Introduction
In order to safeguard London’s position as one of the world’s leading arbitral centres, the Arbitration Act 2025 (the Act) takes a two-pronged approach to promoting arbitrator impartiality. First, the Act codifies in statute the obligation that arbitrators disclose circumstances that might lead to doubts as to their impartiality. Secondly, the Act enhances arbitrators’ immunity from personal liability so they can perform their duties without fear of being sued, providing that they act in good faith.
Arbitrators’ duty of disclosure
The Act requires potential and appointed arbitrators to disclose any circumstances of which they are aware (or ought reasonably to be aware) that might give rise to justifiable doubts as to their impartiality.1 The Act also provides that disclosure is a continuing duty and must be made as soon as reasonably practicable. This duty is mandatory and applies regardless of any contrary agreement by the parties.
The codification of the arbitrator’s duty of disclosure is better seen as a useful restatement of the current law rather than a revolution. That is because section 33 of the Arbitration Act 1996 already imposes a duty on arbitrators to act fairly and impartially, and in Halliburton v. Chubb (2020)2 the UK Supreme Court confirmed that this duty required arbitrators to disclose circumstances that might give rise to justifiable doubts as to their impartiality.
Arbitrators’ immunity from personal liability
The Act enhances arbitrators’ immunity from personal liability in the following two ways:
- First, arbitrators who resign will not be held personally liable unless it is shown that their resignation was unreasonable in all the circumstances.3
- Second, arbitrators will not be liable for the costs of a court application for their removal unless they have acted in bad faith.4
These two changes bolster the existing protections that arbitrators already have under section 29 of the Arbitration Act 1996, which provides that an arbitrator is not liable for anything done or omitted in the discharge or purported discharge of their functions as arbitrator unless the act or omission is shown to have been in bad faith. The two changes now close two potential previous routes around the section 29 protections. This will promote the integrity and impartiality of arbitration by encouraging arbitrators to act in line with their obligations, without fear of personal liability.
Practical impact
The practical implications of these changes include:
- Ongoing uncertainty in scope and application of arbitrators’ duty of disclosure – While the duty of disclosure is now codified, its precise scope remains somewhat vague (such as the extent of an arbitrator’s duty to investigate potential conflicts or the specific circumstances that must be disclosed). This reflects the fact that arbitration is used in a wide variety of industry sectors and the circumstances that might reasonably give rise to justifiable doubts as to an arbitrator’s impartiality may well vary from field to field. Future case law will therefore be crucial in defining the boundaries of this obligation and the consequences of non-disclosure of specific types of circumstance.
- Stronger protections for arbitrators – By limiting arbitrators’ exposure to personal liability in resignation and removal scenarios, the Act reduces the risk of parties using threats of legal action as a tactic to pressure arbitrators. This protection should foster more independent and confident arbitral tribunals.
In summary, while the Act is a step in the right direction toward further safeguarding arbitrator impartiality in London-seated arbitrations, there remains some uncertainty as to how aspects of the duty of disclosure will be applied in practice, which will have to be clarified by case law.
Our next article in this series will address the changes introduced by the Act, which clarify the courts’ powers in support of arbitral proceedings, including emergency arbitrators and the use of section 44 of the Arbitration Act 1996 against third parties.
- Arbitration Act 1996, section 23A.
- [2020] UKSC 48.
- Arbitration Act 1996, section 29(4).
- Arbitration Act 1996, section 24(5A).
This alert is part 5 in a 6 part series, please use the links below to read the rest of the series.
Client Alert 2025-087
