27 September 2022

When considering submitting to arbitration, there are a number of points to bear in mind regarding the suitability of the arbitral process to resolve disputes arising from the contract. This article sets out some of these key considerations.


A crucial benefit of arbitration is that arbitral proceedings will generally be confidential between the parties and the tribunal. This is a major selling point for contracting parties who do not want sensitive issues and/or potentially damaging allegations made against them being aired in the public forum of Court. 

However, it should be noted that if the successful party sought to enforce their arbitration award by way of subsequent litigation, this presents a risk that confidentiality in the arbitration award could be lost. Whilst this is a risk, the courts will generally anonymise the parties to enforcement proceedings in any written judgment.

Party Autonomy and Flexibility

Arbitration is a process agreed by the parties. As such, the parties have a significant degree of autonomy and flexibility to shape the arbitration proceedings and the process to resolve their dispute. This is in stark contrast to court proceedings where there is a relatively rigid set of procedural rules, to which the parties have to adhere to but have minimal input in shaping.

Disclosure of Evidence

In litigated matters in the English court system, the parties will usually have to go through a disclosure stage in proceedings which is often both onerous and expensive. Generally, parties will be required to disclose all documents which are relevant to their respective cases including those documents which support their case, are adverse to their case or support the other party’s case.

Under most arbitral rules, the disclosure process is more flexible, with the parties initially required only to disclose documents upon which they rely. The opposing party will then review those documents and make specific, targeted requests for other documents. This more focussed approach can save the parties significant legal costs when compared to the litigation equivalent.

Limited right of appeal

Most arbitration agreements will state that the arbitral tribunal’s award is final and a binding without a mechanism to appeal. This leaves parties with only a limited number of options in challenging the arbitral tribunal’s award under the Arbitration Act 1996 (the “1996 Act”), namely:

  1. Challenging the arbitral tribunal’s jurisdiction (s67 of the 1996 Act);
  2. Challenge on the grounds of serious irregularity affecting the arbitral tribunal, the proceedings or the award (s68 of the 1996 Act);
  3. Challenging in the arbitral tribunal’s award on the basis that the tribunal erred on a point of law (s69 of the 1996 Act).

A limited right of appeal may be seen as advantageous in seeking a final resolution to a dispute without the delay and expense of an appeal process. However, this is often of no comfort to a losing party where, for example, the arbitral tribunal has made an award based upon a misinterpretation of facts.


Whilst, in certain circumstances, arbitration can be a more cost effective option than litigation, this is contingent upon the parties’ cooperation and adoption of a streamlined arbitration procedure. Where, for example, the parties have agreed to the appointment of a three member tribunal to resolve disputes arising under a contract, costs can quickly escalate and the dispute may become uneconomical to pursue and/or defend.

Burges Salmon has considerable experience in preparation of arbitration agreements and conducting arbitration proceedings and would be delighted to assist you with any arbitration related issues that you may have.

If you need any advice or support with such issues please contact the authors of this article, Gregor Hayworth and Christopher Wenn.

Key contact

Richard Adams

Richard Adams Partner

  • Construction and Engineering
  • Construction Disputes
  • Energy and Utilities Disputes

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