In its Consultation Paper (CP) in connection with its Review of the Arbitration Act 1996, the Law Commission concludes that the Act still works very well and there is no need for extensive reform but proposes amendments in some areas. The report summarises their review of eight key areas. In this the third of our commentaries on the review, we consider Discrimination.

Discrimination is a complex area – I remember when Stevens & Bolton signed up to the Equal Representation in Arbitration pledge in 2015/2016, which focusses on achieving equality for the appointment of women as arbitrators. We’ve come a long way since then, and the Law Commission’s review is wider than gender equality (although remarkably there are still arbitration agreements out there which say that the arbitrators must be men).

In considering whether the legislation should change to protect against discrimination, the conclusion is clear: it must; and doing so by reference to existing legislation (the Equality Act 2010), with its own caselaw (and I daresay its own potential weaknesses) seems to me a sensible move. The “protected characteristics” under the Equality Act 2010 are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation.

To give a flavour of the complexities: although the Arbitration Act is domestic legislation, given the international nature of arbitration, the CP considers the impact of any changes on the enforcement of arbitral awards around the world. For example, if an arbitration agreement requires "three men" – under the CP proposals, if either party wishes to object to the appointment of three men (and the other party objected), they could do so on the basis of discrimination of a protected characteristic (i.e. sex).  Although the proposals do acknowledge that it may be justifiable to stick to the agreement, notwithstanding ostensible discrimination, if it is a proportionate response to a legitimate aim – it’s difficult to see how a requirement of three men could fall into that category, but there could be other situations where it could.

Given that under the New York Convention one of the grounds for resisting enforcement is “[the composition of the tribunal] was not in accordance with the agreement of the parties” would this intervention of discrimination law, cutting across the express wording in the arbitration agreement, leave any award vulnerable to challenge? The conclusion in CP, in summary, is that there is a risk, but that the prevention of discrimination is too important. I agree.

The CP states that the proposal would be “world leading”; the arbitration community in England & Wales should continue to strive to be world leading