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Arbitration Law Introduction. Types of dispute resolution. Arbitration agreements. Arbitral Tribunal. Appointment of arbitrator, qualifications, remuneration, rights and duties. Termination of appointment. Commencing the reference, Procedures to be followed Pre-hearing Issues. The Hearing. Arbitration Awards. Judicial control of arbitration. (case stated/set aside/removal) International Arbitration – white book comm. Law
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Introduction: Types of Dispute Resolution
No matter how well a contract is drafted, how comprehensive or well planned it is disputes arise. There are several methods by which commercial disputes can be resolved. The main forms are as follows:1 Negotiation 2 Litigation 3 ADR (alternative dispute resolution which includes conciliation and mediation or mini trial) 4 Arbitration. Negotiation between the parties in dispute or their representatives should be the first step as it is more economical than the other methods of resolution, the details of the transaction in dispute remain private and the parties remain in control. Also where a negotiated settlement is reached by implication both sides are reasonably content with the outcome. It is also easier maintain a mutually beneficial relationship after a negotiated settlement than after an intense battle in court for example. Where a negotiated settlement cannot be reached recourse to other mechanisms of dispute resolution may be necessary. Conciliation and Mediation and Mini-trials These aim to achieve an amicable settlement through the use of an independent and impartial third party. The terms conciliation and mediation are often used interchangeably though there is a distinction:- a conciliator may seek to find common ground between the parties and encourage them to reach a settlement whereas a mediator on the other hand can be more active in trying to achieve a settlement. A mediator brings proposals and counter-proposals to the parties and helps them to settle. Mediation or conciliation per White on Commercial Law are best suited to parties with a friendly trading relationship. They have the advantages of privacy and speed. UNCITRAL and the ICC each promote there own set of conciliation rules that can be
adopted by parties seeking to solve their disputes by means of conciliation. Mini-trials are a form of small scale in-house litigation where the issues in dispute are presented by each parties in-house lawyers to a panel of senior executives, one from each side (who are not connected with the dispute), there is usually a neutral chairman, eg a retired Judge. After hearing the presentations the panel retires and reaches a negotiated settlement which should be in the form of a written agreement which can thus be enforced as a contract. ADR is now part of the Civil Procedure Rules in the UK since 1999 where courts are placed under an express duty to manage cases including encouraging parties to use ADR if the Courts consider it appropriate and facilitating such use. The Courts general power of case management could allow it order parties to use ADR. A party can request in writing that cases be stayed pending ADR. In deciding the matter of costs the Court can look at how a party behaved, in particular the effort made to try to resolve the dispute during the proceedings. There are similar provision in our Commercial Court In Ireland a Judge of the Commercial Court (a division of the High Court which deals with certain commercial cases) may adjourn commercial proceedings for not longer than 28 days, in order to refer the dispute for mediation, conciliation or arbitration. (See Legal Methods Notes re Commercial Court/List). The Civil Liability and Courts Act 2004 has provisions in relation to mediation in personal injuries actions. Section 15 provides for a mediation conference. Upon the request of any party to a personal injuries action the court may direct that the parties meet to discuss and attempt to settle the action. (where a party fails to comply with such a direction the Act provides that the court may direct that party to pay costs incurred after the giving of the direction). The parties may agree on a mediator or, in the absence of such agreement, the court may appoint a person to chair the conference. Where a court appoints a chairperson, the mediator must be a practising barrister or solicitor of not less than five years standing or a person nominated by a body prescribed by order. The section provides that the notes of a chairperson of a mediation conference and all communications during it shall be confidential and cannot be used in evidence in any subsequent civil or criminal proceedings. People will be able to admit to having been somewhat negligent without this being thrown at them afterwards in court as a concession they made during the conference. Section 16 of the Act provides that the chairperson of a mediation conference must prepare and submit to the court a report of the conference. The report shall outline that the mediation conference took place, if it did not take place the reasons why, or where it took place, whether a settlement was reached, whether a settlement has been entered into and a statement of the terms of the settlement signed by the parties. A copy of the report is given to each party to the action at the same time it is submitted to the court. Arbitration Arbitration is a process by which parties voluntarily refer their dispute to an impartial third party (an arbitrator) selected by them for a decision which is legally binding on all the
parties. It thus requires the consent of all parties to the dispute. Thus it is a method of resolution of disputes that is final, binding and enforceable. Arbitration is voluntary and consensual and by third party adjudication.. Arbitration is different from other means of dispute resolution in that:a. it is a consensual process that offers finality b. it is a private process – hearings are in private and details of awards are not published. c. parties can select their own adjudicator often on the basis of skill or expert knowledge. Arbitration is said to avoid many of the drawbacks of litigation and has the following advantages 1 Speed – at times it can be much quicker than court. As the parties have control over the procedure they have control subject to the co-operation of the arbitrator of the speed in which the arbitration will be conducted and the time within which they may have a ruling. 2 Cost savings .- As the parties have control over how the arbitration is conducted they have control over the costs. 3 Confidentiality – unlike court cases arbitrations are conducted behind closed doors. Arbitrations are held in private and remain private unless there is an issue that becomes the subject of a court reference. 4 Choice of adjudicator (who may have technical qualifications)– whereas in court cases the parties have no say whatsoever which Judge they get. Thus they can get someone with specialist knowledge. If they are unable to agree on the arbitrator they can choose the method by which the arbitrator is appointed. 5 Power to control the time and place of the proceedings. 6 Procedural flexibility – the conduct of arbitration is not tied to a defined procedure subject to minimum standards of fair procedures the parties themselves or in conjunction with the arbitrator can determine the procedures to be used. Finality – 7 An award is final and binding and cannot be the subject of an appeal other than under one of the limited headings permitted by the Acts 8 Enforcement - Resolution of the dispute in the form of a final and binding award which allows for greater internationally enforcement as most countries in the world are party to an international convention facilitating the mutual enforcement of their arbitration awards. (The New York Convention on the recognition and Enforcement of Arbitration Awards 1958) . Disadvantages of Arbitration 1 Costs – the parties unlike a court situation are also responsible for the costs of the arbitrator and the venue 2 Types of disputes – an arbitrator does not have jurisdiction over persons not parties to the agreement or over issues not covered by the agreement. Thus disputes between the parties over other issues or involving third parties will have to be the subject of separate proceedings (usually litigation)
drafted by the parties and or the arbitrator and therefore dealing with the specific dispute. these are the advantages of institutional arbitration but on the other hand it can also be expensive and inflexible especially in respect of time limits..subject matter. -disputes re validity or accuracy of public registers. domestic or international. the London Court of International Arbitration (England). -criminal matters. engineering insurance. applicable law converge in a single place. place of arbitration. -where the parties are not willing to enter an agreement to refer present or future disputes to arbitration Types of Arbitration Arbitration can either be institutional or ad hoc. the American Arbitration Association (USA). travel Disputes that are not arbitrable:-disputes with third parties where injunctive relief is required. The more diverse the above the more likely the arbitration is international in nature as opposed to domestic. Domestic An arbitration is domestic where all the relevant factors in respect of the dispute.3 2 Sanctions An arbitrator does not have all the powers of a judge to impose sanctions on a defaulting party eg he can’t strike out proceedings for want of prosecution. Thus with ad hoc arbitration one must first establish the infrastructure (which is already in existence in Institutional arbitration). Arbitration can in its own right be costly and time consuming and in certain circumstances an arbitrator’s award can be reviewed before a court of law. Types of disputes referred to arbitration: shipping. International The Arbitration (International Commercial) Act 1998 adopts the UNCITRAL Model Law and states that and arbitration is international if: . The International Chamber of Commerce (Paris). The rules can be adopted from international rules. Ad Hoc Arbitration This is conducted under rules adopted to cover a particular dispute. domicile of the parties. Institutional Arbitration is administered by one of the many specialised arbitration institutions under their own arbitration rules eg the Chartered Institute of Arbitrators ( in Ireland). With institutional arbitration there is a set of pre-drafted procedural rules under which the arbitration will be conducted and the institution provides trained staff to administer the arbitration.
the parties have expressly agreed that the subject matter of the arbitration agreement relates to more than one country. or c. The 1998 Act provides that the Arbitration Acts 1950 and 1980 do not apply to international commercial arbitration as defined in s16 of that act. or pursuant to the arbitration agreement. at the time of the conclusion of that agreement. one of the following is situated outside of the state in which the parties have their place of business: (i) the place of arbitration if determined in. their places of business in different states. a. or b. .the parties to an arbitration agreement have. (ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is most closely connected. Thus the matter is influenced by the nationality of the parties and the nature of the dispute.
3 Public policy requires that certain issues be dealt with by the courts or some other statutory tribunal 4 Illegality may render an arbitration agreement unenforceable 5 An arbitrator does not have power to order specific performance of any contract relating to land or any interest in land – s26 1954 Act ___________________________________________________________________ Arbitrations relating to employment – excluded from the ambit of the arbitration acts S5 of the 1954 Act states that notwithstanding anything stated in the Act the 1954 Act does not apply to :“(a) an arbitration under an agreement providing for a reference to. 1980 and the Arbitration (International Commercial) Act. .Irish Arbitration Law Irish arbitration law is governed by the Arbitration Act. 1954. civil and criminal per Art 34 of the Constitution 2 Certain kinds of arbitrations are governed by special statute The arbitration system governed by the Acquisition of Land (Assessment of Compensation) Act 1919 which provides compensation for a landowner whose land has been acquired under a compulsory purchase order to be determined by arbitration by one of 2 statutory arbitrators appointed for that purpose under the acts.eg Matters which may be referred to arbitration The general rule is that any dispute or claim concerning legal rights which may be the subject of an enforceable award is capable of being settled by arbitration but the following should be noted:1 The High Court has full original jurisdiction to determine all matters of fact and law. Arbitration Act. or the settlement by arbitration of any question relating to the terms or conditions of employment or the remuneration of any employee. 1998 Though certain kinds of disputes may be governed by particular statutes – then we have what is known as Statutory Arbitration. including persons employed by or under the State or Local Authorities or (b) an arbitration under S70 of the Industrial Relations Act 1946 (No 26 of 1946)” This is to allow these matters be delat with by tribunals established to deal specifically with employment disputes EG Employment Appeals Tribunal.
____________________________________________________________________ Arbitration Agreements The basis of arbitration is an agreement between the parties to a dispute to submit it to arbitration. Most arbitration agreements contemplate future disputes. i. There can be ad hoc submissions to arbitration ie submissions of an existing dispute).e. Thus an arbitration agreement means (b) an agreement to submit a future dispute to arbitration (this usually takes the form of an arbitration agreement in a more substantial agreement) (c) an agreement to submit an existing dispute to arbitration – (a submission agreement) They both have the same effect but when a submission agreement is being drafted the dispute has actually arisen and thus the parties can tailor the agreement to fit the actual dispute versus the situation in respect of an agreement re a future dispute where there is less detail as the parties don’t know what kind of dispute may arise or how it should best be dealt with. S4(1) 1998 Act Arbitration agreement means an arbitration agreement concerning international commercial arbitration Examples of Arbitration agreements:. standard conditions of . S2 1954 Arbitration Act states that an arbitration agreement is: “a written agreement to refer present or future differences to arbitration. Ordinarily any such agreement or submission does not affect third parties. disputes not in existence at the time the agreement is made but which will or may arise in the future. whether an arbitrator is named therein or not”. Unless the dispute in question is subject to such an agreement then a person purporting to arbitrate it has no legal authority to so do. S2 1980 Arbitration Act further provides that an arbitration agreement is: “a written agreement (including an agreement contained in an exchange of letters or telegrams) to submit to arbitration present or future differences capable of settlement by arbitration”.once off commercial contracts may contain specific provisions in respect of resolution of any disputes by arbitration.
These put a limit on the uncertainty which surrounds possible claims Atlantic Shipping v Dreyfus The Courts held that Atlantic Shipping clauses are not contrary to public policy – they are a type of exclusion clause and will be construed contra preferentum. It is enforceable as it does not oust the jurisdiction of the court but merely ensures you must go to arbitration first. whilst not being invlaid will not be governed by the provisions of the Arbitration Acts which could be very important when it comes to the time when you wish to enforce the award because an award under the Arbitration Acts may be enforced by leave of the High Court in the same manner and to the same effect as a court order or judgment. Thus the agreement to arbitrate must be in writing but the rest of the contract could be oral. insurance policies. An exchange of telex communications has been held to constitute an agreement in writing (Arab Africa Energy Corp Ltd v Olieprodukten Nederland BV  2 Lloyd’s Rep 419 Where an arbitration clause (agreement) is incorporated from another document to be effective the incorporation must be clear and express Sweeney v Mulcahy  ILRM 289 (11) Giving effect to the arbitration agreement – staying litigation The inclusion of a Scott v Avery clause is a useful addition to an arbitration agreement as a means of ensuring that the matter goes to arbitration.building contracts. Thus if you are out of time in respect of your claim an arbitrator can only make a . travel booking forms (1) Form of the Agreement For the purposes of the 1954-1980 Arbitration Acts the arbitration agreement must be in writing (including electronic signatures under the E-Commerce Act 2000). Raphael  1 Lloyd’s Rep 403 The Court of Appeal stated that for an agreement to be a written arbitration agreement it was not necessary for the whole contract. This means that an oral agreement. including the arbitration agreement. Statute of limitations re Arbitration – 6 years if contract/ 12 years if under seal Atlantic Shipping Clauses are time bar or claim bar clauses (bar claim completely) – contractual agreements that may bar the remedy of arbitration. Also it was stated that the agreement need not be signed. (Thus no cause of action arises upon which one can litigate until there is an award by the arbitrator). St. rather it was sufficient that the arbitration agreement itself was in writing and it was sufficient that there was a document that recognised the existence of the agreement. to be in the one document. A Scott v Avery clause makes arbitration a condition precedent to litigation.
Jan 17th 1973 the applicant sent a notice to Shield requiring them to concur in the appointment of an arbitrator. S45 application to court to extend time – July 1976 . commences any proceedings in any court against any other party to such agreement.declaratory award that you are out of time. any party to the proceedings may at any time after an appearance has been entered and before delivering any pleadings or taking any other steps in the proceedings. shall make an order staying the proceedings” (2) Nothing in this section shall be construed as limiting or otherwise affecting the power conferred on the High Court pursuant to section 39 (3) of the Principal Act to refuse to stay any action brought in breach of an arbitration agreement . In June 1971 Solicitor wrote to Shield. Staying litigation Where despite the existence of an arbitration clause both sides want their dispute to go to court the arbitration clause is overridden by this new agreement and made redundant by that new agreement. In 1970 one of his employees was injured in the shop on Oct 5th. The legislative response to this was S45 of the 1954 Act allows the court to extend the time limit for arbitration provided for in an Atlantic Shipping clause where there is undue hardship. Walsh v Shield Insurance  ILRM 218 Applicant shop-keeper had an all in insurance policy. S5 of the 1980 Act “(1) to an arbitration agreement or any person claiming through or under him. apply to the court to stay the proceedings. Hamilton J in HC referred to the delay but extended time as felt claimant would suffer undue hardship and no prejudice to the defendant. The Insurance company was notified on Oct 13th and they repudiated the policy drawing the applicants attention to clause 15 of the contract which was an arbitration clause with a 12 month time limit. On the other hand where one party in opposition to the arbitration agreement commences litigation the court at the request of the party willing to go to arbitration have the power to stay the litigation in order to give effect to the arbitration agreement. 1973 Shield re-iterated its point. and the court.6 years since commencing claim and 3 years since commencing arbitration. or any person claiming through or under him in respect of any matter agreed to be referred to arbitration. applicant penalised as to costs. Under the 1954 Act this power was discretionary but the 1980 Act removed this discretion in relation to domestic and international arbitration making the granting of a stay mandatory in certain circumstances. inoperative or incapable of being performed or that there is not in fact any dispute between the parties with regard to the matter agreed to be referred. unless it is satisfied that the arbitration agreement is null and void.
