International Arbitration

The Arbitration Act 2010 (the “2010 Act”) applies to arbitrations in Ireland. It applies to international commercial arbitrations and domestic arbitrations. The 2010 Act came into force on 8 June 2010 and repealed the existing Arbitration Acts 1954-1998. The 2010 Act consolidated the law and adopted the UNCITRAL Model Law on International Commercial Arbitration (the “Model Law”) in its entirety into Irish law.

The Construction Contracts Act 2013 gives parties to construction contracts the right to refer payment disputes to adjudication. Parties to relevant contracts cannot opt out of the provisions of the Construction Contracts Act 2013.

The Mediation Act 2017 came into force on 1 January 2018 and provides inter alia that parties to a dispute should consider mediation before commencing proceedings. However, arbitrations under the 2010 Act are specifically excluded from its scope.

No, the same rules apply to domestic and to international arbitration.

Yes, the 2010 Act consolidated the law and adopted the Model Law in its entirety into Irish law.

Article 19 of the Model Law guarantees freedom to parties to agree on the arbitration procedure to be followed by the appointed arbitral tribunal. However, there are still some mandatory provisions which apply on procedure, including that the arbitrator/tribunal be independent and impartial.

There are currently no plans to amend the 2010 Act in Ireland. Previous changes to the 2010 Act include the following:

• Section 21(6), which dealt with arbitration agreements involving consumers, was repealed by the Consumer Rights Act 2022, reflecting a shift in consumer protection policies.
• The Finance (Transfer of Departmental Administration and Ministerial Functions) Order 2011 (S.I. No. 418 of 2011), facilitated the transfer of functions under Section 25(4) of the 2010 Act. This Order transferred specific statutory functions from the Department of Finance to the Department of Public Expenditure and Reform.
• Section 29(1) of the 2010 Act saw its application extended by the European Union (Insurance and Reinsurance) Regulations 2015 (S.I. No. 485 of 2015) and the Companies Act 2014, broadening the scope of arbitration in insurance and corporate sectors.

Additionally, Section 5A of the 2010 Act was recently inserted by the Courts and Civil Law (Miscellaneous Provisions) Act 2023. This section states that maintenance and champerty do not apply to dispute resolution proceedings. See paragraph 11 below where this is discussed in further detail.

Yes, Ireland is a signatory to the New York Convention and joined in 1981. The Preamble to the 2010 Act gives the force of law in Ireland to the New York Convention.

Ireland has made a reciprocity reservation allowing it to only apply the New York Convention to awards made in the territory of another Contracting State.

No, Ireland is not a signatory to any other treaties relevant to arbitration and is not a signatory to any Bilateral Investment Treaties (“BITs”).

The 2010 Act contains no express provisions on Arbitrability, but excludes employment and consumer disputes, and disputes arising where the parties contracted under standard terms and the contract is valued under €5,000.

The High Court, in XPL Engineering Ltd v K&J Townmore Construction Ltd [2019] IEHC 665, set down 7 “principles and propositions” that offer guidance in determining whether a “dispute” exists between parties in the context of arbitration. Significantly, the Irish Courts in issuing this judgment followed the earlier UK decision of Mr Justice Jackson in Amec Civil Engineering Ltd v Secretary of State for Transport, [2004] EWHC 2339 (TCC). These 7 propositions can be summarised and enumerated as follows:

1. The term “dispute” does not have some special/unusual meaning.
2. “Dispute” should be given a broad meaning in recognition that it is contained in a dispute resolution clause.
3. The courts should interpret “dispute” in accordance with principles of general contractual interpretation and specific arbitration clauses/agreements.
4. The party seeking referral carries the burden of proof which can then shift to the other party.
5. A court should be readily willing to infer that a dispute does exist where there is an absence of acceptance of liability once an arbitral clause exists.
6. A court should lean in favour of holding that a dispute does exist where the parties cannot agree whether it does or not; further, the arbitrator is best placed to decide.
7. The court should not concern itself with whether the position of one party is “stateable, credible or tenable”, this being the purpose of the arbitration.

