Arbitration

Question 1

Arbitration Act 2010

Answer 1

This is the Irish legislation which applies to all arbitrations in the State commenced after 8 June 2010. It consists of 32 sections and 6 schedules. It adopts the UNCITRAL Model Law on International Commercial Arbitration to govern both domestic and international arbitrations in Ireland. The text of the Model Law is appended to the Act in Schedule 1. The Act also contains the specifications and/or derogations under the Model Law which Ireland has adopted. Section 6 of the Act provides that the Model Law shall have the force of law in Ireland, “subject to this Act”: the Act takes precedence over the Model Law wherever there is conflict. Therefore, it is never enough to just read the Model Law. You must also always check for derogations under the Act of 2010.

Question 2

Arbitration Agreement

Answer 2

This is the agreement that parties make to submit all or certain disputes between them to arbitration in order to reach a decision. In practical terms, an arbitration agreement is usually only one of the clauses in the parties’ contract. However, sometimes an arbitration agreement is a separate document entirely. Irrespective of how it is drafted, an arbitration agreement is separable from the underlying contract.

Question 3

Arbitration Rules

Answer 3

It is very useful if the parties agree to use a set of ready-made rules for the arbitration (adjusting if necessary) rather than attempting to draft up a new set of rules for a particular arbitration.

Question 4

Arbitral institutions

Answer 4

Arbitration courts administer and supervise the arbitration process. Many have their own arbitration rules to govern and help direct the arbitration process. The court administering the arbitration process is usually selected when the parties first enter into their contract, normally as part of the “arbitration clause” in the contrac

Question 5

Law of the arbitration agreement

Answer 5

This refers to the law that applies to the arbitration agreement itself. This law will govern matters relating to the agreement, i.e. the proper interpretation of the agreement, the validity and scope of the agreement, arbitrability et

Question 6

Law of the arbitration procedure

Answer 6

This refers to the law that applies to the arbitration procedure itself and is usually the law of the seat i.e. the place in which the arbitration will take place

Question 7

Law of the substantive contract

Answer 7

this refers to the law which applies to the contract in which the arbitration agreement is contained.

Question 8

New York Convention

Answer 8

The Convention requires courts of contracting states (162
States, including Ireland2, EU Member States, the United States etc.) to (a) recognise and enforce arbitral awards made in the territory of another contracting state and (b) to refer parties to arbitration when seized of a matter in respect of which the parties have made a valid arbitration agreement. As it is a Convention, it is binding.

Question 9

UNCITRAL

Answer 9

The United Nations Commission on International Trade Law (UNICTRAL) was established by the United Nations General Assembly by its Resolution 2205 (XXI) of 17 December 1966 “to promote the progressive harmonization and unification of international trade law

Question 10

UNCITRAL Model Law

Answer 10

The Model Law is a legislative text and sets out legal rules governing all stages of the arbitral process, from the agreement to the award. It has no legislative force of its own, but rather is designed as a template for arbitration legislation

Question 11

what is arbitration?

Answer 11

Parties, who are in a dispute, agree to submit their disagreement to a person whose expertise or judgment they trust. They each put their respective cases to this person, who is a private individual, i.e. the arbitrator. The arbitrator listens, considers the facts and the arguments and then makes a decision. The decision is final and binding on the parties.

Question 12

Parties’ consent

Answer 12

The parties’ consent to arbitrate is the cornerstone of the whole system. “Consent to arbitrate” means consent to the whole arbitral process, to the procedure, the law and ultimately to the award that is rendered and therefore the outcome of the dispute.

Question 13

Institutional arbitration clause

Answer 13

Institutional arbitration clauses prescribe
adherence to the rules of certain arbitral institutions. The arbitral institution then governs the management of the arbitration and facilitates the parties in setting up a Tribunal and in proceeding smoothly through the arbitral process.

Question 14

what happens if a clause is ad hoc?

Answer 14

If a clause is “ad hoc” it will not nominate an arbitral institution within the clause, although parties are always free to agree to same afterward.

Question 15

what are the elements of an arbitration?

Answer 15

(i) An Arbitration Agreement
(ii) Need for a dispute
(iii) A tribunal or Arbitrator
(iv) Decision
(v) Enforcement of the award

Question 16

Advantages of arbitration

Answer 16

(i) Confidentiality
(ii) Speed
(iii) Cost
(iv) Efficiency
(iv) enforceable and binding decisions

Question 17

Disadvantages of arbitration

Answer 17

(i) Cost - The fees and expenses of the arbitrator or tribunal are paid by the parties, whereas judges and state justice are effectively paid for by the State.
(ii) Limited powers of the arbitrators
(iii) Joinder of parties and consolidation of proceedings - It is generally not possible to bring multi-party arbitration disputes together before the same tribunal.

Question 18

What is the different between arbitration and Conciliation

Answer 18

The conciliator does not have a legal/quasi judicial mission and the proposed solution has no binding force. The solution comes from collaboration between the parties, who are not bound to the outcome. The parties also know the solution prior to becoming bound by it. In effect, the arbitrator imposes whereas the conciliator proposes.

Question 19

What is the difference between arbitration v Meditation?

Answer 19

The mediator is an independent third party who helps the parties to narrow their differences in an attempt to reach an agreed solution to the issue. In general, the mediator meets each party separately, listens to their respective issues and difficulties and persuades them to moderate their respective positions. The mediator will focus on the real interests and not just their contractual entitlement

Question 20

what is the difference between expert determination and arbitration?

Answer 20

An expert’s mandate is given to him/her by the parties and the expert considers a question of fact and opines on this issue. The arbitrator determines the judicial consequences of this fact, via the adversarial process of an arbitration

Question 21

Article 18 of the Model Law

Answer 21

“The parties shall be treated with equality and each party shall be given a full opportunity of presenting his case.”

Question 22

Article 16 of the Model Law

Answer 22

an arbitration clause which forms part of a contract shall be treated as an
agreement independent of the other terms of the contract”.

Question 23

Competence-Competence

Answer 23

The power of the arbitral tribunal to rule on its own jurisdiction is an inherent power, commonly referred to in arbitration as competence-competence

Question 24

challenging an appointment of arbitrator

Answer 24

Article 12 and article 13 of the model Law