The Arbitration Act 2010 (the "2010 Act") repealed all previous arbitral legislation and effectively codified the law in this area into one Act of Parliament. It was signed into law on 8 March 2010 and entered into force on 8 June 2010. It applies to all arbitrations held in Ireland after the date of entering into force, both international and domestic. The main purpose of the 2010 Act is to bring Irish law into line with international best practice by adopting the UNCITRAL Model Law on International Commercial Arbitration and applying it to all arbitrations which take place in Ireland.
The Model Law was adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1985 and was amended in 2006. It has been adopted by over 50 countries in all regions and different legal and economic systems of the world and it provides the basis for the harmonisation of national arbitration laws throughout these participating countries.
The 2010 Act provides a default framework to be applied to arbitrations in Ireland in circumstances where the parties themselves have not agreed to an alternative position or procedure. The 2010 Act provides certainty in relation to the arbitral process in Ireland while maintaining the independence of the arbitral process and protecting the autonomy of the parties who have chosen to arbitrate and agreed on the application of certain procedures.
Summary of the Relevant Provisions of the 2010 Act/ Model Law
Commencement of Arbitration Proceedings
Section (1) of the 2010 Act provides that arbitral proceedings are deemed to have commenced either:
- On the date that the parties to an arbitration agreement agree to its commencement; or
- On the date when a written request to refer the matter to arbitration made by one party, is received by the other party.
Definition of an Arbitration Agreement
Section 2 of the 2010 Act provides that the definition of "arbitration agreement" is as set out in Option 1 of Article 7 of the Model Law. Option 1 of Article 7 states that an "arbitration agreement" is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not. An arbitration agreement can consist of an arbitration clause in a contract or it can be a separate standalone agreement. While section 2(2) of the 2010 Act provides that the arbitration agreement must be in writing, this clause has been interpreted to include an agreement concluded orally or by conduct as long as its content has been recorded in writing.
Application of the Act
Section 3 of the 2010 Act provides that the 2010 Act will apply to arbitrations which commence after 8 June 2010. Arbitrations which commenced before 8 June 2010 will continue to be governed by the legislative provisions of the 1954 Act, the 1980 Act and the 1998 Act. The 2010 Act applies to all arbitrations which take place in Ireland – domestic and international.
Default Number of Arbitrators
In an attempt to reduce costs of arbitral proceedings, section 3 of the 2010 Act provides that, in the absence of agreement between the parties, the default number of arbitrators will be one. However, the parties retain the right to appoint more than one arbitrator if they wish. They can achieve this by including that requirement in the arbitration agreement at the outset of the relationship or by agreement once the dispute arises.
If the parties to an arbitration agreement cannot agree on an arbitrator, and there is no specified default appointing body, then any party to the arbitration agreement may request the High Court to appoint an arbitrator and the High Court's decision will be final.
Challenge to the Appointment of an Arbitrator
Article 12(1) of the Model Law places a duty on a proposed arbitrator to disclose to the parties any circumstances which may give rise to concerns as to his/her independence or impartiality. This duty of disclosure continues from the time of appointment to the conclusion of the arbitral proceedings.
The only grounds to challenge the appointment of an arbitrator are "if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties".
Article 13(1) of the Model Law provides that parties can agree, if they wish, on a procedure for challenging the appointment of an arbitrator. However, in the absence of an agreement on an alternative procedure, the procedure set out in Article 13(2) will apply. This provides that the challenging party shall, within 15 days of becoming aware of the grounds for challenge, send a written statement including the reasons for the challenge to the arbitral tribunal.
If a party is unhappy with the decision of the arbitral tribunal in respect of the challenge, the party then has 30 days to appeal this decision to the High Court and the decision of the High Court will be final.
The arbitral proceedings may continue and an award can be made while the request is pending before the High Court. However, if the High Court upholds the challenge to the appointment of the arbitrator, any award which has been made will not be valid and will be set aside.
