29 March 2024 THE NEW ENGLISH ARBITRATION ACT: POWER TO MAKE AN AWARD ON A SUMMARY BASIS
One of the proposed changes to the English Arbitration Act 1996 (the “Act”) introduced in the Arbitration Bill is an express power for tribunals to make an award on a summary basis in relation to any issue claim, or defence, if the tribunal considers that the party has no real prospect of succeeding on that issue, claim or defence.
While the Law Commission acknowledged in its final report (the “Law Commission Report”) that arbitrators likely already have an implicit power to dispose of an issue, claim or defence on a summary basis, in reality, arbitrators have been reluctant to do so. The Law Commission noted that concerns about complying with the duty to give each party a reasonable opportunity to put their case under Section 33 of the Act was leading to “due process paranoia”. This paranoia was dissuading arbitrators from issuing summary awards. The result, the Law Commission noted, was that fatally weak claims were being drawn out unnecessarily and parties were incurring increased time and costs as a result.
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