Contribution of Brick Court tenants to reform of Arbitration Act recognised by Parliament

06/02/24

The contribution of members of Brick Court Chambers to the reform of the Arbitration Act conducted by the Law Commission in 2022-2023 and now before Parliament has been recognised in the debates on the Arbitration Bill.

In the course of the proceedings of the House of Lords Special Committee considering the Bill on 19 December 2023, Lord Hope observed as follows:

“… a word should be said about the work done by some very experienced practitioners in Brick Court Chambers … They worked to persuade the Law Commission to include a provision in the Bill about the law applicable to the arbitration agreement. I understand that what is now Clause 1 was not in the first draft of the Bill, but it is good to see that the Law Commission was persuaded that there was a need to clarify the rules as to its determination.”

See Hansard, 19 December 2023 Grand Committee Col 429GC to 430GC here.

The specific efforts of members of Brick Court Chambers on this central aspect of the reform have included the following:

• Sir Richard Aikens and Salim Moollan KC exchanged views with the Law Commission (Sir Nicholas Green, Prof. Sarah Green and Nathan Tamblyn) on 20 May 2022 to raise their concerns about the consequences of the decision in Enka v Chubb [2020] UKSC 38 (“Enka”) on English arbitration law, and on the attractiveness of England and Wales as a seat for international arbitration.
• A note on the “potential Reform of the [Act] arising out of the recent interpretation of Section 4(5) of the Act in Enka” by Lord Hoffmann, Sir Richard Aikens and Salim Moollan KC (with Ricky Diwan KC) was sent to the Commission on 7 June 2022, proposing “[the] introduc[tion] [of] a default rule in the Act according to which the law applicable to the arbitration agreement for all arbitrations seated in England or Wales will be that of England and Wales, save where the parties expressly stipulate otherwise in the arbitration agreement itself”.

The matter was addressed in detail, with the assistance of experts from France, the US, Singapore and Switzerland, at the Brick Court Commercial Conference in October 2022 (details here).

• A formal response to the Commission’s First Consultation Paper was filed on 15 December 2022 (which had not retained the proposal made), reiterating the need for reform on this point.
• A formal response to the Commission’s Second Consultation Paper was filed on 26 May 2023, supporting the Commission’s adoption of that proposal in its Second Consultation Paper.
• A note regarding the issues raised by the transitional provisions included in Clause 1 of the Law Commission’s Bill (which would have limited the reform on applicable law to arbitration agreements concluded after enactment of the Bill) was sent to the Law Commission on 26 September 2023 to point out the problems with that approach and recommending alignment with the transitional provisions of the Arbitration Act 1996. That recommendation was accepted.

The House of Lords’ Special Committee has now issued a Call for Evidence on specific issues, including whether the wording of Clause 1 should be clarified. A response to that Call is being filed today by Lord Phillips, Sir Richard Aikens, Sir Christopher Clarke, Salim Moollan KC and Emilie Gonin of Brick Court Chambers together with Sir Bernard Rix and Ricky Diwan KC.

The formal response to the Law Commission’s Consultation Paper on the Review of the Arbitration Act 1996 was submitted on behalf of Lord Phillips, Lord Hoffmann, Sir Richard Aikens, Sir Christopher Clarke, Hilary Heilbron KC, Vernon Flynn KC, Salim Moollan KC, Kyle Lawson, Zahra Al-Rikabi, Emilie Gonin, Jessie Ingle, Ali Al-Karim and Andris Rudzitis of Brick Court Chambers, together with Lord Mance, Sir Bernard Rix and Ricky Diwan KC.

Those notes and formal responses are below.

BCC LC Consultation Response 2022
Evidence on the Arbitration Bill (Brick Court) - 6 February 2024
Amended Note to the Law Commission on Recommendation 19 of the Final Report
BCC LC Second Consultation Response 26 May 2023
Note to the Law Commission on s 4(5) of the AA 1996