Guide To International Arbitration 2013 - 10th Edition

Author:Ms Nicola Dunleavy and Gearóid Carey
Profession:Matheson
 
FREE EXCERPT

1 Arbitration Agreements

1.1 What, if any, are the legal requirements of an arbitration agreement under the laws of Ireland?

The Arbitration Act 2010, which applies to arbitrations commenced in Ireland from 8 June 2010, applies Option 1 of Article 7 of the UNCITRAL Model Law to the requirements of an arbitration agreement. It therefore provides that the arbitration agreement shall be in writing, whether in the form of an arbitration clause in a contract or in the form of a separate agreement. The concept of the agreement being in written form is broadly interpreted. An agreement will be in writing if its content is recorded in any form, notwithstanding that the arbitration agreement or contract may have been concluded orally, by conduct or by other means. Electronic communications can satisfy the requirement that the arbitration agreement be in writing if useable for subsequent reference. An arbitration agreement will also be considered to be in writing if it is contained in an exchange of a statement of claim and defence in which the existence of an agreement is alleged and not denied.

1.2 What other elements ought to be incorporated in an arbitration agreement?

Various matters which facilitate the progression of the dispute to hearing before the arbitrator should be included in the arbitration agreement at the outset. In order to avoid delays and other difficulties after the dispute arises, it is often best to have a reasonably detailed arbitration agreement in place before any dispute.

The parties should consider making provisions for setting the number of arbitrators (the Arbitration Act 2010 sets one arbitrator as the default number), their qualification(s) and other criteria relevant to their appointment, as well as how they are to be chosen. The agreement should also set out a default mechanism in the event that the parties cannot agree on the arbitrator (such as referring the question of who is to be appointed to a relevant professional body). Equally, the parties should consider whether they wish to make provisions for a replacement arbitrator in the event that the arbitrator appointed cannot continue, for whatever reason. They should also consider whether they wish to make express provisions for particular procedures with regard to the conduct of the arbitral proceedings to be adopted. In addition, they might consider whether to give the High Court jurisdiction in respect of security for costs and discovery (which are otherwise excluded from the High Court's jurisdiction under Section 10(2) of the Arbitration Act 2010). The arbitration agreement might also specifically address the question of interest and costs, although there are default positions set out in the Arbitration Act 2010. A statement as to the venue for any arbitration and the language in which it is to be conducted is helpful.

1.3 What has been the approach of the national courts to the enforcement of arbitration agreements?

Irish courts have historically been very supportive of arbitration and this approach is continuing to be reinforced under the Arbitration Act 2010. Indeed, under the Arbitration Act 2010, the possibility of appeal to the Supreme Court is limited, which is also indicative of the legislative support for arbitration. The Irish courts have displayed a strong policy of staying court proceedings in favour of agreements to arbitrate. Article 8 of the Model Law sets out the relevant principles under current Irish law. It provides that, if an action is brought before the court in a matter which is the subject of an arbitration agreement, the court shall refer the parties to arbitration unless it finds that the agreement is null and void, inoperative or incapable of being performed. However, a party seeking a stay of court proceedings brought in breach of an arbitration agreement must act without delay and, in any event, not later than when submitting his first statement on the substance of the dispute.

2 Governing Legislation

2.1 What legislation governs the enforcement of arbitration proceedings in Ireland?

The Arbitration Act 2010 applies to all arbitrations commenced after 8 June 2010 and it applies the UNCITRAL Model Law. The Arbitration Act 2010 itself entered into force as from 8 June 2010. It applies to the enforcement of arbitration proceedings in Ireland where the arbitration commenced after that date.

2.2 Does the same arbitration law govern both domestic and international arbitration proceedings? If not, how do they differ?

The Arbitration Act 2010 applies to both domestic and international arbitrations.

2.3 Is the law governing international arbitration based on the UNCITRAL Model Law? Are there significant differences between the two?

