Assessment of arbitration methods in England and Wales compared to practices in other European nations
The Law Commission, a UK government body responsible for reviewing and reforming the law, has published a consultation paper outlining various proposals for reform of the Arbitration Act 1996 in England and Wales [1]. The consultation on these proposals closes on 15 December 2022.
The Law Commission's proposals do not pertain to arbitrator immunity or court support for arbitration, but they do touch on areas such as confidentiality, arbitrator independence, and appeals on a point of law. Notably, the proposals on the use of emergency arbitrators may differ from the current positions in the countries surveyed, including Poland, Germany, and the Netherlands.
In these jurisdictions, arbitration proceedings are generally confidential, with parties having a strong expectation of privacy. Courts respect this confidentiality, though with some public interest exceptions. In Poland, arbitration proceedings are confidential as per national arbitration laws, while in Germany, German arbitration law does not expressly impose confidentiality but it is widely upheld by practice and parties’ agreements. In the Netherlands, confidentiality is a core principle underpinning arbitration and is protected by the Dutch Arbitration Act and arbitral institution rules.
Arbitrators in all three countries must be impartial and independent, with challenges that can be raised through grounds of bias or conflict of interest. In Poland, the Polish Code of Civil Procedure regulates these aspects strictly, while in Germany and the Netherlands, the laws codify arbitrator impartiality and independence with thorough mechanisms to challenge arbitrators for bias.
The Law Commission is not currently proposing adopting an express statutory requirement for arbitrator independence, unlike some countries. In terms of court support, Polish, German, and Dutch courts provide strong support for arbitration, ensuring its effectiveness while respecting judicial oversight, especially on public policy.
Emergency arbitrators are recognized in all three countries, but Poland has more recent implementations compared to Germany and the Netherlands. In Germany and the Netherlands, emergency arbitrators are widely recognized under their respective arbitration rules and institutional regulations, providing parties with quick interim relief to preserve rights before the tribunal is formed.
Generally, arbitral awards are final and binding, with very limited possibilities for judicial review limited to procedural issues or compliance with public policy under Polish law. In Germany and the Netherlands, judicial appeals are narrowly allowed, mainly limited to strict grounds such as serious procedural violations, arbitrability, or public policy.
The Law Commission's proposed reforms do not apply to Northern Ireland, but they hope the government will consider implementing them there after appropriate consultation. The position on the use of emergency arbitrators may change in the countries surveyed, in the same way that the Law Commission is now reviewing such areas.
References: [1] Law Commission, "Arbitration: reforming the framework for domestic arbitration in England and Wales," (2022),
The Law Commission's proposed reforms in dispute resolution, as outlined in the Arbitration Act 1996, involve changes related to confidentiality, arbitrator independence, and appeals on a point of law. These proposals might deviate from the current policies and legislation in certain jurisdictions, such as Poland, Germany, and the Netherlands, where specific rules and practices govern issues like arbitrator impartiality, emergence arbitrators, and judicial review.
In policy-and-legislation discourse, the consultation on these reform proposals in England and Wales closes on 15 December 2022, with potential implications for the future of general-news related to arbitration and dispute resolution within these jurisdictions.