1. The English Arbitration Act 2025 (the "AA 2025") came into effect on August 1, 2025, after receiving Royal Assent earlier this year. The AA 2025 implements amendments to the previous Arbitration Act 1996 (the "AA 1996") and governs arbitrations seated within England, Wales and Northern Ireland.
2. The AA 2025 largely enacts recommendations set out in a report from the Law Commission (the "Law Commission Report"), which was provided to Parliament in November 2023 along with a draft arbitration bill. The Law Commission's proposals were further reviewed and debated while the draft arbitration bill made its passage through Parliament – including by eminent Law Lords – resulting in the AA 2025.
3. Much has already been written about the practical implications of the new legislation. Our own analysis of the key elements of the AA 2025 is available here.
4. However, while the AA 2025 implements a number of important reforms, there are other notable potential changes that were ultimately omitted from the AA 2025.
5. This article focuses on four key arbitral issues that were unaddressed or left unchanged under the AA 2025, explores why that was the case, and examines how these issues may be addressed under English law in the future:
a. Confidentiality in arbitration proceedings
b. Corruption
c. Appeals on a point of law (s. 69)
d. Third-party funding
A. Confidentiality
6. Confidentiality of proceedings is an important and attractive feature of international arbitration for many parties.1 Arbitrations seated in England and Wales are deemed confidential by default, subject to certain exceptions that are addressed in case law. However, there is no codified obligation of confidentiality in arbitral proceedings in England, in contrast to other jurisdictions that include express rules governing confidentiality, such as in Australia,2 Hong Kong,3 and (closer to home) Scotland.4
7. During its review process, the Law Commission considered introducing a new provision into the Arbitration Act explicitly stating that arbitrations are private and confidential, unless an exception applies. The provision, as contemplated, would have set out a non-exhaustive list of exceptions reflecting those already identified in case law – particularly, where (i) parties consent to excepting confidentiality, (ii) the court so orders, (iii) it is reasonably necessary for the protection of the legitimate interests of an arbitral party, (iv) it is required by the interests of justice, and/or (v) it is required by the public interest.5 The potential benefit of introducing such a provision would be to provide arbitral parties with certainty and clarity as to when confidentiality obligations arise, the scope of those obligations, and when exceptions may apply.
8. However, the Law Commission was not persuaded such a provision was appropriate. The Law Commission Report highlighted that the current law on confidentiality in arbitration is not "one size fits all" and greater transparency may be appropriate in different contexts – such as investor-state arbitrations, public procurement contract disputes, or other issues that affect the general public. There is no uniform approach toward confidentiality among arbitration institutions.6 Similarly, where foreign arbitral legislation addresses confidentiality, it does not do so "with one voice."7
9. On balance, the Law Commission Report concluded that a statutory rule on confidentiality would not be sufficiently comprehensive, nuanced, or future-proof. Instead, the Law Commission recommended relying on the courts' ability to develop the law on confidentiality on a case-by-case basis.
10. Since the publication of the Law Commission Report, the scope of confidentiality in arbitral proceedings has once again come before the High Court in A Corporation v Firm B & Anor (Rev1) (2025).8 In that case, Mr. Justice Foxton provided guidance on both the circumstances that give rise to arbitral confidentiality and relevant exceptions to arbitral confidentiality. The High Court's findings include confirmation that "experience which lawyers inevitably acquire from conducting arbitrations" may not be subject to arbitral confidentiality.9 This is a helpful reminder for counsel (and instructing parties) working in areas where similar types of disputes – perhaps involving recurring litigants, similar documents, or a small pool of available experts to provide witness evidence – may arise. In those circumstances, counsel may draw on their knowledge gained via separate disputes without breaching arbitral confidentiality.
11. It is arguably exactly this kind of nuanced issue that the Law Commission had in mind in concluding that precedential case law, rather than the blunt instrument of legislative change, was the best way of ensuring that the English law approach to arbitral confidentiality remained fit for purpose.