The High Court decision, Flatley v Austin Newport Group Ltd and Ors, [2024] IEHC 359, the Court demonstrated the Courts’ support for arbitration clauses and reluctance to depart from agreements providing for arbitration. The Plaintiff argued that as a consumer, he wished to litigate the dispute in question despite the existence of an arbitration clause in the relevant insurance policy. He argued that an arbitration clause was an “unfair term” in a consumer contract, that it hindered his right to take legal action or exercise a legal remedy, as outlined in the Consumer Rights Act 2022, and that it should be unenforceable against him. He also argued that the arbitration clause did not explicitly state that he would not have to bear his own costs in arbitration, even if he lost, asserting that Section 132(1)(e) of the Consumer Rights Act 2022 means that for an arbitration clause in a consumer contract to be fair, the arbitration must never be at a cost to the consumer. However, the court rejected this interpretation, noting that it would have far-reaching implications for consumer arbitrations in Ireland, as it could incentivise unmeritorious claims. The court also noted that the arbitration clause was silent on costs, so section 132(1)(e) did not apply.

Additionally, the Plaintiff’s argument that arbitration was not governed by law was dismissed, as the clause explicitly stated that the Arbitration Act 2010 would apply, and case law confirmed that arbitrations in Ireland are governed by law.

The court ultimately referred the dispute to arbitration, confirming that arbitration clauses are suitable for consumer contracts.

There is no restriction under Irish law prohibiting the parties from choosing a particular seat for arbitration.

Of course, it is possible that a dispute can be subject to Irish Law with the seat of the arbitration being in a different jurisdiction, in which case the procedural law applicable is likely to be determined by the seat of the arbitration.

The validity requirements for an arbitration conducted in Ireland are set out in the 2010 Act. Under the 2010 Act, Option 1 of Article 7 of the Model Law sets out the requirements of an arbitration agreement, and specifically stipulates that an arbitration agreement must be “in writing”. The Model Law defines “in writing” in broad terms, such that it will include an agreement recorded in any form, whether solely in writing, concluded orally, by conduct, or by other means.

The concept of separability is set out in Article 16 (1) of the Model Law. The concept of separability of arbitration agreements is recognised by the Irish courts – see Doyle v. National Irish Insurance Co. Plc [1998] 1 IR 89. The doctrine was also acknowledged more recently in Narooma Ltd v Health Service Executive [2020] IEHC 315 where the court expressly noted that by virtue of the doctrine of separability “an arbitration agreement has a separate and independent existence from the underlying or main contract.”

Under Article 22 of the 2010 Act, where there is no specific agreement between the parties, the arbitral tribunal shall determine the language or languages to be used in the proceedings.

In addition, where there is no agreement between the parties, but the arbitration agreement refers to institutional rules, those institutional rules will apply to the matter.

Under Article 16(3) of the Model Law, a challenge under any procedure agreed upon by the parties or a challenge to the jurisdiction of the arbitral tribunal shall be made within 30 days of receipt of the notice of the decision rejecting the challenge.

Under Article 16(1) of the Model Law, an arbitrator/arbitral tribunal in Ireland can rule on their own jurisdiction. The well-established Kompetenz-Kompetenz rule applies to international and domestic arbitrations in Ireland with the introduction of the Model Law, and empowers arbitrators to rule on their own jurisdiction, including any objections in respect of the presence of a valid arbitration agreement. Kompetenz-Kompetenz was acknowledged in the Irish case of Barnmore Demolition and Civil Engineering Ltd v Alandale Logistics (unreported, 11 November 2010).

Article 16(1) of the Model Law permits an arbitral tribunal to decide upon challenges to its own jurisdiction. Under Article 16(3) of the Model Law, there is a right of appeal to the High Court for parties who dispute the arbitrator’s determination of jurisdiction, and such challenges must be made within 30 days of the arbitrator’s ruling.

Case law provides guidance on the court’s approach to an application in relation to a ruling on the jurisdiction of the tribunal. In Mayo County Council v Joe Reilly Plant Hire Limited [2015] IEHC 544 there was a challenge to the arbitrator’s jurisdiction to adjudicate a claim, however, the Court dismissed the challenge. The Court held that where the existence of an arbitration clause is not in dispute, the courts would be very slow to interfere with the arbitrator’s ruling on his own jurisdiction having regard to the Kompetenz-Kompetenz principle.