O’Mahony v Lysaght  IR 29 Prerequisites for a stay. An enforceable arbitration agreement must exist between the applicant for a stay and the party to the court proceedings or party claiming through him 2. on the application of the other party the court will direct those proceedings will be stayed. of commencing and dealing with a civil proceeding in respect of a small claim. Where the party who obtained the stay then unduly delays in carrying on with the reference the court may conclude that he has abandoned the arbitration agreement and may decide to lift the stay.". provided by the Rules of Court (as amended from time to time). Steps in the proceedings If the party seeking a stay has taken steps in the proceedings his application for a stay will be refused . There Finlay P stated that the test for whether a step had been taken or not was whether the . (ss3 inserted by the 1998 Act) Now provided the dispute which a party is trying to litigate falls within the scope of an enforceable arbitration agreement he made. The authority of the court to stay proceedings between parties to an arbitration clause extends to persons who are claiming through or under either of the parties. and was thus held to have elected for litigation and thus a stay was refused. In McCormack Products Ltd v Monghan CoOp Ltd  IR 304 the applicant for a stay had obtained an interim injunction against the other party. an assignee of a debt arising out of a contract containing an arbitration clause. In O’Flynn v Bord Gais  ILRM 324 Where the defendant’s solicitor wrote to the other side seeking an extension of time to put in a defence the court held this was not a step which would preclude a stay . The claim being made in the proceedings must be one covered by the arbitration agreement.Steps are conduct on his party which shows a decision on his part to use the proceedings already commenced to advance his case against the other party. 3. This phrase has been held to apply to a trustee of a bankrupt’s estate. In order to obtain a stay the following must be established:1. The parallel proceedings must be being brought in a court not an administrative or quasi judicial tribunal or in another arbitration. a subsidiary company where the parent was a party to the arbitration agreement and vice versa."(3) Nothing in this section shall prevent any party to an arbitration agreement from invoking the alternative method. The parallel proceedings must have commenced ie you apply for a stay after an appearance has been entered but before taking a step) otherwise the application is premature 4.
(Perhaps the arbitration clause and the exclusion clause could have been treated separately thus allowing the matter go to arbitration) . (ii) High Court has ordered that the agreement has ceased to have effect (iii) Common law doctrines of frustration. The Court found that this express term varied the defendant’s liability under the implied terms of s39 of the Sale of Goods and Supply of Services Act 1980 and to be effective under s40 of that act had to be fair and reasonable and brought to the specific attention of the plaintiffs. Dealing with the whole clause as one the court found the clause was not effective and refused a stay under S5 as it was inoperative or incapable of being performed. the defendant’s entered an appearance and then sought a stay.action ( potential step) involved costs which would be lost were the stay to be granted and the matter referred to arbitration.000. deal done over the phone and customer signed afterwards. This was an exclusion clause or limitation clause and was noted in the arbitration agreement and the box for signature in the travel contract said “all terms and conditions of this contract have been brought to my attention and read”. It was held as a matter of fact that the Condition was not brought to customer’s attention. The Court in which the case is listed can stay the proceedings per the Supreme Court in Mitchell v Budget Travel Ltd  ILRM 739 Things that a party trying to resist a stay will argue 1 steps taken in proceedings 2 arbitration agreement is null and void – eg due to illegality or no offer and acceptance 3 arbitration agreement is inoperative (i) eg a particular person is named in the agreement and he can’t act. The arbitration agreement in travel contract that the dispute would be referred to an arbitrator. it didn’t relate to the dispute in question. it was superceded JWT v McCarthy  ILRM 813 The plaintiff’s ought a package holiday from the defendant weren’t happy went to court. O’Mahony v Lysaght – delay in bringing the dispute to arbitration does not necessarily render the agreement inoperative but if the delay continues the agreement may be construed inoperative and the stay lifted. (iv) Novation (some further agreement of the parties) Liston v O’Malley Stay refused as arbitration agreement was contained in an earlier written agreement which was superceded by a later oral agreement Murphy J said the arbitration agreement was inoperative. abandonment or repudiation. Said agreement included a provision which excluded liability for personal injuries and limited liability for other claims to £5.
Dec 7. 1995. A clause recommended by the International Chamber of Commerce stipulates that: “all disputes arising in connection with the present contract shall be finally settled . 4 5 (v) atlantic shipping clause arbitration agreement is incapable of performance – per the Rena K it means some obstacle that frustrates the willingness of the parties to go to arbitration S39(3) 1954 Act gives a discretion to refuse to grant a stay where under s39 the court has power to set aside the agreement on the basis that the dispute involves a question as to whether any party has been guilty of fraud. (111) The scope of agreement The arbitration agreement determines the jurisdiction of the arbitrator and what disputes can be submitted to arbitration. S18 of the Arbitration (International Commercial) Act 1998 S18. of commencing and dealing with a civil proceeding in respect of a small claim. Whether a particular dispute is subject to arbitration depends on the very wording of the arbitration clause. provided by the Rules of Court (as amended from time to time). is hereby amended by the insertion of the following subsection after subsection (2): "(3) Nothing in this section shall prevent any party to an arbitration agreement from invoking the alternative method.. 1980 . The arbitrator must not exceed the powers given him by the parties. (See Winterthur Swiss Insurance case – O’Hanlon J listed the factors to be taken into account in deciding whether or not to refuse a stay where allegations of fraud (i) complexity of case and difficulty of legal issues (ii) bona fides of parties alleging fraud (iii) no obligation on parties opposing stay to prove fraud prima facie If case is one of great complexity it is presumed that the High Court would be a more suitable venue.— Section 5 of the Arbitration Act. See also Administratia Asigurailor de Stat v Insurance Corporation of Ireland  ILRM 159 – overriding jurisidcition to refuse a stay where bona fide allegations of fraud.In Carroll v Budget Travel v Counihans Travel Unrep HCT Morris J. That held that a standard arbitration clause found in a contract for supply of holiday services is not an express term within the meaning of S40 of the Sale of Goods and Supply of Services Act 1980 and it was therefore irrelevant whether it was brought to the consumer’s attention and a stay under S5 was granted.".
Ashville Investments held that “in connection with” is sufficiently broad to encompass claims arising from misrepresentation where it induced entry to contract.under the rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said rules Irish Travel Agents Association Clause Booking form in brochures Arbitration arranged by the Chartered Institute of Arbitrators – Irish Branch on behalf of tour operators who are members of the ITAA “Any dispute or difference of any kind whatsoever which arises or occurs between any of the parties hereto in relation to any thing or matter arising under. The question was did the arbitration agreement cover the dispute. out of or in connection with this contract shall be referred to arbitration under the Arbitration Rules of the Chartered Institute of Arbitrators-Irish Branch” There are many decisions construing the form of words. The Playa Larga case held that “in connection with” covered claims in conversion. Thus where an arbitration clause uses the words “under this contract” it excludes claims in . The transaction in which the tort arose should be the on in which the arbitration clause was agreed. If one meaning is more in accord with what the court considers to be the underlying meaning and purpose and intent of the contract or part of it than the other the court will prefer it. There must be a close connection between the claim in Tort and the contract giving rise to the arbitration agreement. The exercise which has to be undertaken is to determine what the words used mean. If there are 2 possible meanings of the words the courts have to prefer one over the other in accordance with settled principles. contract and tort. In the interest of certainty and clarity a court may think it right to construe words in an arbitration agreement the same way as in previous cases involving an arbitration clause by another court but in the opinion of the court in Ashville the subsequent court is not bound by the doctrine of stare decisis. It was held that the clause “disputes arising under this contract” meant the clause was restricted to contractual claims only. Ashville Investments Ltd v Elmer Contractors  QB 488 stated that in seeking to construe a clause in a contract there is no scope for either adopting a liberal or a narrow scope. Thus same phrase or formulation of words can differ from contract to contract and thus the following cases can be seen as persuasive only. Government of Gibraltar v Kenna “disputes arising under this contract” There was a claim that the contract was frustrated leading to a claim for restitutionary relief on a quantm meriut basis (unjust enrichment) as you can’t sue for breach of a contract as it doesn’t exist any more.
misrepresentation) the contract comes to an end the court uses the notion of the seperability of the arbitration clause from the rest of the contract to allow the arbitrator to make a decision as to the continued existence of the rest of the contract. In the case of Dalmia Daries v National Bank of Pakistan  2 Lloyds Rep 103 it was accepted that in English law an arbitrator cannot pronounce on his own jurisdiction. frustration. (2) Historically a distinction has been drawn between the initial existence of a contract and the continued existence of it. ie it did originally exist but for some reason (eg repudiation. The court did hold that the arbitrator had power.tort and all other kinds of action. when his jurisdiction was challenged to enquire into the merits of the issue of whether he has jurisdiction. not as a means of making a binding conclusion but to satisfy himself as a preliminary matter whether he should continue with the arbitration or not. In Heyman v Darwins (1942) MacMullan LJ held that an arbitration cause in a contract is something quite distinct from other clauses in a contractual document. the other clauses set out the obligations the parties have towards each other whereas the arbitration clause represents something greater it is a . that being an issue for the courts. Where the issue is in respect of the continued existence of the contract. Where a party claims that the arbitrator lacks jurisdiction he should make it clear he is objecting and that his continued participation in the process does not prejudice his claim of lack of jurisdiction otherwise it may be interpreted that he is submitting to the arbitration. “Disputes arising out of or in connection with “– Woolf v Collis Removal Services  2 AER 260 – covered claims concerning alleged mistake or misrepresentation as well as extra-contractual claims such as quantum meriut and unjust enrichment and even tort claims connected with the contract. The traditional view is that an arbitrator cannot make a binding award as to the initial existence of a contract. (1) As regards the first question there are no Irish authorities on point. If there is no contract an arbitration clause in a non-existant contract cannot empower the arbitrator decide on the initial validity of the contract (that is for the court). can the arbitrator decide whether that contract is void ab initio due to mistake or illegality ie decide on the existence of the contract. Out of under or in connection with – Carroll (A Minor) v Budget Travel Very broad clause There are 2 main question in respect of the scope of the agreement 1 Can the arbitrator decide the extent of his own jurisdiction and 2 If the arbitration clause is contained in a contract.
the arbitrator could deal with the issue of illegality. This places the emphasis on the intention of the parties as expressed in the arbitration clause Exclusions S5 of the 1954 Act excludes Employment and Industrial relations disputes from its scope. it is severable from the main contract. Harbour Assurrance Co (UK) Ltd v Kansa General International Insurance Co Ltd  1 Lloyd’s Rep 445 The Court of Appeal stated that an arbitration clause is usually a self contained collateral contract and on construction of the clause. . As the arbitration clause is severable from the main contract it allows the arbitrator to derive power from an independent arbitration contract to determine whether the main contract still exists essentially depends on the parties intention and the construction of the clause. That mutual obligation is to see that any disputes are resolved by arbitration. Does s5 1980 Act apply re employment and Industrial Relations disputes – no-one is sure.The reason for this would appear to have been to allow such disputes be settled by the tribunals established specifically to deal with them.mutual obligation. The 1980 act contains no such exclusion S5 1980 Act repeals S12 1954 Act – power to stay litigation pending arbitration and it doesn’t exclude employment and industrial disputes from its scope. In Heymans where the contract is repudiated the arbitration clause survives. Thus when a party repudiates a contract it does not abrogate the contract but it may release the injured party from their continuing obligations which they entered into with the other party.
It is a matter for the parties to decide when drawing up the arbitration agreement whether they wish to have one or more arbitrators. The general practice in Ireland is for clauses to provide for the appointment of 1 arbitrator. Termination of appointment. the court It is very much in the claimant’s interest where a dispute arises and there is an agreement to arbitrate to ensure the arbitrator is appointed without dealy as:1 no orders can be made or procedural steps taken until the arbitrator has been appointed . Appointment of an arbitrator(s) The arbitrator(s) can be appointed by a. rights and duties. a third party. Commencing the reference. eg The Chairman of the Bar Council of Ireland c. remuneration.Arbitral Tribunal Appointment of arbitrator. qualifications. the parties b.
each to be chosen by each side:a. provided seven days prior notice is . the party that has chosen him can choose again or b. Presumption in favour of a single arbitrator S14 of the 1954 Act raises a presumption in favour of a single arbitrator but the parties can of course agree to any number of arbitrators. Exceptionally the parties will have stipulated for 2 arbitrators S15 provides unless contrary intention is expressed that where there is provision for 2 arbitrators. Many countries though have arbitration associations that train arbitrators – eg the London based Chartered Institute of Arbitrators which has world wide membership including an Irish branch. if one party fails to choose an arbitrator. A person who has agreed in principle to act will then be appointed. A person chosen by both or one of the parties or the nominating authority as the case may be is qualified to act. Generally speaking any person may be chosen if he has legal capacity. Usually parties exchange the names of several likely arbitrators or their chosen nominating authority draws up a list of such names. Qualifications The law doesn’t prescribe a set of qualification that a person must have before they can be appointed as an arbitrator. if one arbitrator refuses to act. is incapable or dies. If a person has a financial interest in the subject matter of the dispute it must be disclosed to both sides and both sides must agree before the arbitrator can agree to act.2 3 most claims must be made within certain time limits and failure to adhere to those limits could bar the claim although a party who succeeds at arbitration can be awarded their cost it is most unlikely the will get legal or other costs they incurred before the arbitration commenced Usual procedure for constituting an arbitral tribunal Most arbitration clauses require the parties to try to agree on an arbitrator before any other method of appointing an arbitrator is adopted. The Arbitration rules of some institutions stipulate specific criteria and qualifications and accordingly if these rules apply to the Arbitration the Arbitrator appointed will have to meet the criteria and qualifications required. The greater the number of arbitrators the greater the fees. Formerly a party to a dispute could easily frustrate an arbitration by refusing to make an appointment in circumstance where both parties agreement was required but the 1954 Act contains several provisions for making appointments in default of agreement or where the nominating authority does not act . These people are then approached informally to see if they are prepared to act. Sometimes the agreement between the parties will stipulate certain qualifications that the arbitrator must have and thus only person with such qualifications can be appointed. An intention to have more than one arbitrator must be stated in the arbitration agreement or in a document to which it refers.
and if they are in disagreement.served. One must ask the nominating body to nominate another. If that person refuses or neglects to so do then there is no statutory power dealing with the situation. the one appointed arbitrator can act as a sole arbitrator The normal practice is for the 2 arbitrators to take up the reference S16 deals with the situation where there are 2 arbitrators (in the absence of an expressed intention to the contrary) that is deemed to mean a reference to 2 arbitrators This does not amount to a 3 person tribunal or panel. (Same where arbitrator named in Agreement and he refuses to act. In those circumstances if a party commences litigation they can resist an application for a stay saying the agreement is inoperative. Appointment by the Court There are 5 circumstances where the arbitrator can be nominated by the court under s18 of the 1954 1 where the parties cannot agree on a sole arbitrator 2 where the arbitrator refuses to act. Rather a decision should be made by the 2 Arbitrators..S18(a) does not apply as is also the case where the arbitrator appointed by the third party refuses to act. The selected arbitrator should also satisfy himself that he has been validly appointed and any stipulations in the arbitration agreement have been complied with Appointment by a third party Arbitration agreements can provide for appointment of the arbitrator by a third party e. The President of the Incorporated Law Society. is incapable of acting or dies. S17 states that if there are 3 arbitrators the decision of any 2 is binding Appointment by agreement Where an arbitration agreement does not set out any method for appointment of arbitrator(s) then the parties must reach an agreement about who they will appoint. S16(1) states that the arbitrators shall appoint an umpire immediately after they are appointed S16(2) states that if the arbitrators cannot agree the umpire can act as a sole arbitrator S16(3) the High Court upon application can appoint an umpire to act as sole arbitrator in lieu of the 2 arbitrators. is incapable of acting or dies (save where the terms of the agreement provide for the filling of such a vacancy) . If the parties fail to agree then the procedure for appointment in default of agreement which is set out in the arbitration clause will have to be invoked (this may provide for the appointment by a third party) or failing that the court may make the appointment under S19(a) 1954 Act. then by the umpire solely.g. Most arbitration clauses require the parties to try to agree on an arbitrator before any other method of appointing an arbitrator is adopted. dies or is incapable) thus one usually expressly provide for such an eventuality. There is no formality for an agreement of this kind but written confirmation is advisable.
