UK Law and Practice Contributed by: Roger Gherson, Emma Anderson, Cong Gao, Elizaveta Rachkova and Galiya Mustafina, Gherson Solicitors LLP
as consent, capacity and authority apply. Consent may be inferred from conduct ( SEA2011 Inc . v ICT Ltd [2018] EWHC 520 (Comm)). An arbitration agreement survives the death of a party (Section 8). Although an unsigned agreement may be valid domes - tically, this does not eliminate cross-border risk. Eng - lish law on formal validity is broader than some foreign approaches to Article II(2) of the New York Convention, so an unsigned or impliedly accepted agreement may face recognition or enforcement objections abroad. 3.2 Arbitrability The 1996 Act contains no list of non-arbitrable subject matters, and English courts take an inclusive view of arbitrability. Section 1 (b) provides that parties should be free to decide how their disputes are resolved, lim - ited only by safeguards necessary in the public inter - est. Section 6 (1) provides that both contractual and non-contractual disputes are arbitrable, while Section 81 preserves the common law, so arbitrability is gov - erned by public policy and specific statutory regimes rather than a closed code. Recognised exclusions are narrow: criminal liability, questions of personal status and certain family mat - ters (notably care and parenting issues), although the High Court has entered a consent order in the terms of a Beth Din award in matrimonial proceedings ( AI v MT [2013] EWHC 100 (Fam)). Consumer arbitration agreements are subject to a statutory fairness regime under Section 91 of the Arbitration Act 1996. Low-value claims are treated as unfair, while higher-value clauses remain subject to fairness review. Certain statutory employment rights (such as unfair dismissal) are reserved to the Employ - ment Tribunal and cannot be displaced by agreement, though purely contractual employment disputes (for example, wrongful dismissal or claims under restric - tive covenants) may be submitted to arbitration, the 1996 Act containing no employment-related exclusion from arbitrability. Insolvency-related disputes are generally arbitrable, but remedies such as winding-up orders are reserved to the court. Where a debt is subject to an arbitra - tion agreement and is genuinely disputed, the court
will stay a winding-up petition in favour of arbitration. More broadly, competition claims are prima facie arbi - trable. Intellectual property disputes (including validity, on an inter partes basis), shareholder unfair prejudice petitions (where relief is within the tribunal’s power), and allegations of fraud, bribery or illegality are also generally arbitrable. 3.3 National Courts’ Approach For arbitrations commenced on or after 1 August 2025, Section 6A of the 1996 Act (as amended) pro - vides that the arbitration agreement is governed by the law expressly agreed for it, or, failing that, by the law of the seat. A choice of law for the main contract does not itself amount to an express choice for the arbitration agreement. This new provision displaces Enka Insaat Ve Sanayi AS v OOO Insurance Co Chubb [2020] UKSC 38 (which continues to apply only to earlier proceedings) and does not apply to arbitra - tion agreements contained in treaties or enactments, which are principally relevant to investor-State arbi - tration. English courts adopt a pro-arbitration stance. Under Section 9, a stay of proceedings is mandatory where there is a valid arbitration agreement covering the dispute, unless the agreement is null and void, inop - erative or incapable of being performed. The tribunal has competence-competence under Section 30, while the court retains supervisory roles under Sections 32 (preliminary points), 67 (jurisdictional challenges), and 72 (relief for non-participating parties). The Enka framework was also applied at the enforcement stage in Kabab - Ji SAL v Kout Food Group [2021] UKSC 48, addressing the distinction between express and implied choice of law for the arbitration agreement. Where foreign proceedings breach an arbitration agreement, courts grant anti-suit and anti-enforce - ment injunctions under Section 37 of the Senior Courts Act 1981, even before any arbitration is com - menced and in support of foreign-seated arbitrations ( UniCredit Bank GmbH v RusChemAlliance LLC [2024] UKSC 30). Once the applicant establishes a strong prima facie case (or, at the interlocutory stage, a high degree of probability) that an arbitration agreement governs the dispute, relief will ordinarily be granted unless strong reasons are shown to the contrary.
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