Neil Newing and Amany Chamieh comment on the litigation challenges to arbitration proceedings in ICLG

Neil and Amany’s comments were published in ICLG, 19 August 2025, here.

Commenting on the growing trend of parties seeking anti-suit injunctions, Neil noted that “In England and Wales, there has been an increasing trend over the past year or so of anti-suit injunctions being sought from the courts by parties seeking to restrain foreign proceedings being commenced in breach of an arbitration agreement.  This is reflected in the most recent Commercial Court annual report published earlier this year, which confirmed that there has been a 150% increase in applications for injunctions in support of arbitral awards.  We should be cautious, however, not to overstate this as being part of a wider threat to the benefits of arbitration, as many of these cases have been responding to one specific threat, namely Russian counterparties relying on the Russian law that was implemented in response to sanctions, granting exclusive jurisdiction to the Russian courts to hear any disputes involving sanctioned Russian entities.”

Neil added that, “The Commercial Court report has also confirmed a general increase in challenges to arbitral awards, particularly on jurisdictional grounds (a 242% increase), although the success rate of all such challenges remains very low, which tends to reinforce rather than undermine one of the key benefits of arbitration, namely finality.  It will also be interesting to see how this upward trend in litigation challenges to arbitral proceedings is impacted by some of the reforms introduced by the Arbitration Act 2025, which come into force on 1 August 2025.  For example, there ought to be fewer disputes about the governing law of the arbitration agreement which (in the absence of express choice) will now be the law of the seat, and going forward jurisdiction challenges will generally be limited to a review of the Tribunal’s decision rather than a de novo hearing of all of the evidence which may discourage some parties from pursuing them.”

Commenting how the French are looking to stem the tide of judicial challenges, Amany said, “Arbitration in France is widely recognised for its efficiency and limited court intervention, supported by a traditionally pro-arbitration legal framework. While annulment rates remain low, recent case law reflects a rise in judicial review attempts, fuelling debate within the arbitration community. The government’s current reform efforts are explicitly designed to ensure that arbitration law remains responsive to contemporary business needs and to maintain France’s leading role by reinforcing the integrity and efficiency of arbitration. The proposed reform focuses in part on concentrating litigation in specialised judicial authorities, preventing the proliferation of costly and time-consuming parallel proceedings, and clarifying the interface between arbitral and judicial processes. This modernisation initiative demonstrates an ongoing commitment to safeguarding arbitration against the risks of associated litigation, ensuring that its core benefits are both preserved and strengthened for users.”