A lot depends on such things as the complexity of the dispute. as litigants do not have to pay the Judge’s salary that is done by the government. the degree of expertise required. its importance to the parties. the novelty of the issues to be decided. Where for one reason or another a fixed sum is not appropriate the following are the . What constitutes appointment? You must get agreement from arbitrator or your nominee in order for appointment to be effective. the location of the arbitration. Sometimes parties don’t agree the issue of the arbitrator’s fees until after he has accepted appointment. Remuneration The main extra cost in arbitration that does not exist in litigation is the arbitrator’s fees and expenses. the duration of the reference. Often it wont be practical at the outset to calculate what the fee will be but it is advisable that the parties should be told the methods which will be used to calculate it and preferably get their consent. How much the arbitrator is to be paid (ie quantum) is to be determined between him and those making the appointment. Save where it is otherwise expressly agreed the parties are jointly liable for the arbitrator’s fees and expenses. The La Luna Denning LJ stated that for a valid appointment you must tell the other side of your intention to appoint and tell appointee and get intimation of appointee’s willingness to act as arbitrator. If payment is not made once the award is published the arbitrator is entitled to bring an action to recover the sum due. There is no set scale of fees. Often the parties agree in advance to pay the arbitrator’s fee and expenses and what the amount of the fee will be or how it will be calculated. It is permissible for one party to agree to deal with the arbitrator’s fees as long as the other party is fully aware of the arrangement but once he accepts the appointment the arbitrator may not deal unilaterally with one party in repect to payment of any fee. where all the arbitrators are removed by the Court S40(2)(i) of the 1954 Act gives the court a discretion to appoint a sole arbitrator. the value of the property or the sum in issue. This is very important as time bar (Atlantic Shipping) Clauses often require an arbitrator be appointed within 3 months.3 4 5 the parties or the arbitrators refuse to appoint a third arbitrator or umpire the umpire or third arbitrator refuses to act or is incapable of acting or dies.
principal basis for calculating fees 1 A percentage of the amount at issue between the partie 2 A percentage of the mid-point between the amounts being claimed by both parties 3 A rate per hour. If the arbitrator insists on having his fees paid before he hands over the award a party can pay the amount of the fees into court. per day or per week which may differ depending on whether or not the tribunal is sitting. Securing Payment Often arbitrators. how long it will last or what postponements will be required so if he agrees to accept the appointment he is then obliged to be available to hear the dispute thus requiring him to reject other work and thus arbitrator sometimes look for a commitment fee – iepayment for making time available to deal with the reference eventhough the matter may not be at hearing during all or part of that time. before agreeing to commence the arbitration will insist that their fees are secured either by payment on account or bank guarantee or deposit with a stakeholder. In arbitration the tribunal (arbitrator’s) fee are regarded as part of the costs and can be measured in the same way as legal fees by taxation. Generally any commitment fee should be agreed prior to appointment. pending taxation and is thus entitled to get the award. If the parties agree to the arbitrator taxing costs and then one of them believes he has taxed them too high he cannot then send the matter to the Taxing Master his only redress is to challenge the award on ground sof misconduct that the arbitrator put his own interests before those of the parties or carried out taxation in an erroneous manner. Commitment Fee Sometimes an arbitrator may not be sure when actually the reference will begin. . It could though be technical misconduct for an arbitrator after accepting appointment to unilaterally seek a commitment fee from one of the parties as thus would lead to the appearance of bias. In very serious situations the court can set the award aside in its entirety. 4 A combination of some of the above When the quantum has not been agreed the arbitrator is entitled to be paid a reasonable amount which will depend on all the circumstances of the reference – quantum meriuit idea. Where the court finds errors or miscalculations it usually remits the matter back to the arbitrator to reconsider his taxation. Taxation of Costs In court actions where one seeks to challenge the amount of the lawyers fees the matter is sent for taxation to the Taxing Master in the High Court or to the County registrar in the Circuit Court. Where the arbitrator does not tax them they can be taxed similar to court costs by the Taxing Master of the High Court. S29(1) of the 1954 Act allows an arbitrator tax the costs fo the reference including his own fees provided the parties agree.
Arbitrators have a lien over the award until they are paid what is due them i. Arbitration agreements or awards can’t affect directly the rights of third parties. a criminal law matter 2 Arbitrators are appointed by agreement of the parties and thus it is only they. e. 3 Arbitrators cannot be given powers which are reserved for judges.g.e.Where the reference is under way it may be misconduct for the arbitrator to then start demanding security. The Common Law confers certain powers on arbitrators which are implied into the agreement of the parties (but they can be rebutted by contrary intention). When a party believes what is being charged is excessive he can pay into court the sum claimed pending taxation and thus secures the award. There are 3 specific restrictions on the powers of an arbitrator (as per the agreement) 1 Parties cannot agree to do something which is contrary to public policy – ie you can’t agree to an arbitrator deciding matters public policy dictates should be decided elsewhere. it will depend on the circumstances. he can refuse to hand over the award until he is paid. Thus he must identify all the elements of the dispute and take all reasonable steps to conduct it in a fair and efficient manner having at all times regard to the wishes and interests of both parties. their agents or benificiaries that can be bound by the award. Subject to the terms of the arbitration agreement and the requirements of natural justice/fairness the arbitrator has a wide discretion as to how the arbitration is to be conducted In certain circumstances it is true that the Arbitration Acts give the Arbitrator certain powers but they are few and specific. Rights Powers and duties Rights An arbitrator’s only right is to be paid the sum agreed or a reasonable remuneration and expenses Powers An arbitrator is appointed to determine a dispute that has arisen between the parties. One thing that is certain is that he can insist on security for any out of pocket expenses he must pay. . The arbitrator’s powers/jurisdiction is as a result of the consensus/agreement of the parties and his powers are circumscribed by the agreement of the parties. perhaps if the matter is not far advanced and it looks as if it will take longer than anticipated he may he just may be justified in looking for security on threat of resignation.
Apart from a few statutory requirements under the Arbitration Act --.(as they assist the arbitrator in coming to a correct conclusion) 1 Require pleadings – as arbitration is a cousin of litigation 2 Power to order discovery – Kinsella v Timber Operators (1989) 3 Administration of interrogatories 4 Inspection of property 5 Power to order security for costs – procedural tool.Where the agreement does not state the arbitrators powers he has a very wide discretion as to how the entire reference is to be conducted. S22 1954 Act gives the Court power to order security for costs in arbitral proceedings. Security for costs is generally ordered in litigation where the plaintiff is a foreign litigant or a limited liability company. KS/AS Bani v Korean shipping (1987) 2 Lloyds 445 held that the express conferring of a power on an arbitrator to award security for costs is not exclusive of the courts power there are other factors to be considered (1) the nationality of the parties (2) the seat/country of arbitration (was it chosen specifically for its law) (3) whether the claims are elaborate or simple 6 The power of the arbitrator to rule on his own jurisdiction – chicken and egg problem. The Irish position remains uncertain therefore we need to look at the . Unicare Stearinerie is still accepted as authority that the power to order security for costs is not impliedly given in domestic arbitration. There are basically 3 different instances where questions of jurisdiction arise:1 The arbitration agreement or the agreement in which it is contained is null and void. – Who decides whether it is null and void – the court or the arbitrator 2 Alleged disputes don’t fall within the scope of the agreement 3 It is alleged that the arbitrator has no jurisdiction because of some public order requirement The English position till recently was that the arbitrator was incapable of determining any question of jurisdiction.he has a complete discretion to determine how the arbitration is to be conducted from the time of his appointment to the time of his award so long as the procedure he adopts does not offend the rules of natural justice” This very extensive authority is founded on S1991) of the 1954 Act which states that in the absence of a contractual stipulation to the contrary the arbitrator is entitled to do all such other things which during the proceedings on the reference he may require Thus if parties do nothing more than agree to arbitrate then an arbitrator is deemed to have the following powers:. The implied power to order security for costs is limited to where the claimant/counter-claimant is a foreign party. That view has changed but not in relation to all of these 3 classes. Per Lord Diplock in Bremer Vulkan  Ac 909 “ the parties make the arbitrator the master of the procedures to be followed in the arbitration.
established English position. Because striking out for want of prosecution doe not facilitate determination of the dispute such power does not fall within s19(1). that being an issue for the courts. (b) S23 1954 Act gives the arbitrator power to make an award at any time (c) S25 1954 Act gives the arbitrator power to make an interim award (d) S26 1980 gives the arbitrator the same power as the High Court to order specific performance of a contract save one relating to land or an interest in land . It is quite a broad section. The effect of repudiation is to treat the contract as over. Heyman v Darwins (1942) Repudiation of an initially valid contract. The question was did the extinguishments of the contract between the parties also extinguish the arbitration agreement. The contract was allegedly an illegal contract therefore the contract and the arbitration agreement therein were void ab initio and therefore the arbitrator had no jurisdiction. (See also Christopher Browne Case) Dalmia Daries v National Bank of Pakistan  2 Lloyds Rep 103 it was accepted that in English law an arbitrator cannot pronounce on his own jurisdiction. Joe Lee v Lord Dalmery it was held that if a challenge goes to the root of the arbitration agreement then the arbitrator is unable to determine the validity of the arbitration agreement. The arbitration is a separate and distinct agreement.As the arbitration clause is severable from the main contract it allows the arbitrator to derive power from an independent arbitration contract to determine whether the main contract still exists essentially depends on the parties intention and the construction of the clause. For the same reason there is no inherent authority to order 2 or more arbitrations be consolidated. The answer given was no the arbitration agreement is a mutual obligation which continues to oblige the parties to refer the dispute (ie the repudiation) to arbitration. (a) S19 of the 1954 Act gives specific powers to the arbitrator in the absence of any contrary provisions in the agreement Examination on oath or affirmation any of the parties Direct witnesses be examined on oath or affirmation That the arbitrator has power to administer oaths or take affirmations Making orders for discovery of documents against the parties To do all such other things during the proceedings as the arbitrator may require. The other sections may be seen as placing a limit on s19. (See note on scope of agreement) The Arbitration Acts (in particular the 1954 Act) gives powers to the Arbitrator some of which can only be exercised on the direction of the court.
Corporation of Dublin v McGinley (22/1/86) stated that a point of law without substance or which authority adequately covers would constitute good reasons for not stating a case. interim custody or sale of any goods which are the subject matter of the reference (f) securing the amount in dispute in the reference (g) the detention. The arbitrator can only state a case on questions of law and not on questions of fact – Mizen Hotel Company v Capwell Investments Ltd (30/7/81) (h) S17 of the Arbitration (International Commercial) Act 1998 amends s34 of the 1954 Act and gives the arbitrator power to award interest at whatever rate he feels meets the justice of the case on all or part of any amount awarded by him both up to the date of the award and from the date of the award to the date of actual payment.(e) S28 1954 Act gives the arbitrator the power to correct in an award any clerical error arising from any accidental slip or omission (f) S29 1954 Act gives the arbitrator power to make orders to and by whom costs of the reference and the award are to be paid. (g) S35 1954 act gives the arbitrator power to state any question of law arising in the course fo the reference or any award or any part of the award in the form of a special case for the decision of the High Court. ( If one of the parties in the course of the proceedings but before the publication of the award requests the arbitrator to state a case to the High Court on a point of law the arbitrator is obliged. and the issue of a commission or request of the examination of a witness outside the jurisdiction (e) the preservation. including with the consent of the parties power to tax or settle the amount of those costs. in the absence of good reason to do so. Supplemental powers of the Court Except where they are conferred by the agreement or under s19 arbitrators do not have the following powers but the court on application to it can give directions regarding the exercise of such powers in connection with the reference – (s22) S22(1) (a) – security for costs S22(1) (b) – discovery and inspection of documents (c) giving evidence by affidavit (d) examination on oath of any witness before an officer of the court or any other person. . preservation or inspection of any property or thing which is the subject of the reference or as to which any question may arise therein and authorising for any of the purposes aforesaid any person to enter upon or in any land or building in the possession of any party to the reference or authorising any samples to be taken or any observations to be made or experiment to be tried which may be necessary or expedient for the purpose of obtaining full information or evidence and (h) interim injunctions or appointment of a receiver It doesn’t conflict with s19 because the latter is specifically against the parties.
Essentially this is a question of public policy. Furthermore as a matter of public policy it has been thought to be undesirable to allow an action against an arbitrator (for lack of care or skill) for the reason that his functions are of a judicial nature. an architect hired to certify work under a building contract. The reason for this may be that the public interest does not make it necessary for the courts to exercise greater powers over arbitrators than those which they possess. Judges immunity – stems from the constitution and crown prerogatives – Deighan v Ireland  ILRM 88– State can’t be fixed with liability for negligence of a Judge – ie Sirros v Moore is the law here. proceeding with the reference and making an award and the arbitrator so removed is not entitle to remuneration for his services but neither would it appear that the parties could recover damages for excessive delay of the arbitrator. such as the power of removing for misconduct or of correcting errors of law which appear on the face of an award.S22 specifically provides that the fact the High court is given these specific powers is not to be taken to prejudice any power which may be vested in an arbitrator of making such orders. but . Hedley Byrne v Heller – where parties in relationship where hold out they possess a skill and the other party relies upon it – they owe a duty of care. Failure to do so may equal misconduct allowing the court to remove the arbitrator or set aside the award – ss37 and 38 1954 Act Though it would appear that the arbitrator cannot be held liable in negligence for any loss caused by his negligence In Sutcliffe v Thackrah  AC 727 where the defendant. S24 authorises the courts to remove arbitrators who fail to use reasonable dispatch in entering on. Arenson v Arenson  AC 405 – where an accountant hired to value shares in a company was sued for negligence – there some of the Law Lords suggested not all arbitrators enjoyed immunity from suit. unsuccessfully claimed the immunity on the grounds that he was a quasi arbitrator. Lord Reid said “An action will not lie against an arbitrator for want of skill or for negligence in making his award. Arbitrators are like judges but there are significant differences between them most notably that as a condition of appointment the arbitrator can stipulate he will not be held liable in negligence. Duties of the Arbitrator 1 Proceed with reasonable dispatch with the reference The speed with which the matter must be dealt with depends on the circumstances of the case. 2 Exercise reasonable care in the conduct of the reference – immunity from suit Arbitrators must carry out their function in a careful and responsible manner.
In Childers Heights Housing Ltd v Molderings  ILRM 47 . The test per Blayney J in Bord na Mona v Sisk Unrep HCT May 31. – what we are talking about is the appearance of bias. The arbitrator should not be connected to the subject matter of the reference as this too against his impartiality. It is not a question of the effect which misconduct on their part had in fact upon the result of the proceedings. The model rules of the Irish Branch of the Chartered Institute of Arbitrators purport to exclude all liability in negligence. State(Hegarty) v Winters  IR 320 There the arbitrator visited the property that was the subject of the reference accompanied by an employee of one of the parties. Re Brien’s Arbitration  2 IR 84 -arbitrators were appointed to value the land. Said action was held to be contrary to all principles of justice and fair play and amounted to misconduct. That was held to reasonably give rise in the mind of an unprejudiced onlooker to the suspicion that justice was not being done. Jones v Dept of Employment  2 WLR 493 re negligence resulting in exclusive financial loss suggests that persons exercising an adjudicative function will not be held liable for reasons of public policy. Bias in conduct of the reference The arbitrator must not have undue contact with one of the parties. One of the arbitrators viewed the farm accompanied by the party who had appointed him but was not accompanied by the other party. Boyd J stated that arbitrators must not be guilty of any act which can possibly be construed as indicative of partiality or unfairness. which the parties had worked in partnership.said duty of care may be contracted out of. 1990 Is whether “a right minded person with full knowledge of the facts would have been led to conclude there was a real likelihood of bias” In that case the arbitrator had provided professional services to the respondent’s (a property developer) associate building company. but of what effect it might possibly have produced. The award was set aside on the grounds of the arbitrator’s misconduct. 3 Act impartially The general principle nemo iudex in causa sua applies to arbitrators – principle against bias – justice must not merely be done but must be seen to be done. and to determine which of them should have first offer to purchase the land. Thus the arbitrator cannot be bribed or even place himself in a situation where it appears he is biased (apparent bias). It was held there was no real likelihood of bias. If the arbitrator has a shareholding in one of the parties he should disclose that even where such a shareholding is unlikely to affect his decision. Under the procedure agreed by the parties each arbitrator was to make a separate valuation of the farm on behalf of the party whom he represented.
Breach by the arbitrator of these duties could lead to the revocation of his powers and the award being set aside. (See Forde Arbitration Law and Procedure) ____________________________________________________________________ Termination of Appointment . Arbitrator’s generally are not liable for negligence – but I suppose one could simply refuse to pay the fees and cite negligence in a defence to a claim for same by the arbitrator. It was held her going to view the site on her own was not misconduct. or his conduct had given serious grounds for destroying the confidence of one or both of the parties in his ability to conduct the dispute judicially or competently. Redress for bias The 1954 Act provides for the sanctioning of bias or breach of the nemo iudex principle.The arbitrator expressed a wish to view the site on her own and neither party raised any objection . If the arbitrator has been found to be in collusion with a party or otherwise corrupt the court can make him liable for the costs fo the arbitration. S39 provides an exception to that principle where the objection is that the arbitrator has a relationship with a party or with the subject of the reference and the objecting party was aware or should have been aware of that relationship at the time he entered into the arbitration agreement and the arbitration was named or designated in that agreement. Actual bias can justify the court setting aside the award or revoking the authority of the arbitrator as well as the arbitrator being denied his fee and possibly his out of pocket expenses. Tobin and Twomey Services Ltd v Kerry Foods Ltd  3 IR 483 The High Court confirmed that the court’s discretion to remove an arbitrator is likely to be confined to cases where the arbitration cannot continue with the particular arbitrator in office either because he had shown actual or potential bias. Where a party is aggrieved because of bias then must generally make their objections known at the earliest possible opportunity or they may be regarded as having waived that objection.
