The UK Law Commission’s Reforms Proposed to the English Arbitration Act 1996: Bonum, Malum Et Turpe
Doğan GültutanThe 1996 Act has completed its quarter-century cycle of existence. At the time of its enactment, it was praised by scholars and practitioners as a “masterful… comprehensive” piece of legislation and one that was destined to “enhance the attractiveness of England as an arbitral forum”. These predictions proved exceedingly accurate. However, over time the legislation’s various shortcomings began to surface. Its review by the Law Commission was, therefore, very timely. This paper considers the present state of English arbitration law considering the provisions of the 1996 Act and substantive and/or noteworthy recommendations proposed to the legislation, alongside the relevant case-law, and considers the appropriateness and potential utility of these recommendations. In particular, this article considers the following issues: the governing law of an arbitration agreement, the arbitrators’ duty of disclosure, their immunity from liability, the summary disposal of claims and defences, the confidentiality of arbitration and court powers in support of arbitral proceedings and emergency arbitrations. The paper concludes that although the reform proposals are mostly commendable and sufficient to satisfy users’ concerns and expectations, not all are agreeable. Reform proposals do not go far enough. Most notably, the rule concerning the arbitrators’ duty of disclosure should recognise that, in appropriate instances, the subjective expectations of the parties should be addressed in the assessment. The parties’ reasonable and/or legitimate expectations should not be ignored when deciding what facts and circumstances to disclose to ensure that the parties retain confidence in the process and remain the ultimate arbiters of their dispute.
