Arbitration was one of the original ADR processes to offer cheaper and quicker dispute resolution (DR) than the courts. Over many years, legislation has developed (the Arbitration Act 1996 (Act) being the latest) to establish arbitration as a trusted, domestic DR process. At the same time, English law's strong reputation, combined with benefits such as confidentiality and specialist arbitrators, has made England and Wales (and particularly London) a destination for international DR.

Ensuring international parties continue to choose English law and an English/Welsh seat is partly what lies behind the Law Commission's recent decision to review arbitration. Some see no reason to change a successful process, but others agree it is time to review, for example, whether appeals on points of law should be available and procedural issues relating to e-service of documents, electronic awards and virtual hearings.

However, the radical changes of the last 25 years mean the review takes place against a very different backdrop to that of the 1990s. Technology is transforming DR processes. Gender/race inequality is recognised in the arbitration community but progress towards equality is slow. The consequences of Brexit and COVID-19 have created complex regulatory, trade and economic challenges. Climate change demands new ways of operating to reduce carbon emissions.

The Law Commission, which acknowledged these challenges as themes for its 14th Programme of reform, could find much to inform the broader aspects of its review process in the arbitration/DR community's wide-ranging initiatives. Examples include:

• on gender: ArbitralWomen which supports campaigns that promote women in DR (and other) fields; and the Equal Representation in Arbitration (ERA) and the GQual campaigns that promote representation of women on international arbitrations (see also the ERA pledge);
• on race and gender: the CiArb's Women in ADR Campaign's gender diversity and inclusion policy statement; the ICCA 2020 report of the Cross-Institutional Task Force on Gender Diversity in Arbitral Appointments and Proceedings (which also promotes the ERA pledge); and JAMS' diversity and inclusion clause for use in amending arbitration agreements to ensure parties consider gender, ethnicity and sexual orientation when making appointments;
• on environmental issues: the Campaign for Greener Arbitrations which encourages stakeholders to sign up to the Green Pledge and reduce carbon footprints in DR; and the Net Zero Lawyers Alliance which encourages the setting of net zero targets;
• on access to justice: shorter arbitration processes like the Society of Construction Arbitrators' 100 Day Arbitration Procedure could provide a wider choice of process when negotiating arbitration agreements and promote proportionate arbitration;
• on technology: industry guidance, like the CIArb Framework Guidance on the use of technology in International Arbitration, on how to deal with new technology, as well as litigation experience gained from pilots on new Civil Procedure Rules (such as the e-disclosure pilot); and
• on promoting settlement: the recent CJC report and consultation into when and whether compulsory mediation might be appropriate.

Whether, and to what extent, the goals behind these initiatives could/should be furthered by amending provisions in the Act is debatable. However, the review presents an opportunity for our world-class arbitration community to lead by example. How could the Act promote fairness, equality, transparency and access to justice as well as the legal and technical excellence, efficiency and value the international community has come to expect?

This article was published in Construction Law as the ADR Column on 2 March 2022. You can sign up to Construction Law newsletters here.