.

Law applicable to arbitration agreement

6A

• (1) The law applicable to an arbitration agreement is—

• (a) the law that the parties expressly agree applies to the arbitration agreement, or

• (b) where no such agreement is made, the law of the seat of the arbitration in question.

• (2) For the purposes of subsection (1), agreement between the parties that a particular law applies to an agreement of which the arbitration agreement forms a part does not constitute express agreement that that law also applies to the arbitration agreement.

• (3) Subsection (1) does not apply to an arbitration agreement derived from a standing offer to submit disputes to arbitration where the offer is contained in—

• (a) a treaty, or

• (b) legislation of a country or territory outside the United Kingdom.

• (4) In this section—

• “legislation” includes any provision of a legislative character;

• “treaty” includes any international agreement (and any protocol or annex to a treaty or international agreement).

Separability of arbitration agreement.

7

Unless otherwise agreed by the parties, an arbitration agreement which forms or was intended to form part of another agreement (whether or not in writing) shall not be regarded as invalid, non-existent or ineffective because that other agreement is invalid, or did not come into existence or has become ineffective, and it shall for that purpose be treated as a distinct agreement.

Whether agreement discharged by death of a party.

8

• (1) Unless otherwise agreed by the parties, an arbitration agreement is not discharged by the death of a party and may be enforced by or against the personal representatives of that party.

• (2) Subsection (1) does not affect the operation of any enactment or rule of law by virtue of which a substantive right or obligation is extinguished by death.

Stay of legal proceedings

Stay of legal proceedings.

9

• (1) A party to an arbitration agreement against whom legal proceedings are brought (whether by way of claim or counterclaim) in respect of a matter which under the agreement is to be referred to arbitration may (upon notice to the other parties to the proceedings) apply to the court in which the proceedings have been brought to stay the proceedings so far as they concern that matter.

• (2) An application may be made notwithstanding that the matter is to be referred to arbitration only after the exhaustion of other dispute resolution procedures.

• (3) An application may not be made by a person before taking the appropriate procedural step (if any) to acknowledge the legal proceedings against him or after he has taken any step in those proceedings to answer the substantive claim.

• (4) On an application under this section the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed.

• (5) If the court refuses to stay the legal proceedings, any provision that an award is a condition precedent to the bringing of legal proceedings in respect of any matter is of no effect in relation to those proceedings.

Reference of interpleader issue to arbitration.

10

• (1) Where in legal proceedings relief by way of interpleader is granted and any issue between the claimants is one in respect of which there is an arbitration agreement between them, the court granting the relief shall direct that the issue be determined in accordance with the agreement unless the circumstances are such that proceedings brought by a claimant in respect of the matter would not be stayed.

• (2) Where subsection (1) applies but the court does not direct that the issue be determined in accordance with the arbitration agreement, any provision that an award is a condition precedent to the bringing of legal proceedings in respect of any matter shall not affect the determination of that issue by the court.

Retention of security where Admiralty proceedings stayed.

11

• (1) Where Admiralty proceedings are stayed on the ground that the dispute in question should be submitted to arbitration, the court granting the stay may, if in those proceedings property has been arrested or bail or other security has been given to prevent or obtain release from arrest—

• (a) order that the property arrested be retained as security for the satisfaction of any award given in the arbitration in respect of that dispute, or

• (b) order that the stay of those proceedings be conditional on the provision of equivalent security for the satisfaction of any such award.

• (2) Subject to any provision made by rules of court and to any necessary modifications, the same law and practice shall apply in relation to property retained in pursuance of an order as would apply if it were held for the purposes of proceedings in the court making the order.

Commencement of arbitral proceedings

Power of court to extend time for beginning arbitral proceedings, &c.

12

• (1) Where an arbitration agreement to refer future disputes to arbitration provides that a claim shall be barred, or the claimant’s right extinguished, unless the claimant takes within a time fixed by the agreement some step—

• (a) to begin arbitral proceedings, or

• (b) to begin other dispute resolution procedures which must be exhausted before arbitral proceedings can be begun,

the court may by order extend the time for taking that step.

• (2) Any party to the arbitration agreement may apply for such an order (upon notice to the other parties), but only after a claim has arisen and after exhausting any available arbitral process for obtaining an extension of time.

• (3) The court shall make an order only if satisfied—

• (a) that the circumstances are such as were outside the reasonable contemplation of the parties when they agreed the provision in question, and that it would be just to extend the time, or

• (b) that the conduct of one party makes it unjust to hold the other party to the strict terms of the provision in question.

• (4) The court may extend the time for such period and on such terms as it thinks fit, and may do so whether or not the time previously fixed (by agreement or by a previous order) has expired.