What circumstance is revocation of authority under s9 more appropriate than removal under other sections? A number of obvious lines have been put forward 1 Serious/irreparable conduct by arbitrator would be ground sfor removal under s9 but the Arbitration Act already provides for removal on ground of misconduct – per S37 2 Actual/potential bias – good ground for invoking s9 but it is also misconduct ad therefore within S37 3 Deficiencies of capability of arbitrator for which the act provides no remedy would be good grounds for removal under s9. S9 1954 Act provides that the authority of the Arbitrator/umpire appointed by virtue of an arbitration agreement shall unless there is a contrary intention expressed in the arbitration agreement be irrevocable unless one obtains the leave of the court.agins though these could be seen as misconduct under s37 . S9 also applies where a sole arbitrator was appointed by an appointing body. S9 provides 2 ways an arbitrator’s authority can be revoked 1 Where a contrary intention is expressed in the arbitration agreement ( ie that his authority is not irrevocable)then the authority can be revoked by any party including an appointing body. 2 The court can give leave to revoke the authority Frofa National De Peterteires – Lord Denning stated that the power to revoke where leave is given may only be exercised against an arbitrator upon whom authority had been conferred by the revoking party (ie you can’t get leave to revoke other side’s arbitrator – revocation can only be made by those who gave the authority in the 1st place.) Where the arbitrator is a sole arbitrator therefore both sides will have conferred authority on him. Arbitrators may resign (though that may render them liable to the parties for breach of contract) An arbitrator’s authority may be revoked by the parties or by court An arbitrator may be removed by court Replacement by the parties expressly or per s15 or by the court (3) Revocation of authority The parties are restricted by legislation from removing an arbitrator once appointed – this is to prevent parties removing an arbitrator to subvert arbitration. What factors should the court take into account in giving leave ( none are listed in the section) It has been held that the court should exercise the jurisdiction to give leave to revoke the arbitrator’s authority most sparingly and with caution – Den of Airlie SS Co v Mitsui & Co (1912) 106 LT 451 Mustill J in Sucula Ltd called it a power of last resort.1 2 3 4 5 Once an arbitrator publishes his award he is functus officio in respect of the reference.
Louis Emmanuel v Sammut – Dealy of 4 months in production of award after conclusion of a short hearing – arbitrator gotten rid of. It is purely procedural. Held failure of competence – s37 – therefore he gets his remuneration. S37 – the High Court can remove an arbitrator for misconduct (In such circumstances the award can be set aside if improperly procured – s38) Pratt v Swanmore – what is misconduct Pain J – Having regard to an arbitrator’s conduct it would be unfair to leave the arbitration in that arbitrator’s hands.Thus the grounds for exercising the courts discretion to give leave under s9 are very narrow. Claimant made an opening submission and the arbitrator on foot of this made an interim . Misconduct does not require moral turpitude. SS Dean of Airlie v Nitsui and City Centre Properties v Mathew Hall – the Court of appeal in England held it would not exercise its jurisdiction under the English equivalent of s9 unless to do anything else would lead to injustice. (4) An arbitrator may be removed by the courtfailure to use reasonable despatch and misconduct S24 – the high court can remove an arbitrator or umpire and he shall not be entitled to remuneration if he has failed to use all reasonable despatch. Obtaining the court’s leave does not automatically result in the arbitrator’s removal it is then for the applicant to make that decision. No degree of intention is necessary. The idea being that there is no reasonably prospect of justice being done if the arbitration is let continue. Normally an architect’s cert is deemed final re costs. One party sought his removal on 2 grounds – failure to show reasonable despatch and misconduct. if something else is the cause – eg misconduct then the appropriate application is under s37 Pratt v Swanmore The arbitrator failed to get the arbitration in motion within a reasonable time as he failed to show the competence one would expect of someone in his shoes. If the court gives leave to revoke authority it has no power to order a stay. The law has established that failure to use reasonable despatch must be the only cause of the delay. Modern Engineering case Issue related to an architects cert – ie he certifies that the costs put in by the contractor are reasonable in relation to the work done -. Re Enoch & Zaretzy Would it be fair and just to leave the rights of the parties in the arbitrator’s hands – if not then misconduct.
award before the defence had made a submission. Examples of misconduct 1 Visiting the property the subject matter of the dispute accompanied by the employee of one of the parties (State(Hegarty) v Winters [1956} IR 320 (reasonable suspicion of bias) 2 Not hearing relevant evidence O’Sullivan v Joseph Woodward & Co  IR 255 3 Not affording parties the opportunity to make submissions on a relevant point. Goff J set aside the award but refused to remove the arbitrator stating that there were varying degrees of misconduct and the misconduct which resulted in the setting aside of an award was less serious than that needed to remove the arbitrator The Court of Appeal overturned the decision not to remove the arbitrator but did not devalue the proposition that there are varying degrees of misconduct and the most serious being required for the removal of an arbitrator. 2 sets of relief sought . Dunne and Denning LJJs focused on the confidence of the parties. This was a reach of natural justice – audi alteram partem. .removal of the arbitrator and setting aside of the award. Geraghty v Rohan Industrial Estates Ltd  IR 419 4 Lacking of elementary skill to conduct the arbitration = misconduct (Pratt v Swanmore – no breach of the rules of natural justice save that no-one could conceivea justi outcome from the way the arbitrator was conducting the arbitration) 5 Misconduct to enforce an award which deals with an illegal contract David Taylor v Burnett – contract re controlled substances – held unenforceable on basis it related to an illegal contract. neither is refusing to state a case to the High Court (Stillorgan Orchardv McLoughlin & Harvey  ILRM 128) S15(2) B – the court is given the power to setting aside any appointment in S15(2) A (S15(2) A is not very commonly relied upon. S39 provides for the revocation of the arbitrator’s authority by the high court where:1 the arbitrator is not/may not be impartial or 2 there are allegations of fraud. Irish cases – there is a focus on the possibility of justice not being done. Please note that error of law or fact on the face of the record is not misconduct. ad hoc submissions of an existing dispute involving accusations of fraud are not affected by the section. S39(2) applies only to agreements to arbitrate future disputes.
but it all depends on the circumstances of the case and the nature of the fraud. In that case a prima facie case was made out and the claim was extremely complex and it was felt that a hearing in the High Court with an appeal to the Supreme Court was preferable in dealing with difficult issues of law. O’Hanlon J stated that the court’s discretion under s39(2) was broad. . The plaintiffs alleged fraud abd sought to have the arbitration agreement set aside and issueda summons and draft statement of claim. dies or is incapable the breach can be filled. The defednats sought a stay under s5 1980. He rejected the contention that one had to establish a prima facie case of fraud and stated it suffices if the allegations of fraud are made with perfect bona fides ie are not sham or frivolous or put down with the intention of placing an obstacle in the way of arbitration. The plaintiff’s sought to repudiate their contracts and claimed that the defendant’s insurance arrangements had been of a fraudulent nature . As parties can agree to fill the breach they can also agree that the appointing body can fill the breach. Generally per Forde where the party accused of fraud wants the matter litigated it will be but if he is happy to have the matter dealt with by arbitration the courts will be inclined to let that happen. 2 the court under (i) S18 or (ii) S40 following the removal of an arbitrator or umpire by the court. (5) Replacement The replacement of an arbitrator may be made by 1 the parties expressly or under s15 Thus the parties can do so by agreement There is a statutory provision in s15 of the 1954 act for the replacement of an arbitrator in a 2 arbitrator arbitration where he refuse. Administratia Asigurarilor de Stat v Insurance Corp of Ireland  ILRM 159 This concerned a dispute between an insurance company and a re-insurance company concerning a large amount of money.The ordinary rule of estoppel does not apply to s39 thus where a party seeking relief under s39 knew or ought to known the arbitrator’s relationship with the other party or connection to the subject matter of the dispute it will not be a ground for refusing the application. (though estoppel will operate in other case of removal just not per s39) See cases cited above under duty to act impartially – State(Heagarty) v Winters etc (pages 23 and 24) What do we mean by fraud – it usually involves deceit. making a false statement. There is a public interest in an open trial for certain allegations of fraud. The courts power in circumstances where fraud is alleged is discretionary.
(he will look at the agreement and the dispute – and subject to what I have already stated in certain circumstances he can decided whether he has jurisdiction to proceed save where it is alleged there was never an enforceable agreement for arbitration or if hi jurisdiction is founded on the existence of certain facts and they are in dispute or commenced later that the prescribed time (atlantic shipping clause)) Procedures to be followed How arbitration is conducted depends on what procedure is agreed by the parties. There are what is called” touch-sniff” arbitrations in the London Commodity trade whereby the arbitrator simply examines a sample of the commodity and then gives his decision.Commencing the reference Before an arbitration can commence. The advantage of Arbitrations is that it doesn’t have to be bound by court procedures and thus procedures in Arbitrations range from being extremely formal to extremely informal depending on the dispute and the agreement of the parties. The general rule is that if all parties wish to proceed by way of written submissions only then the arbitrator should accede to the request but if any party objects then an oral hearing should be held. This is often done with respect to small claims.1 the other party to appoint his arbitrator or to concur in the appointment of an arbitrator 2 or to the appointing authority nominated in the agreement Before accepting the position an arbitrator may negotiate his remuneration and obtain security for payment. It could be sent to. What happens next depends on the terms of the arbitration agreement The formal commencement of the reference to arbitration is when the notice is sent for the appointment of an arbitrator. This could involve substantial savings in costs. . a dispute must have arisen between the parties. He will then consider whether his appointment was valid.no witnesses – no hearing –arbitration determined on the basis of written submissions made. There can be documents only arbitrations.
Nemo iudex requires that the arbitrator is neither actual biased nor appears to be biased (ie he doesn’t act in an apparently biased manner). Audi alteram partem requires that each party is given an equal opportunity to present their case. the procedure is fair and not biased. The arbitrator is not strictly bound by a procedure adopted after appointment but at a minimum the arbitrator if proposing to deviate from this procedure should notify the parties and if both sides object then the original procedure should be followed. McLeod v Craddock (1954) and Czarnikov v Roth Smidt & Co Ltd (July 1992) The parties had agreed to contract out of the case stated procedure. Chilton v Saga Holdings  1 AER 841 held that refusing to allow a party cross-examine the other party’s witness is a ground for removing the arbitrator. the police were afraid to go into) Where no procedure has been agreed the tribunal has a wide discretion to deal with the reference to arbitration appropriately but again subject to the rules of natural justice and fair procedures.Even the most informal of procedures must adhere to natural justice requirements though. Some arbitrators insist on certain procedural requirements before accepting appointment as arbitrator. “There must be no alsatia in England where the King’s writ does not run”. If the arbitration procedure is agreed in advance by the parties then the arbitrator is bound to follow in – London Export v Jubilee Coffee Sometimes the procedure is agreed by the parties in conjunction with the arbitrator so as to find a procedure that best suits the dispute. ie sufficient notice of the date and place of the hearing. (Alsatia was the name of a slum. Re Enoch & Zaretzky (Eng) An arbitrator called some witnesses of his own and he refused to hear the evidence of witnesses of one of the parties. Held to be a clear breach of natural justice. . If it is to be conducted in a formal manner arrangements will be made for the exchange of pleadings ( points of claim and defence). Any agreed procedure cannot contravene public policy and the courts will not allow the parties contract out of the supervisory powers of the High Court. those of the Chartered Institute of Arbitrators for example. Natural Justice and fair procedures requirements The principles nemo iudex in causa sua and audi alteram partem are the essence of fair procedures. Otherwise it could be quite informal. an opportunity to present their evidence and make submissions and contradict the evidence of the other party. discovery and inspection of documents and what type of evidence may be given (written only (documents) or written and oral and whether the rules of evidence apply as if it was a court). (fair procedures ) It is usual that procedures would be agreed in advance of the reference to arbitration eg the arbitration agreement may incorporate model procedures. The court held that the parties agreed procedure was contrary to public policy because it ousted the jurisdiction of the court.
We have just seen that the parties can choose the procedures to be adopted they can also choose what law should be applied. The law to be applied There are a number of circumstance where bodies of law can apply to arbitration 1 The Law of the contract – that governs a contractual dispute in relation to that contract – ie disputes as to the obligations contained in that contract. If the dispute is as to the terms of the contract then the law fob the contract is the law of the dispute. The law of the contract can also be the law of the arbitration agreement but it need not be so. 2 The Law of the arbitration Agreement – this covers the jurisidiction of the arbitrator as the jurisdiction of the arbitrator is determined by reference to the arbitration agreement. You interpret the scope fo the arbitration agreement by reference to the law of the agreement. Time bar clauses and the validity of the arbitration agreement are interpreted in accordance with the law of the arbitration agreement. 3 The Law of Procedure –this relates to the procedures to be followed, the evidence (what constitutes evidence), the appointment and removal of the arbitrator. In the absence of a contractual provision to the contrary the general proposition is that the law of the place of the arbitration – lex loci arbitri 4 The law governing the dispute – if contractual then it is the law fo the contract, if tortuous then it is whatever law governs that tort Is it Irish or French Tort law and that is determined by the conflict of law rules under the procedural law. 5 The Law governing enforcement and recognition is usually the law of the place where you want to enforce the award. Whitworth Estates v Miller (1970) There was a contract between an English and a Scottish company to conduct conversion work on the English company’s property in Scotland. The contract was negotiated and concluded in Scotland, it had an arbitration clause referring to arbitration in accordance with the rules of RIBA and the contract also stated that this is a submission to arbitration within the meaning of the Arbitration Act 1950. A Scottish arbitrator was appointed and Scottish procedure followed. Order made in the Scottish form and a Scottish counsel employed. After the evidence was heard in the arbitration the English party sought a case stated in the English High Court regarding the Arbitration Act 1950 (the English Act). The question for the court was what rules of procedural law applies Scottish or English? Surely strong reasons for it to be Scottish Law as the whole thing was in Scotland contract etc. The House of Lords held that this was a Scottish arbitration and the procedural law was Scottish law but the law governing the dispute was English law (submission to arbitration within the meaning of the 1950 Act). Follow Scots procedure but apply English law in determining the merits (ie who should win). Thus arbitration in Scotland could be conducted under the 1950 English Act. In each case it is a question for the court of the land will they allow arbitration to take place within
their jurisdiction but without their supervision. _____________________________________________________________________
Prelim meeting Statute of limitations/time bars Defining the issues Discovery and Inspection Agreeing evidence/documents/written proofs/listing rules Interim protection orders Security for costs Settlement Delays and Defaults Pre-hearing review Preliminary meeting Usually the parties and the arbitrators will meet for a preliminary meeting especially where the dispute is complex. The preliminary meeting should be convened by the arbitrator as soon as possible after his appointment. The preliminary meeting allows the arbitrator to get a picture of the dispute and an idea about how best to conduct the reference so as to achieve the resolution of the dispute in the most efficient and economical way . On this the arbitrator should seek to get the agreement of the parties but in the absence of agreement he is fully empowered to fix the procedure subject to any special provisions in the arbitration agreement and subject to the principles of natural justice. The purpose of this meeting is generally to consider the issues and the procedures to be followed. Where and when the hearing will take place When and how points of claim and defence and any replies will be exchanged. What evidence will be admitted - Whether there will be an exchange of written proofs of evidence and when and how they should be exchanged. Application for interim protection orders Security for costs
There may be subsequent follow up meetings to deal with any additional matters and in very formal arbitrations a pre-hearing review. The following is a list of items dealt with at the preliminary meeting unless the arbitration agreement has itself clarified them (1) Review of arbitration clause (2) Check any preconditions to be complied with before commencement of arbitration (3) Validity of appointment (4) The arbitrators appointment and remuneration (generally before an arbitrator will agree to proceed with the arbitration he will require one or preferably both of the parties to sign a Form of appointment of arbitrator – this gives him a contractual right to recover his fees otherwise he could be left high and dry) (5) Identification of the parties (6) Defining the issues – subject of the dispute, counterclaim– any preliminary matters - providing for pleadings, points of claim or defence or allowing existing documents stand as pleadings –times for taking various steps. (7) Representation of the parties and whether counsel are to be involved. (8) Rules of procedure -Evidence – is the arbitrator to be bound by the strict rules of evidence – what about expert witnesses – witnesses of fact – extent to which reports can be exchanged and agreed (9) Any preliminary issues to be determined (10) Pleadings Points of claims Points of Defence and counterclaim if any Points of reply and defence to counterclaim Reply to defence to counterclaim Close of pleadings (10) Discovery Whether necessary, when and to what extent (11) Hearing-whether one is needed or will it be a documents only arbitration. If there is to be a hearing where should it be held – duration – provisional date -need for transcript -Should all the issues be heard at once or should they be split and interim awards made.-arrangements to be made and who is to be responsible for them (10)Inspection – Whether there is a need to inspect any property or items involved in the dispute – if so the date of inspections, the arrangements to be made, the persons to be present. (11)Are the arbitrator’s existing powers adequate to deal with any problems likely to arise (12)Is any major question of law likely to arise? Should a legal assessor be appointed or a case be stated to the High Court (13)Award – the need for an interim award – the final award – the procedure to be observed in relation to a sealed offer. (14) Find out whether the parties wish the arbitrator to tax the costs he may award. – Basis of arbitrator’s costs – tiem and method of payment – joint and several liability. (15) General Directions a All communications by any party to the arbitrator (save for the purpose
(See Law Society sample agenda in handout) Immediately after the preliminary meeting the arbitrator will normally issue an order for direction that will encompass formal directions from the arbitrator on the future conduct of the arbitration process by what has been fixed or agreed at the preliminary meeting. As stated earlier in respect of time bar clauses – the High Court under S45 of the 1954 Act can extend any time limit for such period as it deems proper if in the circumstances of the case undue hardship would otherwise be called. Walsh v Shield Insurance – quoted supra where an extension of time was granted though there was significant delay in commencing arbitration but the other side were held not to have been prejudiced by the delay.of fixing dates) to be simultaneously copied to the other party and to be noted on the correspondence accordingly. _____________________________________________________________________ Defining the issues Before one can embark on solving a dispute the issues need to be clarified – what is agreed – what is disputed. photographs and plans to be agreed where possible c reports and other evidence to be agreed where possible. (Claims for breach of contract must be brought within 6 years) Statute of Limitations 1957 Part IV applies its provisions and the provisions of any other legislation on limitations to arbitration (s75) S74 deems an arbitration to have commenced “When one party to the arbitration agreement serves on the other party or parties a written notice requiring him or them to appoint or concur in appointing an arbitrator or where the arbitration agreement provides that the reference shall be to a person named or designated. b exhibits. An arbitrator may not be able to proceed with the reference as the matter is time barred either by a clause in the arbitration agreement or by the Statute of Limitations 1957. . what documents are to be submitted to the arbitrator and when f. liberty to apply (16) Any other business. d figures to be agreed where possible e. ___________________________________________________________________ Limitation Periods The Statute of Limitations 1957 applies to arbitrations as it applies to actions in court.
