Over the past two weeks, we have been reviewing the key conclusions of the Law Commission’s review of the Arbitration Act 1996. Our earlier commentaries have focussed on the eight key topics identified by the report. In this final commentary we look at the concluding section of the reviewed topics, dealing with areas of so-called “minor reform”. This includes issues such as whether the Act should be amended to make clear an appeal from a decision of the Court under section 9 of the Act is not precluded.
While some of the “minor” proposals, such as the section 9 point, seek to clarify the legislative position, other proposals indicate more of a shift in approach. For example, the review raises whether sections 32 and 45 of the Act, which permit parties to apply to court for the determination of preliminary points of law or jurisdiction, should be amended to merely require either the agreement of the parties or the permission of the tribunal. Currently parties can apply with (i) the agreement of all parties; or (ii) the permission of the tribunal and where the court is satisfied that certain requirements are met. The Commission is inviting views on this topic but it seems to be a reasonable area to consider amendment – as the review acknowledges, it does seem curious that the permission of the tribunal would not be sufficient where the agreement of the parties is.
Notably the review also reflects on other proposals that would “further modernise” the Act, 25 years on from it coming into force. After all, the legal landscape has changed significantly within that time.
One of the minor reforms proposed is very topical – whether the Act should refer explicitly to more recent technological developments or modern ways of working, as the rules of many arbitral institutions now do. There is no doubt that, while it was certainly used before, the Covid-19 pandemic brought the use of technology and virtual working into the spotlight. Combined with the increased focus on the use of technology to make arbitral practices “greener” and more cost-efficient, this is undoubtedly an area that warrants some thought.
The Commission concludes that it thinks the discretion afforded to tribunals under section 34 is wide enough to accommodate the use of technology without express reference. On balance, that seems to be a reasonable conclusion; there is a general acceptance that practices such as remote hearings and electronic bundles are here to stay and it is important that tribunals retain the ability to determine the appropriate procedure.
It remains to be seen whether the areas of minor reform are adopted but it seems the Commission is trying to strike a balance between ensuring the Act is “best in class” in a world that has adapted since its creation and allowing “space” in the framework.