• (5) An order under this section does not affect the operation of the Limitation Acts (see section 13).

• (6) The leave of the court is required for any appeal from a decision of the court under this section.

Application of Limitation Acts.

13

• (1) The Limitation Acts apply to arbitral proceedings as they apply to legal proceedings.

• (2) The court may order that in computing the time prescribed by the Limitation Acts for the commencement of proceedings (including arbitral proceedings) in respect of a dispute which was the subject matter—

• (a) of an award which the court orders to be set aside or declares to be of no effect, or

• (b) of the affected part of an award which the court orders to be set aside in part, or declares to be in part of no effect,

the period between the commencement of the arbitration and the date of the order referred to in paragraph (a) or (b) shall be excluded.

• (3) In determining for the purposes of the Limitation Acts when a cause of action accrued, any provision that an award is a condition precedent to the bringing of legal proceedings in respect of a matter to which an arbitration agreement applies shall be disregarded.

• (4) In this Part “the Limitation Acts” means—

• (a) in England and Wales, the Limitation Act 1980, the Foreign Limitation Periods Act 1984 and any other enactment (whenever passed) relating to the limitation of actions;

• (b) in Northern Ireland, the Limitation (Northern Ireland) Order 1989, the Foreign Limitation Periods (Northern Ireland) Order 1985 and any other enactment (whenever passed) relating to the limitation of actions.

Commencement of arbitral proceedings.

14

• (1) The parties are free to agree when arbitral proceedings are to be regarded as commenced for the purposes of this Part and for the purposes of the Limitation Acts.

• (2) If there is no such agreement the following provisions apply.

• (3) Where the arbitrator is named or designated in the arbitration agreement, arbitral proceedings are commenced in respect of a matter when one party serves on the other party or parties a notice in writing requiring him or them to submit that matter to the person so named or designated.

• (4) Where the arbitrator or arbitrators are to be appointed by the parties, arbitral proceedings are commenced in respect of a matter when one party serves on the other party or parties notice in writing requiring him or them to appoint an arbitrator or to agree to the appointment of an arbitrator in respect of that matter.

• (5) Where the arbitrator or arbitrators are to be appointed by a person other than a party to the proceedings, arbitral proceedings are commenced in respect of a matter when one party gives notice in writing to that person requesting him to make the appointment in respect of that matter.

The arbitral tribunal

The arbitral tribunal.

15

• (1) The parties are free to agree on the number of arbitrators to form the tribunal and whether there is to be a chairman or umpire.

• (2) Unless otherwise agreed by the parties, an agreement that the number of arbitrators shall be two or any other even number shall be understood as requiring the appointment of an additional arbitrator as chairman of the tribunal.

• (3) If there is no agreement as to the number of arbitrators, the tribunal shall consist of a sole arbitrator.

Procedure for appointment of arbitrators.

16

• (1) The parties are free to agree on the procedure for appointing the arbitrator or arbitrators, including the procedure for appointing any chairman or umpire.

• (2) If or to the extent that there is no such agreement, the following provisions apply.

• (3) If the tribunal is to consist of a sole arbitrator, the parties shall jointly appoint the arbitrator not later than 28 days after service of a request in writing by either party to do so.

• (4) If the tribunal is to consist of two arbitrators, each party shall appoint one arbitrator not later than 14 days after service of a request in writing by either party to do so.

• (5) If the tribunal is to consist of three arbitrators—

• (a) each party shall appoint one arbitrator not later than 14 days after service of a request in writing by either party to do so, and

• (b) the two so appointed shall forthwith appoint a third arbitrator as the chairman of the tribunal.

• (6) If the tribunal is to consist of two arbitrators and an umpire—

• (a) each party shall appoint one arbitrator not later than 14 days after service of a request in writing by either party to do so, and

• (b) the two so appointed may appoint an umpire at any time after they themselves are appointed and shall do so before any substantive hearing or forthwith if they cannot agree on a matter relating to the arbitration.

• (7) In any other case (in particular, if there are more than two parties) section 18 applies as in the case of a failure of the agreed appointment procedure.

Power in case of default to appoint sole arbitrator.

17

• (1) Unless the parties otherwise agree, where each of two parties to an arbitration agreement is to appoint an arbitrator and one party (“the party in default”) refuses to do so, or fails to do so within the time specified, the other party, having duly appointed his arbitrator, may give notice in writing to the party in default that he proposes to appoint his arbitrator to act as sole arbitrator.

• (2) If the party in default does not within 7 clear days of that notice being given—

• (a) make the required appointment, and

• (b) notify the other party that he has done so,

the other party may appoint his arbitrator as sole arbitrator whose award shall be binding on both parties as if he had been so appointed by agreement.