Crossing Borders: A Comparative Analysis Looking at the Reform of the English Arbitration Act with the U.S. Restatement

Document Type

Book Chapter

Publication Date

9-2026

Abstract

Arbitration, revered as a cornerstone of modern legal systems for its capacity to provide parties with autonomy, efficiency, and flexibility in resolving disputes, occupies a prominent position in England and Wales as well as in the United States. Both English and U.S. law have embraced arbitration as an important means of dispute resolution. This is as true of international as well as domestic arbitration.

In England and Wales, arbitration is regulated by the 1996 EAA (the EAA), whose impressive structure and content – together with numerous interventions by English courts – have helped London become one of the most preferred seats for international arbitrations. In light of the evolving landscape since the initial publication of the EAA and heightened competition from other arbitration-friendly jurisdictions, on 30 November 2021, the Law Commission of England and Wales (the Law Commission) responded to a request from the Ministry of Justice and announced its intention to review the EAA as part of its 14th program of law reform. On 6 September 2023, the Law Commission published its final report (the Report) on potential reforms to the EAA (the English Reform). It also included a draft bill to put these changes into effect (the Draft Bill). In July 2024, the newly elected Labour Government stated that it would move forward with the reforms of the EAA. The Arbitration Act 2025 came into force on 1 August 2025.

Conversely, in the United States, owing to the complex federal structure, arbitration has developed against the backdrop of federal and State statutes, in conjunction with the respective judicial precedents. From a federal perspective, the U.S. Federal EAA (the FAA) and connected case law have played a fundamental role in the development of arbitration in the U.S. States are free to develop their own legislation and case law, provided it is consistent with the federal law of arbitration. However, the FAA is over a century old and largely unamended since its enactment. As a result, arbitration law in the U.S., though nominally statutory in form, is effectively case-based. This created a need for the 2019 Restatement of the U.S. Law of International Commercial and Investor–State Arbitration (the Restatement) prepared by the American Law Institute (ALI). The Restatement presents the U.S. position on critical issues on arbitration drawing on federal and state practice. Some Restatement provisions depart from the prevailing case law where there is good reason to do so.

This chapter analyses the main areas of reforms to the EAA as suggested by the Law Commission and compares each of them with the prevailing law and practice in the U.S. The following sections discuss (a) arbitrator independence and impartiality and the related duty of disclosure (Part II); (b) removal of arbitrators and arbitrator immunity (Part III); (c) orders against third parties (Part IV); (d) emergency arbitrators (Part V); (e) scope of challenges to awards (Part VI); and (f) the law governing the arbitration agreement (Part VII). We end the chapter by providing some final remarks.

Disciplines

Comparative and Foreign Law | Dispute Resolution and Arbitration | International Law | Law

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