6.4 Arbitration Flashcards
What is the ‘seat’ of the arbitration?
The seat of the arbitration is the legal system under which the arbitration will be decided.
What is the name of the statute which governs arbitration?
Arbitration Act 1996
What are the three general principles governing arbitration?
Section 1 Arbitration Act 1996
(a)
the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;
(b)
the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;
(c)
in matters governed by this Part the court should not intervene except as provided by this Part.
What is the general duty of the tribunal?
Section 33 Arbitration Act 1996
(1)
The tribunal shall—
(a)
act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and
(b)
adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined.
In what form must arbitration agreements be made?
Section 5(1) Arbitration Act 1996 The provisions of this Part apply only where the arbitration agreement is in writing, and any other agreement between the parties as to any matter is effective for the purposes of this Part only if in writing.
What restrictions exist on the parties’ ability to agree the terms of the arbitration?
Section 4 Arbitration Act 1996
(1)
The mandatory provisions of this Part are listed in Schedule 1 and have effect notwithstanding any agreement to the contrary.
(2)
The other provisions of this Part (the “non-mandatory provisions”) allow the parties to make their own arrangements by agreement but provide rules which apply in the absence of such agreement.
What must the purported D do if C commences litigation despite a valid arbitration agreement?
1.
Acknowledge service to avoid default judgment;
2.
Apply to the court under CPR 62.8 to stay proceedings pursuant to Section 9 Arbitration Act 1996.
Under what circumstances will an application for stay of proceedings in order to uphold a binding arbitration agreement succeed?
Section 9(4) Arbitration Act 1996 On an application under this section the court shall grant a stay unless satisfied that the arbitration agreement is null and void, inoperative, or incapable of being performed.
What is the general duty of the parties?
Section 40 Arbitration Act 1996
(1)
The parties shall do all things necessary for the proper and expeditious conduct of the arbitral proceedings.
(2)
This includes—
(a)
complying without delay with any determination of the tribunal as to procedural or evidential matters, or with any order or directions of the tribunal, and
(b)
where appropriate, taking without delay any necessary steps to obtain a decision of the court on a preliminary question of jurisdiction or law
How are procedural and evidential matters decided, where the parties have not agreed them?
Section 34 Arbitration Act 1996
It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter.
Under what circumstances may the court intervene to enforce a preremptory order of the tribunal?
Section 42(3) Arbitration Act 1996 The court shall not act unless it is satisfied that the applicant has exhausted any available arbitral process in respect of failure to comply with the tribunal’s order.
Procedurally, what must happen before the court can intervene to exercise powers over witnesses, evidence, sale, etc.?
Section 44 Arbitration Act 1996
If the case is not one of urgency, the court shall act only on the application of a party to the arbitral proceedings (upon notice to the other parties and to the tribunal) made with the permission of the tribunal or the agreement in writing of the other parties.
What is an arbitration claim?
CPR 62.2
(1)
In this Section of this Part ‘arbitration claim’ means –
(a)
any application to the court under the 1996 Act;
(b)
a claim to determine –
(i)
whether there is a valid arbitration agreement;
(ii)
whether an arbitration tribunal is properly constituted; or
what matters have been submitted to arbitration in accordance with an arbitration agreement;
(c)
a claim to declare that an award by an arbitral tribunal is not binding on a party; and
(d)
any other application affecting –
(i)
arbitration proceedings (whether started or not); or
(ii)
an arbitration agreement.
Can Section 44 court interventions to support arbitration be excluded by agreement?
Section 44(1) Arbitration Act 1996
[Yes.]
Unless otherwise agreed by the parties, the court has for the purposes of and in relation to arbitral proceedings the same power of making orders about the matters listed below as it has for the purposes of and in relation to legal proceedings.
When must C serve its arbitration claim form on the respondent?
CPR 62.4(2)
Unless the court orders otherwise an arbitration claim form must be served on the defendant within 1 month from the date of issue and rules 7.5 and 7.6 are modified accordingly.