Possession or procurement. The courts will lookat the words carefully and construe them strictly. The McPherson Train case showed that there can be an express agreement to depart from the strict rules of evidence The Henry Bath case stated that agreement to depart from strict rules of evidence could even be implied ( from the wording of the submission to arbitration and perhaps the conduct of the parties). The respondent contacted the warehouse man and he sent a telegram stating that he had not seen nor supervised the unloading of the goods in question. The modern view is contained in Thomas Bothwick. Generally except where the parties otherwise agree the arbitrator is bound by the rules of evidence.There can be written statements of case or alternatively pleadings – points of claim and points of defence and perhaps further particulars of both. Notices to admit facts – used where time consuming and expensive to prove facts – ask other side to admit them or bear the cost of you having to prove them Interrogatories – series of questions with a yes or no answer Amending pleadings – tribunals have a discretion to allow amendments of pleadings. The Court held they had not misconducted themselves and that where a matter is referred to an arbitrator for his expertise therefore you expect him to use it. Evidence What about evidence is the arbitrator bound by the strict rules of evidence required by courts? Will the hearsay rule apply – this greatly affects how documents can be admitted into evidence. If there is a dispute about admissibility of evidence then a case stated can be sent to the High Court – better to do that than go ahead and have the award set aside later. Fox and The Radoute case which state . The telegram was admitted into evidence and the award made. (That statement must be reading light fo natural justice requirements though). The action was dismissed as the parties had agreed to allow the arbitrator act on documents or copy documents presented to him without anyone being required to support the allegations of fact. Discovery and Inspection of documents. The WN Lindsay case states that very clear words are required to give an arbitrator power to exclude what would otherwise be admissible evidence. There was an action to set aside the award on the basis that it was given on inadmissible evidence. In court before trial a party may get an order that the other side discover and allow inspection of all relevant documents in their power. What about where the arbitrator is an expert can he use his own expertise? To what extent can an arbitrator who is an expert in his field rely on his own expertise? Eads v Williams Arbitrators appointed to settle a rent dispute regarding a cola mine – both arbitrators were familiar with the property in question so they didn’t have to go and inspect it and there were certain witnesses they didn’t examine. – In that case the particulars of the claim in dispute were delivered on the morning of the hearing – claim that the warehouse man for the respondents had inspected the goods and found them satisfactory.
Sometimes a written summary of the evidence of expert witness may be provided – (High Court disclosure rules in PI cases requires the disclosure of expert reports prior to hearing. in these circumstances the offer is normally communicated to the arbitrator . Save where the arbitrtion agreement specifically provides for it the making of an interim protection order does not fall within an arbitrator’s usual authority but a party can apply to court under s22 for a protection order. you get costs.that where an expert arbitrator seeks to rely on his experience or expertise he must put that to the parties. Settlement Ordinarily offers of settlement are made before the hearing takes place. Interim protection orders Occasionally the safety or existence of the subject matter of the dispute may be in jeopardy or there is a risk evidence might be destroyed – n litigation the court has extensive powers to protect by way of injunction. Unless an arbitration agreement specifically provides for it an arbitrator doesn’t have the authority to make such an order but an application can be made to the court under s22. It is misconduct for him to rely on his own experience in contentious issues without giving the parties an opportunity to controvert it. So that it can be taken into account is deciding the matter of costs. Generally granted where opponent a limited liability company or resident abroad. in certain circumstances you may fear even if you win you wont be paid your costs as perhaps the other side is not a mark or may have dissipated assets and thus you seek an order for security for costs before the hearing to ensure that in the event of you securing a costs order it will be met. Problem with an open offer – once the tribunal knows of it the danger is it will be influenced by it. Generally the court wont order it where the arbitration is on documents only merely because the claimant resides abroad. The tribunal wont know of a without prejudice offer. Usually the offer is either in the form of 2 or 3 above. Agreeing evidence/documents – you agree that the document is evidence or merely that it is authentic. Only at the stage where costs are being argued will the tribunal be aware of the nature of an offer without prejudice save as to costs. (property should be taken into custody or money paid into a bank account and frozen) Security for costs Generally you win a court case. There are generally 3 types of settlement offers 1 An open offer 2 An offer without prejudice 3 An offer without prejudice save as to costs.
The respondent may seek an adjournment which the arbitrator may grant on strict terms. Delays and Defaults One of the advantages of arbitration is speed Where there is delay on the respondent’s part the arbitrator if requested to do so can take steps to speed matters up. The purpose of this being the following:1 to check whether all of the directions given at the preliminary meeting have been complied with and whether any further directions are required eg additional discovery 2 to review the issues in dispute and encourage the parties. plans or other exhibits with a view o avoiding unnecessary proofs at the hearing 3 to review and fix the format of the arbitration hearing. Pre-hearing review If there is going to be a hearing the arbitrator may well decide. Where the claimant delays – the arbitrator on request of the other side can fix a time within directions must be complied with and set a date for hearing. A reasonable time should be given to the offeree to consider accepting the settlement. if so it is then enforceable as a contract. A sealed offer – without prejudice save as to costs is known as a caulderbank offer. Arbitrators cannot make awards in default of action of one side unlike courts but an arbitrator can fix a date for hearing. In Grangeford Structures Ltd ( in liquidation) v SH Ltd  ILRM 277 it was held that an arbitrator is entitled to proceed with a hearing without one of the parties being in attendance if the arbitrator has given that party a reasonable opportunity to attend. what witness will be heard first .in a sealed envelope prior to the conclusion of the arbitration hearing. Generally arbitrators are functus oficio once the dispute is settled and thus if the parties want the settlement to be made part of an award they must have conferred authority on the arbitrator to do so. The arbitrator will then make his award on costs having regard to whether or not the amount of the offer exceeds the amount of the award. Sometimes the parties seek to have an award made by the tribunal in the terms of the settlement thus rendering it enforceable as an arbitral award. where possible. Here a party’s offer is accepted the dispute is settled. to agree figures. documents. In case it influences his decision the arbitrator should not open the sealed envelope until he has made his award on the substantive issue in dispute. to hold a pre-hearing review with the parties or their representatives when the pleadings have closed. It is better though if the offer specifically deals with the entire question of costs including the arbitrator’s remuneration. notify the respondent and proceed to hear the matter on that date. When a party makes an offer of settlement to the other side generally it is deemed to include an offer to pay all of that sides costs up to the date of the offer. unless the arbitration is very straightforward. The settlement may take the form of an agreement between the parties. what issues will be dealt with first. photographs.
Arrange that a list of the issues and the necessary bundles of documents are given to the arbitrator in sufficient time to read them before the hearing commences. The Arbitration Hearing A significant amount of arbitrations are conducted without an adversarial hearing taking place –by inspecting the goods in a quality dispute or a documents only arbitration. the arbitrator in consultation with the parties will set a mutually convenient date. Thus each party must be treated fairly and be given an equal opportunity to be heard and to controvert their opponent’s case. . If this cannot be agreed with the parties he may set it himself though he must have regard to any reasonable representations made by any of the parties. The hearing must be conducted in accordance with the arbitration agreement and the rules of natural justice. time and place for the hearing.4 5 to check that the facilities and other requirements necessary for the proper conduct of the arbitration hearing are in order. He has full power to decide the how the case will be heard and the procedure to be followed subject to the arbitration agreement and any agreement made at the preliminary meeting and of course natural justice requirements. When all the pleadings have been exchanged and any pre-hearing review has taken place.
The arbitrator must balance the legitimate interests of each party against the general purpose of the arbitration which is to provide a speedy method in resolving disputes 3 Each party must have the opportunity to be present throughout the entire hearing 4 Each party must have a reasonable opportunity to present evidence and argument in support of his own case 5 Each party must have a reasonable opportunity to test his opponent’s case by cross-examining witnesses. unless there is agreement to the contrary. and generally should not take the evidence himself in the absence of the 2 parties. When the tribunal insisted on going ahead with the reference th respondent objected and left. If the latter then it would usually be as follows:Opening on behalf of the claimant (this could be brief if there is a comprehensive statement . That was a building dispute and the arbitrator had given various directions which were not carried out by the respondent and there were many delays on the respondent’s part. presenting and rebutting evidence and addressing oral argument. 6 In particular. Order of events The conduct of the hearing can be informal or akin to a court hearing. It was held that the arbitrator had not acted improperly in the circumstances Also the entire matter must be dealt with in private. It is the arbitrator’s responsibility to ensure that the parties are properly notified to avoid any misunderstanding 2 Opportunity to attend – each party must have a reasonable opportunity to be present at the hearing together with their advisers and witnesses. Usually there are 2 main issues – liability ( and if found liable) the amount of compensation to be paid – then there is the matter of costs. Approx 1 year after his appointment the arbitrator fixed a day for hearing. On the hearing day the respondent sought an adjournment which was made peremptory until the afternoon. hearing and publication of award. preliminary meeting. the arbitrator should not hear evidence in the absence of one party. The type of the arbitration and the general understanding of how formal or otherwise it is supposed to be will indicate the parameters of this right to contradict the other party’s case 7 Unless otherwise expressly agreed the parties must present the whole of their evidence and their entire argument at the hearing In Grangeford Structures Ltd ( in liquidation) v SH Ltd  ILRM 277 it was held that an arbitrator is entitled to proceed with a hearing without one of the parties being in attendance if the arbitrator has given that party a reasonable opportunity to attend. The arbitrator will seek to convenience the parties within limits. The tribunal then heard evidence ex parte and made an award in favour of the claimant.According to Mustill and Boyd the following are the minimum requirements of a hearing 1 Notice of hearing – each party must have notice that the hearing is to take place.
Witnesses Where a witness refuses to attend and give evidence at the hearing . Where issues of law arise and the arbitrator does not have legal experience he may decide to state a case to the High Court or with the agreement of the parties appoint a legal assessor to advise the arbitrator Ultimately the arbitrator makes a decision. This allows the arbitrator to deal initially with some issues without having to deal with others. The Award The decision of the arbitrator is called an award and it resembles the order of a court on deciding a case. The respondent’s lawyer will then present his case ( examination –cross-examination of witness etc) Final submissions will then be made. The arbitrator may seek clarification of various points during these final submissions. . but can intervene to prevent bullying of a witness.of the case before the Arbitrator) The claimants witnesses will then give their evidence (in response to questions from the claimant’s lawyer). They are then cross-examined by the lawyer on behalf of the respondent. As the procedure is adversarial in nature the arbitrator should refrain from interfering as much as possible. There are 2 kinds of awards Interim Final Sec 25 of the 1954 Act provides that unless a contrary intention is expressed in the arbitration agreement the arbitration agreement shall be deemed to contain a provision that the arbitrator may. a party to the arbitration can obtain a subpoena from the court under s20 1954 Act ( ad testificandum or duces tecum) Privilege against self-incrimination Forde says presumably this privilege applies as it does under litigation. Rules of evidence See previous comments on evidence One of the main issues in arbitrations is the application of the hearsay rule to documents and proving the origin and contents. This may be really important if there is a preliminary issue involved which could determine the outcome of the whole dispute without the need to decide upon the other issues. if he thinks fit make an interim award. They then may be re-examined by the claimant’s lawyers (questions in reexamination are confined to matters that arose in cross-examination). Similar to a court giving a reasoned judgment the arbitrator can set out the reasons for his decision.
In David Manning v John R Shackleton and Cork County Council  1 ILRM 346 the applicant issued Judicial Review proceedings in the High Court seeking reasons for the arbitrator’s award. Time of award S23 of the 1954 Act provides tht the arbitrator’s award can be made at any time subject to other sections in the act and the agreement of the parties to arbitration There is a power to extend any limit on time ( under s23) by order of court or by agreement in writing of the parties. Arbitrator’s are discouraged from giving reasons unless specifically required to do so by the parties. The law of evidence supports the idea of having a document to produce into evidence. An award will not be enforceable unless it contains a clear and unambiguous adjudication on all the issues in dispute referred to the arbitrator. If the parties specifically request reasons it is misconduct not to give them. signed by the arbitrator and dated.Unless the arbitration agreement provides otherwise there is no set format for making awards but (unless they are interim) they should deal with all the issues in dispute with finality and in order to be easily enforced they should be in writing . (See s8 1980 Act). If the parties by agreement request reasons the arbitrator has to decide the detail to give and whether to put the reasons in the award document or not. If detailed analysis of questions of fact – ok – but if detailed analysis of questions of law then the arbitrator is leaving himself open to Judicial Review. 2 Reasons Reasons are not required and could in fact be dangerous leading to a the award being challenged for error on the face of the record. Writing is advisable but the legislation (national and international) does not require it. The court can require reasons and can set aside or remit an award on the basis of breach of agreed procedure. It is not necessary that the arbitrator deal with each and every issue separately it merely requires that no issue is left outstanding. S24 though provides that an arbitrator must use reasonable despatch S36 where the court remits an arbitrator’s award to the arbitrator for reconsideration the arbitrator is obliged to repair the award within 3 months after the date of remission unless he is otherwise ordered by the court and in any event the parties can still extend the time limits under s23(2). If an issue of law arises on which the arbitrator needs the opinion of the High Court the arbitrator may give his award in the form of a special case. In such circumstances the arbitrator will issue 2 or more alternative awards to cover the possible decisions which the High Court may give. There is only final award and when published the arbitrator is functus officio. The High Court and Supreme Court . Formal requirements for an arbitrator’s award 1 Writing No requirement that the arbitrator’s award be in writing.
Signatures – not required Where there is greater than one arbitrator the arbitrators must sign the award at the same place and at the same time otherwise it may appear that it is not a joint conclusion.3 4 5 refused the relief sought. In the Montan case . Very good idea to put things in recitals when involved in contentious decisions re procedure so all is clear should there be a challenge later. . Date – good idea as interst payable from date of award This is not required but is advisable as S34 of the 1954 Act provides that interest can be awarded on the Arbitrator’s award from the date of the award at the same rate as a judgment debt – ie 8 % pa approx. it is not open to them now to complain that this was not done. Where an arbitrator departs from the normal rule in respect of costs ( ie that they follow the event) the arbitrator is required to give reasons for the departure. In the Grangeford Structures case the recitals detail the circumstances giving rise to the arbitrator proceedings ex parte thereby putting on the others the onus of disputing the events. In Voglaar & another v Callaghan t/a Callaghan Building Contractors (No 1)  2 ILRM Barron j said that a statement before directions are given on behalf of the arbitrator that it is not his practice to give a reasoned award seems to be inappropriate. The court can award that interest at the enforcement stage.the following formulation was held to separate the reasons from the award so that should reasons be wrong the award was safe from challenge on the basis of error on the face of the record “These reasons do not form part of my award and may not be used in any court proceedings without my permission”. Per the case of Thomas Ironworks v R the recitals do not form part of the operative part of the award and thus any defect in the recitals does not invalidate the award. It must therefore be only in rare circumstances where justice can obviously be seen not to have been done that the courts should entertain applications to set aside such awards or remit them to the arbitrator for further consideration. Such steps on the part of the court should only be taken where there is some form of misconduct either by the arbitrator or in the course of the proceedings in some way. The award can be set aside for failure to give said reasons re costs. Baker v Hunter states that recitals are not necessary and can be omitted altogether. The authorities are old and one wonders could circumstances referenced in recitals ever be seen to point to reasons for the award. The latter stating that the requirement that justice must be seen to be done does not require that an arbitrator’s award should incorporate anything in the nature of a reasoned judgment. Recitals These usually begin with the word “whereas” – they explain the circumstances leading up to the award. He further stated that the plaintiffs having had the opportunity to ask the arbitrator to state his award in the form of a case stated for th opinion of the High Court or alternatively to give reasons for what he has done.
