UK Law and Practice Contributed by: Roger Gherson, Emma Anderson, Cong Gao, Elizaveta Rachkova and Galiya Mustafina, Gherson Solicitors LLP
13. Miscellaneous 13.1 Class Action or Group Arbitration There is no statutory regime for class or representative arbitration in England and Wales, and it is essentially unknown in practice. English arbitration is consent- based: proceedings bind only identified parties, and a procedure binding absent class members is difficult to reconcile with the consent, due process and confi - dentiality principles underpinning the 1996 Act. Group and multiparty arbitration is, however, well recognised. Identified parties may proceed together through joinder or consolidation where all have con - sented (directly or via institutional rules), or in a single arbitration where one agreement is broad enough to cover related contracts or parties. Under Section 35, consolidation and concurrent hearings require party agreement and cannot be imposed on non-consent - ing parties. The key requirement is consent, not subject-matter arbitrability: collective claims are not per se non-arbi - trable, but consent to arbitrate is not read as consent to a representative procedure binding absent persons, and remedies designed to protect third parties or a collective body remain reserved to the courts. In the consumer context, where class-style procedures are most often proposed, arbitration clauses covering modest claims are automatically unfair under Section 91 of the 1996 Act, and collective redress (such as competition collective proceedings before the Com - petition Appeal Tribunal) is court-based. 13.2 Ethical Codes Standards come from overlapping layers: binding rules, institutional rules and non-binding soft law. For counsel, solicitors are regulated by the SRA Standards and Code of Conduct, and barristers by the BSB Handbook. Both impose core duties of honesty, integrity, independence and upholding the administration of justice. Foreign lawyers may appear without domestic qualification and remain subject to their home bar rules. The IBA Guidelines on Party Representation are persuasive and applicable where adopted.
For arbitrators, the binding core is statutory: the non- derogable duties of fairness and impartiality (Section 33) and disclosure (Section 23A), breach of which may lead to removal (Section 24) or challenge to the award (Section 68), together with the implied duty of confidentiality. Arbitrators who are solicitors or barris - ters remain subject to their professional codes. CIArb members are subject to its Code of Professional and Ethical Conduct, and institutional rules add detailed impartiality and disclosure requirements. The IBA Guidelines on Conflicts of Interest reflect good prac - tice but, as Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48 confirms, have no bind - ing legal effect. 13.3 Third-Party Funding The regime is permissive and light-touch; third-party funding is an accepted, mature market. Maintenance and champerty were abolished by the Criminal Law Act 1967 but survive as residual public policy controls. A funding agreement may be unenforceable if it tends to corrupt justice, eg, through excessive funder con - trol. The market is primarily self-regulated through the Association of Litigation Funders’ Code of Conduct, addressing capital adequacy, withdrawal limits and prohibitions on funder control. There is no general duty to disclose funding, though a funder’s identity may be required by institutional rules for conflicts purposes or ordered on a security for costs application. Funding alone does not jus - tify security. Funders face potential non-party costs orders in court proceedings under Section 51 of the Senior Courts Act 1981: the Arkin cap is no longer rigid. The tribunal cannot award costs directly against a funder, but a successful party may recover funding costs as “other costs” under Section 59 (1)(c) ( Essar Oilfields Services Ltd v Norscot Rig Management Pvt Ltd [2016] EWHC 2361 (Comm)). The reform picture remains unresolved. In PACCAR [2023] UKSC 28, the Supreme Court held that fund - ing agreements based on a percentage of damages are damages-based agreements subject to statutory regulation, creating uncertainty. Although primarily arising in the litigation context, its application to arbi - tration is untested. The government has announced legislation to clarify that funding agreements are not
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