ENGLAND & WALES Law and Practice Contributed by: James Stacey, Peter Wickham, Samantha Holland and William Humphries, Slaughter and May
tration agreement by creating a new statutory rule at Section 6A of the 1996 Act. This rule will provide that, unless the parties expressly agree otherwise, the law applicable to the arbitration agreement will be the law of the seat of the arbitration. This will be the case even though the matrix contract may be governed by a dif - ferent law. These changes will not apply to investor- state arbitration. Enforcement of Arbitration Agreements The English courts adopt a broadly pro-enforcement approach to arbitration agreements, and generally aim to construe contracts to give effect to the parties’ agreement to arbitrate. Where there are competing jurisdiction and arbitration clauses, the English courts will ultimately construe the provisions applying English contract law principles to determine if the clauses are reconcilable and/or which clause prevails. However, in this situation, the courts will typically strive to give effect to the arbitration clause where it is possible to do so ( Surrey County Council v Suez Recycling and Recovery Surrey Limited [2021] EWHC 2015 (TCC)). See also 5.5 Breach of Arbitration Agreement . 3.4 Validity The rule of separability applies in English law (Sec - tion 7). Unless the parties agree otherwise, an arbitra - tion agreement is separable from the main contract in which it is incorporated, such that it generally sur - vives the invalidity, inexistence or ineffectiveness of the main agreement. However, there are certain limits to the doctrine of separability – eg, where the arbitration agreement itself is directly impeached ( Fiona Trust & Holding Cor- poration v Privalov [2007] UKHL 40) or where there is a question concerning the formation of the contract (eg, mistake) that may invalidate the arbitration agree - ment ( DHL Project and Chartering Ltd v Gemini Ocean Shipping Co Ltd [2022] EWCA Civ 1555).
court retains the power to remove arbitrators in certain circumstances; see 4.4 Challenge and Removal of Arbitrators . There are no requirements regarding religion, gender or ethnicity, for example, that may limit who can be selected as an arbitrator. In Jivraj v Hashwani [2011] UKSC 40, the Supreme Court found that anti-dis - crimination legislation then in force (the Employment Equality (Religion or Belief) Regulations 2003) did not apply to the appointment of arbitrators because arbi - trators are not employees of the parties. 4.2 Default Procedures Section 16 of the 1996 Act contains the following default mechanisms for the appointment of arbitra - tors: • a sole arbitrator – by joint appointment of the par - ties no later than 28 days after service by one of the parties of a request to do so; • a tribunal comprising two arbitrators – by each party appointing one arbitrator within 14 days of a written request by one of the parties to do so; • a tribunal comprising three arbitrators – by each party appointing one arbitrator within 14 days of a written request by one of the parties to do so, and the two party-appointed arbitrators then appointing a chairperson; and • a tribunal comprising two arbitrators and an umpire – this follows the same approach as a tribunal comprising three arbitrators, subject to differences regarding the timing of the umpire’s appointment. Unless the parties agree otherwise, the default posi - tion is that the tribunal will consist of a sole arbitrator (Section 15 (3)). Where parties have agreed a tribunal appointment mechanism but that mechanism fails, the 1996 Act grants the English courts powers exercisable on appli - cation by either party, including the power to: • give directions when making appointments, includ - ing delegating its power to make the necessary appointment to an arbitral institution if it thinks fit (Section 18 (3)(a); Chalbury McCouat International Ltd v PG Foils Ltd [2010] EWHC 2050 (TCC));
4. The Arbitral Tribunal 4.1 Limits on Selection
Parties have broad discretion to agree on arbitra - tors and the procedure for their appointment, but the
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