DR: Arbitration

Question 1

What is arbitration?

Answer 1

A process by which a dispute is resolved by an impartial adjudicator whose decision is final and binding.

Question 2

What are the two key stages at which the question of whether to arbitrate arises?

Answer 2

• When negotiating a contract
• When a dispute has arisen

Question 3

List some advantages of arbitration over litigation.

Answer 3

• Privacy and confidentiality
• Easier enforcement in certain jurisdictions
• Ability to choose a specialist
• Additional flexibility

Question 4

What terminology is used in arbitration that differs from litigation?

Answer 4

• Tribunal (for arbitrator(s))
• Reference (for arbitration)
• Claimant and respondent (instead of plaintiff and defendant)

Question 5

What is the significance of the ‘seat’ in arbitration?

Answer 5

It designates the complex package of legal principles affecting the arbitration process and enforceability of the award.

Question 6

What does the Arbitration Act 1996 establish?

Answer 6

It provides the framework for arbitration in England and Wales.

Question 7

What are the three general principles established in Section 1 of the Arbitration Act 1996?

Answer 7

• Fair resolution by an impartial tribunal
• Freedom for parties to agree on dispute resolution
• Limited court intervention

Question 8

What is the difference between mandatory and non-mandatory provisions in the Arbitration Act?

Answer 8

Mandatory provisions cannot be excluded by the parties, while non-mandatory provisions can be contracted out of.

Question 9

What must exist for a matter to be dealt with by arbitration?

Answer 9

A valid arbitration agreement.

Question 10

How must an arbitration agreement be documented to be enforceable under the Act?

Answer 10

It must be in writing or evidenced in writing.

Question 11

Fill in the blank: A party who wants to arbitrate must apply to the court under _______ to stay proceedings.

Answer 11

CPR 62.8

Question 12

What must the purported defendant do upon receiving a claim form if they wish to arbitrate?

Answer 12

• Acknowledge service
• Apply to stay proceedings under CPR 62.8

Question 13

What documentation is required for an application under CPR 62.8?

Answer 13

• Application notice
• Draft order
• Evidence in support

Question 14

What is the role of the tribunal in arbitration?

Answer 14

The tribunal is the master of its own procedure.

Question 15

What does Section 33 of the Arbitration Act mandate regarding the arbitrator’s duties?

Answer 15

• Act fairly and impartially
• Provide reasonable opportunity for each party’s case
• Avoid unnecessary delay or expense

Question 16

What is a preliminary meeting in the context of arbitration?

Answer 16

A meeting to establish a procedural timetable and give directions.

Question 17

True or False: Court intervention in arbitration is common.

Answer 17

False

Question 18

What powers does Section 44 of the Arbitration Act grant to the court?

Answer 18

• Taking evidence
• Preserving evidence
• Interim injunctions
• Appointing a receiver

Question 19

What is an arbitration claim?

Answer 19

An application made to court to decide whether an order under Section 44 should be made.

Question 20

What are the common arrangements decided at the preliminary meeting?

Answer 20

• Amount and form of evidence
• Hearing venue
• Disclosure and witness evidence

Question 21

What does an arbitrator’s award represent?

Answer 21

A final and binding determination of the dispute.

Question 22

Fill in the blank: Section 60 of the Act states that any clause requiring one party to pay all arbitration costs regardless of the outcome will be _______ unless made after the dispute arises.

Answer 22

void

Question 23

What types of challenges can be made against an arbitrator’s award?

Answer 23

Challenges on grounds defined in the Arbitration Act, typically related to procedural issues or lack of jurisdiction.

Question 24

What is a mandatory provision in the Act relating to costs?

Answer 24

Provision for the arbitrator to order one party to pay the costs of the arbitration

This includes applying the general principle that costs will follow the event and allowing for costs awards to include the arbitrator’s fees.

Question 25

What is the general principle regarding costs in arbitration?

Answer 25

Costs will follow the event ## Footnote This means that the party that loses the arbitration may be ordered to pay the costs incurred by the winning party.

Question 26

Can parties exclude mandatory cost provisions in arbitration?

Answer 26

Yes, if the parties wish ## Footnote Parties have the option to agree to exclude certain mandatory provisions.

Question 27

What is the status of an arbitrator's decision on questions of fact?

Answer 27

Final, with no right of appeal to the court ## Footnote Unless otherwise agreed by the parties in their arbitration agreement.

Question 28

What are the two basic types of challenges to an arbitrator's decision?

Answer 28

* Section 67 Challenge on jurisdiction * Section 68 Challenge for serious irregularity ## Footnote These challenges cannot be excluded by agreement.

Question 29

What is a Section 67 Challenge?

Answer 29

Challenge on jurisdiction ## Footnote Example: The dispute was not of the type covered by the arbitration agreement.

Question 30

What is a Section 68 Challenge?

Answer 30

Challenge for serious irregularity ## Footnote Example: The arbitrators did not conduct the hearing fairly.

Question 31

What is a Section 69 Appeal?

Answer 31

Appeal on a point of law ## Footnote The process for such an appeal is much more restrictive than an appeal in litigation.

Question 32

What must the successful party do if the unsuccessful party does not comply with the arbitration award?

Answer 32

Take steps to enforce the award ## Footnote There are two avenues for enforcement.

Question 33

How can domestic arbitration awards be enforced?

Answer 33

* Bringing an ordinary civil claim in the High Court * Using the summary procedure in section 66 of the Act ## Footnote The latter allows a party to apply to convert the arbitration award into a court judgment.

Question 34

What is the New York Convention?

Answer 34

A treaty providing an extensive enforcement regime for international arbitration awards ## Footnote It allows for automatic enforceability of awards in approximately 150 countries.

Question 35

What is the effect of an arbitration award rendered in a Convention state?

Answer 35

Automatically enforceable without re-examination of the merits ## Footnote This includes countries with no existing reciprocal arrangements with England and Wales.

Question 36

What displaces the jurisdiction of the court in favor of arbitration?

Answer 36

Agreement to arbitrate ## Footnote If the parties have agreed to arbitrate, the court cannot hear the matter.

Question 37

What framework governs arbitrations with their seat in England and Wales?

Answer 37

Arbitration Act 1996 ## Footnote This Act contains both mandatory and non-mandatory provisions.

Question 38

What is required for an arbitration agreement?

Answer 38

It must be in writing ## Footnote It can refer to present or future disputes between the parties.

Question 39

What happens if litigation proceedings are issued where a valid arbitration agreement exists?

Answer 39

Those proceedings will be stayed on application by the purported defendant ## Footnote This ensures the arbitration agreement is honored.

Question 40

What is the arbitrator's duty in the arbitration process?

Answer 40

To act fairly and ensure the process is fair ## Footnote Parties are also required to comply with the process.

Question 41

How can arbitration awards be enforced?

Answer 41

* Via the High Court * Through the New York Convention ## Footnote This allows for enforcement in various jurisdictions.