Mutual Arbitration Agreement Template for England and Wales

A mutual arbitration agreement binds both parties equally to resolve disputes through arbitration. Courts in England and Wales have historically been cautious about one-sided clauses that give one party the option to litigate while requiring the other to arbitrate. A genuinely mutual clause is more likely to be upheld as fair and consistent with the Arbitration Act 1996.

Section 5 of the Arbitration Act 1996 requires the agreement to be in writing, but this is interpreted broadly. An exchange of emails or references in contract documents to institutional arbitration rules can satisfy the writing requirement. Oral arbitration agreements are not governed by the 1996 Act, though they remain enforceable as common law contracts.

The parties can agree to appoint a sole arbitrator jointly, require each party to appoint one arbitrator with a third appointed by the two party-appointed arbitrators, or delegate appointment to an arbitral institution such as the LCIA or ICC. If the parties cannot agree and the contract is silent on default appointment, section 18 of the Arbitration Act 1996 allows either party to apply to court.

Yes. A mutual arbitration agreement contained in standard terms, a framework agreement, or institutional rules is validly incorporated by reference, provided the incorporating document makes clear that the arbitration clause is intended to be part of the contract. Courts apply a general reference test where the arbitration clause is itself part of the standard terms being incorporated.

Parties may seek interim relief from either the arbitral tribunal under section 39 of the Arbitration Act 1996 or from the English courts under section 44. Courts can grant freezing injunctions, search orders, and orders for the preservation of evidence. Section 44 relief from courts is available unless the tribunal or another institution is empowered to act and does so effectively.

Yes. Section 68 of the Arbitration Act 1996 allows a challenge for serious irregularity, which includes the arbitrator's failure to disclose a conflict of interest amounting to apparent or actual bias. The challenge must be made promptly, generally within 28 days of the award being notified, and the applicant must show the irregularity caused substantial injustice.

English law recognises an implied duty of confidentiality in arbitration proceedings, covering hearings, awards, and related materials. This was established in Ali Shipping v Shipyard Trogir [1999]. The duty is not absolute; disclosure may be permitted by court order, where required by law, or to enforce or challenge the award. Parties often reinforce this with an express confidentiality clause.

Under section 61 of the Arbitration Act 1996 the tribunal may award costs in its discretion, with the general principle that costs follow the event unless circumstances justify a different order. Arbitration costs include the tribunal's fees, institutional fees, and the parties' legal and expert costs. Parties may also agree a costs cap in their mutual arbitration agreement.