UK Law and Practice Contributed by: Roger Gherson, Emma Anderson, Cong Gao, Elizaveta Rachkova and Galiya Mustafina, Gherson Solicitors LLP
arbitrator has no power or is unable for the time being to act effectively. 6.3 Security for Costs Under Section 38 (3) of the Arbitration Act 1996, unless otherwise agreed by the parties, the arbitral tribunal may order a claimant to provide security for the costs of the arbitration. This is a default power that the par - ties are free to exclude or modify by agreement under Section 38 (1). The court’s express statutory powers under Section 44 to support arbitral proceedings do not specifically include security for costs of the arbi - tration. However, the court retains its general power to order security for costs of any court proceedings relat - ing to the arbitration under the Civil Procedure Rules. The procedure of arbitration seated in England and Wales is governed by Part I of the Arbitration Act 1996. The foundational principle is party autonomy: Section 34 (1) provides that it is for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree otherwise on any matter. The tribunal’s overriding duty under Section 33 (which is mandatory and cannot be excluded) sets the boundaries. In practice, most institutional arbitra - tions are governed by the applicable rules (eg, LCIA Arbitration Rules, ICC Rules), supplemented by the 7. Procedure 7.1 Governing Rules The law does not prescribe mandatory procedural steps. Rather, the parties are free to determine by agreement the applicable procedural rules, eg, the LCIA Arbitration Rules, or to develop from scratch their own procedural rules for the case at hand. 7.3 Powers and Duties of Arbitrators Duties The tribunal’s overriding mandatory duty is set out in Section 33 of the Arbitration Act 1996: to act fairly and impartially as between the parties, giving each party a reasonable opportunity to put its case and deal with that of its opponent, and to adopt procedures suitable to the circumstances of the particular case, avoiding Act’s default provisions. 7.2 Procedural Steps
unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined. Following Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48, arbitrators owe a legal duty to disclose facts and circumstances which would or might reasonably give rise to justifiable doubts as to their impartiality. This duty is derived from the Section 33 obligation of fairness and impartiality. Powers The tribunal may refuse to deliver an award except upon full payment of the arbitrators’ fees and expens - es (Section 56). The arbitrator’s statutory immunity under Section 29 provides that an arbitrator is not liable for anything done or omitted in the discharge or purported discharge of their functions unless the act or omission is shown to have been in bad faith. Tribunals hold broad procedural and evidential pow - ers: they may rule on their own substantive jurisdiction (Section 30, unless otherwise agreed) and decide all procedural and evidential matters, including docu - ment disclosure, language and whether strict rules of evidence apply (Section 34). They also have general powers under Section 38 including ordering security for costs, directing property preservation and adminis - tering oaths. Arbitrators may make peremptory orders and dismiss claims for inordinate and inexcusable delay (Section 41). 7.4 Legal Representatives The Arbitration Act 1996 imposes no qualification or admission requirements on legal representatives appearing before arbitral tribunals. “Rights of audi - ence” rules under the Courts and Legal Services Act 1990 apply only to court proceedings, not private arbitral hearings. This applies equally regardless of whether the arbitration is domestic or international. Indeed, the Arbitration Act 2025 removes the remain - ing domestic/international distinction. Accordingly, parties may be represented by foreign- qualified lawyers or non-lawyers.
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