Arbitration is a consensual dispute resolution mechanism which enables the parties to avoid airing their disputes out in public through the courts. However, as Shakespeare wrote, “the course of true love never did run smooth” and, notwithstanding parties’ initial intentions, it is sometimes necessary to seek support from the courts in the arbitral process. In fact, approximately 20% of all claims issued in the Commercial Court relate to arbitration.[1] In some cases, it proves necessary for parties to arbitration to ask the court to exercise coercive powers which are not available to the arbitral tribunal, in support of the arbitration. In others, the court is asked to intervene in order to protect the due process rights of the parties, for example by reining in arbitral tribunals from acting beyond their jurisdiction. Court intervention in these circumstances is important to safeguard the effectiveness of arbitration.
In this article, we consider the main circumstances in which it can be necessary for arbitral parties to seek support from the English courts, and the powers that the English courts can exercise in relation to arbitration (where the courts have jurisdiction) including, by reference to the new Arbitration Act 2025.[2]
Legal framework for arbitration in England & Wales
The powers of the court in relation to arbitration are governed by the Arbitration Act 1996. This Act was amended in February 2025 by the Arbitration Act 2025. In this article, we refer to the two Acts as the “1996 Act” and the “2025 Act“, respectively.
A major purpose of the 1996 Act was to drastically reduce the extent of intervention of courts in the arbitral process. The purposes of the 1996 Act as set out in section 1, make clear that the courts are only permitted to intervene in arbitration proceedings to the extent expressly provided by the Act, and that parties should be free to determine how their disputes will be resolved, “subject only to such safeguards as are necessary in the public interest“.
The 2025 Act stems from a review undertaken by the Law Commission of the 1996 Act. The Law Commission concluded that the 1996 Act generally works well, but made a number of recommendations for targeted reform, some of which are discussed below.[3]
A. Powers regarding court proceedings commenced in breach of an arbitration agreement
The courts can provide several remedies for a party against whom court proceedings have been commenced in breach of an arbitration agreement (whether or not arbitration has been commenced). The aggrieved party can apply to the court for: (i) a stay of the court proceedings,[4] (ii) a declaration that the parties are bound by the arbitration agreement in relation to the subject-matter of the proceedings; and (iii) damages for the losses suffered by the party (for example, the costs incurred due to the court proceedings). An aggrieved party can also seek an anti-suit injunction to restrict a party from continuing foreign court proceedings.
B. Orders to preserve the positions of the parties
The courts have the same powers to make orders to support arbitral proceedings as they do in relation to court proceedings for certain matters. These include orders granting interim injunctions, orders concerning the preservation of evidence or property, and orders regarding taking evidence of witnesses.[5] The 2025 Act clarifies that the court is empowered to make orders in relation to third parties as well as the parties to the dispute.[6] The courts can exercise these powers where the arbitral tribunal is either unable to act effectively or lacks the necessary powers itself. These powers are crucial for enabling parties to preserve the status quo and protect their positions pending resolution of their dispute.
Regarding witnesses, parties to arbitration can use the same procedures as are available for court litigation to secure the attendance of witnesses to give testimony, or to produce documents or other evidence before the tribunal.[7]
C. Enforcement of awards and orders
Courts have powers to enforce orders and awards made by arbitral tribunals. These powers are an important aspect of the court’s role in ensuring both the finality and effectiveness of arbitration.
Enforcement of awards
Subject to certain conditions, an arbitral award can be enforced by the courts in the same manner as a judgment or order of the court. The courts will readily enforce awards regardless of whether the award was made by a domestic or foreign-seated arbitral tribunal.[8]
Enforcement of orders of tribunals
The 1996 Act provides that the courts have powers to make orders enforcing the orders of tribunals, which is important given that arbitral tribunals have limited scope to compel compliance by uncooperative parties.
Enforcement of orders of emergency arbitrators
The 2025 Act clarifies that the courts have the same powers to make orders enforcing the orders of emergency arbitrators as they do for ordinary arbitrators or tribunals.[9]
D. Powers relating to arbitrators
The courts have broad powers to resolve disputes relating to arbitrators. These include:
- powers to assist with the appointment of arbitrators, where the procedure for the appointment of arbitrators has broken down;[10] and
- powers to remove arbitrators, for example on the grounds that there are justifiable doubts about an arbitrator’s impartiality or their capacity (physical or mental) to conduct the proceedings.[11]
The 2025 Act codifies a general duty on arbitrators to disclose to the parties any circumstances which might reasonably give rise to justifiable doubts as to their impartiality in relation to the proceedings, as soon as reasonably practicable.[12] This duty also applies to potential arbitrators who have been approached about being appointed. This duty clarifies the basis on which courts may determine that there are justifiable doubts about an arbitrator’s impartiality, as a basis for removing them. Breaches of this duty may also give rise to challenges against awards under section 68 (see below).
E. Challenges to awards
Although there is no unfettered right to appeal arbitral awards, parties to arbitration may challenge awards on the following grounds:
- the arbitral tribunal lacked substantive jurisdiction (section 67 of the 1996 Act);
- there was a serious irregularity which affected either the tribunal, the proceedings or the award, and which caused substantial injustice to the applicant (section 68); or
- appeals on points of law (section 69).
