This Practice Note considers applications to the courts of England and Wales (English and England are used for convenience) for the determination of preliminary points of law pursuant to section 45 of the Arbitration Act 1996 (AA 1996). In arbitration proceedings, questions of law are usually decided by the arbitral tribunal, subject to any right of appeal to the court pursuant to AA 1996, s 69 (which is often, in practice, excluded by parties expressly or pursuant to their chosen arbitration rules, eg LCIA Arbitration rules, art 26.8). Section 45, is not mandatory and where it is not excluded by the parties agreement to arbitration (and choice of rules) it operates narrowly and should not be used or seen to be used by the parties as a way of avoiding their agreement to arbitrate. The jurisdiction of the court is limited—see below—and where the arbitral tribunal may consider continuing the arbitration proceedings while an application pursuant to section 45 is pending. However, it may, in the particular circumstances

This Practice Note considers applications to the courts of England and Wales (England and English are used as convenient shorthands) to remove arbitrators pursuant to section 24 of the Arbitration Act 1996 (AA 1996). Applying to court to remove an arbitrator under AA 1996, s 24 AA 1996, s 24, which is a mandatory provision of the Act (ie parties cannot agree that it will not apply), provides the English court with a discretionary power to remove arbitrators. A party to arbitral proceedings may, on notice to (a) the other parties, (b) the arbitrator concerned and (c) any other arbitrator, apply to the court to remove an arbitrator on one (or, indeed, more) of the following grounds: • circumstances exist that give rise to justifiable doubts as to their impartiality (AA 1996, s 24(1)(a)) • the arbitrator does not possess the qualifications required by the relevant arbitration agreement (AA 1996, s 24(1)(b)) • the arbitrator is not physically or mentally capable of conducting the proceedings or there are justifiable doubts as to their capacity

This Practice Note considers the appointment of the arbitral tribunal under the Arbitration Act 1996 (AA 1996). Under the AA 1996: • the parties are free to decide the number and manner in which the tribunal will be appointed • unless otherwise agreed by the parties, an agreement that the number of arbitrators shall be two or another even number will be understood as requiring the appointment of an additional arbitrator as chair • absent any agreement as to the number of arbitrators, the dispute will be determined by a sole arbitrator • any arbitrator appointed must be impartial and be physically and mentally capable of carrying out his duties Of course, AA 1996 is only relevant to the constitution of the tribunal where the arbitration is seated in England or Wales, as underlined in GmbH v Enercon. There are no restrictions in AA 1996 on who can be appointed as an arbitrator; arbitrators should either be experienced in the technical or legal aspects of the case. The extent to which

This Practice Note has been updated to incorporate the amendments introduced to the Arbitration Act 2025. References to the AA 1996 are to the Act in its amended form. A party wishing to challenge an arbitral tribunal’s substantive jurisdiction over a dispute prior to an award being issued can do so to the tribunal under section 31 of the Arbitration Act 1996 (AA 1996) or to the court under AA 1996, s 32. Section 1A, introduced by the AA 2025, confirms that an application under s 32 is limited to questions not yet ruled on by the tribunal (s 32(1A)). For more information on challenging jurisdiction pre-award

This Practice Note has been updated to incorporate the amendments introduced to the Arbitration Act 1996 (AA 1996), by the Arbitration Act 2025 (AA 2025). References to the AA 1996 are to the Act in its amended form. The Arbitration Act 2025 which came into force on 1 August 2025. For further information see: Arbitration Act 2025 commencement and transitional provisions This Practice Note considers the bases on which an arbitral tribunal’s substantive jurisdiction can be challenged before an award is made, pursuant to the Arbitration Act 1996 (AA 1996), in force in England, Wales and Northern Ireland. This Practice Note should be read in conjunction with Practice Note: AA 1996—challenging an arbitral tribunal's jurisdiction in court (pre-award)—procedure (s 32). For guidance on post-award challenges and appeals under AA 1996, see Practice Note: AA 1996—challenging and appealing arbitral awards in the English court. The principle of kompetenz-kompetenz AA 1996, s 30(1) enshrines the principle of kompetenz-kompetenz (or competence-competence) in English arbitration law. This principle (which is also contained in Article

Grounds of challenge or appeal against arbitration awards An arbitral award can be challenged or appealed under the Arbitration Act 1996 (AA 1996) only on limited grounds; this is consistent with the Act’s overall purpose to ensure the efficient and final resolution of disputes settled by arbitration. A party can: • challenge an award in the national courts of the legal place it was made (ie the seat of the arbitration) to attempt to have it annulled or set aside in whole or in part, or • wait until the successful party seeks to enforce the award before a national court and resist enforcement under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) (or other applicable instrument or law) at that stage The grounds for challenging an award before the courts of England and Wales (England is used as a convenient shorthand in this Practice Note) under AA 1996 are: • lack of substantive jurisdiction of the tribunal (AA 1996, s 67)—for specific guidance,