The 1891 Act mentioned arbitrator’s awards but this is no longer the case and thus they do not require stamping. Stamp Duty If you have a document which falls within on e of the categories of the Schedule to the Stamp Act 1891 as amended and if you fail to stamp it then under s14 of that act the document may not be used in evidence except in criminal proceedings and is not available for any purpose what so ever. Kingston v Layden -The dispute required that the arbitrator inspect a neighbouring mine. Thus there is a link between cogency and completeness. The award should deal with all the issues. Aritrators have a lien over the award until they have received their fee. . Held no court would enforce that award at least summarily. In Bank Mellat it was held that signatures are not really required and an award will not be invalid by mere reason of absence of signatures.432 by reason of trespass and then ordered that the defendant suffered damages of £3.753 by reason of trespass.6 7 8 In Eads v William – Cranforth LJ stated that “ when a matter is referred to 2 persons to decide in writing it must be done at the same place and contemporaneously otherwise how would we know whether one person was not induced to change his mind. The owners of the coal mine claimed the neighbouring mine for trespass. In the case of SG Embericos the agent of one of the parties was ordered to make good the default of his principal. “I award that”. Publication There are no formalities for publication of the award (ie giving it to the parties) save what the parties have required by agreement between themselves. If required to decide 5 things then he should award and direct 5 things. The Finance Act 1910 requires that even where no duty is payable if your document falls within the categories you must stamp it with a 2particulars deliverd” stamp. Name and identify parties Ensure the parties are correctly named. The successful party can pay the arbitrator and look to the unsuccessful party for indemnity. (there are 2 methods of enforcement – summarily and action for breach of contract). In Grangeford Structures it stated in the award “This is in final satisfaction of all claims made by each of the parties in the reference” – strong presumption where that formulation is used that the award is complete and may not be set aside if some claims not mentioned. The 1891 Act requires documents/deeds regarding land to be stamped. 2 Certain If the award is uncertain it is invalid. Substantive Requirements 1 Cogent and complete An arbitrator’s award ought to be addressed in adjudicatory terms – “I award and direct”. “ I require that”. thus if an arbitration award deals with land or an interst in land it may require stamping. The arbitrator said the plaintiff suffered damages 32.
this purported award is not valid it is uncertain as it does not achieve anything – not clear as to what the he was awarding at the end of the day. (d) Equitable relief – s26 of the 1954 Act empowers arbitrators in the absence of . Reliefs In terms of the final award there are important reliefs that the arbitrator can award (a) A Monetary sum (damages) – this is the most common form of relief. To what extent has the arbitrator breached his requirement to present an enforceable award when he resents an award that isn’t summarily enforceable? In relation to enforcement even if the award isn’t enforceable it has nevertheless been decided that any issues of fact determined by the arbitration generate an issue estoppel as against both parties and that estoel is binding. Enforceable This is the aim of all the previous requirements. Therefore without court pronouncement it was uncertain who got what. The effect is that the award is the fulfilment of the contractual obligation.745 of defendant’s damages had occurred greater than 6 years before the action (so statute of limitations had run out) The arbitrator simply said this is a matter for the court to pronounce upon.3 4 £3.Declaration – the award may declare what the arties rights are eg s declaration that one party shall indemnify the other for expenditure to be incurred u to a specified sum. The arbitrator’s position where an award isn’t enforceable is that he has been in breach of his contract with the parties and may be required to re-consider the issue or to produce a new award. That estoppel can be recognised by a future arbitrator or a court because having chosen an arbitrator to decide that issue you are bound by his decision. There are 2 ways an award can be enforced 1 By taking an action of the award – eg for breach of contract 2 By summary enforcement – s41 of the 1954 Act E second entitles you to have the award enforced in the same way as a High Court Judgment. S34 of the 1954 Act provides that the award carries interest at the rate of a judgment debt (b) 8% from the time the award is given unless the award states otherwise (c) . There are situations where the award is not summarily enforceable. Supreme Court held. Final The award must be complete and leave nothing further to be done S27 of the 1954 Act states that unless the contrary is expressed in the arbitration agreement the arbitration agreement is deemed to contain a provision that the award is final and binding on the parties and the persons claiming under them respectively.
Look at interest from a number of tacks -Between date of default and award -Between date of award and present -Interest that arises solely because of the agreement eg interest under a loan agreement. Interest – This is the most complicated power that the arbitration has or may have in relation to the award. an application must be made under s41 of the 1954 Act to make the award effective).—The Arbitration Act. “S17. the arbitrator or umpire may award simple or compound interest from the date of the award (or any later date) until payment.65 (being the amount of the plaintiff’s Bill of Costs submitted on foot of paragraph 5 of the Arbitrator’s award) should run from the date of that award. the arbitrator or umpire may award simple or compound interest from the dates. Injunctions are usually used to give immediate relief but that can’t happen with one ordered by an arbitrator as the award must be enforced first – so perhaps not very practical.—(1) The parties to an arbitration agreement may agree on the powers of the arbitrator or umpire as regards the award of interest (2) Unless otherwise agreed by the parties. the 2nd July. in respect of any period up to the date of payment. 2001 Held that s. (Unlike a court order which has immediate effect. the 26th November. 1954 extends to costs as well as to any other sum ordered to be paid in an arbitration award. in respect of any period up to the date of the award (a) on all or part of any amount claimed in the arbitration and outstanding at the commencement of the arbitration but paid before the award was made. rather than from the date of the High Court order.(e) any contrary provision in the agreement to direct specific performance of contracts other than those relating to land or an interest on land. 1954 . is hereby amended by substituting the following for section 34 "Interest on awards 34. at the rates and with the rests that he or she considers meet the justice . (3) Unless otherwise agreed by the parties. Also any injunction awarded will not have effect until enforced under s41. Thus interest on the sum ordered to be paid runs from the date of the Arbitrator’s final award. Horan v Quilter 1/3/2004 SCT Whether interest on the sum of £30. at the rates and with the rests that he or she considers meet the justice of the case (a) on all or part of any amount awarded by the arbitrator or umpire. 1996 or from the date of the High Court judgment enforcing the award.331.( Post award interest is dealt with under s34 of 1954 Act – it provides that the award carries interest at the judgment rate from the date of the award unless the award states otherwise.34 of the Arbitration Act.
on the outstanding amount of any award (including any award of interest under subsection (2) and any award of costs). in respect of any period up to the date of the award (c) on all or part of any amount claimed in the arbitration and outstanding at the commencement of the arbitration but paid before the award was made. 1998 . at the rates and with the rests that it considers meet the justice of the case (b) on all or part of any amount awarded by the arbitral tribunal. (3) Unless otherwise agreed by the parties. (4) References in this section to an amount awarded by an arbitrator or umpire include an amount payable in consequence of a declaratory award by the arbitrator or umpire (5) This section shall not apply to an arbitration commenced before the day on which the Arbitration (International Commercial) Act. and (b) the parties agree that this section shall apply (6) This section shall apply to an arbitration commenced on or after the day on which the Arbitration (International Commercial) Act. the arbitral tribunal may award simple or compound interest from the date of the award (or any later date) until payment. Hadley v Baxendale Two pronged rule from the law of contract concerning the award of damages. on the outstanding amount of any award (including an award of interest under subsection (2) and an award of costs). (4) References in this section to an amount awarded by the arbitral tribunal include an amount payable in consequence of a declaratory award by the arbitral tribunal. the arbitral tribunal may award simple or compound interest from the dates. or (b) if the parties so agree. 1998 comes into operation (a) under an arbitration agreement entered into on or after that day. Where there is breach of contract the damages one can be awarded are .of the case. 1998 . under an arbitration agreement entered into before that day. at the rates and with the rests that it considers meet the justice of the case.” “S10 of the Arbitration (International Commercial) Act. comes into operation unless (a) the arbitration is concluded after that day.(1) The parties to an arbitration agreement may agree on the arbitral tribunal's powers regarding the award of interest (2) Unless otherwise agreed by the parties. (5) This section shall not affect any other power of the arbitral tribunal to award interest There are 2 approaches to pre-award interest and depend on the nature of the interest being awarded. in respect of any period up to the date of payment.
Contract case – Hadley v Baxendale Tort Case – no such rule re consequential loss. (Predictable loss/Special damage) Important as if interest is the kind of damages that arises under one of these two headings – then the arbitrator is awarding damages for interest is doing no more than awarding damages for breach of contract according to the law of contract. It was held that since one of the issues submitted to the arbitrator for determination was whether he had jurisdiction to award interest for the period prior to the award the arbitrator’s decision on the matter was final and could not be upset by the court save where the issue was in a case stated to the court or there was an error of law on the face of the record or misconduct. Where parties agree on the power of the arbitrator re interest. ie in the usual course of things 2 Damages for such damage as both parties ought to have had in their contemplation at the time they entered the agreement. Might fit under rules of remoteness of damage. O’Flaherty J said (obiter) that at common law the arbitrator has no inherent power to award interest and statute gave no such power either therefore no inherent power to award pre-award interest. If the award of interest doesn’t fall under these two headings does an arbitrator have inherent power to award pre-award interest? No problem if he has express power under the agreement but does he have inherent power? McStay V Assicurazioni Gnerali Spa  ILRM 237 The Supreme Court declined to decide whether arbitrator’s generally can award interest for the period prior to the award. ( In the case the arbitrator held he did not have authority to award pre-award interest). Wadsworth v Lydall 1981 1 AER 401 Interest was recovered there as it wa consequential loss as successful claimant had to borrow money and pay interest on it due to wrongful refusal of other party to pay before the award. In the UK the legislature specificially inserted s statutory power (in 1982) in s19(a) of the Arbitration Act 1950 that unless there is a contrary intention in the arbitration agreement every arbitration is deemed to include a provisions that the arbitrator may award simple interest on pre-award sums paid or pre-award causes of action. Australia also has a similar approach. S17 of the 1998 Act amends s34 by substituting a new S34 – and gives the arbitrator power to award interest at whatever rate he feels meets the justice of the case on all or part of any amount awarded by him both up to the date of the award and from the date of the award to the date of actual payment. Provided of course that the interest is arising out of a contract case.Damages that arise naturally. Unless agreement arbitrator may award simple or compound interest from the dates and at the rates 1 .
Smullan.and rests he considers meets the justice of the case. In that event the arbitrator shall after hearing any party who wishes to be heard amend his award by adding such directions as he may think proper in relation to the payment of costs. Arbitrator’s discretion The arbitrator generally decides which party pays the costs and the proportion to be paid. It can be simple or compound interest from date of award or later Section 17 applies to arbitration agreements entered into after the day on which the 1998 Act came into operation (20 May 1998) unless the parties to the arbitration agree otherwise. . There are 2 kinds of costs in an arbitration 1 Costs of the award – ie the arbitrator’s remuneration and expenses (each party is liable to ay these 2 Costs of the reference. lawyers fees.30 of the 1954 Act declares void any stipulation that the parties are to bear their own costs regardless of the outcome of the arbitration. 3 The dominant principle is that costs should follow the event – ie the winner recovers his taxed or agreed costs from the looser. In the Everglades Maritime Case  QB 780. Unless the parties agreed otherwise s29(1) of the 1954 gives the arbitrator a discretion over who shall bear the costs of the award and of the reference and in the manner in which those costs or any part of them shall be paid. (f) Costs The arbitrator is required to deal with costs if he fails to do so then his award is incomplete – Re Beaker. This discretion has to be exercised judicially. Barry (1921) Under s31 of the 1954 Act If the arbitrator does not deal with the liability for costs in his award any party to the reference may within 14 days of the publication of the award or such extended time as the High Court may allow apply to the arbitrator for an order directing by whom and to whom those costs shall be paid. witness expenses etc) Occasionally the arbitration agreement will state how the costs are to be paid but s. (This though does not apply to an ad hoc reference to arbitration where the dispute has already arisen before it is agreed to arbitrate) Sections 29-34 of the 1954 Act makes certain provisions with regard to costs which the parties can supplant by agreement.(ie expenses incurred by each party in preparing and presenting their case.the courts explained where parties opt for arbitration in England that includes the traditional English approach to costs 1 The award of costs is in the discretion of arbitrators as it is of judges 2 In neither case is the discretion absolute or unfettered but should be exercised judicially in accordance with settled principles.
give the parties time to agree on the costs. When such an offer is made the practice is to make an interim award on the merits. If a party has conducted himself in an unreasonable manner. Offer which are made by one party to the other prior to the arbitration hearing are usually stated to be made on a “without prejudice basis save as to costs” (i. Sealed Offers There is no equivalent in arbitration to the lodgment system which exists in litigation. if they don’t the arbitrator decides and takes the caulderbank letter/offer into account. Offer including Interest Settlement offers may state a particular sum plus interest. the party making the offer wishes the arbitrator to take account of it in any award he is making on costs only) and the arbitrator is given a sealed envelope which he only opens after having reached a decision on the merits of the case ie the substantive issue. Where the sum offered exceeds the amount the arbitrator awarded then the costs will be given in favour of the offeror from the time the offer was made. (If plaintiff does not recover more than was paid in then he covers the defendant’s cost from date of payment) (A sealed offer is the arbitral equivalent of making a payment into court. In the Transmountana Amadera Case  2 AER 870 the court set out how the interest element should be dealt with when calculating costs. Subject to the above the question of whether the offer exceeded the award is easily answered. A sealed offer which is marked without prejudice save as to costs is known as a caulderband letter/offer.4 5 It is necessary to consider the outcome of the proceedings to decide which costs should follow The court will take account of payment into court in exercising its discretion on costs.e. Alternatively interest for the period between the offer and the award must notionally be added to the amount of the sealed offer. unnecessarily prolonged the hearing or increased the other sides costs he faces a costs penalty eventhough he won. The arbitrator knows what in fact he awarded both principal and interest In order to compare like with like the arbitrator must recalculate the interest element as if the award had been made on the same date as the offer.) Not following the event There are certain circumstances that justify not following that rule but the fact that the claimant did not recover all he sought would not generally be enough. In the Everglades Case – the issue was whether the tribunal in calculating whether the . Offer including costs Exceptionally an offer to settle may include and offer to pay all or parts of the other side’s costs. The arbitrator knows what the claimant would have received if he accepted the offer (which didn’t include interest).
to set aside his award so far as it relates to costs. What happens here tends to be that where an offer is close to the sum awarded a fractional award of costs will be made to that party otherwise no order for costs will be made save where the amount offered and the sum awarded are identical which would be very rare. The court remitted the matter back to the arbitrator so he could deal with the question of costs in light of the offer. Judicial review on award of costs Often the scope is limited to where no reasons are given in the award. Remit The court can exercise its jurisdiction to remit under s36 1954 Act where there has been some procedural mishap regarding costs.offer exceeded the award should take account of the costs part of the offer in the same way as interest is considered. The mere fact though that the court would have reached a different decision to the arbitrator is not enough for it to be set aside – it would need to be a decision that the court would not reach. Arbitrator not required to give reasons in award can given them on affidavit or the reasons can be clear without being stated claim was for an excessive sum. Rebuttable presumption arbitrator has erred in law or acted in an unjudicial manner where he departs from the follow the event rule with respect to costs and gives no sufficient reason. A final award was made against the offeror including costs. that the court has jurisdiction where it appears on the material before it that an arbitrator has exercised his discretion in a non-judicial manner as to costs. It was held that cost elements should be disregarded in making the calculation as it would complicate matter too much and anyway costs are not part of the claim but are merely ancillary to it. . We have a different kind of dispute with a different kind of event – here there is no clear winner or loser. If on the evidence before the court the arbitrator acted in a non-judicial manner it is technical misconduct and the award will be remitted to be amended in light of the findings of the court. The scope for judicial review of a final award on the bases of misconduct is as per Diplock LJ in Heaven & Hesterton Ltd v Sven Wiaeus A/B  1WLR 1235 “two things are clear—First. The second is that it matters not whether the material upon which the court comes to the conclusion that there has been a non-judicial exercise of discretion appears on the face of the award or appears by affidavit evidence which comes before the court. if no reasons are given the award will be remitted to the arbitrator so he can give them. Where the award is given in the form of a case stated and the arbitrators in awarding costs doesn’t follow the event he is exhorted to state the reason why. King v Thomas McKenna Ltd  2 QB 480 Selaed offer made but counsel neglected to tell arbitrator or other side she needed issue of liability and quantum resolved prior to any consideration of costs. Quantum disputes If the dispute is purely re quantum – how much rent to be paid or what value to place on shares we are not talking about a contractual or tortuous dispute.
party basis – ie only expenses necessarily and properly incurred to advance the case are allowed Solicitor client costs means the actual costs incurred. Mutual Shipping Corp v Bayshore Shipping Co  1 WLR 625 – the arbitrator (in his notes) wrongly attributed the evidence of one party’s witness to the other side and thus awarded in favour of the wrong side. They must apply within 14 days of the award otherwise they need to go to court and get an extension of time. Effects of the Award Once the award is made the arbitrator is functus officio and the award is final and binding save 1 re an application under the slip rule s28 or 2 re an aplication under s31 where he didn’t deal with costs or 3 re S36 where the court remits the award back to the arbitrator . No Costs mentioned Where award contains no order directing the payment of the costs of the reference either party may apply to the arbitrator to deal with the matter under S31 1954 Act. Generally costs are measured on a party. Thus a party must apply to the arbitrator to correct the error he can’t do it off his own bat. With the consent of the parties s29 of the 1954 Act empowers the arbitrator to tax or settle the amount of costs to be paid. However the time limits for challenging the award are usually determined by reference to the date when there was publication or delivery of the award to the parties. Even this was llowed to be corrected under the slip rule. Practice As a matter of practice an arbitrator wont issue his award until he has been paid his fees and expenses in full Publication of Award Where an arbitrator has made his award it is generally said to be published.Taxing costs Cost of the reference can be taxed in the same manner as court costs. The arbitrator may then hear any party who wishes to make submissions on costs and then amend his award by adding directions as to costs. Amendment of award S28 of the 1954 Act provides that unless the arbitration agreement provides otherwise an arbitrator can amend his award in order to correct any clerical mistake or error arising from any accidental slip or omission on application to him by one of the parties on adequate notice to the other party.