Jurisdiction of the Arbitrator or Arbitral Tribunal
Article 16 of the Model Law as adopted expressly recognises the competence of an arbitral tribunal to rule on its own jurisdiction. This is designed to help reduce costs and avoid delays in the arbitration process.
An arbitration clause will be regarded as independent of the other terms of the contract and therefore even if the contract itself is the subject of the dispute the validity of the arbitration clause is not dependant on the validity of the contract.
Article 16(2) provides that where a party challenges the jurisdiction of the arbitrator, it must do so before the submission of the statement of defence. It is noteworthy that a party will not be precluded from challenging an arbitrator's jurisdiction purely on the basis that it participated in the appointment of the arbitrator.
The arbitrator can rule on any allegation or challenge raised. The High Court can only be asked to resolve an issue on jurisdiction where it has first been dealt with as a preliminary question by the arbitral tribunal. An application cannot be brought after the final award has been granted by the arbitral tribunal.
Consolidated Arbitral Proceedings
Where all parties to an arbitration agreement agree, the arbitral proceedings can be consolidated with another set of arbitral proceedings. This can be done even where those other proceedings involve a different party (so long as that party is also in agreement). The terms of any such concurrent hearings may also be agreed between the parties.
Section 16(2) of the 2010 Act provides that the arbitral tribunal does not have the power to order consolidation of arbitral proceedings without the consent of the parties.
Article 31(1) of the Model Law, as adopted, provides that an award must:
- Be in writing.
- Be dated.
- State the place in which it is made.
- Be signed by the arbitrator. Where more than one arbitrator is involved in proceedings, the signatures of the majority will suffice, provided that the reason for any omitted signature is stated.
Article 31(2) requires that the award must state the reasons on which it is based, unless the parties have agreed that no reasons are to be given, or the award is an award on agreed terms.
A signed copy of the award must be given to each party.
Effect of an Award
Section 23 of the 2010 Act provides that an award made by an arbitrator or by an arbitral tribunal shall be enforceable, and where leave is given by the High Court, judgment may be entered in the terms of the award. An award made pursuant to the 2010 Act shall be binding on the parties between whom it is made.
This section does not affect the recognition or enforcement of an award under the Geneva Convention, the New York Convention or the Washington Convention.
Challenging an Award
Article 34 of the Model Law, as adopted, provides an exhaustive list of grounds available to challenge an arbitral award under the 2010 Act. Under this Article, the grounds upon which a party can apply to the High Court in Ireland to have an arbitral decision set aside are limited to those set out below:
- A party to the arbitration agreement was under some alleged incapacity or the arbitration agreement was not valid under the law to which the parties have subjected it or under the law of the state.
- The party making the application was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case.
- The award contains decisions on matters beyond the scope of the submission to arbitration.
- The composition of the arbitral tribunal was not in accordance with the agreement of the parties.
- The arbitral procedure was not in accordance with the agreement of the parties.
- The award is in conflict with the public policy of the state.
- The subject matter of the dispute is not capable of settlement by arbitration under the law of the state.
The Model Law grounds of challenge have been interpreted narrowly in other jurisdictions, and the Irish courts are likely to adopt a similar approach. It is of significance that the ground of challenge of an "error of law on the face of the record" or misconduct is no longer available.
Time Limits for Setting Aside Awards or Challenging Appointment of an Arbitrator
There are strict time-limits imposed for challenging an arbitrator or for setting aside an award:
- Article 34(3) of the Model Law as adopted provides that a challenge to set aside an award on all grounds other than public policy must be taken within 3 months from the date of receipt of the award
- Section 12 of the 2010 Act provides that a challenge on the grounds of public policy must be brought within 56 days of the date from which the circumstances giving rise to the application became known or ought reasonably to have become known.
- Article 13(2) of the Model Law as adopted provides that a challenge to the arbitrator's appointment must be brought within 15 days of becoming aware grounds for such a challenge e.g. reasonable doubts as to his impartiality/independence.