This Practice Note has been reviewed in light of the new, and is consistent with, the Arbitration Act 2025. Grounds for challenging jurisdiction by non–participation—AA 1996, s 72 Pursuant to section 72 of the Arbitration Act 1996 (AA 1996), a party who takes no part in the arbitral proceedings may question whether there is a valid arbitration agreement, whether the tribunal is properly constituted or what matters have been submitted to arbitration under the arbitration agreement, ie matters of substantive jurisdiction (AA 1996, s 30(1)). Such a challenge is made to the English court for a declaration or injunction or other appropriate relief. AA 1996, s 72 is a mandatory provision, which means that parties cannot agree to its exclusion (AA 1996, Sch 1). The existence of this right for non-participants has implications for parties applying for court rulings on jurisdiction pre-award. As the Commercial Court confirmed in Armada v Schiste Oil, if AA 1996, s 72 is engaged, no application can be made under AA 1996, s 32—see News Analysis:

This Practice Note considers the ability of parties to arbitral proceedings to challenge awards on grounds of lack of substantive jurisdiction before the courts of England and Wales (England and English are used as convenient shorthand) pursuant to section 67 of the Arbitration Act 1996 (AA 1996). Under English law, a party can challenge an award of an arbitral tribunal regarding its ‘substantive jurisdiction’ (AA 1996, s 67(1)(a)) or seek an order declaring that an award on the merits if of no effect (in whole or in party) because the tribunal did not have substantive jurisdiction (AA 1996, s 67(1)(b)). It is clear that the final determination of the tribunal’s substantive jurisdiction is a matter for the courts of the seat of arbitration (C v D). If the seat of arbitration is London (ie England), then the exclusive supervisory jurisdiction resides with the English courts, and no challenge can be brought in other jurisdictions (C v D). Reform of s67 by the Arbitration Act 2025 Where a tribunal has ruled on

AA 1996, s 68—what does the section provide? A party to arbitration proceedings may (on notice to the other parties and to the tribunal) apply to the English and Welsh courts challenging an award made in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award (section 68(1) of Arbitration Act 1996 (AA 1996)). England and English are used in this Practice Note as convenient shorthand. Generally speaking, there will be no question regarding the status of a tribunal or arbitrator’s decision (ie whether it is an award or not). If a challenge is made on the ground of serious irregularity and the status of the decision is not clear, the court will consider the status of the decision as a threshold point before it proceeds. A decision cannot give rise to a serious irregularity challenge if the court considers that it is not an award (see ZCCM v Kansanshi). In ZCCM v Kansanshi, Cockerill J set out some useful guidance to

A party to arbitration proceedings may (on notice to the other parties and to the tribunal) apply to the English and Welsh courts challenging an award made in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award (section 68(1) of the Arbitration Act 1996 (AA 1996)). England and English are used in this Practice Note as convenient shorthand. Serious irregularity is defined as irregularity that falls within one or more of the nine exhaustive categories specified in AA 1996, s 68(2)(a)–(i), which the court considers has caused or will cause substantial injustice to the applicant (AA 1996, s 68(2)). For information on the grounds upon which the court may find serious irregularity and on making applications under AA 1996, s 68, see Practice Notes: AA 1996—challenging the award on grounds of serious irregularity (s 68) and AA 1996—challenging and appealing arbitral awards in the English court. In this Practice Note, we consider the nine categories of serious irregularity and provide examples of how they have

This Practice Note deals with serious irregularity challenges where an arbitral award is obtained by fraud or the award or the way in which it was procured is contrary to public policy in England and Wales pursuant to section 68(2)(g) of the Arbitration Act 1996 (AA 1996). This Practice Note should, where relevant, be read in conjunction with Practice Notes: AA 1996—challenging the award on grounds of serious irregularity (s 68) and AA 1996—challenging the award—categories of serious irregularity (s 68). Grounds of serious irregularity—obtained by fraud or contrary to public policy There are nine exhaustive categories of serious irregularity under AA 1996, s 68 pursuant to which a party may challenge an arbitral award. AA 1996, s 68(2)(g) provides that serious irregularity may occur where: • the award is obtained by fraud, or • the award or the way in which it was procured is contrary to public policy The approach of the English court to AA 1996, s 68(2)(g), as with all grounds

This Practice Note considers costs under the Arbitration Act 1996 (AA 1996) including the arbitral tribunal’s powers in respect of costs and how costs are dealt with in an arbitral award. Understanding costs The recovery of costs is an important part of most arbitrations. When considering applying to the tribunal for an award on costs, or resisting an application for costs, it is important to understand: • any costs agreement between the parties • what constitutes ‘the costs of the arbitration’ • the tribunal’s authority to award costs and the basis on which they award costs • how interest will be awarded • the costs award • how to challenge a costs award Costs agreements between the parties The parties cannot enter into an agreement on the allocation of the costs of the arbitration to the effect that one party should pay the costs in any event prior to the dispute (AA 1996, s 60). This is the only mandatory provision of the AA 1996 relating to costs. It would appear that