Equally, in Achill Sheltered Housing Association CLG v Dooniver Plant Hire Limited [2018] IEHC 6, the Court had to determine whether or not the dispute referred to arbitration fell within the terms of the arbitration agreement. The respondent argued that the application was premature. The Court held that Article 16(3) permitted the Court to review a preliminary ruling by an arbitral tribunal that it had jurisdiction, and that the preliminary ruling by the arbitrator that he had been validly appointed came within the scope of Article 16(3).

There are no restrictions under the 2010 Act in relation to who can be a party to an arbitration agreement.

While there are no specific duties set out in 2010 Act, there is an implied obligation on the parties to maintain the confidentiality of the hearing and any award made, and this will be strictly enforced by the courts.

There are two basic forms of multi-party litigation in Ireland, which enable a group of individuals to institute proceedings that are intended to deal with groups collectively. Generally, multi-party litigation in Ireland is by way of a “representative action” or a “test case” or “pathfinder” case. The concept of a class action is not recognised or permitted within the Irish courts, but if provided under an agreement, a limited form of class action may be possible in arbitration in Ireland.

There are, however, no specific provisions in the 2010 Act dealing with multi-party disputes. As such it is extremely unlikely that a party willing agree to enter a multi-party arbitration without a contractual agreement or ad hoc agreement being reached to do so.

The law of the arbitration agreement is determined in the first instance by agreement between the parties.

Where there is party agreement as to the substantive law of the dispute the tribunal will uphold such an agreement.

However, where the substantive law is unclear and there is no agreement between the parties as to the substantive law, the arbitral tribunal must apply such conflicts of law rules as it considers applicable in order to determine the substantive law of the dispute.

Section 16(1) of the 2010 Act allows for parties to agree to consolidation proceedings and to agree on the terms upon which such consolidation shall occur. In the absence of such agreement, consolidation of proceedings is prohibited (section 16(2)).

The 2010 Act does not permit an arbitrator to join additional parties to proceedings without agreement of the parties. However, the Rules of the Chartered Institute of Arbitrators (Irish Branch) and the UNCITRAL Arbitration Rules 2016 provides an arbitrator with the power to join additional parties to such an arbitration.

A third party that is not a party to an arbitration agreement or award cannot be bound by the agreement or award. An arbitration agreement under the 2010 Act is construed in accordance with Option 1 of Article 7 of the Model Law, which provides that it is an agreement “by the parties”. There is no provision that authorises the agreement to extend to third parties.

Arbitrators in this jurisdiction are usually appointed under prescribed rules in the governing contract or by agreement between the parties.

When appointing the tribunal, the 2010 Act does not stipulate that arbitrators must have specific qualifications; however, they are generally experts in their field.

Section 13 of 2010 Act stipulates that arbitrator(s) shall be chosen (by an institutional body or, failing their nomination, by the High Court) based on their relative expertise, independence and impartiality. Parties can opt for more than one arbitrator once this is stipulated in the arbitration agreement. Section 13 deviates from the Model Law, which provides in Article 10(2) that an arbitral tribunal shall consist of three arbitrators, unless otherwise agreed.

Where the parties cannot agree upon the selection of an arbitrator, the default procedure normally provides that nominating bodies will be asked to select the arbitrator, and this will usually be incorporated as a provision within the contract governing the dispute (nominating bodies in Ireland include the Law Society of Ireland, the Bar Council of Ireland, the Society of Surveyors, the Institute of Chartered Accountants, etc). In the absence of an agreed appointment procedure, the High Court can direct, on request, the appointment of an arbitrator, at the request of either party (Articles 11(3) and 11(4) of the Model Law). (Noting that applications are made to the specialist Arbitration Judge in the High Court, Mr Justice Sanfey).

In the case of three-party arbitral tribunals, Article 11(3) provides that that each party will appoint an arbitrator and that the two party-appointed arbitrators will appoint the third arbitrator. Article 11(3)(b) sets out that in circumstances where one arbitrator is to be appointed and the parties cannot agree on appointment under the applicable appointment procedure, they can apply to the High Court, which, on foot of such an application, is empowered to make an appointment.