These time limits are relevant in the context of Article 4 of the Model Law which provides that a party waives its right to object if such an objection is not brought within the strict timelines provided.
S. 21 (1) of the 2010 Act provides that the parties to an arbitration agreement can agree to deal with the costs of the arbitration as they wish. Essentially, the parties are given free reign to agree on the allocation of costs either before or after the dispute has arisen.
S. 21(3) of the 2010 Act provides that if there is no agreement by the parties as to costs, the arbitral tribunal can determine costs as it sees fit by way of an award.
Any arbitrator, who makes a ruling on costs, will be required to state his reasons behind the costs order and set out in detail what items are recoverable and who must pay. In a domestic arbitration, an arbitrator can direct that the costs be taxed in the usual way by the bodies established by Irish law for regulating the amount of costs chargeable and recoverable (that is, the Taxing Master or County Registrar).
Section 18 of the 2010 Act provides that the parties can agree on the powers of an arbitral tribunal in relation to interest. In the absence of any agreement in respect of interest, the arbitral tribunal may grant interest on any amount awarded by it for any period up to the date of the award and it may also award interest from the date of the award until payment.
Security for Costs
Under the 2010 Act, arbitrators now have their own jurisdiction to order security for costs unless otherwise agreed by the parties. Section 19(2) provides that a party will not be ordered to provide security for costs solely on the ground that the party is from outside the state.
In Irish law, the onus of proof is on the applicant to establish that there is a prima facie defence to the plaintiff's claim and that the plaintiff would not be able to pay the moving party's costs if the applicant is ultimately successful in fully defending the claim. An arbitral tribunal applying Irish law should decide a security for costs application on the same basis as the Irish courts.
Role of the Irish High Court
Section 9(1) of the 2010 Act provides that the High Court is the relevant court for applications under the 2010 Act. Section 11 provides that there is no right of appeal from the High Court in respect of applications under the 2010 Act. This means that the High Court's decision is final in respect of any application made to it which could include:
- A stay application under section 11(a).
- An application to set aside under section 11(b)(i).
- An application for recognition and enforcement of an arbitration award under section 11(b)(i) and 11(c).
The High Court has its usual powers for granting interim measures of protection and assistance in the taking of evidence (Articles 9, 17 J and 27 of the Model Law), although most interim measures may now also be granted by the arbitral tribunal under the Model Law. The Irish High Court's powers are subject to section 10(2) of the 2010 Act, which provides that the High Court is not at liberty to order security for costs or discovery of documents unless otherwise agreed by the parties. This emphasises the autonomy of the arbitral tribunal.
The Arbitration Judge
Section 9 of the 2010 Act provides for a single arbitration judge to deal with any applications made to the High Court under the 2010 Act. One judge is required to develop expertise in arbitration issues. Section 9 states that: "the functions of the High Court ... shall be performed by the President or by such other judge of the High Court as may be nominated by the President, subject to any rules of court made in that behalf."
Mr Justice Peter Kelly, head of the Commercial Court, has been appointed Arbitration Judge for the purposes of the 2010 Act.
The fact that there will be only one senior judge hearing applications under the 2010 Act should enhance a uniformity of decision-making and reinforce the Irish courts' long-standing support for the arbitral process, because there is no right of appeal from any decision of the arbitration judge. This will also significantly reduce the time and costs normally associated with court intervention.
Taking Evidence in Aid of Foreign Arbitrations
Article 27 of the Model Law as adopted provides that the arbitral tribunal or a party with the approval of the arbitral tribunal may request the court's assistance in taking evidence, including an arbitration taking place outside the state as stated in Section 15. This section ensures that Irish courts have the capacity to assist with the taking of evidence in proceedings which are taking place outside of the state. However, Article 27 is subject to section 10(2) of the 2010 Act, which provides that when exercising any powers in relation to Article 27, the High Court shall not, unless otherwise agreed by the parties, make any order relating to security for costs of the arbitration or make any order for discovery of documents.
