AA 1996—applications to court to determine points of law (s 45)
AA 1996—applications to court to determine points of law (s 45)

The following Arbitration guidance note provides comprehensive and up to date legal information covering:

  • AA 1996—applications to court to determine points of law (s 45)
  • What are the requirements for an AA 1996, s 45 application?
  • What must the application contain?
  • Can the court refuse to determine the point of law referred?
  • What happens to the arbitration while the application is pending?
  • How do I make the application?
  • Appeals
  • Applications pursuant to AA 1996, s 45—judicial approach

In arbitration proceedings, questions of law are usually decided by the arbitral tribunal, subject to any right of appeal to the court pursuant to section 69 of the Arbitration Act 1996 (AA 1996) (which is often, in practice, excluded by parties expressly or pursuant to their chosen institutional rules, eg LCIA Rules 2014, art 26.8).

However, it may, in the particular circumstances of a dispute, be preferable for a question of law to be decided quickly by the court rather than the tribunal in a final award. This may be because the tribunal is formed of arbitrators who are less equipped to deal with questions of law (either because they are not legally qualified or while legally qualified it is otherwise outside their expertise), or because the parties or the tribunal considers that determining the relevant question(s) of law would be inappropriate in the circumstances of the case. An example of the latter can be found in Goodwood Investments Holdings Inc v Thyssenkrupp Industrial Solutions AG (M/Y PALLADIUM), where the tribunal and parties considered it would be inappropriate for the tribunal to determine whether as a matter of law the claim in the arbitration had been settled in without prejudice correspondence between the parties—it was explained that if the tribunal went on to determine that no settlement had been concluded, they would then