. It is a good defence if -the arbitrator’s power was revoked . -the award. as in such case the award at most is voidable but remains enforceable. This is done by way of Special Summons pursuant to Rule 4 of Order 56 of the Rules of the Superior Courts SI 15/1986) The latter is a speedy way of enforcing the award but the award must be one capable of being enforced as a judgment It is not a defence to show error on face of the award or misconduct.Thus the priciple of res judiciata applies to all maters decided by the award or necessarily involved in the decision. The courts can prevent litigation or arbitration of an issue raised in the arbitration or even one that should have been raised in the agreement – this is to prevent abuse of process of the court and re-litigating the same matters. Third parties are not affected by an award unless they have agreed to be. 2 by either party seeking summary enforcement of the award as if it were a judgment under s41 Under S41 of the 1954 Act an arbitration award may by leave of the High Court be enforced in the same manner as a judgment or order to the same effect. application has to be made to the High Court for the enforcement of an arbitration award.and not challenged in the court . An arbitration award is enforced by 1 either party taking an action on the award (ie proceedings for breach of contract) (There the plaintiff pleads and proves: -the arbitration agreement.it should be .. or -award was void (voidable is no good as it can be remitted to the arbitrator to cure the defect) Parslow v Bailey (1704) recognised that parties to n arbitration impliedly promsie to be bound by the award. It would be a defence to show that the award was void – eg arbitrator had no authority to make the award – eg arbitrator not properly appointed or had his power revoked. _______________________________________ Enforcement of the award Arbitration awards unlike court orders are not directly enforceable ie you can’t register it as a judgment mortgage or send in the sheriff to seize goods on foot of it. -that the dispute was within the terms of the agreement and the arbitrator was duly appointed.. Grange Developments Ltd v Dublin CC 14/3/89 Murphy J said “once an award has been made.
Scrimaglio and Termarea cases– state that you cannot defend an action to enforce the award on the mere basis of misconduct (Scrimaglio) or on the basis of error of law (Termarea) therefore if you have a complaint re these you must take an active challenge. It should not be held up because the loosing party says he wants to argue some point or other or says he wants to set up a counterclaim” Thus leave should be given for summary enforcement unless there is a real reason for doubting the validity of the award. Active Challenges to an award Take an action to 1 Set aside (Sec 38) of the 1954 Act gives the High Court power to set aside the award where:(i) The arbitrator has been guilty of misconduct or (ii) the– award has been improperly procured a. therefore in a passive defence you’d seek to show the following 1 Arbitration agreement never came into existence or was unenforceable 2 The dispute was outside the scope of the agreement ie it referred to disputes under contract and the dispute was re tort. Proofs for enforcement In the Christopher Brown Case it was stated that the following were required to be proven in order to enforce an arbitrator’s award. If you want to raise a judicial review point then seek to have the summary enforcement proceedings adjourned pending the JR. Breach of agreed procedures . 3 The Arbitrator was not validly appointed 4 No award was made 5 There has been no default in honouring the award.entered as a judgment and given effect accordingly.CCCFE 2 Award outside scope of submission (ie outside jurisdiction) Can’t in defence claim procedural wrong. _______________________________________________________________ Challenges to award Passive Challenges (defences to enforcement) 1 Lack of substantial requirements .
2 Per S39 the High Court has a general power to give relief where the arbitrator is not impartial or the dispute referred to arbitration involves a question of fraud 3 The High Court has a power to remit (ie refer back to arbitrator for reconsideration).b. Also useful where non-legal enforcement is being effected – eg –blacklisting. . Breach of fair procedures c. The authority for granting an injunction is Birkett & Sharp & Co v Eastcheap Dried Fruit _______________________________________ Judicial control of arbitration Bremer Vulkan  AC 909 “In relation to private arbitrations the jurisdiction of the High Court to supervise the conduct of the arbitration is confined to exercising the powers conferred upon it by the Arbitration Acts”. Where there is error of law on the face of the record the High Court at common law can set the award aside or pursuant to statute remit it. S36 of the 1954 Act gives the High Court power to refer to an arbitrator for reconsideration any issues on which he has made an award. (Note an application for set aside or remittal must be made to the High Court within 6 weeks of the award being made and published to the parties or such further time as the High Court may allow). rescission of contract. A declaration is only available in respect of jurisdiction wrongs and is not appropriate for misconduct or error on the face of the record 5 Injunction This comes into its own where enforcement of an award is sough in another jurisdiction. Excess of jurisdiction – error of law on face of record. Misconduct d. and provides that unless the court order directs otherwise the arbitrator shall make his further award within 3 months after the date of the order 4 Declaration of Invalidity – This is an alternative means of challenge – commonly used where it is claimed that the arbitrator lacks jurisdiction and the award therefore lacks jurisdiction. You can get an injunction from the Irish Courts preventing enforcement in another country – if person trying to enforce is in Ireland.
There are some limited circumstance though where the courts will intervene by way of injunction to protect a legal or equitable right – eg the reference may be stopped where the agreement is void or the arbitrator has no jurisdiction over the dispute. (2)Replacement of Arbitrator S40 – a party can apply to court to appointment an arbitrator in place of a previous one (3)The Court can give effect to the arbitration agreement by staying litigation Under S5 of the 1980 Act where a dispute between parties is the subject matter of an arbitration agreement then the court will accede to an application to stay any litigation and thus requiring the parties to litigate there differences. (See pages 8-11 supra) A stay will only be granted where the dispute is covered by the terms of the arbitration and said agreement is not null and void. If the application is made prematurely it will be refused. (4)Assisting an arbitrator S20 and 21 subpoena witnesses and compel attendance of prisoner The court on application to it can direct that the arbitrator has the following powers and . Whilst in essence arbitration is a private process the courts do intervene to support and supervise the arbitration process and enforce the award. where all the arbitrators are removed by the Court S40(2)(i) of the 1954 Act gives the court a discretion to appoint a sole arbitrator. If steps have been taken in the litigation process (ie something involving court costs) then the party will be seen as having consented to litigation. (1)The Court can aid in the constitution of the Arbitral tribunal There are 5 circumstances where the arbitrator can be nominated by the court under s18 of the 1954 1 where the parties cannot agree on a sole arbitrator 2 3 4 5 where the arbitrator refuses to act. is incapable of acting or dies (save where the terms of the agreement provide for the filling of such a vacancy) the parties or the arbitrators refuse to appoint a third arbitrator or umpire the umpire or third arbitrator refuses to act or is incapable of acting or dies. The application is to be made after an appearance is entered but before any steps have been taken in the proceedings.
It is too late to seek a case stated once the award has been published. After this case arbitrators granted applications for case stated more easily as fear failure to do so would lead to a charge of misconduct. and the issue of a commission or request of the examination of a witness outside the jurisdiction (e) the preservation. In the Lysland Case  1 QB 843 Denning LJ laid down the circumstances in which an arbitrator should state a case 1 There should be a real and substantial point of law which is open to serious argument and which is appropriate for a decision of a court of law 2 The point of law should be clear cut and should be capable of being accurately stated as a point of law. The function of the case stated system is to provide a structure for arbitration but also to ensure adherence with the law of the land. If a party requests a case stated and the arbitrator refuses and goes ahead and makes an award without allowing sufficient time for the party to go to court to seek directions then the arbitrator may have misconducted the proceedings and the award can be set aside. preservation or inspection of any property or thing which is the subject of the reference or as to which any question may arise therein and authorising for any of the purposes aforesaid any person to enter upon or in any land or building in the possession of any party to the reference or authorising any samples to be taken or any observations to be made or experiment to be tried which may be necessary or expedient for the purpose of obtaining full information or evidence and (h) interim injunctions or appointment of a receiver (5)Case Stated An arbitrator may state a case for the opinion of the High Court but if arbitrator doesn’t want to state a case a party can apply to the High Court to compel him to do so. interim custody or sale of any goods which are the subject matter of the reference (f) securing the amount in dispute in the reference (g) the detention. S35 of the 1954 Act. – “there will be no alsatia in England where the King’s writ does not run” Idea – that the procedural law is the law of the place of arbitration. .how they should be used S22(1) (a) – security for costs S22(1) (b) – discovery and inspection of documents (c) giving evidence by affidavit (d) examination on oath of any witness before an officer of the court or any other person. 3 The point of law should be of such importance that its resolution is necessary for the proper determination of the case.
The lease provided that said certificate would be final and binding. The lease provided that any disputes between the parties would be dealt with by arbitration. Kevin’s Company  IR 80 This was in connection with a commercial where the amount of the service charge was to be determined by the landlord’s auditors who was issue a cert specifying the amount payable. The case of Stillorgan Orchard – Hamilton P stated that the Court will state a case if the applicant has in the first instance requested the arbitrator to state a case and he has refused. The High Court held the parties had initially sought to have a matter of law resolved by arbitration and notwithstanding the arbitrator had no legal qualifications it would be unfair and unjust for the unsuccessful party to now try and substitute the decision of the High Court on the matter. It is not misconduct for an arbitrator merely to refuse to state a case. Louis Emmanuel v Sammut – Dealy of 4 months in production of award after conclusion of a short hearing – arbitrator gotten rid of. Held failure of competence – s37 – therefore he gets his remuneration. In 1982 a dispute arose re the amount of service charge payable under the certificates and an accountant was appointed as arbitrator. The parties appointed a legal adviser to assist the arbitrator. In the case the court refused to direct a case be stated as counsel’s submission to the arbitrator amounted to no more than vague murmurings that maybe a case should be stated. The issue was what was the significance of the agreement in respect of certification of the service charges.Hogan v St. The arbitrator decided that the cert could be impugned to a limited extent and the disgruntled party sought a case stated. The law has established that failure to use reasonable despatch must be the only cause of the delay. The application to the arbitrator to have a case stated must have been clear unambiguous and not vague. (6) Removal of Arbitrator An arbitrator may be removed by the court for failure to use reasonable despatch S24 and misconduct s37 S24 – the high court can remove an arbitrator or umpire and he shall not be entitled to remuneration if he has failed to use all reasonable despatch. if something else is the cause – eg misconduct then the appropriate application is under s37 Pratt v Swanmore The arbitrator failed to get the arbitration in motion within a reasonable time as he failed to show the competence one would expect of someone in his shoes. . where the misconduct may arise is where an arbitrator having refused to state a case refuses an adjournment to allow and opportunity for a party to apply to court. Murphy J pointed to the fact that they had chosen a legal adviser to assist the arbitrator and said that indicated they were not going to court afterwards and thus were estopped from seeking a case stated. One party sought his removal on 2 grounds – failure to show reasonable despatch and misconduct.
Irish cases – there is a focus on the possibility of justice not being done. It is purely procedural. Modern Engineering case Issue related to an architects cert – ie he certifies that the costs put in by the contractor are reasonable in relation to the work done -. Claimant made an opening submission and the arbitrator on foot of this made an interim award before the defence had made a submission. Normally an architect’s cert is deemed final re costs. No degree of intention is necessary. 2 sets of relief sought . This was a reach of natural justice – audi alteram partem. Goff J set aside the award but refused to remove the arbitrator stating that there were varying degrees of misconduct and the misconduct which resulted in the setting aside of an award was less serious than that needed to remove the arbitrator The Court of Appeal overturned the decision not to remove the arbitrator but did not devalue the proposition that there are varying degrees of misconduct and the most serious being required for the removal of an arbitrator. Examples of misconduct 1 Visiting the property the subject matter of the dispute accompanied by the employee of one of the parties (State(Hegarty) v Winters [1956} IR 320 2 Not hearing relevant evidence O’Sullivan v Joseph Woodward & Co  IR 255 3 Not affording parties the opportunity to make submissions on a relevant point. Dunne and Denning LJJs focused on the confidence of the parties. Please note that error of law or fact on the face of the record is not misconduct.S37 – the High Court can remove an arbitrator for misconduct (In such circumstances the award can be set aside if improperly procured – s38 and thus the whole arbitration is rendered null and void) Pratt v Swanmore – deals with what is misconduct Pain J – Having regard to an arbitrator’s conduct it would be unfair to leave the arbitration in that arbitrator’s hands. The idea being that there is no reasonably prospect of justice being done if the arbitration is let continue. Misconduct does not require moral turpitude. neither is refusing to state a case to the High Court (Stillorgan Orchard v McLoughlin & Harvey .removal of the arbitrator and setting aside of the award. Geraghty v Rohan Industrial Estates Ltd  IR 419 4 5 Lacking of elementary skill to conduct the arbitration = misconduct (Pratt v Swanmore – no breach of the rules of natural justice save that no-one could conceivea justi outcome from the way the arbitrator was conducting the arbitration) Misconduct to enforce an award which deals with an illegal contract David Taylor v Burnett – contract re controlled substances – held unenforceable on basis it related to an illegal contract.
but of what effect it might possibly have produced. Boyd J stated that arbitrators must not be guilty of any act which can possibly be construed as indicative of partiality or unfairness. If the arbitrator has a shareholding in one of the parties he should disclose that even where such a shareholding is unlikely to affect his decision. One of the arbitrators viewed the farm accompanied by the party who had appointed him but was not accompanied by the other party. It was held there was no real likelihood of bias. (though estoppel will operate in other case of removal just not per s39) Bias The general principle nemo iudex in causa sua applies to arbitrators – principle against bias – justice must not merely be done but must be seen to be done. S39(2) applies only to agreements to arbitrate future disputes. Thus the arbitrator cannot be bribed or even place himself in a situation where it appears he is biased (apparent bias). State(Hegarty) v Winters  IR 320 . (7) Revocation of the Arbitrator’s authority s39 and s9 S39 provides for the revocation of the arbitrator’s authority by the high court :where the arbitrator is not/may not be impartial or there are allegations of fraud. ad hoc submissions of an existing dispute involving accusations of fraud are not affected by the section. 1990 Is whether “a right minded person with full knowledge of the facts would have been led to conclude there was a real likelihood of bias” In that case the arbitrator had provided professional services to the respondent’s (a property developer) associate building company. which the parties had worked in partnership. The arbitrator should not be connected to the subject matter of the reference as this too against his impartiality. – what we are talking about is the appearance of bias. The test per Blayney J in Bord na Mona v Sisk Unrep HCT May 31. It is not a question of the effect which misconduct on their part had in fact upon the result of the proceedings. Said action was held to be contrary to all principles of justice and fair play and amounted to misconduct. The ordinary rule of estoppel does not apply to s39 thus where a party seeking relief under s39 knew or ought to known the arbitrator’s relationship with the other party or connection to the subject matter of the dispute it will not be a ground for refusing the application. Under the procedure agreed by the parties each arbitrator was to make a separate valuation of the farm on behalf of the party whom he represented. Re Brien’s Arbitration  2 IR 84 -arbitrators were appointed to value the land. Bias in conduct of the reference The arbitrator must not have undue contact with one of the parties. ILRM 128) S15(2) B – the court is given the power to setting aside any appointment in S15(2) A (S15(2) A is not very commonly relied upon. and to determine which of them should have first offer to purchase the land.