Yes, an arbitrator can be challenged in Ireland, but only in limited circumstances; and specifically regarding challenging the appointment of an arbitrator – and then only if it is challenged in writing within 15 days of the appointment and/or becoming aware of the “circumstance” that “give rise to justifiable doubts as to his impartiality or independence”, or if s/he does not possess qualifications agreed to by the parties’ (Article 12(2) of the Model Law).

The International Bar Association’s Guidelines on Conflicts of Interest in International Arbitration are available to arbitrators when making decisions about prospective appointments and disclosures. The Guidelines, although not binding, have been largely followed by international arbitration practitioners, and they can assist in assessing the impartiality and independence of arbitrators. The Guidelines provide that the arbitrator shall be “impartial and independent of the parties at the time of accepting an appointment to serve and shall remain so during the entire arbitration proceeding until the final award has been rendered or the proceeding has otherwise finally terminated”.

There is also a duty on arbitrators to act impartially during the course of the arbitration proceedings. The duty is to avoid actual bias, objective bias, and apparent bias. Where the arbitrator acts partially, his or her appointment or the arbitral award may be challenged under the Model Law.

Article 13 of the Model Law provides that the parties are free to agree on the procedures for challenging an arbitration.

Under Article 15 of the 2010 Act, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced. Wherein the rules are silent as to the process of appointing a substitute arbitrator, and the parties cannot agree on how to replace the arbitrator, the parties must apply to the High Court in order to appoint a substitute arbitrator.

Article 12(1) of the Model Law imposes a mandatory duty on the arbitrator to disclose conflicts of interest. It provides that when a person is approached in connection with his/her possible appointment as an arbitrator he/she shall disclose any circumstances likely to give rise to justifiable doubts as to his/her impartiality or independence and must disclose so without delay.

As already explained, there is also a duty upon arbitrators to act impartially during the course of the arbitration proceedings. The duty is to avoid actual bias, objective bias, and apparent bias. Where the arbitrator acts partially, his or her appointment or the arbitral award may be challenged under the Model Law.

Under Article 19 of the Model Law, the parties to the arbitration are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings. Failing agreement, under Article 19(2), the arbitral tribunal can conduct the arbitration in such manner, as it considers appropriate.

Under Article 25 of the Model Law, where a claimant fails to communicate his/her statement of claim, the arbitrator shall terminate the proceedings. Where the respondent fails to communicate his/her statement of defence, the arbitral tribunal shall continue with the proceedings, without treating the failure as an admission of the allegations. Finally, where a party fails to appear or fails to produce documentary evidence, the arbitral tribunal can continue with the proceedings and make an award.

(a) Procedure, including evidence?

Under section 14 of the 2010 Act, the arbitral tribunal can direct that a party to an arbitration agreement or a witness who gives evidence in proceedings before the arbitral tribunal be examined on oath or on affirmation.

Under Article 23(1) of the Model Law the parties decide the period of time within which the claimant shall state the facts supporting their claim, the points at issue and the relief or remedy sought and similarly, the time within which the respondent is required to state his/her defence.

An issue arises as to whether and when arbitrators have the jurisdiction to order discovery in Ireland. Section 10(2) the Arbitration Act 2010 provides a limited jurisdiction to order discovery, stating the High Court shall not make any order for discovery of documents unless otherwise agreed by the parties.

This limitation was noted in the case of O’Leary T/A O’Leary Lissarda v Ryan [2015] IEHC 820 where the applicant had accepted that there was no explicit power set out in the legislation to order discovery under the Model Law. Dowling-Hussey in his article “Alternative Dispute Resolution: A Road Wrongly Travelled? Irish Arbitrators and Discovery” argues that this case demonstrates that it remains unclear whether Irish arbitrators have power under the 2010 Act to order discovery of their own volition; but it does seem that this is unlikely to be the case, and it would be more commonly accepted practice that an arbitrator may make an order for discovery. Often provision is specifically made at the Directions hearing to empower the Arbitrator to make orders for discovery.

(b) Interim relief?

