In the course of completing my contribution to Rick Bales and Jill Gross’s forthcoming edited volume, The Federal Arbitration Act: Successes, Failures, and a Roadmap for Reform, I conducted research on new arbitration law developments as of 2023. Here is what I found, which I hope will be of interest:
New Legislation
Seven countries introduced new arbitration laws or amendments to existing arbitration laws:
Albania enacted an entirely new law governing domestic and international arbitration that is based on the 1985 version of the Model Law. This new enactment fills a significant gap left after the Code of Civil Procedure provisions relating to domestic arbitration were entirely repealed in 2013.
The Bahamas legislature passed the Arbitration (Amendment) Bill 2023 and the International Commercial Arbitration Bill 2023, both of which are based on the 2006 Model Law. It is unclear whether the Bills have yet been assented to by the governor-general.
Greece overhauled its International Commercial Arbitration Act, introducing forward-thinking provisions on interim measures, case management, electronic contracting, and joinder and consolidation.
Japan amended its Arbitration Act of 2003 to include provisions on interim measures by the arbitrators and arbitration agreements recorded in electronic form, among others. These reforms were enacted with a view to making the country a more desirable arbitration hub.
A new law in Luxembourg implements far-reaching reforms to the country’s domestic and international arbitration regimes—reforms inspired by Belgian, French, and Swiss law, as well as the 2006 Model Law.
Nigeria welcomed the Arbitration and Mediation Act, 2023—a product of years of reform efforts that bring the country into line with the 2006 Model Law. The new Act introduces procedures on emergency arbitrators and appellate arbitration, among others. Part II(C), relating to the Singapore Convention on Mediation, was the subject of one of my prior posts.
Trinidad & Tobago enacted the Arbitration Act, 2023, which introduces reforms based on the 2006 Model Law.
Arbitration Reforms on the Horizon
Bills have been introduced in Brazil to (1) amend the Brazil Arbitration Act regarding arbitrator disclosures, concurrent appointments, and the publication of awards, and (2) amend the Securities Act and the Corporation Act by introducing new rules on class arbitration and by making public any arbitration of corporate disputes where publicly traded companies are involved.
In China, groundbreaking changes designed to bring the country in line with international best practices (including with regard to virtual hearings and interim measures) were the subject of public consultations in 2021 and have been promoted to the 2023 legislative agenda.
In April 2023, Germany‘s Ministry of Justice published a paper outlining twelve proposals for the reform of German arbitration law, including with respect to arbitration agreements in electronic form, multi-party arbitrations, publication of awards, virtual hearings, emergency arbitrators, and funneling enforcement and set aside proceedings to higher regional courts where proceedings may be conducted in English.
The Government of India recently constituted an expert committee to re-evaluate the Arbitration and Conciliation Act, 1996, which had been significantly amended in 2015 and at least once since then. A public consultation period was held in the summer of 2023, in which yours truly participated.
In January 2022, the Law Commission of England & Wales initiated a review of the Arbitration Act, 1996, which included several rounds of reports and public consultations and resulted in a final report recommending reforms around arbitrator disclosure, arbitrator immunity, summary disposition procedures, the law governing an arbitration agreement, and emergency arbitrators, among others.
In 2022, Russia’s Ministry of Justice proposed amendments to the domestic arbitration act, inter alia, to impose restrictions on ad hoc arbitration, to create a registry of arbitral institutions licensed to hear disputes involving sate controlled entities, to create a registry of “bad faith arbitrators” whose awards were set aside or refused enforcement, and to introduce new disclosure requirements for third party funding.
In Oceania, a bill for a new arbitration act is pending in Papua New Guinea, and there are reports that Samoa and Nauru are engaged in capacity building discussions, including regarding new legal frameworks for arbitration, with UNCITRAL and the Asian Development Bank.
That’s a surprising number of new and ambitious sounding developments! Meanwhile, in the United States the Federal Arbitration Act has remained largely unchanged since 1925. True, it has been amended ten times since then. But most of those amendments are either clerical or, like the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021, are highly circumscribed in scope. Are we at risk of being left behind? This is one of the questions I raise in my contribution to Rick and Jill’s book.