Yes. The Arbitration Act 2010 adopts the UNCITRAL Model Law, as amended in 2006. The UNCITRAL Model Law is reproduced in its entirety as a schedule to the Act. Section 6 of the Arbitration Act

2010 provides that, subject to the provisions of that Act, "the Model Law shall have the force of law in the State". The Act clarifies the functions of the High Court, the court's powers exercisable in support of arbitration proceedings, the tribunal's powers in relation to the examination of witnesses, consolidation of arbitral proceedings and the holding of concurrent hearings, awards of interest, and costs, as well as the question of provision of security for costs.

2.4 To what extent are there mandatory rules governing international arbitration proceedings sited in Ireland?

The Arbitration Act 2010 (and, through it, the UNCITRAL Model Law) is applicable to all arbitrations commenced in Ireland on or after 8 June 2010.

3 Jurisdiction

3.1 Are there any subject matters that may not be referred to arbitration under the governing law of Ireland? What is the general approach used in determining whether or not a dispute is "arbitrable"?

As a general principle, unwritten arbitration agreements do not fall within the scope of the Arbitration Act 2010. More specifically, Section 30 of the Act clarifies that the Act does not apply to disputes regarding the terms and conditions of employment or the remuneration of employees, or to arbitrations conducted under Section 70 of the Industrial Relations Act 1946. The Arbitration Act 2010 also does not apply to arbitrations conducted by a property arbitrator appointed under Section 2 of the Property Values (Arbitration and Appeals) Act 1960. Under the Arbitration Act 2010, consumer disputes, where the arbitration clauses are not individually negotiated and which are worth less than €5,000, are only arbitrable at the election of the consumer.

3.2 Is an arbitrator permitted to rule on the question of his or her own jurisdiction?

Yes. Article 16 of the Model Law governs the situation and provides that the "arbitral tribunal may rule on its own jurisdiction", which includes any questions regarding the existence or validity of the arbitration agreement. Any assertion that the tribunal does not have jurisdiction must be raised no later than the submission of the statement of defence. A plea that the tribunal is exceeding the scope of its authority should be raised as soon as the matter arises in the proceedings. The Arbitration Act 2010 designates the High Court as the relevant court for purposes of Article 16(3) and any subsequent challenge to a tribunal's determination on jurisdiction.

3.3 What is the approach of the national courts in Ireland towards a party who commences court proceedings in apparent breach of an arbitration agreement?

As set out above at question 1.3, the Irish courts are supportive of agreements to arbitrate. Where an arbitration agreement exists, the courts are obliged under Article 8 of the Model Law to refer the parties to arbitration, so long as such application is brought not later than submitting the first statement on the substance of the dispute and the written arbitration agreement is not null and void, inoperative or incapable of being performed. No appeal to the Supreme Court is permitted in respect of a decision of the High Court under Article 8.

3.4 Under what circumstances can a court address the issue of the jurisdiction and competence of the national arbitral tribunal? What is the standard of review in respect of a tribunal's decision as to its own jurisdiction?

In relation to jurisdiction, see question 3.2 above.

Article 14 of the Model Law provides that if an arbitrator becomes de facto or de jure unable to perform his functions, or for other reasons fails to act without undue delay, his mandate terminates if he withdraws or the parties agree upon termination. However, if a controversy remains, the High Court may decide upon the termination of the mandate. Equally, Article 12 of the Model Law provides that an arbitrator may be challenged if circumstances exist that give rise to doubts as to his impartiality, independence, or if he does not possess the qualifications agreed upon by the parties. That latter issue, in particular, could touch upon issues of competence. If the challenging party does not agree with the tribunal's decision in respect of the challenge, the High Court can be asked to decide under Article 13.

There is no Irish case law in respect of the standard to be applied by the tribunal in considering such a challenge. However, there is authority in respect of the standard of review which the High Court is to adopt when it is faced with deciding upon the existence of an arbitration agreement under Article 8. In such cases, it appears that the court should reach its decision based on a full consideration of the position on hearing both sides. For a tribunal considering its jurisdiction, it would be prudent to adopt the same standard and not the alternative prima facie basis in taking the applicant's case at its highest and assuming that all evidence is true.

3.5 Under what, if any, circumstances does the national law of Ireland allow an arbitral tribunal to assume jurisdiction over individuals...

To continue reading

REQUEST YOUR TRIAL