Interim measures awarded by the arbitrator will be recognised and enforced by the courts in Ireland. Article 9 of the Model Law provides that it is not incompatible with an arbitration agreement for a party to request interim measures of protection from the High Court, before or during arbitral proceedings.

Under Article 17J of the Model Law, the High Court has the power to grant interim measures of protection and assistance, and this applies even where the seat of the arbitration is in another jurisdiction outside of Ireland.

The Irish courts, in considering applications for interim relief under Article 9 and Article 17J of the Model Law, will apply the principles set out by the Supreme Court in Campus Oil Ltd v Minister for Industry and Energy (No 2) [1983] IR 88 in applications for interim or interlocutory injunctive relief.

Despite the increased power of arbitrators, the High Court still retains power in respect of ancillary duties, including issuing witness subpoenas, ordering third-party discovery, and recognising and enforcing arbitral awards. Under Article 27 of the Model Law, the High Court can grant assistance in the taking of evidence.

Further, it should be noted that under the International Chamber of Commerce (the “ICC”) Arbitration Rules (the “ICC Rules”), parties can seek urgent temporary relief, including the appointment of an emergency arbitrator.

(c) Parties which do not comply with its orders?

Under Article 25 of the Model Law, where any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it. This power was recognised by the Supreme Court in Grangeford Structures Ltd. (In Liquidation) v. SH Ltd. [1990] 2 IR 351 and more recently in Hoban v Coughlan & Anor [2017] IEHC 301.

(d) Issuing partial final awards?

There is no express restriction on issuing a partial final award in Ireland. However, under the 2010 Act, the definition of award includes a partial award meaning that the legislation envisions a final award being made in order to resolve the dispute in its totality.

(e) The remedies it can grant in a final award>

Arbitrators in Ireland may award remedies which are permitted by the law applicable to the dispute. Therefore, an arbitrator making an award under Irish law can award the full range of common law and equitable remedies, with the exception of an award of specific performance relating to a contract for the sale of land unless there is agreement of the parties.

(f) Interest?

Section 18(1) of the 2010 Act allows the parties to agree on the arbitral tribunal’s power to award interest. In the absence of agreement, the arbitral tribunal can under section 18(2) award simple or compound interest on terms as it “considers fair and reasonable” on all or part of the award, or the amount claimed at the outset of the arbitration but paid before the award was made.

Under section 18(3), the arbitral tribunal can award simple or compound interest from the date of the award, or a later date, until payment, at rates it “considers fair and reasonable” on the outstanding amount of any award (including interest and/or costs).

As noted above, under Article 25 of the Model Law, where any party fails to appear at a hearing or refuses to participate, the arbitral tribunal may continue the proceedings and make the award on the evidence before it. In Hoban v Coughlan & Anor [2017] IEHC 301, a non-responding party ignored the communications and directions of the appointed arbitrator and later failed to appropriately request an adjournment on notice to the other party. The arbitrator proceeded to conduct the oral hearing without the non-responding party and later published his award. When the arbitrator’s award was challenged by the non-responding party, the Irish Court noted that the arbitrator carefully ensured that he communicated with the party and/or his solicitors and decided that the arbitrator was entitled to proceed in the applicant’s absence under Article 25(c) of the Model Law.

Under Article 22 of the 2010 Act, provides that arbitrators shall not be liable in any proceedings for anything done or omitted in the discharge or purported discharge of his or her functions.

Yes, if proceedings are instituted against a party to an arbitration agreement, such party can apply to the Court for a stay of proceedings. The Court will grant the stay if satisfied that the agreement is valid and is not inoperative or incapable of being performed.

Yes, the courts in Ireland have powers in relation to an arbitration seated in Ireland, some of which have already been noted in this article. The Irish courts have a range of powers under the 2010 Act, which include by way of example, that the courts may decide applications in respect of interim measures, decide on a challenge to an arbitrator, decide on the termination of the mandate, decide on orders to set aside an arbitral award, to enforce a foreign arbitral award to which the New York Convention applies, and decide on applications for adjournment of proceedings.

An arbitral tribunal operating outside Ireland may seek assistance from the Irish courts in taking evidence and the Irish courts will assist (the courts do not have the power to compel parties to arbitrate).