Where the challenge is successful, the courts have the power to remit the award back to the tribunal for reconsideration, to vary the award, or to set the award aside in whole or in part.
The jurisdiction of the courts to hear challenges to awards is important for safeguarding the effectiveness of arbitration by remedying significant issues in appropriate cases, but risks undermining the parties’ choice to arbitrate and the finality of awards. However, successful applications are the exception rather than the rule. The Commercial Court Report for 2023-2024 records that across 113 challenges under sections 67, 68 and 69 filed in the Court’s 2023-2024 year, only two were successful.[13]
The 2025 Act provides for the introduction of a streamlined process for challenges to awards on the basis that the tribunal lacked substantive jurisdiction (under section 67). If the tribunal has previously ruled on the jurisdictional objection and the challenging party participated in the arbitration, that party cannot raise any new grounds or evidence (unless the grounds or evidence could not reasonably have been put before the tribunal), and the court will not rehear evidence heard by the tribunal, except where the court decides otherwise in the interests of justice.[14]
F. Preliminary questions of jurisdiction or law
The courts can be asked to determine questions at a preliminary stage relating to the substantive jurisdiction of the tribunal,[15] or to points of law which substantially affect the rights of one or more of the parties.[16] Preliminary questions of jurisdiction or law can only be referred to the courts with the unanimous consent of the parties to the arbitration, or with the tribunal’s permission. These applications must be made without delay and the court must be satisfied that preliminary determination of these issues is likely to produce substantial cost savings.[17]
Confidentiality of arbitration-related court proceedings
While court proceedings are ordinarily public, different rules apply for arbitration-related claims. These include:
- There is a presumption (subject to the court’s discretion) that all arbitration-related claims other than the determination of preliminary points of law or appeals on questions of law will be heard in private (CPR 62.10).
- Claim forms for arbitration-related proceedings can only be inspected with the permission of the court (CPR PD 62 paragraph 5.1).
- The court may decide particular issues without a hearing (CPR PD 62 paragraph 10.1, Commercial Court Guide O.8.1(l) and O.8.6).
Parties should also consider including confidentiality protections in arbitration agreements, and/or the confidentiality protections included in any institutional arbitral rules adopted by the parties.[18] Parties could also consider expressly excluding the application of non-mandatory provisions of the 1996 Act within the terms of the arbitration agreement, to limit the circumstances in which any arbitral proceedings could go to court.
Footnotes
[1] The Commercial Court Report 2023-2024 (February 2025), page 9.
[2] This is a non-exhaustive overview of the key powers set out in the 1996 Act, and relevant amendments in the 2025 Act. In all cases, the powers of the courts and the circumstances in which they may be exercised may be affected by the terms of the agreement between the parties to the arbitration, in particular any institutional rules selected by the parties.
[3] See our article on the key reforms here.
[4] Section 9 of the 1996 Act. Note that where the proceedings concern a winding up petition in relation to a debt which is subject to an arbitration agreement, a stay of the court proceedings will only be granted if the debt is genuinely contested on substantial grounds: see the recent judgment of the Privy Council in Sian Participation Corporation (In Liquidation) v Halimeda International Ltd [2024] UKPC 16.
[5] Section 44 of the 1996 Act.
[6] Section 9 of the 2025 Act.
[7] See section 43 of the 1996 Act: note the witness must be located in the UK and the arbitral proceedings must be conducted in England and Wales or Northern Ireland.
[8] See Sections 66(1) and 101 of the 1996 Act.
[9] Section 8 of the 2025 Act.
[10] See sections 16 – 19 of the 1996 Act.
[11] Section 24 of the 1996 Act.
[12] This statutory duty effectively codifies the duty of disclosure set out in the Supreme Court decision of Halliburton v Chubb [2020] UKSC 48.
[13] The Commercial Court Report 2023-2024 (February 2025), pages 9 – 12. Of 24 challenges to awards under section 67, 1 was successful and the remainder were dismissed (7), remain pending (13) or were discontinued or transferred out. None of the 37 challenges under section 68 were successful – 12 were dismissed, 20 remain pending and the remainder were discontinued, settled or withdrawn. Of 52 applications under section 69, 1 appeal was successful and 10 had permission to appeal granted; 3 were dismissed, 21 had permission refused, 19 remain pending and the remainder were withdrawn, settled, transferred out, or discontinued.
[14] Section 11 of the 2025 Act provides that procedural rules for applications under section 67 may be updated to provide for these simplifications but does not enact them directly.
[15] Section 32(1) of the 1996 Act.
[16] Section 45(1) of the 1996 Act.
[17] Sections 32(2) and 45(2) of the 1996 Act.
[18] For example, Article 30 of the LCIA Arbitration Rules and Appendices I and II of the ICC Rules of Arbitration. Note that there is no default rule in the 1996 Act that arbitral proceedings are confidential. The Law Commission decided against including such a rule as an amendment in the 2025 Act.