B .Corruption
12. The issue of corruption in arbitral proceedings has gained increased prominence in recent years and concerns both the conduct of parties in relation to the procurement or performance of the underlying contract and/or the conduct of the parties in relation to the arbitral proceedings themselves. The corruption issue was addressed by the English High Court in the case of The Federal Republic of Nigeria v Process & Industrial Developments Ltd (2023), in which the claimant successfully challenged a US$11 billion award for serious irregularity, in light of evidence that the award was tainted by fraud.10 In his judgment, Mr. Justice Knowles expressed concern at the failure of the arbitral tribunal to uncover the corruption, and called for "debate and reflection among the arbitration community" to protect the integrity of the arbitration process.11
13. There have been similar reports of arbitral proceedings affected by corruption in other jurisdictions, and there is currently an international debate among arbitration practitioners as to the appropriate response. In 2023, the IBA Anti-Corruption Committee launched a global survey of anti-corruption in the legal profession, which assessed corruption risks, trends, and safeguards in the global legal context. Last year, the ICC Commission of Arbitration and ADR appointed a Task Force Addressing Issues of Corruption in International Arbitration. The previous UK Government also took steps to write to arbitral institutions in early 2024 requesting details of what measures they have in place to mitigate the risk of corruption in arbitration and how the Government could support the sector's efforts in that regard.
14. Against this background, some respondents to the Law Commission consultation paper proposed the introduction of a transparency regime as a carve-out to the presumptive confidential nature of arbitration, which would require disclosure of those parts of the arbitration proceedings that deal specifically with corruption allegations.12
15. The Law Commission did not ultimately recommend any new legislative provisions to address the issue of corruption. However, the issue was debated at length during the legislative journey of the draft arbitration bill through Parliament. Lord Hacking, who pioneered the arbitration reforms under the Arbitration Act 1979 and, subsequently, the AA 1996, proposed adding mandatory language to Section 33 that an arbitration tribunal has a general duty to "safeguard the arbitration proceedings against fraud and corruption."13
16. Lord Hacking's amendment was opposed in the House of Lords – including by Lord Hoffmann and Lord Wolfson, both of whom were involved in the Nigeria case, referenced above.14 This was partly on the basis that Section 33 already imposes a duty on tribunal members to resolve cases fairly, and the prevailing view was that the imposition of additional wording would add little of substance while introducing uncertainty as to the nature of the additional safeguarding steps arbitrators might be required to take.
17. Lord Hacking ultimately withdrew his proposal. However, the Parliamentary Under-Secretary of State (Lord Ponsonby) provided assurances in the House of Lords debate that the UK Government would continue to support the sector's efforts to address arbitral corruption – including in respect of initiatives such as that of the ICC Task Force. He also confirmed that, following the previous UK Government's outreach, the new Minister for Justice had received responses from multiple arbitral institutions confirming they are taking steps to mitigate corruption risks – albeit the substance of the responses received from those institutions has not been disclosed.15
18. Since then, the IBA Anti-Corruption Committee has published its report on the impact of corruption on the legal profession. The report confirms that corruption is a prevalent issue and reflects on the need for continued collaboration to combat corruption globally.16 The ICC Task Force has also now published its preliminary report, Red Flags or Other Indicators of Corruption in International Arbitration, which provides a framework for identifying and assessing potential signs of corruption in arbitration proceedings.17 The ICC Task Force is due to publish a wider report on corruption in arbitration proceedings later this year.
19. Given these institutional initiatives, it is hoped that a global consensus on best practice in addressing corruption in international arbitration will emerge in the coming years. In turn, a future UK Government may feel it appropriate to codify such best practice through future amendments to the Arbitration Act 2025.
C. Appeals on a Point of Law (Section 69)
20. Section 69 of the AA 1996 entitles parties to appeal against an arbitration award on a point of law. The Commercial Court will only grant leave to appeal if the tribunal's decision on the law is "obviously wrong" (Section 69(3)(c)(i)), or if (a) the point of law is one of "general public importance" and (b) the tribunal's decision on the point is at least open to "serious doubt" (Section 69(3)(c)(ii)). This is a high threshold that is stringently applied: in 2024, the Commercial Court received 52 applications to appeal under Section 69 and granted leave to appeal in only 10 cases.19
21. Section 69 is a non-mandatory provision, so parties can agree to disapply Section 69 in their arbitration agreements. Indeed, both the LCIA Rules and the ICC Rules expressly disapply Section 69.19 Even so, there has long been a debate over whether parties should have a right to appeal an arbitral award on a point of law at all and, consequently, whether Section 69 should be struck from the Arbitration Act.
