Litigation Trends 2024

52 | Weil, Gotshal & Manges LLP LITIGATION TRENDS 2024 | 53 T O C E M P A N T I I P C A P R O W C C O N T A C T I N T A P P P A T C C L S E C Reform of the Arbitration Act 1996 London remains one of the leading centers of international arbitration. Its popularity as a venue is founded on the Arbitration Act 1996 (the “1996 Act”), which provides a legislative framework for arbitration in England and Wales and Northern Ireland, and favors party autonomy over court intervention. While the 1996 Act continues to operate effectively, the Law Commission recently recommended that it be fine-tuned so as to remain “state of the art.” A proposed revised act (referred to as the Arbitration Bill (the “Bill”)) was introduced into Parliament on 21 November 2023 and is expected to be implemented this year. The changes included in the Bill are partly administrative in nature, clarifying the existing wording or updating procedural points to reflect modern practice. However, more significant changes include: 1.The introduction of a power of summary disposal One of the features that draws litigants to court proceedings rather than arbitration is the availability of preliminary processes that avoid the need for a full trial, such as summary judgment. In recent years, a number of institutions have introduced their own summary procedures, including the London Court of International Arbitration. The Bill proposes to make this procedure available in all UKseated arbitrations, by granting arbitrators with an express power to make an award on a summary basis if the tribunal considers that a party has no reasonable prospect of success (a concept that is familiar under English law). This should attract more litigants to arbitration, particularly financial institutions in cases where an undisputed debt has fallen due. Unlike court proceedings, the resulting award will not be appealable, save in exceptional circumstances. Further, arbitration awards may be more easily enforced overseas in light of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. 2. Governing law of arbitration agreements The Bill proposes that the arbitration agreement will be governed by the law of the seat, unless the parties expressly agree otherwise, and even if this differs from the governing law of the contract. This is simpler and easier to apply than the common law test outlined in Enka Insaat Ve Sanayi AS v. OOO Insurance Company Chubb [2020] UKSC 38. 3. Codification of an arbitrator’s duty of disclosure The Bill provides that arbitrators have a duty to disclose any circumstances which may reasonably give rise to justifiable doubts as to their impartiality. This codifies the common law position, relatively recently established in Halliburton v Chubb [2020] UKSC 48. However, the Bill goes further than Halliburton by extending the duty to any circumstances that the arbitrator actually knows or ought reasonably to know. A number of commentators have called for the Bill to extend even further and include a general International Arbitration Jamie Maples Head London jamie.maples@weil.com I N T

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