UK Law and Practice Contributed by: Roger Gherson, Emma Anderson, Cong Gao, Elizaveta Rachkova and Galiya Mustafina, Gherson Solicitors LLP
Courts will decline enforcement only where the agree - ment is null and void, inoperative, incapable of perfor - mance or where the subject matter is non-arbitrable. 3.4 Validity Under English law, an arbitration agreement may be valid notwithstanding the invalidity of the underlying contract. The doctrine of separability is codified in Section 7 of the 1996 Act: an arbitration agreement forming part of another agreement is not regarded as invalid, non-existent or ineffective because the main agreement is invalid, did not come into existence or has become ineffective. The arbitration agreement is treated as a distinct agreement. Consequently, even if the underlying contract is unenforceable, the arbi - tration agreement will be enforceable unless circum - stances directly impeach the arbitration agreement itself ( Fiona Trust & Holding Corporation v Yuri Privalov [2007] UKHL 40). The principal limit is where the very basis of assent to arbitrate is denied – for example, forgery, imper - sonation or a total absence of authority – since such a challenge strikes the arbitration agreement directly. A further limit arises where a later agreement contains a new, inconsistent dispute resolution clause that supersedes the earlier arbitration agreement ( Monde Petroleum SA v WesternZagros Ltd [2015] EWHC 67 (Comm)). That, however, is an application of ordinary construction rather than a departure from separability. Party autonomy is the starting point: parties are free to agree the number of arbitrators, any required quali - fications and the appointment procedure (Sections 15 and 16). There are no nationality or professional stat - utory restrictions. In Jivraj v Hashwani [2011] UKSC 40, the Supreme Court held that arbitrators are not “employees”, so appointment criteria are not subject to employment discrimination legislation. Autonomy is bounded by mandatory provisions: fair - ness and impartiality (Section 33), disclosure (Section 23A), and removal (Section 24) cannot be excluded. Agreed qualifications are respected (Sections 19 and 4. The Arbitral Tribunal 4.1 Limits on Selection
24 (1)(b)) but construed commercially: courts will not imply exclusionary limits unless clearly expressed ( Allianz Insurance Plc v Tonicstar Limited [2018] EWCA Civ 434). Highly specific criteria steering appoint - ments from a very small pool may give rise to appar - ent-bias analysis ( Cofely Ltd v Bingham [2016] EWHC 240 (Comm)). Where the appointment procedure fails, Section 18 empowers the court to make the neces - sary appointment. The applicable institutional rules may also impose their own appointment procedures. 4.2 Default Procedures If there is no agreement on the number of arbitrators, the tribunal consists of a sole arbitrator (Section 15 (3)). Where no appointment procedure is agreed, Sec - tion 16 supplies defaults: for a sole arbitrator, joint appointment within 28 days; for a three-member tri - bunal, each party appoints one arbitrator within 14 days, and the two appointees appoint the chairper - son. In a two-party case where one side defaults, the non-defaulting party may give notice that its arbitrator will act as sole arbitrator. If the defaulting party fails to appoint within seven clear days, the appointment stands, subject to challenge (Section 17). This mecha - nism applies “unless otherwise agreed by the parties”. Where the procedure fails, Section 18 provides a residual court power: the court may make the neces - sary appointment itself, which takes effect as if made by agreement. Section 18 is a narrow gateway: it is engaged only where there has been a genuine fail - ure ( Silver Dry Bulk Co Ltd v Homer Hulbert Maritime Co Ltd [2017] EWHC 44 (Comm)), and a process that never validly began cannot have “failed” ( Global Aero- spares Ltd v Airest AS [2023] EWHC 1430 (Comm)). The court must have due regard to agreed qualifica - tions when exercising its Section 18 powers (Section 19). Section 18 is not a mandatory provision, so par - ties could in principle exclude it, although this would be unusual. There is no bespoke statutory default for multiparty appointments: Section 16 (7) channels cases involv - ing more than two parties into Section 18. In practice, institutional rules usually provide the solution. Under the LCIA Rules (Article 8), the LCIA Court appoints the tribunal without regard to party nominations. Under the ICC Rules (Article 12 (8)), multiple claimants or
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