22. Ultimately, the Law Commission concluded that Section 69 achieves a defensible compromise between promoting the finality of arbitral awards and correcting blatant errors of law. The Law Commission did not, therefore, recommend any legislative updates to Section 69, and the provision remains intact in the AA 2025.
23. However, it bears noting that, after the Law Commission completed its review, the scope of Section 69 was considered in detail by the Supreme Court in the case of Sharp Corp Ltd v Viterra BV (2024).20 In that case, the Supreme Court determined the Court of Appeal exceeded its jurisdiction by (i) deciding a question of law that the tribunal was not asked to determine and on which it did not make a decision and (ii) making findings of fact on matters on which the tribunal had made no finding. The Supreme Court confirmed that Section 69 provides only a limited right of appeal, subject to express "safeguards" (in Section 69(3)) as well as the general principle that "the court should not intervene except as provided" (in Section 1).21
24. Successful appeals under Section 69 remain few and far between. According to the latest Commercial Court Report 2023-2024 published by the Judiciary of England and Wales, the number of Section 69 applications received during the year was 52, compared to 46 in the previous year. As at the date of the report (October 2024), only one of the 52 appeals in the 2023-2024 court year was successful, and only four appeals in the 2022-2023 court year were successful. That trend is unlikely to be reversed in the near future, given that Section 69's narrow scope has been confirmed by the Supreme Court in Sharp Corp.
25. As it stands, Section 69 is a relatively unique provision among popular international arbitration jurisdictions. There is no similar provision in the UNCITRAL Model Law on International Commercial Arbitration (which provides the basis for a high proportion of national arbitration laws, globally) and, whereas a limited number of other jurisdictions do permit appeals on legal grounds, it is on an opt-in basis.22 The option may yet be adopted by other jurisdictions: the Ministry of Law in Singapore launched a public consultation on the International Arbitration Act of Singapore 1994 in March this year, which included the question of "[w]hether the IAA should be amended to introduce a right of appeal on points of law, on an opt-in basis."23
26. Ultimately, Section 69 of the AA 2025 achieves a compromise between arbitral autonomy and the safeguard of court supervision to correct errors of law. This balancing act is an attractive and relatively unique selling point for users of international arbitration.
D. Third-party Funding
27. Third-party funding was not identified as a potential area for reform in the Law Commission consultation, and the Law Commission did not recommend any legislative updates regarding third-party funding. The AA 2025 is silent on third-party funding (as was the AA 1996).
28. However, a separate review of the UK third-party funding market is currently underway, led by the Civil Justice Council (the "CJC"), which published its Final Report – Review on Third Party Funding on June 2, 2025 (the "CJC Report").24
29. The CJC's review was partly prompted by the Supreme Court judgment in PACCAR, in which the court (controversially) interpreted third-party funding agreements as Damages Based Agreements and, therefore, as falling within the scope of the Damages Based Agreement Regulations 2013 (the "DBA Regulations").25 This called into question the validity of many third-party funding agreements that failed to comply with the DBA Regulations.
30. The CJC Report makes a series of recommendations for the introduction of "light-touch regulation of litigation funding." Primarily, the CJC Report recommends that the effect of the Supreme Court's decision in PACCAR be reversed by legislation, which should confirm a categorical difference between (a) contingency fee funding, e., funding provided to a party to a dispute by their legal representative (through a CFA or DBA), and (b) litigation funding, i.e., funding provided by an individual or a business that is not a party's legal representative (litigation funder) for the purposes of dispute resolution. The CJC Report recommends the introduction of separate regulatory regimes for the two types of funding.
31. However, the CJC Report recommends that litigation funding of arbitration proceedings not be subject to formal regulation. Rather, it should remain a matter for arbitral institutions to determine whether and, if so, how any rules governing litigation funding should be implemented.
