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The long-standing view is that questions of EU law – including mandatory issues (such as competition law issues) – are arbitrable; it has been held that a tribunal that fails to apply these mandatory laws faces the risk of having its award set aside: Case C-126/97 Eco Swiss [1999] ECR I-3055. This pro-arbitration stance is reflected in English law’s approach to the construction of arbitration agreements.The English courts tend to construe an arbitration clause widely and generously to the party that seeks to rely on it.

Section 69, on the other hand, is not mandatory and the right to appeal to the court on a question of law can be excluded if the parties so agree.The parties will be deemed to have excluded an appeal under Section 69 if they agree that the tribunal is not required to give a reasoned award.

The process is not a judicial review but a complete retrial.Section 68 is also a mandatory section and the parties cannot contract out of it. These powers mainly relate to applications to stay court proceedings brought in breach of an arbitration agreement (section 9) or in order to exercise the English court’s powers to secure the attendance of witnesses (section 43) or to grant injunctive relief in support of the arbitration (section 44).The rules of a number of arbitral institutions, such as the LCIA and the ICC, now also provide for the appointment of an emergency arbitrator to grant interim relief in situations where the arbitral tribunal has yet to be appointed.Under section 38(3) of the 1996 Act, the arbitral tribunal can pass an order for security of costs of the arbitration.

The application may even be dismissed if such an order is made and not complied with.Section 70(6) provides that on any application under sections 67, 68 or 69, the court may order the applicant or appellant to provide security for the costs of the application or appeal. For instance, in Exmek Pharmaceuticals SAC v Alkem Laboratories Ltd [2015] EWHC 3158 (Comm), a contract contained both an arbitration clause and an exclusive jurisdiction clause for “UK” courts, which appeared to be inconsistent.
Article 2(2) of the UK Model BIT states:Article 5(1) of the UK Model BIT covers expropriation:That expropriation should be for a public purpose related to the internal needs of the Contracting Party is common to UK BITs. In contrast, the right to appeal on a point of law under Section 69 may be excluded if the parties so agree.A challenge to the tribunal’s substantive jurisdiction may extend to a final award that deals with the merits of the case or to a preliminary award on the tribunal’s jurisdiction.
(The latter procedure is rarely followed. As noted above, there are a limited number of disputes which are not arbitrable, including: criminal, planning and certain family law matters; insolvency proceedings subject to the statutory regime set out in the Insolvency Act 1986; and certain employment disputes. Words/spaces in square brackets should be deleted/completed as appropriate.

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