ADR: Arbitration Flashcards
What are the requirements for a valid arbitration agreement?
Agreement in writing, no need to be signed
Within what time limit must an arbitration claim form be served?
Within 1 month of date of issue, unless court orders otherwise
How can an arbitration award be enforced when a party is outside the jurisdiction?
New York Convention
What is arbitration?
What type of ADR is it?
How is jurisdiction of arbitrator decided?
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
What if there is an arbitration claim within a contract but the validity of the contract is in dispute?
Arbitration clause can be separated from the rest of the contract and can continued to apply even if main contract is deemed void
What are the 3 requirements for arbitration?
- Must be a written arbitration agreement
- Must be a dispute - which falls within the terms of the agreement
- Dispute must be of the kind that can be arbitrated
What should a party do if the other party has issued proceedings even though there is an arbitration agreement?
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
Once a party has issued pt 9 proceedings, what will happened? Unless?
In the application made with notice, what need to accompany it?
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
How is arbitration commenced?
When 1 party sends a written notice of arbitration to the other party requiring them to take the required step
What is the required step (for commencing arbitration) when…
- The arbitrator is named in the agreement
- Parties are to appoint an arbitrator
- Someone neutral is to appoint the arbitrator
- Step = submitting the matter to the arbitrator
- Step = Appoint an arbitrator or agree to the appointment of an arbitrator
- Step = giving notice to the neutral person in writing requesting them to make the appointment
Will there be an oral hearing?
Unless it is specified in the agreement, arbitrators can decide
What advise would you give to a client who is concerned about revealing information in arbitration?
It is a long established principle that arbitration is private and confidential
What types of orders and wards can an arbitrator make?
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
An award made through arbitration is ….
BINDING- bless otherwise agreed
How can an arbitration award be enforced?
Notice?
Will it be granted?
Once granted….
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
Can an arbitration award be appealed?
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
What is the test for serious irregularity?
Person challenging the award must show:
- That Serious irregularity affected the tribunal; and
- That the irregularity caused, or will cause, substantial injustice
What amount to serious irregularity?
Closed list of examples under s.68 Arbitration Act, which is not open for the courts to extend
- Failure of tribunal to comply with general duty
- Tribunal exceeded its power
- Tribunal failed to conduct proceedings in accordance with procedure agreed by the parties
- Failed to deal with all the issues
- Uncertainty as to effect of award
- Any irregularity admitted by tribunal
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?
… 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
In relation to an appeal on a point of law, when will permission to appeal be granted by the court?
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