The effect of these provisions is that the High Court will not make an order for discovery of documents under the 2010 Act in aid of a foreign arbitration, unless the parties have written into their arbitration agreement, their consent to give the court this power. Parties should consider this at the time of framing the arbitration agreement.
Power to Stay Court Proceedings
Article 8 of the Model Law, as adopted, provides that if one of the parties makes an application to the court to stay proceedings, the court must grant the application in the following circumstances.
- If the party submits its application before submitting its first statement on the substance of the dispute;
- If the matter in dispute is subject to an arbitration agreement; and
- If the court does not find that the agreement is void or of no effect.
It is noteworthy that the arbitral proceedings which were originally commenced may nevertheless proceed pending determination of the issue by the High Court.
Power of the Court to Adjourn Proceedings
Section 32 of the 2010 Act provides that the court may adjourn court proceedings at any time with the consent of the parties in order to give the parties time to consider whether the dispute should be referred to arbitration.
Parties who consent to engaging in an arbitration process, will not have the opportunity of going back to court in the event that they are dissatisfied with any decision of the arbitrator. Once an arbitrator is appointed and the parties agree to refer their dispute for the arbitrator's decision, then the jurisdiction for the dispute effectively passes from the court to the arbitrator.
Applicability to State Parties
Section 28 of the 2010 Act provides that the 2010 Act is fully applicable to state parties.
The New York Convention, Geneva Convention and Geneva Protocol
Section 24 of the 2010 Act gives effect to Ireland's international obligations in relation to the New York Convention, Geneva Convention and Geneva Protocol.
Rules of the Superior Courts (Arbitration) 2010
The Rules of the Superior Courts (Arbitration) 2010 (SI No 361 of 2010) which came into force on 17 August 2010 facilitate the operation of the 2010 Act.
Order 56 Rule 3(1) sets out the applications for Orders which can be made to the Court in aid of Arbitration as follows:
- Any interim measure under Article 9 of the Model Law;
- To appoint an arbitrator;
- To take necessary measure pursuant to Article 11(4) of the Model law;
- To decide on a challenge to an arbitrator;
- To decide on the termination of the mandate of an arbitrator;
- To decide on a plea that the arbitral tribunal does not have jurisdiction;
- To recognise or enforce a interim measure issued by the arbitral tribunal;
- To issue any interim measure in relation to arbitration proceedings in accordance with Article 17J of the Model Law;
- To make an order in accordance with Article 34 of the Model Law to set aside an award;
- For leave of the Court to enforce or enter a judgement in respect of an award;
- To enforce an award in accordance with Article 35(1) of the Model law;
- To enforce the pecuniary obligations imposed by an award within the meaning of section 25 of the Act; and
- For any other relief under or in pursuance of the Act.
Order 56 sets out the purely summary procedure involved in making one of the above applications to the High Court. It provides that applications are to be made by way of Notice of Motion specifying the orders sought and that applications under (a) to (h) above may be made on a ex parte basis. The Notice of Motion must be returnable before the President of the High Court or the nominated judge, Mr Justice Kelly and save where the court otherwise directs, every application under this Order shall be heard and determined on affidavit.
The filed Notice of Motion and grounding Affidavit must be filed with the Central Office of the High Court and delivered to the Respondent not later than fourteen days before the date fixed by the Central Office for the hearing of the application. Any replying Affidavit must be delivered to the applicant within seven days of receipt of the Notice of Motion and grounding Affidavit. The applicant can then file a further Affidavit if they so wish within seven days of receipt of the replying Affidavit. In most circumstances this procedure will be completed within 4 weeks from the date of filing of the Notice of Motion.
The application will either be heard by the president of the High Court or the nominated judge for the purposes of the 2010 Act, Mr Justice Kelly. TThe strict time limits that apply to applications made under Order 56 provide for a fast-track summary procedure, potentially completed within fourteen days of commencement, which limits the impact court intervention will have on the speed of resolving a dispute by way of arbitration under the 2010 Act.
This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.