Both India and the UK are reshaping their arbitration frameworks: one through revolution, the other through evolution. Disputes expert Alipak Banerjee asks: What can each learn from the other’s reform experience?
The UK recently passed the Arbitration Act, 2025 (English Amendment Act), to amend and bring reforms to the English Arbitration Act, 1996 (English Arbitration Act). The process started in 2022, when the UK Law Commission undertook a review of the English Arbitration Act. Subsequently, the UK Law Commission published a draft bill and invited comments from stakeholders to further improve and streamline the arbitration regime in England. This process culminated in the English Amendment Act, which received the royal assent on 24 February 2025, and came into force on 1 August 2025.
The English Amendment Act introduced various key changes that may have a positive impact on the arbitration climate in England, such as the summary awards, codifying the provisions relating to recognition of “emergency arbitration”, and providing the default position on the law applicable to the arbitration agreement, to name a few. However, the English Amendment Act also presents a missed opportunity to provide clarity in other aspects of arbitration, such as appeals against an award on questions of law, codifying the confidentiality obligations or arbitrators’ independence, or recognising and regulating third-party funding in arbitrations.
This article is divided into three parts. Part I discusses the major changes in the English Arbitration Act and their potential impact on the English arbitration regime. Part II deals with the Indian Arbitration and Conciliation (Amendment) Bill, 2024, and what changes India proposes to modernise its arbitration regime. Lastly, the article provides a conclusion based on the changes adopted or proposed by either jurisdiction and looks at what they can learn from each other.
English Amendment Act
While numerous changes were introduced by the English Amendment Act, some will have a greater impact than others. The most significant changes include:
Law governing the arbitration agreement. The English Amendment Act introduces section 6A to the English Arbitration Act, clarifying the law governing arbitration. It codifies party autonomy to expressly determine this law. However, despite such express determination, section 6A establishes that the law of the seat shall govern the arbitration agreement. This approach departs from the UK Supreme Court’s test in Enka v Chubb (2020), which held that the law governing the arbitration agreement should be determined by an express or implied choice made by the parties. Where such a choice could not be implied, the law of the seat would apply.
The English Amendment Act removes the need to imply choice, providing certainty when no express choice exists by providing the default position as the law of the seat.
In India, in the absence of an express choice for the law governing the arbitration agreement, the governing law of the contract is also the law governing the arbitration agreement. However, in cases where there is no express choice regarding the governing law of the contract, no implied presumption can be made regarding the law governing the arbitration agreement. The law of the seat is the law governing the arbitration agreement.
Power to make summary awards. The English Amendment Act introduces section 39A, which allows arbitrators to make awards on a summary basis when a party has no real prospect of succeeding in its claim or defence. However, parties can agree to limit this.
The threshold for making summary awards matches that in part 24.3 of the Civil Procedure Rules, 1998, allowing tribunals to save time and expeditiously dispose of cases. This aligns with the tribunal’s duty, under section 33 of the English Arbitration Act, to avoid “unnecessary delay or expense”.
In India, there is no power to make summary awards. However, section 29B of the Indian Arbitration and Conciliation Act, 1996 (Indian Arbitration Act), provides a “fast track procedure” requiring tribunals to make awards within six months from the reference date.
Recognition of emergency arbitration. Section 41A has been introduced to statutorily recognise emergency arbitration. It empowers emergency arbitrators to make peremptory orders when parties fail to comply with directions without sufficient cause. Further amendments to sections 42 and 44 empower courts to enforce emergency arbitrators’ peremptory orders, and support emergency arbitral proceedings.
While the English Amendment Act does not prescribe appointment mechanisms for emergency arbitrators (leaving this to arbitral institutions), recognising emergency arbitration provides certainty regarding the enforceability of emergency arbitrators’ orders and directions.
India currently does not statutorily recognise emergency arbitrations, but the Indian Supreme Court, in Amazon.com NV Investment Holdings LLC v Future Retail Ltd & Ors (2022), held that emergency awards in India-seated arbitrations are enforceable. India has also proposed an amendment to recognise emergency arbitration.
Other changes in the English Arbitration Act. While the above-mentioned amendments have garnered attention from the arbitration community around the world, the English Amendment Act has also introduced various other changes to further streamline the arbitration regime in England, and keep up with the ever-changing requirements of the stakeholders. Some of these changes are:
- Courts’ power regarding third parties. The act extends courts’ powers under section 44 to make orders in support of arbitral proceedings against third parties. In India, different high courts hold contrary views on courts’ powers to grant interim measures against third parties.
- Arbitrators’ duty of disclosure. The act codifies arbitrators’ duty to disclose circumstances that may raise doubts about their impartiality, providing a statutory basis for the common law duty established in Halliburton v Chubb (2020). India introduced arbitrators’ disclosure duties in its 2015 amendment.
- Strengthening arbitrators’ immunity. The act expands arbitrators’ immunity to protect them when they step down in good faith, and from bearing costs in removal applications unless they acted in bad faith. In India, actions taken by arbitrators in good faith are already protected from legal proceedings.
- Limiting courts’ power to hear challenges under section 67. The English Amendment Act limits the courts’ power to hear a challenge under section 67 of the English Arbitration Act. It prevents the parties from introducing new grounds for objection or new evidence that was not raised or put before the arbitral tribunal, unless they can show that they were unable to present such objections or evidence before the tribunal. Further, courts cannot rehear evidence already considered by the tribunal, preventing de novo (new) challenges and promoting award finality.
Omissions in the English Amendment Act. Despite significant changes, the English Amendment Act missed opportunities to address some important issues, such as:
- Confidentiality in arbitral proceedings. The act does not impose statutory confidentiality duties, leaving this governed by common law principles and creating uncertainty about scope and boundaries. The UK Law Commission decided against codification, believing case-by-case determination was preferable given numerous exceptions.
