The insertion of Section 39A under the English Arbitration Act 19961 gives an inherent vested power in tribunals for summary judgment. It is the first time the tribunals have been expressly granted jurisdiction to determine claims and defences on a summary basis, which can bring both strategic advantage and procedural complexity for parties.
Before the amendment, summary disposal, which was not expressly provided for in the Arbitration Act 1996, had to be approached cautiously by arbitral tribunals, as the threshold is high for summary disposal, which is being given under institutional rules like Article 22(viii) of LCIA Rules 20202 or Article 43 of Hong Kong International Arbitration Centre Rules (HKIAC) 20243 or Rule 47 of SIAC Rules 20254, due to their inherent duty to be fair. An attempt to dispose of at an early stage could result in subsequent challenges to fairness in procedure, in an area described as due process paranoia. It could risk tainting awards annulled on account of natural justice requirements. Consequently, this would lead to high-cost adjudication of procedural complexity and meritless claims in arbitration, resulting in unnecessary waste of resources and time for the parties.
While this legislative evolution is framed as a step toward procedural efficiency, it arguably stems less from principled reform and more from commercial pressure to keep London competitive as a seat of arbitration. In attempting to emulate the CPR model, Parliament risks conflating court efficiency with arbitral flexibility in two regimes built on fundamentally different foundations. Arbitration’s consensual nature and minimal curial intervention make procedural transplant from litigation conceptually problematic. This fundamental conceptual difference undermines the premise of Section 39A’s legislative importation.
In contrast, the Civil Procedure Rules (CPR) Part 245 provide English courts power to strike out meritless claims or decide in the favour of defendant via summary judgment once it is established that there is “no real prospect of success on issue” and “no other good reason for trial,” without disclosing the evidence at an early stage via pleadings, in contrast to international arbitration, where evidence needs to be filed concurrently with pleadings.
In the 2022-2023 report6, the Law Commission identified the current and considerable disparity in the process of arbitration and made a recommendation for the application of summary disposal powers to arbitrators; however, it is non-mandatory. The intention was clear: to equip tribunals with an effective procedure for
1 English Arbitration Act 1996, Section 39A
2 LCIA Arbitration Rules 2020, Art. 22.1(viii).
3 Hong Kong International Arbitration Centre, Administered Arbitration Rules (2024) art 43
4 Singapore International Arbitration Centre, Arbitration Rules (2025) r 47
5 Civil Procedure Rules 1998, r 24.2
6 Law Commission, Review of the Arbitra/on Act 1996: Final Report and Dra; Arbitra/on Bill (HC 1787, Session 2022–23, 6 September 2023)
disposing of obviously meritless claims without requiring time-consuming and costly full-scale examination, particularly where no bona fide dispute arose or arbitration had been commenced to deal with trifling issues that could be better addressed through settlement or mediation. In setting out this recommendation, the Commission noted that leading arbitral institutions – namely, the LCIA (Article 22.1(viii), 2020 Rules), SIAC (Rule 47, 2025 Rules), and HKIAC (Article 43, 2024 Rules) had already adopted a similar trend through a term early determination procedure of one kind or another.
Section 39A makes provision for either party to apply for a summary award where there is no real prospect of success, mirroring the threshold under the CPR. Notably, unlike CPR Part 24, the provision rule omits the secondary test: no other compelling reason why the case or issue should be disposed of at trial. Section 39A’s adoption of less demanding CPR test, with no real prospect of success, likely reduces the threshold for removal, thereby increasing the prospect of early settlement while raising new questions regarding its operation. Historically, organisational regulations required a stricter test for premature removal, requiring an application to be manifestly without merit. This heightened test ensured institutional caution in protecting due process and preventing potential enforcement challenges regarding awards in legal frameworks where differences in procedure could be the basis for refusal to recognise. As such, applications for removal were rarely granted.
