ch 25

Question 1

When can you seek judicial review/appeal of arbitral awards?

Answer 1

• S.68 – possible to challenge an award on the ground of serious irregularity (unless the parties agree to exclude the right)
• S.69 – appeal on a point of law
• Applied restrictively

Question 2

How can you enforce a domestic arbitral award?

Answer 2

• Ordinary civil claim in the HC
• S.66(1) – Summary procedure, this allows the court to grant permission to enforce an award of an arbitral tribunal in the same manner as judgment order of the court

Question 3

How is permission sought to enforce an award?

Answer 3

• Issue an arbitration claim form in HC (considered without notice)

Question 4

How are cross-border arbitral awards enforced?

Answer 4

• New York convention 1958

Question 5

How to decide if the NY Convention applies?

Answer 5

• Award is treated as made at the seat of the arbitration
• Regardless of whether it was signed, dispatched or delivered to any of the parties
• Party must produce the duly authenticated original award or a duly certified copy
• Also bring original arbitration agreement/duly certified copy

Question 6

What happens with NY Convention if permission is given?

Answer 6

• Judgment may be entered in terms of the award

Question 7

What are the 4 types of award and orders that arbitrators can make?

Answer 7

• Procedural orders-provide procedural directions and measures designed to preserve evidence or the subject matter of the dispute
• Interim awards and awards on different sides-disposes of one or more of the substantive issues, leaving other issues to be dealt with later
• Final awards-disposing of the arbitration
• Costs awards-payment of costs incurred in the arbitration between parties

Question 8

Are arbitration awards/orders binding?

Answer 8

yes

Question 9

Is arbitration private and confidential?

Answer 9

yes

Question 10

Who decides approach of hearing to be taken?

Answer 10

arbitrators

Question 11

Approaches that can be taken to hearing?

Answer 11

• Adversarial-traditional English court method

* Inquisitorial-civil law system

Question 12

What is the general rule after closing of proceedings?

Answer 12

• No further evidence or submissions can be given to the tribunal

Question 13

13) Who decides whether and to what extent there should be oral or written evidence or submissions?

Answer 13

• Tribunal (subject to contrary agreement between the parties)

Question 14

What will tribunal consider in deciding whether to allow oral/written evidence or submissions?

Answer 14

• The need to act fairly-every party needs a reasonable opportunity to put their case
• Need to avoid unnecessary expense and delay

Question 15

Are there institutional rules allowing a party to insist on an oral hearing?

Answer 15

yes

Question 16

16) Who decides if bundles are to be provided?

Answer 16

• Tribunal

Question 17

17) what is contained in the bundles?

Answer 17

• Docs referring to arbitration and a tribunal
• SoC
• Procedural orders and directions
• WS
• Expert evidence
• Written opening submissions
• Skeleton arguments and authorities

Question 18

18) When will there be a pre-trial hearing/conference?

Answer 18

• More complex cases

Question 19

19) When will a pre-trial hearing/conference take place?

Answer 19

• Few weeks before start of hearing

Question 20

20) Who decides all the procedural and evidential matters?

Answer 20

• Tribunal – subject to the right of the parties

Question 21

21) What can procedural matters include?

Answer 21

• Venue of proceedings
• Language
• Written points of claim and defence
• Whether docs should be disclosed and at what stage
• Whether to apply strict rules of evidence
• Whether expert evidence is required
• Whether tribunal should ascertain the facts and law
• Whether there should be oral/written submissions at hearing

Question 22

22) When will preliminary meeting happen?

Answer 22

• Shortly after tribunal is appointed

Question 23

23) What happens at preliminary meeting?

Answer 23

• Parties and arbitrator meet
• Discuss jurisdictional matters
• Make procedural directions of evidence needed

Question 24

24) Is there a set agenda for a preliminary meeting?

Answer 24

no

Question 25

25) How are preliminary meetings often held?

Answer 25

• Video or telephone conference

Question 26

26) What is the overall aim of arbitration?

Answer 26

• Fair resolution of dispute without unnecessary delay or expense

Question 27

27) What happens with the stages in the absence of an agreement?

Answer 27

• Provisions of arbitration act apply

Question 28

28) Typical stages of arbitration?

Answer 28

* Preliminary meeting * Directions on procedure and evidence * Pre-trial hearing/conference * Bundles * Right to an oral hearing? * Hearing * Closing of proceedings

Question 29

29) How are arbitrations commenced?

Answer 29

* Sending a notice of arbitration | * Then appointing the members of the arbitral tribunal

Question 30

30) How does a notice of arbitration have to be sent?

Answer 30

* In writing | * Comply with requirements for appointing arbitral tribunal

Question 31

31) Who can agree on procedure for appointing the arbitrator?

Answer 31

parties

Question 32

32) What is the usual position where parties agree to a three-member tribunal?

Answer 32

* Each party selects one arbitrator | * Those 2 select an arbitrator as chairman

Question 33

33) What can a party do to prevent a party from breaching agreement to arbitrate?

Answer 33

• S.9 application for a stay of those court proceedings

Question 34

34) What does s.9 apply to?

Answer 34

* Claims and counterclaims * Unfair prejudice petitions under s996 companies act 2006 * Part 7 claims

Question 35

35) What does a stay under s9 do?

Answer 35

• Imposes a halt on legal proceedings

Question 36

36) Main question raised under s9?

Answer 36

• Whether dispute is a matter under the arbitration agreement

Question 37

37) What happens if the matter is for arbitration agreement under s9?

Answer 37

• The court must grant a stay

Question 38

38) When must the court not grant a s9 stay?

Answer 38

* Satisfied that the agreement is null and void * Inoperative * Incapable of being performed

Question 39

39) Does the arbitrator have jurisdiction over parties and matters not covered in the agreement?

Answer 39

no

Question 40

40) what type of disputes is arbitration mostly used for?

Answer 40

• Those coming from contract

Question 41

41) 4 contracts you’ll have with arbitration?

Answer 41

* Substantive contract * Agreement to arbitrate * Agreement between parties and arbitral institution * Agreements appointed by arbitrators

Question 42

42) Requirements to refer dispute to arbitration?

Answer 42

* Dispute * Arbitrable=private law * Agreement to arbitrate * Agreement must be in writing * Nature of dispute must apply to agreement * Parties have legal capacity to enter into arbitration * Comply with any contractual precedent to arbitration * Parties must find an arbitral tribunal willing to comply

Question 43

43) Why might a party want to use arbitration?

Answer 43

* Fast * Neutral location * Privacy * Light but efficient supervision by courts * Choose their own tribunal/arbitrator

Question 44

44) Should the courts intervene in arbitration?

Answer 44

no