32. It is yet to be seen how the Government will respond to the findings and recommendations in the CJC Report, and the nature of any legislative updates which may follow. For the time being, it seems unlikely that any further legislative amendments will be made to the AA 2025 with respect to third-party funding of arbitral proceedings in England and Wales.
E. Concluding Remarks
33. The AA 2025 implements a number of important reforms to the arbitration framework in England and Wales. Where other proposed reforms were considered but not implemented, those decisions were taken following lengthy review and considered debate. Further legislative updates may be required as the arbitration landscape continues to evolve; in the meantime, the AA 2025 ensures London retains its place as a leading center for international arbitration.
Footnotes
1 The 2018 International Arbitration Survey (Queen Mary University of London) found that 87% of respondents attached some degree of importance to confidentiality and 40% thought it "very important" (pp. 27-28).
2 International Arbitration Act 1974 (Cth) (Australia), ss. 23C-23G.
3 Arbitration Ordinance (Cap. 609) (Hong Kong), ss. 16-18.
4 Arbitration (Scotland) Act 2010, sch. 1, R26.
5 Emmott v Michael Wilson & Partners Ltd [2008] EWCA Civ 184, [2008] 2 All ER (Comm) 193.
6 For example, the LCIA Rules expressly confirm the confidentiality of arbitral awards (Article 30.3), whereas the ICC Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration expressly confirms that an arbitration award may be published (para. 56).
7 Law Commission Review of the Arbitration Act 1996: Final report and Bill, dated September 5, 2023, at para. 2.23.
8 A Corporation v Firm B & Anor (Rev1) (2025) EWHC 1092.
9 A Corporation v Firm B & Anor (Rev1) (2025) EWHC 1092, at para. 24.
10 The Federal Republic of Nigeria v Process & Industrial Developments Ltd. [2023] EWHC 2638 (Comm).
11 The Federal Republic of Nigeria v Process & Industrial Developments Ltd. [2023] EWHC 2638 (Comm), at para. 582. See the concluding comments of Mr. Justice Knowles at paras. 578-595.
12 See, in particular, comments from Spotlight on Corruption, in the compiled Responses to the First Consultation Paper, available here: https://lawcom.gov.uk/project/review-of-the-arbitration-act-1996/#3-Documents.
13 The transcript of the House of Lords debate is available in Hansard, vols. 839, 762.
14 Lord Hoffmann chaired the tribunal in the underlying arbitration proceedings in Nigeria v PIDL. Lord Wolfson KC represented PIDL in the subsequent High Court proceedings.
15 The Government received responses from the Chartered Institute of Arbitrators, the International Chamber of Commerce, the London Court of International Arbitration, the London Maritime Arbitrators Association, and the Grain and Feed Trade Association.
16 Forty-five percent of respondents globally observed an increase in levels of corruption within their jurisdiction over the last decade. The report is available here: https://www.ibanet.org/document?id=IBA-Anti-Corruption-Survey-Results-Report-2025.
17 The report is available here: https://iccwbo.org/wp-content/uploads/sites/3/2024/12/2024-ICC-Red-Flags-or-Other-Indicators-of-Corruption_ICC-DRS-Bulletin.pdf.
18 See Commercial Court Annual Report 2023-2024, dated March 20, 2025, available here: https://www.judiciary.uk/guidance-and-resources/commercial-court-annual-report-2023-24/.
19 See ICC Arbitration Rules 2021, art. 35(6); LCIA Arbitration Rules 2020, art. 26.8.
20 Sharp Corp Ltd v Viterra BV [2024] UKSC 14.
21 Sharp Corp Ltd v Viterra BV [2024] UKSC 14, at para. 52.
22 Notably, Hong Kong (Schedule 2, Arbitration Ordinance (Cap 609)); Italy (Article 829, Italian Code of Civil Procedure).
23 The consultation paper is available here: https://www.mlaw.gov.sg/files/Arbitration/IAA_Consultation_Paper.pdf.
24 Available here: https://www.judiciary.uk/wp-content/uploads/2025/06/CJC-Review-of-Litigation-Funding-Final-Report.pdf.
25 R (PACCAR) v Competition Appeal Tribunal [2023] UKSC 28; [2023] WLR 2594.
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