Abstract/Summary

The English Arbitration Act 1996 (AA 1996) is founded on the principle that arbitration gives effect to the parties’ choice to refer their disputes to arbitration and that courts should only intervene to support and not displace it. This article discusses the Arbitration Reform Project of the Law Commission, specifically appeals under section 69 of the AA 1996, with a special focus on shipping, where arbitration is the preferred dispute resolution method, so as to explore how the right to appeal in law is used differently in different categories of disputes, reflecting the different expectations of the parties involved. Where appeals on questions of law are permitted, there is in practice a tendency to abuse this mechanism, as questions of fact are often cloaked as questions of law. Additionally, we observe an inconsistent exercise of discretion of the courts in granting leave under section 69(3)(c)(ii) of the AA 1996 which requires both that the question be of general public importance and that the tribunal’s decision be at least open to serious doubt. Courts seem to be not too readily granting leave, but rather reluctant to do unless the requirements set by law exist. This article also discusses the only new change regarding appeals in arbitration, namely, the new section 67 of the AA 2025. Previously (i.e., before the 2025 reforms), section 67 of the AA 1996 allowed a party to challenge an arbitral award, and courts could review all evidence and arguments even if not previously submitted to the tribunal (as per Dallah v. Pakistan, (2010) 10 UKSC 46 – court’s de novo jurisdiction). In contrast, the 2025 amendments restrict courts from rehearing evidence or entertaining new objections unless they were previously undiscoverable, and limit reviews to tribunal materials unless justice requires otherwise. Our analysis shows that the appeals regime under section 69 of the AA 1996 is sound in principle as it strikes an appropriate balance between finality and legal oversight and therefore has been retained, as confirmed in the Law Commission’s final report. However, this article argues that the English High Court must take care to avoid any misapplication of the statutory requirements when granting leave to appeal on questions of law under section 69.