In the parallel process of statutory adjudication, the Irish High Court recently confirmed in Aakon Construction Services Limited and Pure Fitout Associated Limited [2021] IEHC 562 that it has jurisdiction to review, in an application for leave to enforce an adjudicator’s decision pursuant to Section 6(11) of the 2013 Act, whether the adjudicator’s decision was (i) within jurisdiction and (ii) in breach of fair procedures, specifically the right to advance a defence.

The recent decision of the High Court in Charwin Limited T/A Charlie’s Bar v Zavarovalnica Sava Insurance Company D.D [2021] IEHC 489 demonstrates that the COVID-19 pandemic does not trigger sufficient public policy considerations to require a dispute to be determined in a public court instead of through arbitration. This decision arose following a dispute between the plaintiff company, and its insurer following the closure of the plaintiff’s public house due to the COVID-19 pandemic and the defendants refusal to indemnify it. The defendant made an application for orders under Article 8(1) of the Model Law referring the parties to arbitration following proceedings being entered into the Commercial List. In its judgement the High Court rejected the plaintiff’s non-arbitrable contention stating that the dispute in relation to the claim for an indemnity “is clearly arbitrable”. The Court noted that the test required to determine a matter non-arbitrable by reason of public policy consideration is a “demanding” one, requiring “compelling reasons” of Irish public policy in order for such a conclusion to be reached as a “last resort” and that the plaintiff provided a “manifestly insufficient public policy consideration”.

Further in In the Matter of the Arbitration Act 2010 and In Arbitration Pursuant to the Acquisition of Land (Assessment of Compensation) Act 1919; Cork County Council v Sylvia Lynch and Desmond J. Boyle 2019/470 [2021] IECA 4 the Court of Appeal held that a property arbitrator does not enjoy a wide ranging or general jurisdiction to superintend the process of compulsory acquisition. The issue underlying this appeal was whether a property arbitrator appointed in accordance with the provisions of the Acquisition of Land (Assessment of Compensation) Act 1919, as amended had jurisdiction (a) to determine whether a party seeking to compulsorily acquire property pursuant to statute and the owner of that property have conducted themselves so that the former is bound to acquire less property than specified in the relevant compulsory purchase order and, if so, (b) to assess compensation for that lesser take. Allen J in the High Court decided that the argument that the property arbitrator enjoyed such a jurisdiction was not ‘real and substantial’. As a result, he dismissed the application of the plaintiff for an order requiring the stating of a case presenting that question. The Court of Appeal confirmed that the legislation does not enable the property arbitrator to adjudicate upon whether there was an agreement of the kind, or an undertaking with the legal effect, contended for by the plaintiff. It is possible that by clear and unequivocal consent the parties could ask the property arbitrator to value less property than specified in the compulsory purchase order, but the arbitrator did not have the power to determine whether there was an agreement or legally effective undertaking of the kind in issue in this case.

The parties may agree to exclude or expand the scope of appeal or challenge under Irish law, if the agreement does not offend public policy or national law. In FBD Insurance plc v Samwari Ltd [2016] 2 IR 474 at 478 the High Court affirmed that Article 34 of the Model Law does not allow for review of an alleged error of law and confirmed that prior jurisdiction of the Irish courts to set aside or remit a matter to arbitration (whether under common law and/or the Arbitration Acts 1954—1998) is not present in the 2010 Act. In this case the applicant sought to appeal a decision made by an arbitrator that held that the applicant had not entered liquidation and the company in effect was still required to arbitrate a claim made by the respondent. Citing the Model Law, the High Court highlighted that a clear distinction existed between (i) procedural orders made in the course of arbitration, which do not constitute an “arbitral award” for the purposes of challenge under Article 34 of the Model Law, and (ii) awards which are decided on the merits of the case whether giving rise to a partial or full award.

Section 21(1) of the 2010 Act enables the parties decide how the costs of the arbitration are to be assessed. Under the normal rules governing litigation in Ireland, costs ‘follow the event’. Section 21(1) allows the parties depart from such rules.

It remains unclear if this section extends to authorising parties to agree a third-party funding arrangement. Third party funding arrangements in litigation are not permissible in Ireland, as they offend the laws against maintenance and champerty (see paragraph 11 below).

