Where the Tribunal Stops and the Court Begins: Drafting Arbitration Clauses for 2026

Arbitration clauses are often treated as fixed furniture. They are copied from a precedent, adjusted once for the counterparty, and then left alone while the commercial terms change around them. The Arbitration Act 2025 has made that habit more expensive. The Act does not replace arbitration with litigation, nor does it make every old clause defective. It does, however, change several default rules that apply where the agreement says little. In 2026, a clause that was adequate when drafted may now produce a different allocation of authority from the one the parties assumed.

The central point is simple: the seat is not the system. A clause that names a city, or refers vaguely to arbitration in London, does not necessarily answer the questions that matter when a dispute begins. Which courts supervise? Can the tribunal dispose of a weak claim summarily? May a party seek emergency relief before the tribunal is constituted? Are there appeal rights, and have they been excluded in terms that a court will recognise? Those questions are best answered before the relationship breaks down.

The clause that says too little

A familiar formulation provides that disputes shall be referred to arbitration in London. It may be adequate in many cases, but it leaves important matters to inference. London may be the venue for hearings, the seat of the arbitration, or both. The governing law of the contract may differ from the law of the arbitration agreement. The supervisory court may be the English courts, but the clause does not say so. If the parties later disagree about whether a tribunal has jurisdiction, or whether an award should be challenged, that silence becomes a source of cost.

The 2025 Act supplies default answers in some of these situations, including a default seat where the parties have not agreed one. Defaults are useful for parties who never turn their minds to the issue. They are not a substitute for a deliberate choice. A default rule is designed to resolve silence, not to express commercial intent. Where the parties want the courts of England and Wales to supervise, the clause should say so. Where they want a different juridical seat, the clause should identify it expressly and consistently with any institutional rules incorporated.

Seat, venue and the supervisory court

The distinction between seat and venue is not semantic. The seat determines the juridical home of the arbitration and, with it, the courts that exercise supervisory jurisdiction. The venue is where hearings, witnesses or deliberations happen. A clause may permit hearings in Singapore, Zurich or elsewhere without changing the seat. Drafting should therefore separate the two ideas. A useful formulation identifies the seat as England and Wales, states that the courts of England and Wales have supervisory jurisdiction, and permits hearings to be held elsewhere if the tribunal considers it appropriate.

Parties should also check that the arbitration agreement is governed by the law they intend. It is common to see a governing law clause for the contract and no separate provision for the arbitration agreement. In most cases the same law will be intended, but not always. A short express provision reduces the scope for argument where the contract and the arbitration have different connecting factors.

Summary disposal: speed with conditions

The 2025 Act introduces a statutory basis for summary disposal by tribunals. The purpose is to allow claims or defences with no real prospect of success to be dealt with without a full hearing. For commercial parties, this can be valuable in debt claims, obviously unmeritorious defences and disputes where the cost of a full procedure would exceed the amount at stake. It can also create a new source of procedural complaint if the clause and the tribunal's powers are not aligned.

Parties who want summary disposal should make that intention clear and should consider the procedure they expect. Parties who do not want it should consider whether the Act permits them to disapply it and, if so, whether the institutional rules they have chosen are consistent with that choice. The worst outcome is a clause that appears to promise a fast procedure but leaves the tribunal uncertain whether it may adopt one. A summary award is still an award. If the procedure is unclear, the losing party may look for a serious irregularity. Clear drafting does not eliminate challenges, but it narrows the space in which they can grow.

Emergency relief and the court's supporting role

The Act also places emergency arbitration on a clearer statutory footing. Emergency relief can preserve the position before a full tribunal is constituted, particularly where assets may be moved or evidence may disappear. But emergency arbitration sits alongside, not entirely instead of, the court's supporting powers. A clause that says all disputes shall be referred to arbitration may be read too broadly if it appears to exclude urgent court applications. A clause that says nothing may leave the parties uncertain about sequencing.

A practical clause will address both. It may provide that a party may apply for the appointment of an emergency arbitrator under the chosen rules, and that nothing in the arbitration agreement prevents a party from applying to the courts of England and Wales for interim or conservatory relief. It may also set out a sequence: emergency arbitrator first where practicable, court application where the urgency requires it or where an order is needed against a third party. The aim is not to encourage parallel proceedings. It is to prevent a party from being forced to wait while the subject matter of the dispute is dissipated.

Appeals and challenges: do not draft a second system

The 2025 Act retains the framework within which awards may be challenged, including on jurisdiction and serious irregularity, and the limited right of appeal on a point of law. Parties sometimes add bespoke appeal provisions in an attempt to create certainty. Too often, those provisions conflict with the institutional rules or with the statutory framework. A clause that says an award is final and binding may not, by itself, exclude every available route of challenge. If the parties intend to exclude the point of law appeal, they should use clear words and check that the exclusion is effective under the chosen law.

The same discipline applies to multi-tier dispute clauses. A negotiation or mediation step should have a clear timetable, a clear trigger and a clear consequence if it is not followed. Otherwise the arbitration clause may be stayed while the parties argue about whether a condition precedent has been satisfied. The dispute resolution clause should be a procedure, not a puzzle.

A checklist for 2026

Before the next contract is signed, the clause should answer a short set of questions. What is the juridical seat? Which courts supervise? Which institutional rules apply, and which version? Is summary disposal intended, excluded or left to the tribunal? Is emergency relief available, and how does it interact with court applications? Are appeal rights excluded, and if so, in terms that work? Is the arbitration agreement governed by the intended law? Do the dispute resolution steps align with limitation periods and notice provisions?

None of this requires a long clause. It requires a deliberate one. The 2025 Act has not made arbitration less attractive. It has made the consequences of inherited boilerplate easier to see. The parties who revisit their clauses in 2026 will not eliminate disputes, but they will reduce the chance that a dispute about the dispute becomes the first issue to be decided.