Reform of the Arbitration Act 1996: a missed opportunity to entrench diversity?

Abstract

This article discusses the recent consultation by the Law Commission of England and Wales (‘Law Commission’) on reform to the Arbitration Act 1996 (‘AA 1996’) which grappled with the issue of discrimination in agreements to appoint arbitrators. Recent efforts by the arbitration community to promote greater arbitrator diversity have started to result in the codification of equality and diversity considerations directly into some arbitral rules. However, guidelines developed to date by arbitral institutions have tended to focus on promoting greater diversity in institutional appointments rather than prohibiting discrimination in party appointments. In its September 2022 Consultation Paper, the Law Commission initially proposed new statutory provisions which would have made agreements relating to arbitrators’ ‘protected characteristics’ unenforceable, subject to certain exceptions. This article discusses some areas of uncertainty with these proposals which ultimately led to their abandonment, as well as the Law Commission’s conclusion against reforming the AA 1996 to prohibit discrimination in arbitration generally. The article examines some of the alternative ways in which discrimination could have been addressed through statutory reform and whether it is desirable for the onus to fall back to the arbitral institutions to adopt more robust guidance prohibiting discrimination in party appointments.