Where the parties have not agreed on costs, or where a consumer is involved, the arbitral tribunal is entitled to award costs as it sees fit (section 21(3) of the 2010 Act).

There are no specific restrictions in the 2010 Act in terms of costs.

The Courts and Civil Law (Miscellaneous Provisions) Act 2023 was signed into law and commenced on 31 July 2023. The Act amends the Arbitration Act 2010 and permits third-party funding in international commercial arbitrations. It permits third-party funding which falls under the newly inserted section 5A of the Arbitration Act 2010 (as amended). Section 5A is outlined below:

Section 124. The Arbitration Act 2010 is amended by the insertion of the following section after section 5:

Third-party funding is otherwise not permitted in litigation in Ireland.

Under Article 31 of the Model Law, the award must be in writing and signed by the arbitrator(s). Articles 31(2) and 48(3) of the Model Law provide that the award must state the reasons upon which it is based, unless otherwise agreed between the parties. Where the award is reasoned, the reasons should be set out in sufficient detail so as to allow a court consider any question of law arising. The award must state its date, and the place of arbitration. A signed copy of the award must be delivered to each party.

It is the decision of the parties whether to include a timeframe in which an arbitrator must produce an award.

Where the arbitrator delays unduly in making their award, it will be possible for a party in Ireland to apply to the High Court pursuant to section 9(1) of the 2010 Act to terminate the mandate of the arbitrator for failure to render the arbitral aware without undue delay.

As Ireland has adopted and ratified the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, section 23 of the 2010 Act states that an arbitral award will be recognised as binding and enforceable upon a written application to the High Court.

Arbitral awards can be enforced either under section 23 of the 2010 Act, or under Order 56 of the Rules of the Superior Courts. The limitation period for enforcement under section 23, where the arbitration agreement is not under seal is six years of the date on which the cause of action accrued (section 11(1) (d) of the Statute of Limitations 1957).

Applications under Order 56, Rule 3(1)(j) for leave of the court to enforce or to enter judgment in respect of an award under section 23(1) of the 2010 Act are generally made by motion and grounding affidavit on notice to the other side.

Under Article 35(1) of the Model Law an arbitral award, irrespective of the country in which it was made, shall be binding and enforceable in Ireland, subject only to the grounds set out in Article 36 of the Model Law.

Parties can only apply to the High Court in very limited circumstances to set aside awards. The parties must prove that there was:

• An incapacity of a party to the arbitration agreement;
• A failure to give adequate notice of the appointment of an arbitrator or of the arbitral proceedings;
• That the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration; or
• That the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties.

The High Court’s subsequent determination is final and complete. Section 12 of the 2010 Act provides that the application to the High Court to set aside an award on the grounds of public policy may be made within 56 days from the date on which the circumstances giving rise to the application became known or ought to have become known to the party concerned.

Irish courts have narrowly interpreted the above grounds, as illustrated in the case of Hoban v Coughlan & Anor [2017] IEHC 301, where the High Court refused to set aside an award of an arbitrator where the claimant alleged they were not given proper notice of the appointment of an arbitrator or of the proceedings. The Court noted that the right to set aside an arbitral award should be only “exercise[d] sparingly”.

Under Article 16(3) of the Model Law, a challenge under any procedure agreed upon by the parties or a challenge to the jurisdiction of the arbitral tribunal must be made within 30 days after having received notice of the decision rejecting the challenge.

The parties may agree to exclude or expand the scope of appeal or challenge under Irish law, if the agreement does not offend public policy or national law.

The 2010 does not expressly provide for the confidentiality of arbitration proceedings.

In Ireland, arbitrations are almost exclusively conducted in private. Although parties can agree to arbitrate in public, in practice this will rarely happen. In private arbitrations, arbitration proceedings remain confidential between the parties and their representatives.

There is a presumption of confidentiality in respect of arbitral proceedings and arbitral awards.

While there is a presumption/implied duty of confidentiality in respect of arbitral proceedings exceptions can arise where disclosure is required by law, for example in the public interest or where the parties consent to waive confidentiality.