ENGLAND & WALES Law and Practice Contributed by: James Stacey, Peter Wickham, Samantha Holland and William Humphries, Slaughter and May
enforcement on public policy grounds ( Chechetkin v Payward Ltd and others [2022] EWHC 3057 (Ch)).
success. However, such agreements need to comply with relevant case law and, in some cases, relevant provisions of the Courts and Legal Services Act 1990. In R (on the application of PACCAR Inc) v Competition Appeal Tribunal [2023] UKSC 28, the Supreme Court held that litigation funding agreements that provide for a funder’s success fee to be calculated as a per - centage of damages recovered are damages-based agreements for the purposes of Section 58AA of the Courts and Legal Services Act 1990. Such agree - ments must therefore meet the requirements of the Damages-Based Agreements Regulations 2013 or are otherwise unenforceable. The UK government announced in March 2024 that it would fast-track legislation that would reverse the decision in PACCAR . However, the proposed bill did not come into force before the new Labour govern - ment came into power. The Labour government did not resurrect the bill and confirmed that it would await the outcome of a review of the English funding market by the Civil Justice Council (CJC) before reaching a view on any legislative changes in this area. In June 2025, the CJC published its Final Report in its Review of Litigation Funding. The report recom - mends that the effect of the Supreme Court’s deci - sion in PACCAR be reversed by legislation and the current system of self-regulation for litigation fund - ing be replaced by a mandatory light-touch regime. Importantly, the CJC recommended that the fund - ing of arbitration proceedings should not be subject to formal regulation and should remain a matter for arbitral centres to determine. It remains to be seen whether the CJC’s recommendations will be adopted. 13.4 Consolidation A tribunal may order the consolidation of arbitration proceedings with the consent of the parties to the arbitration (Section 35 (1)). In the absence of such agreement, however, the 1996 Act provides no default power for the tribunal to consolidate proceedings (Section 35 (2)). Some institutional rules give the tribunal the power to order consolidation in certain circumstances – eg, the LCIA Rules 2020 (Articles 22.1 and 23).
13. Miscellaneous 13.1 Class Action or Group Arbitration Aside from consolidation (see 13.4 Consolidation ), the 1996 Act is silent on the availability of class or group arbitration. In contrast to jurisdictions like the United States, group arbitration remains uncommon in Eng - land and Wales, and faces similar challenges to those that arise in multiparty or multicontract arbitration (eg, consent). However, the rise in group litigation claims before the English courts (and elsewhere) and exam - ples of group claims in investment treaty arbitration (eg, Abaclat v Argentina and others , ICSID Case No ARB/07/5 and Theodoros Adamakopoulos and oth- ers v Republic of Cyprus , ICSID Case No ARB/15/49) indicate that there is potential for group arbitration to become more prevalent in future. 13.2 Ethical Codes The Bar Standards Board’s BSB Handbook regulates English barristers participating in arbitrations in Eng - land and Wales. Similarly, the Solicitors Regulation Authority (SRA) Standards and Regulations, including the Code of Conduct for Solicitors, RELs and RFLs, regulate the activities of solicitors acting in arbitrations in England and Wales. There are no separate rules that apply to counsel from foreign jurisdictions participat - ing in English arbitrations. Several arbitral institutions incorporate mandatory ethical standards into their arbitration rules – eg, the LCIA Rules give the tribunal the power to order sanc - tions for non-compliance (Articles 18.4 and 18.5). 13.3 Third-Party Funding Third-party funding for arbitration is now well estab - lished in England and Wales. It is a rapidly growing sector, serviced by increasingly sophisticated financ - ing arrangements and specialist litigation financing providers. In general, English law permits funding agreements between claimants and third-party funders that pro - vide for funders to receive payment in the event of
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