The courts power in circumstances where fraud is alleged is discretionary. It was held her going to view the site on her own was not misconduct. S39 provides an exception to that principle where the objection is that the arbitrator has a relationship with a party or with the subject of the reference and the objecting party was aware or should have been aware of that relationship at the time he entered into the arbitration agreement and the arbitration was named or designated in that agreement. If the arbitrator has been found to be in collusion with a party or otherwise corrupt the court can make him liable for the costs fo the arbitration. What do we mean by fraud – it usually involves deceit. but it all depends on the circumstances of the case and the nature of the fraud. The award was set aside on the grounds of the arbitrator’s misconduct. There is a public interest in an open trial for certain allegations of fraud. . Tobin and Twomey Services Ltd v Kerry Foods Ltd  3 IR 483 The High Court confirmed that the court’s discretion to remove an arbitrator is likely to be confined to cases where the arbitration cannot continue with the particular arbitrator in office either because he had shown actual or potential bias. Administratia Asigurarilor de Stat v Insurance Corp of Ireland  ILRM 159 This concerned a dispute between an insurance company and a re-insurance company concerning a large amount of money.There the arbitrator visited the property that was the subject of the reference accompanied by an employee of one of the parties. or his conduct had given serious grounds for destroying the confidence of one or both of the parties in his ability to conduct the dispute judicially or competently. Generally per Forde where the party accused of fraud wants the matter litigated it will be but if he is happy to have the matter dealt with by arbitration the courts will be inclined to let that happen. Where a party is aggrieved because of bias then must generally make their objections known at the earliest possible opportunity or they may be regarded as having waived that objection. The plaintiffs alleged fraud abd sought to have the arbitration agreement set aside and issueda summons and draft statement of claim. The defednats sought a stay under s5 1980. making a false statement. In Childers Heights Housing Ltd v Molderings  ILRM 47 The arbitrator expressed a wish to view the site on her own and neither party raised any objection . Actual bias can justify the court setting aside the award or revoking the authority of the arbitrator as well as the arbitrator being denied his fee and possibly his out of pocket expenses. That was held to reasonably give rise in the mind of an unprejudiced onlooker to the suspicion that justice was not being done. Redress for bias The 1954 Act provides for the sanctioning of bias or breach of the nemo iudex principle. The plaintiff’s sought to repudiate their contracts and claimed that the defendant’s insurance arrangements had been of a fraudulent nature .
Misconduct. – see below remission An application to remit or set aside an arbitrator’s award must be within 6 weeks after the award has been made and published or such further time as the court may allow. Error of law on face of record. (See page 26 of notes above) (8) Setting Aside of the award (Sec 38 of the 1954 Act enables the High to set aside the award where there is – misconduct or the award is improperly procured a. Breach of agreed procedures b. __________________________________________________ S9 1954 Act provides that the authority of the Arbitrator/umpire appointed by virtue of an arbitration agreement shall unless there is a contrary intention expressed in the arbitration agreement be irrevocable unless one obtains the leave of the court.) Where the arbitrator is a sole arbitrator therefore both sides will have conferred authority on him. What is error on the face of the record? Where there is an error of law on the face of the record the High Court may set the award aside at common law or remit the award under the legislation. What factors should the court take into account in giving leave ( none are listed in the section) It has been held that the court should exercise the jurisdiction to give leave to revoke the arbitrator’s authority most sparingly and with caution – Den of Airlie SS Co v Mitsui & Co (1912) 106 LT 451 Mustill J in Sucula Ltd called it a power of last resort.O’Hanlon J stated that the court’s discretion under s39(2) was broad. Per Keenan v Shield Insurance Company [1988[ IR 89 -The error must be obvious and so .see above d. In that case a prima facie case was made out and the claim was extremely complex and it was felt that a hearing in the High Court with an appeal to the Supreme Court was preferable in dealing with difficult issues of law. He rejected the contention that one had to establish a prima facie case of fraud and stated it suffices if the allegations of fraud are made with perfect bona fides ie are not sham or frivolous or put down with the intention of placing an obstacle in the way of arbitration. Breach of fair procedures (See duties of arb and above re bias and misconduct) c. One leave is given it may only be exercised against an arbitrator upon whom authority had been conferred by the revoking party (ie you can’t get leave to revoke other side’s arbitrator – revocation can only be made by those who gave the authority in the 1st place. Excess of jurisdiction – e. S9 also applies where a sole arbitrator was appointed by an appointing body.
The court because the parties had chosen arbitration to decide the precise question of law the decision of the arbitrator could not be overturned no matter how erroneous. it was nevertheless clear from the affidavit of the Arbitrator and implicit in the award itself that the arbitrator failed to take into account the offer which had been made (in relation to the issue as to costs). Barron J extended time in the circumstances as the award was taken up jointly when the 6 weeks had run out (the rule being unknown to both sides) ( thus if the rule were enforced they would have been required to issue proceedings when they didn’t know the content of the award.It must be an error of law on which the award is based. (9) Remission Rather than set an award aside S36 allows the High Court to remit an award back to the arbitrator to reconsider it. It seemed to Barron J that to allow the award to stand in such circumstances would be a severe injustice and he remitted the matter back to the arbitrator to make such an award as he considers proper having regard to the offer. King v Thomas McKenna Ltd  2 QB 480 held that the jurisdiction to remit goes . The courts can remit an award on 4 grounds 1 Where there was misconduct by the arbitrator (we looked at what equals misconduct above) 2 Where there is an error of law on the face of the record 3 Where the arbitrator has made a mistake in drawing up the award and wants to have the matter remitted to him or Cusually rectified though under the slip rule s28 1954 Act) 4 Where fresh evidence is discovered which probably would have had a substantial effect on the decision made. Per Vogelaar the 6 weeks runs not from the time the parties receive copies of the award or are aware of its contents but from when it is actually made. Where there are no reasons given for the award it is difficult to detect an error of law. Per Church & General v Connolly it must be an error of law on the face of the record – ie on the award or a document actually attached thereto.fundamental that the courts cannot stand aside and allow it go unchallenged. In McStay v Assicurzioni Generali Spa  ILRM 237 the Supreme distinguishes between an error on the face of the record where a general issue in dispute is submitted and an issue of law arises as a result and an error on the face of the record where a precise question of law has been submitted. It was also held that the extension of time and length thereof depended on the facts. In Vogelaar & Another v Callaghan t/a Callaghan Building Contractors (No 1)  2 ILRM Barron J held that –although the error did not appear expressly on the face of the record. This case involved the latter – ie what interest if any was payable.
An application to remit or set aside an arbitrator’s award must be within 6 weeks after the award has been made and published or such further time as the court may allow. inoperative or incapable of being performed. Barron J extended time in the circumstances as the award was taken up jointly when the 6 weeks had run out (the rule being unknown to both sides) ( thus if the rule were enforced they would have been required to issue proceedings when they didn’t know the content of the award. in the case of Portsmouth Arms Hotel V Enniscorthy UDC Unrep HCT Oct 14th. It was also held that the extension of time and length thereof depended on the facts. (11) S33 where arbitrator withholds award until payment of fee – Per S33 1954 Act the court on application may order the award be given and money paid into court (12) Role in International Arbitration A court must stay litigation before it unless the arbitration agreement is null.beyond the above 4 grounds and extends to any case where “due to mishap or misunderstanding some aspect fo the dispute which has been the subject of the reference has not been considered and adjudicated upon as fully as or in the manner which the parties were entitled to expect and it would be inequitable to allow any award to take effect without some further consideration by the arbitrator” O’Hanlon J refused to remit a matter back to the arbitrator as it did not come within one of the four grounds. Per Vogelaar the 6 weeks runs not from the time the parties receive copies of the award or are aware of its contents but from when it is actually made. Where the court remits an award then the arbitrator has 3 months from the date of the order to make his award (10) Enforcement of the award An arbitration award is enforced by either party taking an action on the award (ie proceedings for breach of contract) by either party seeking summary enforcement of the award as if it were a judgment under s41 – where leave is so given judgment is entered in the terms of the award Thus leave should be given for summary enforcement unless there is a real reason for doubting the validity of the award. (Art 8 Model Law) The New York Convention on the Recognition and Enforcement of Arbitral Awards 1958 . void. 1994 Yet in McCarrick v The Gaiety (Sligo) Ltd  2 IR 266 it was held there was a procedural mishap of the type referred to in King and the award was remitted.
the arbitration agreement is not valid under the law to which the parties . The New York convention was drafted in order to make recognition and enforcement of foreign awards simpler and sets out the internationally accepted rules for the recognition and enforcement of arbitral awards but the enforcement procedure laid out in the convention is only available in countries that have adopted the convention. The difference being that the parties in dispute are of different nationalities or the subject matter of the dispute or the place where the obligation is performed is outside the country the parties have their places of business. (3) a certified translation if either of the above is in a language other than Irish or English. International Arbitration These arise from disputes in respect of international trade with the facts giving rise to the disputes being similar to those giving rise to national disputes.was given legislative effect in Ireland in the 1980 Act.(2) the original arbitration agreement or a duly certified copy. a party to the arbitration agreement is under some incapacity b. The New York Convention was given legislative effect in Ireland in the 1980 Act. . Section 9 specifies the limited grounds on which enforcement may be refused. cumbersome and expensive and a court order can be difficult to enforce. S8 of the 1980 Act requires any person seeking to enforce an award to which the New York Convention applies to produce:(1) the duly authenticated original award or a duly certified copy. The New York Convention has been ratified by over 90 states. More and more disputes are coming within this category as trade grows between Ireland and other EU Member States and indeed the world. Arbitration provides a real alternative thanks especially to the New York Convention on the Recognition of International Arbitral Awards 1958 as a successful award is not much good unless you can enforce it/ Enforcement of foreign arbitration awards is a matter for the State where enforcement of an award is being sought. It may only be refused at the request of the person against whom enforcement is sought if that person can prove that for instance: a. Section 9 specifies the limited grounds on which enforcement may be refused. Litigation in the international context is slow.
1980 (NEW YORK CONVENTION) ORDER. 1980 (New York Convention) Order. (Article V(s) – / S 9(3) 1980 Act ________________________________________ _ S. 41 of 2000. BRIAN COWEN. subsections (2) and (3) of the Arbitration Act. 1980 (No. 41 of 2000 ARBITRATION ACT.I. 2000.I. No. hereby order as follows:— 1..I. S. T. SCHEDULE AlgeriaCosta RicaIsrael Antigua and BarbudaCôte d'IvoireItaly ArgentinaCroatiaJapan ArmeniaCubaJordan AustraliaCyprusKazakhstan AustriaCzech RepublicKenya . 1980 (New York Convention) Order. 2000. in exercise of the powers conferred on me by section 6.D. 1983 (S. I. the award is not yet binding on the parties or has been set aside by a competent authority (S9(2) 1980 Act or Art V Convention) Enforcement may also be refused if the competent authority where it is sought to enforce the award finds that the subject matter is not capable of settlement by arbitration or contrary to public policy under the law of that country. the arbitral tribunal was improperly constituted or f.subjected it c. No. ARBITRATION ACT. is hereby revoked. 1980 (NEW YORK CONVENTION) ORDER. The Arbitration Act. 7 of 1980) . 350 of 1983). a party was not given proper notice of the proceedings d. This Order may be cited as the Arbitration Act. Minister for Foreign Affairs. 1958. It is hereby declared that each state specified in the Schedule to this Order is a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards done at New York on 10 June. 3. 2000. 2. the award deals with matters not within the arbitration agreement e.
BahrainDenmarkKuwait BangladeshDjiboutiKyrgyzstan BarbadosDominicaLao People's BelarusEcuadorDemocratic Republic BelgiumEgyptLatvia BeninEl SalvadorLebanon BoliviaEstoniaLesotho Bosnia andFinlandLithuania HerzegovinaFranceLuxembourg BotswanaGeorgiaMadagascar Brunei DarussalamGermanyMalaysia BulgariaGhanaMali Burkina FasoGreeceMauritania CambodiaGuatemalaMauritania CameroonGuineaMexico CanadaHaitiMonaco Central AfricanHoly SeeMongolia RepublicHungaryMorocco ChileIndiaMozambique ChinaIndonesiaNepal ColombiaIrelandNetherlands New ZealandSan MarinoTrinidad and Tobago NigerSaudi ArabiaTunisia NigeriaSenegalTurkey NorwaySingaporeUganda OmanSlovakiaUkraine PakistanSloveniaUnited Kingdom .
BRIAN COWEN. this 4th day of February 2000. 1958.) The effect of this Order is to specify the states which are parties to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Minister for Foreign Affairs. done at New York on 10 June.D. (This note is not part of the Instrument and does not purport to be a legal interpretation. EXPLANATORY NOTE.. _____________________ . GIVEN under my Official Seal.PanamaSouth AfricaUnited Republic of ParaguaySpainTanzania PeruSri LankaUnited States of PhilippinesSwedenAmerica PolandSwitzerlandUruguay PortugalSyrian Arab RepublicUzbekistan Republic of KoreaThailandVenezuela Republic of MoldovaThe Former YugoslavVietnam RomaniaRepublic ofYugoslavia Russian FederationMacedoniaZimbabwe. T.
A joint committee of management composed of representatives of the Chartered Institute of Arbitrators. It has 24 leading international arbitrators drawn from different countries. the London Chamber of Commerce and Industry supervises the LCIA.International Arbitration Institutions There are many international arbitration institutions. The International Chamber of Commerce (ICC) was founded in 1919 and is based in Paris where it established the Court of Arbitration in 1923 – the court supervises each case including the appointment of the arbitral tribunal (which decides the case). They also recommend a specific arbitration clause. the Corporation of the City of London. The London Court of International Arbitration (LCIA) – it was founded in 1892 and provides rules and facilities for international arbitration. . the conduct of the proceedings and the validity of the award.
The model law provides very limited rights of access to the courts. . Ireland gave effect to this convention under the 1980 Act. ______________________________________ The Arbitration (International Commercial) Act 1998 This adopted with a few amendments the UNCITRAL model law on international commercial arbitration into Ireland (see s4 of the Act) and introduces some additional features.The International Centre for the Settlement of Investment Disputes (ICSID) This was established in 1966 pursuant to the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States of 1965 and it operates under the auspices of the World Bank. Many trading centres have developed their own international facilities eg Japan Netherlands. The text of the Model Law is set out in full in a schedule to the act. The effect of the 1998 Act is that Irish Law now draws a distinction between domestic and international arbitrations and the Arbitration Acts 1954 and 1980 do not apply to international commercial arbitrations as defined in the 1998 Act. ICSID arbitration is applicable only where at least one party to the dispute is a state that has ratified the convention. The Model law was drafted by UNCITRAL to harmonise the settlement of international trade disputes. even Ireland – the Dublin International Arbitration Centre was established in 1998.
or (c) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to more than one country. whether contractual or not. The court finds that th award is in conflict with public policy. evidence is supplied by one party that another party to the agreement is incapacitated or the agreement is not valid under the governing law. (Art 8 Model Law) The model law presumes there will be 3 arbitrators in default of agreement and where there is a failure to appoint an application can be made to court (but most institutional arbitrations have rules which deal with composition of the tribunal and conduct of the proceedings). b. (i) the place of arbitration if determined in. The award must in writing. The arbitration agreement must be in writing. . inoperative or incapable of being performed. void. signed and state reasons (unless it is otherwise agreed). or pursuant to the arbitration agreement (ii) any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is most closely connected. The court finds the subject matter of the dispute is not capable of settlement by arbitration under the applicable law c.. or (b) one of the following places is situated outside the state in which the parties have their places of business.Arbitration is international per the Model Law (Art 1(3) if:(a) the parties to an arbitration agreement have. Commercial – per the footnotes to UNCITRAL Model Law – covers matters arising from all relationships of a commercial nature. at the time of the conclusion of that agreement. their places of business in different states. Main features of arbitration under the 1998 Act are that of the Model law – which is flexibility and freedom. A court must stay litigation before it unless the arbitration agreement is null. There are procedures in place to challenge an arbitrator for bias ( lack of impartiality) Per the Model Law the arbitrator can rule on his own jurisdiction including ruling on the existence and validity of the arbitration agreement. One can apply for Judicial review of the award within 3 months of receiving it for limited grounds which include:a.
That immunity also covers agents/advisors of the arbitrator and expert witnesses. S12 provides for immunity from suit for the arbitrator save where he acted in bad faith. __________________________________________ . S10 provides that in default of agreement the tribunal has wide powers to award simple and compound interest. S11 provides that the parties are free to agree how the cost of the arbitration including the arbitrator’s fees are dealt with.Features of the 1998 act that are in addition to the Model Law S8 allows the tribunal to direct witnesses be examined on oath or affirmation and administer the oaths or affirmations S9 allows parties to arbitration to agree to consolidate arbitration proceedings or run them concurrently (unless there is agreement the arbitration does not have that power). Thus there is a distinct difference in Irish law between International and Domestic Arbitration since the 1998 Act as there were a number of features of the 1954 Act which were unattractive from the point of view of International Arbitration ( eg Case stated procedure) which should encourage the use of Dublin as a centre for international arbitration. and in the absence of agreement the arbitrator costs are up to the arbitrator.
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