The Law Commission’s Second Consultation Paper on the English Arbitration Act 1996: Are the Reforms “Fit for Purpose”?
Published 12 May 2023
The Law Commission of England and Wales is in the midst of evaluating the English Arbitration Act 1996. After receiving feedback from over one hundred consultees with respect to its first consultation paper on the subject, the Commission released a second consultation paper on 27 March 2023. In contrast to the broad scope of the first paper, the second paper focuses only on three reforms. The first proposal—a codified departure from the UK Supreme Court’s 2020 Enka v. Chubb decision—had initially been dismissed by the Commission as unnecessary to even review, but was added to the shortlist based upon “a significant number” of responses to the first paper. The other two of the proposed reforms in the second paper—a prohibition on discrimination limits on jurisdictional challenges under Section 67—are modifications to proposals suggested in the previous paper. Section I of this article introduces the subject. Section II briefly discusses the background to the Commission’s review process. Section III summarises the proposals and findings from the first consultation paper that the Commission has not, at least publicly, chosen to revisit. Sections IV-VI provide a more in-depth analysis of each of the three topics the Commission chose to revisit in the second paper and outline the further issues that the Commission may need to consider in relation to these three revised proposals before it finalises its recommendations to the Government. Section VII concludes.