On 1 August 2025, the remaining substantive provisions of the Arbitration Act 2025 (the “AA 2025”) entered into force. Plenty of ink has been spilt by both lawyers and academics summarising the changes under the AA 2025. However, one provision in particular caught the Orrick team’s eye – the new power to make an award on a summary basis (section 7 of the AA 2025). Here, we briefly explore this new power, its potential impact and why it could matter to you.
Summary Relief in Arbitration Prior to the AA 2025
As with the Arbitration Act 1996, the AA 2025 applies to arbitrations seated, or deemed to be seated, in England, Wales and Northern Ireland.
In contrast to the established summary judgment procedure in the English courts, arbitration historically lacked a formal procedure for summary determination. Therefore, whilst it was technically possible for a party to attempt to persuade a tribunal to grant relief akin to a summary judgment, there was no established route to guide tribunals in doing so.
Some arbitral institutions sought to fill this gap through introducing their own comparable procedures, most notably:
- the “Early Determination” procedure under Article 22.1(viii) of the LCIA Rules 2020 (which permits a tribunal to order early determination of any claim, defence, counterclaim, cross-claim, defence to counterclaim or defence to cross-claim which is “outside the jurisdiction of the Arbitral Tribunal, or is inadmissible or manifestly without merit”);
- the “Early Determination” procedure under Article 43 of the HKIAC Rules 2024 (which permits a tribunal to decide points of law or fact on the basis that they are (a) “manifestly without merit”, (b) “manifestly outside the arbitral tribunal’s jurisdiction” or (c) even if such law/fact is correct, no award could be rendered in favour of that party); and
- the “Early Dismissal” procedure under Article 47 of the SIAC Rules 2025 (which permits a tribunal to order the early dismissal of a claim or defence which is (a) “manifestly without legal merit”, or (b) “manifestly outside the jurisdiction” of the tribunal).
However, for arbitrations seated in England, Wales or Northern Ireland which were not being administered under those rules with procedures for early determination or dismissal, parties remained reliant on persuading a tribunal to exercise its discretion. That is until now.
Section 7 of the AA 2025 introduces a new section 39A, which provides that:
“(1) Unless the parties otherwise agree, the arbitral tribunal may, on an application made by a party to the proceedings (upon notice to the other parties), make an award on a summary basis in relation to a claim, or a particular issue arising in a claim, if the tribunal considers that—
(a) a party has no real prospect of succeeding on the claim or issue, or
(b) a party has no real prospect of succeeding in the defence of the claim or issue”.
Why Could This Be Useful?
In some arbitrations, one party may have a very weak claim or defence. Unless summary procedures are available and implemented, their opponent and the tribunal are forced to go through the time and expense of a full arbitration to obtain an award. The Orrick team has seen the value of early determination procedures first-hand, having recently secured a successful early determination of an arbitration under the LCIA Rules 2020.
The introduction of section 7 of the AA 2025 empowers tribunals in arbitrations seated, or deemed to be seated, in England, Wales and Northern Ireland to make an award on a summary basis, even where the applicable arbitration rules do not expressly provide for such a power.
From 1 August 2025, where the AA 2025 applies and the parties have not agreed to exclude section 7, a party with a strong position can apply to the tribunal for summary determination if their opponent’s claim or defence has no real prospect of success. If granted, this procedure will save considerable time and money for all involved.
Warning: This Will Still Be a High Bar
Whilst this all sounds like a very attractive development, parties and counsel should be mindful that such applications will only be appropriate in limited circumstances, and the bar for obtaining a summary award remains high. This is underscored by the LCIA’s statistics for 2024, which note that out of 16 applications for early determination, only one was granted.
In any event, this is a welcome development for arbitration, and a useful additional tool for parties and tribunals to promote efficiency where appropriate.
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