Statutory Adjudication and Collateral Warranties
Over a year ago, the Supreme Court gave Simply Construct permission to appeal the Court of Appeal’s decision in Abbey Healthcare (Mill Hill) Ltd v Simply Construct (UK) LLP [2022] EWCA Civ 823. In that case, it was determined that a collateral warranty could be a ‘construction contract’, giving the parties a statutory right to refer a dispute to adjudication. The outcome of that appeal is expected in early 2024. See here for our Expert Insight on the Court of Appeal’s 2022 decision.
Arbitration Bill
With a drive to create efficiencies and resolve some uncertainties which have developed through recent case law, the Arbitration Act 1996 is to be amended to adopt the recommendations made by the Law Commission. The Arbitration Bill has started its passage through the House of Lords and adopts the following major recommendations:
- codification of an arbitrator’s common law duty to disclose circumstances which might reasonably give rise to justifiable doubts as to the arbitrator’s impartiality, setting out the general principle with the bank of current case law filling in the detail;
- strengthening arbitrator immunity around resignation and applications for removal;
- introduction of a power of summary disposal, to allow the issue of an award on a summary basis where the arbitrator determines that a party has no real prospect of succeeding on the issue;
- a revised framework for jurisdictional challenges under section 67 to tackle the inefficiency and potential unfairness resulting from a jurisdictional challenge being heard twice, once before the arbitral tribunal and the second before the court;
- a new rule on the governing law of an arbitration agreement simplifying the current position so that the law which governs the arbitration agreement (as distinct from the law which governs the contract) is either the law which the parties expressly agree to apply for this purpose or, in the absence of agreement, is the law of the seat of the arbitration in question; and
- clarification of court powers in support of arbitral proceedings and in support of emergency arbitrators.
