The Law Commission's Second Consultation Paper – An Evolving Approach

This week the Law Commission published a second Consultation Paper as part of its review of the English Arbitration Act (the Act).

The Paper raises three issues for consultation: (1) how the proper law of the arbitration agreement should be determined under English law; (2) the procedure for jurisdictional challenges before the English court under section 67 of the Act; and (3) tackling discrimination in arbitral appointments and procedure.

Issue (1) was not addressed by the Law Commission in its first Consultation Paper. However, thirty-one responses raised this as something that was in need of review and potential reform. Although issues (2) and (3) were addressed in the first Consultation Paper, the Law Commission's thinking on these topics has developed following the initial round of responses. As a consequence, it has taken the opportunity to tweak its original proposals and, in the case of issue (3) on discrimination, identify new topics of potential