ENGLAND & WALES Law and Practice Contributed by: James Stacey, Peter Wickham, Samantha Holland and William Humphries, Slaughter and May
to clarify that the court can make such orders against non-parties (Section 44 (1)). Emergency Arbitrators Previously, the 1996 Act did not contain any provi - sions expressly addressing emergency arbitrators. However, this has changed with the 2025 Act com - ing into force. In particular, the 1996 Act has been amended to give an emergency arbitrator the power to make a peremptory order in circumstances where one party fails to comply with the emergency arbitrator’s order or directions without sufficient cause (Section 41A(2)). Such an order would be enforceable by the court in the usual way. The agreement of emergency arbitrator provisions (whether in institutional rules or otherwise) does not prevent a party from applying to the court under Section 44, provided the usual requirements in Sec - tions 44 (3) to (5) have been met ( Gerald Metals SA v Timis [2016] EWHC 2327 (Ch)). In Gerald Metals , the High Court refused to grant a freezing order against a defendant to arbitration proceedings, because the defendant had given undertakings in the arbitration which satisfied the arbitral institution that the matter was not sufficiently urgent to require an emergency arbitrator and could await the formation of the tribunal. There has been uncertainty among the arbitration community about the effects of the decision in Ger- ald Metals – namely, a concern that the existence of emergency arbitrator provisions (which are now found in most of the leading institutional rules) preclude parties from obtaining relief from the English courts under Section 44. The Law Commission considered the issue in its review of the 1996 Act and concluded that this was an incorrect reading of Gerald Metals . 6.3 Security for Costs Under the 1996 Act, unless the parties agree other - wise, the tribunal has the power to order the claimant to provide security for costs (Section 38). Costs for which security can be ordered include the arbitrator’s and the defendant’s costs (Section 39). The court has no power to order security for costs during arbitration proceedings. It can order security
in respect of challenges to an award under Sections 67–69 (Section 70 (6)) (see 11.1 Grounds for Appeal ).
7. Procedure 7.1 Governing Rules
Parties are free to agree procedural and evidential matters. In the absence of an agreement by the par - ties, the tribunal will determine all procedural and evi - dential matters (Section 34). 7.2 Procedural Steps No mandatory procedural steps are required by law. Instead, the parties can agree their own procedural rules (see 7.1 Governing Rules ). 7.3 Powers and Duties of Arbitrators Section 33 of the 1996 Act imposes a “general duty” on the tribunal to: • act fairly and impartially, so that each party is given a reasonable opportunity to put its case and deal with that of its opponent; and • adopt procedures that avoid unnecessary delay and expense, to provide a fair means for the reso - lution of the dispute. Section 33 is a mandatory provision that cannot be excluded by agreement of the parties. Arbitrators are also under a duty to render an enforce - able award. In addition to the general powers granted to a tribunal under Section 38 (see 6.1 Types of Relief ), a tribunal has the power under Section 56 (1) to withhold an award for non-payment of its fees. 7.4 Legal Representatives There are no specific qualifications or other require - ments for legal representatives appearing in English- seated arbitrations. Unless the parties agree other - wise, a party may be represented in proceedings “by a lawyer or other person chosen by [the party]” (Section 36). Accordingly, foreign lawyers are free to appear without restriction, as are non-lawyers.
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