ADR: Arbitration

Question 1

What are the requirements for a valid arbitration agreement?

Answer 1

Agreement in writing, no need to be signed

Question 2

Within what time limit must an arbitration claim form be served?

Answer 2

Within 1 month of date of issue, unless court orders otherwise

Question 3

How can an arbitration award be enforced when a party is outside the jurisdiction?

Answer 3

New York Convention

Question 4

What is arbitration?

What type of ADR is it?

How is jurisdiction of arbitrator decided?

Answer 4

Process, normally based on an agreement between the parties, to refer any dispute to an impartial arbitrator for a decision

ADJUDICATIVE

Jurisdiction = depends on what is mandated by the parties in the agreement

Question 5

What if there is an arbitration claim within a contract but the validity of the contract is in dispute?

Answer 5

Arbitration clause can be separated from the rest of the contract and can continued to apply even if main contract is deemed void

Question 6

What are the 3 requirements for arbitration?

Answer 6

1. Must be a written arbitration agreement
2. Must be a dispute - which falls within the terms of the agreement
3. Dispute must be of the kind that can be arbitrated

Question 7

What should a party do if the other party has issued proceedings even though there is an arbitration agreement?

Answer 7

Once the claim form has been served, they should ACKNOWLEDGE service (But NOT file a defence), then issue an application under s.9 to stay proceedings

Question 8

Once a party has issued pt 9 proceedings, what will happened? Unless?

In the application made with notice, what need to accompany it?

Answer 8

A stay MUST be granted
Unless court satisfied that the agreement is null and void, inoperative or incapable of being performed

Application should be made with notice and needs to be files with WS in support of application and a copy of the arbitration agreement

Question 9

How is arbitration commenced?

Answer 9

When 1 party sends a written notice of arbitration to the other party requiring them to take the required step

Question 10

What is the required step (for commencing arbitration) when…

1. The arbitrator is named in the agreement
2. Parties are to appoint an arbitrator
3. Someone neutral is to appoint the arbitrator

Answer 10

1. Step = submitting the matter to the arbitrator
2. Step = Appoint an arbitrator or agree to the appointment of an arbitrator
3. Step = giving notice to the neutral person in writing requesting them to make the appointment

Question 11

Will there be an oral hearing?

Answer 11

Unless it is specified in the agreement, arbitrators can decide

Question 12

What advise would you give to a client who is concerned about revealing information in arbitration?

Answer 12

It is a long established principle that arbitration is private and confidential

Question 13

What types of orders and wards can an arbitrator make?

Answer 13

Procedural orders - directions during the arbitration

Interim order - dispose of 1 or more issues, leaving others to be decided later

Final Awards - final disposing of the arbitration

Costs award - payment of costs incurred during the arbitration

Question 14

An award made through arbitration is ….

Answer 14

BINDING- bless otherwise agreed

Question 15

How can an arbitration award be enforced?

Notice?
Will it be granted?

Once granted….

Answer 15

By making an application to the HC - summary procedure

Can be made without notice
Will be granted unless tribunal lacked jurisdiction to make the award

Once granted can be enforce in the same way as a judgment and WILL attract INTEREST

Question 16

Can an arbitration award be appealed?

Answer 16

ONLY on ground os SERIOUS IRREGULARITY or on a POINT OF LAW (as long as not excluded by the parties)

But provisions are applied RESTRICTIVELY

Question 17

What is the test for serious irregularity?

Answer 17

Person challenging the award must show:

1. That Serious irregularity affected the tribunal; and
2. That the irregularity caused, or will cause, substantial injustice

Question 18

What amount to serious irregularity?

Answer 18

Closed list of examples under s.68 Arbitration Act, which is not open for the courts to extend

1. Failure of tribunal to comply with general duty
2. Tribunal exceeded its power
3. Tribunal failed to conduct proceedings in accordance with procedure agreed by the parties
4. Failed to deal with all the issues
5. Uncertainty as to effect of award
6. Any irregularity admitted by tribunal

Question 19

An appeal on a point of law is made under …?

Does it apply to all arbitrations?

When can an appeal on a Point of law be made? + Permission?

Is there any time limits on an appeal of this nature?

Answer 19

… s.69 AA.

Not a mandatory provision so parties can agree that it will not apply

Can only be made, if no excluded, once internal appeal process has been exhausted
AND will permission of the other parties or with the permission of the court

Time limit = must be made within 28 days of award to within 28 days of being notified on the outcome of any internal appeal process

Question 20

In relation to an appeal on a point of law, when will permission to appeal be granted by the court?

Answer 20

Only if …

• determination will substantially affect the rights of a party
• question was raised with the tribunal
• On bail of a finding of fact, decision on the question was obviously wrong or question is of general public important and decision of tribunal is at least open to serious doubt
• despite agreement to arbitrate, it is just and proper in the circumstances for the court to determine the question