Section 39A(3) rigorously safeguards due process by requiring parties to have a fair opportunity to respond to any summary disposal request. Yet, this protection risk is delusional in practice. The provision’s failure to stipulate procedural thresholds, such as when an application may be made, evidentiary standards, or how the tribunal should assess fairness, delegates excessive discretion powers to arbitrators without clear legislative guidance, creating unpredictability and transparency in summary disposal. This could fracture consistency across tribunals, allowing efficiency to eclipse procedural integrity.
From a policy standpoint, this ambiguity reflects a deeper tension between arbitral autonomy and due-process principles. While flexibility is a core principle of arbitration, unregulated discretion invites accusations of procedural arbitrariness precisely the ‘due process paranoia’ the amendment sought to eliminate. A more coherent balance might have been achieved had Parliament imported the procedural rigour of CPR Part 24, ensuring both predictability and fairness without sacrificing expedition. The current framework arguably yields an outcome inconsistent with the Law Commission’s efficiency-oriented rationale.
The leniency in the criteria for eligibility could lead to potential discrepancies in implementation. For instance, it is not clear whether an application may be made at once after the issuance of pleadings or only after the full disclosure of evidence. In comparison, summary judgment in English courts occurs after the exchange of statements of case, where even if important evidentiary disclosure is not made, pleadings are evaluated by the
court. In contrast, in the context of arbitration, in many instances, pleadings and evidence tend to be submitted jointly, which raises uncertainty on when it is best to apply Section 39A.
There is a legitimate concern that Section 39A can be abused by litigants for tactical reasons, by making premature applications for the purpose of forcing defendants to divert resources towards meeting early requests for summary disposal. Although failed motions will not directly hurt defendants, however it may impact financial and administrative costs that can be tactically exploited against the claimant. Successful motions can also significantly impact the trajectory of judicial proceedings by frustrating fundamental claims or defences, even before a primary consideration of the evidence. It should be noted that parties have the power to exclude the application of Section 39A by consent. Where parties agree to exclude summary disposition according to their arbitration contract, the tribunal will be without such specific statutory power, as this provision is not mandatory. The coexistence of institutional rules and Section 39A opens up the risk of conflict. Institutional rules setting an obligatory “manifestly without merit” standard may come into conflict with the comparatively lenient threshold provided in Section 39A, thus raising uncertainty on whether the criterion should direct the tribunal’s decisions in LCIA proceedings; however, it also significantly raises the issues of the bar being so low for filing the said application under Section 39A of the Arbitration Act 1996. Such situations risk conflict where parties argue that divergent standards should be applied depending on whether institutional rules or statutory regimes apply to the rules governing procedure.
The statutory tests may also disturb the equilibrium between party autonomy and procedural fairness. By allowing tribunals to adopt a lower threshold than institutional rules for early judgment, Section 39A risks undermining the parties’ contractual framework, a foundational pillar of arbitration. It is questionable whether Parliament should have intervened in an area effectively self-regulated by arbitral institutions with well-tested mechanisms for summary disposal.
Additionally, institutional rules like (LCIA, SIAC or HKIAC) usually provide clearer procedural direction for early discharge requests compared to Section 39A and a high threshold, which tends to be poorly defined and lacking in particular criteria on timing, evidence, and exercising the tribunal’s discretion. The existence of such differential standards is bound to lead to additional procedural hurdles and increase the likelihood of appeals under Section 68 (serious irregularity) or Section 69 (appeal on a point of law), or at a later stage during enforcement under Section 103 or 66 of the Arbitration Act 1996.
Ultimately, Section 39A’s introduction represents both innovation and intrusion. It recognises the need for swift resolution of frivolous claims but does so by unsettling the contractual autonomy that gives arbitration its legitimacy. The absence of procedural precision leaves tribunals vulnerable to inconsistent application and parties exposed to tactical misuse. Unless clarified by judicial interpretation or institutional harmonisation, Section 39A may create more uncertainty than efficiency, a paradox that undercuts its very rationale.
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