- Arbitrator independence. While codifying disclosure duties, the act omitted statutory independence requirements. The UK Law Commission reasoned that complete independence is impossible in specialised fields with small arbitrator communities. Therefore, the UK Law Commission chose to emphasise impartiality through disclosure instead.
- Discrimination in arbitral appointments. The UK Law Commission opined that there are sufficient mechanisms to address discrimination in arbitration proceedings, such as the professional code of conduct for barristers and solicitors in England, or the English Equality Act, 2010. However, the commission failed to consider that the Equality Act and other anti-discrimination laws are inapplicable to the appointment of arbitrators, as held by the UK Supreme Court in Hashwani v Jivraj (2011).
- Third-party funding. Despite growing trends in third-party funding, the act missed the opportunity to regulate these agreements. Third-party funding agreements present challenges regarding confidentiality (especially where disclosure of sensitive material to the funder is required to obtain third-party funding) and enforceability (in light of the UK Supreme Court’s judgment in R v Competition Appeal Tribunal [2023]).
The Indian experience
India, in a bid to improve its arbitration climate, circulated and invited comments on the draft Arbitration and Conciliation Amendment Bill, 2024 (Indian Amendment Bill). Some amendments mirror the English Amendment Act, such as recognising emergency arbitrators through section 9A. However, India also introduced amendments specifically targeted at issues seen in the Indian experience.
Statutory recognition of the ‘seat of arbitration’. The Indian Amendment Bill proposes amending section 20 of the Indian Arbitration Act, replacing “place” with “seat” and “venue”. It offers two alternatives.
The first simply replaces terminology while preserving party autonomy to decide the seat, or allowing the tribunal to determine it after. This gives preference to party autonomy to decide the “seat”, failing which it can be determined by the arbitral tribunal with regard to the relevant circumstances of the case and the convenience of the parties.
The alternative amendment abandons party autonomy principles, stating that in domestic arbitration, the seat shall be where the contract or arbitration agreement is executed, or where the cause of action arose. This could create confusion, since contracts executed in counterparts can be considered executed in multiple places, and causes of action may arise in multiple locations.
Instead, India could draw guidance from section 3 of the English Arbitration Act, which defines “seat of the arbitration” and provides for various scenarios, including designation by institutions or tribunals if authorised by the parties. It also allows determination based on agreement and relevant circumstances when no designation exists. This approach provides certainty, while preserving party autonomy.
Curtailing courts’ powers during arbitral proceedings. The Indian Amendment Bill proposes amendments to limit courts’ powers, and exclude their ability to grant interim measures during the pendency of the arbitral proceedings. It also imposes a 90-day limit to commence arbitration after filing for interim measures.
While well intentioned (to limit the courts’ interference once the arbitral proceedings have commenced), these changes may have unintended consequences by restricting courts’ supportive role in arbitrations. Parties sometimes need court intervention during proceedings, especially when measures are beyond the arbitral tribunal’s powers and mandate.
Rather than restricting powers, the government should consider expanding courts’ authority to grant interim measures against third parties, resolving the contradictory high court views. This aligns with global trends empowering courts to issue measures against third parties.
Power to vary or set aside arbitral awards. The bill seeks to clarify when courts may set aside awards, in whole or in part. However, the Indian Supreme Court, in Gayatri Balasamy v ISG Novasoft Technologies Ltd (2025), recently held that courts can also modify awards in exceptional circumstances.
Therefore, the Indian Arbitration Act should be revised to include this power to vary or modify the arbitral award in such exceptional circumstances. In fact, the English Amendment Act already introduced the power to vary arbitral awards into the English Arbitration Act.
Recognition of emergency arbitration. A significant proposal is the recognition of emergency arbitration by way of the introduction of section 9A. However, placing section 9A only in part I of the Indian Arbitration Act may prevent the enforcement of foreign-seated emergency arbitration orders or awards, as no corresponding changes appear in part II regarding foreign award enforcement.
India could adopt the English approach, which empowers courts to support emergency arbitrations even when not seated in England or Wales. India should consider extending court powers to support arbitrations not seated in India, including emergency arbitrations.
Conclusion
While the English Amendment Act takes an evolutionary approach to arbitration reform, the Indian Amendment Bill seems revolutionary. Both jurisdictions have lessons to learn from each other.
The English Arbitration Act could benefit from India’s approach to arbitrator independence, which links independence and impartiality. Indian law requires arbitrators to disclose circumstances raising any justifiable doubts about their independence or impartiality, with an illustrative list in the Fifth Schedule of the Indian Arbitration Act (which can be equated to the Orange List of the International Bar Association’s Guidelines on Conflict of Interest).
England could also adopt India’s approach to confidentiality, which provides a statutory basis for confidentiality through section 29A (although not yet in force).
Similarly, India could benefit from the English approach to defining the “seat of the arbitration”, adopting principles similar to section 3 of the English Arbitration Act. India should also explicitly empower courts regarding third-party measures, settling the contrary views taken by various high courts in India.
India can also introduce express powers to modify awards in line with a Supreme Court decision. This has already been adopted in England. India can also look at the English Arbitration Act to improve emergency arbitration implementation and recognition.
While it may seem easy to simply adopt the principles and laws from another jurisdiction, both England and India should be cautious and mindful of the socio-economic and cultural realities in their respective territories. Any changes on the basis of principles adopted in a different jurisdiction must be carefully considered to see how they will impact the ground realities that exist in their respective territories.
Alipak Banerjee is the founder of Alipak Banerjee Law Chambers. He was formerly the head of international dispute resolution practice at Nishith Desai Associates’ New Delhi office.
