ch 25 Flashcards
When can you seek judicial review/appeal of arbitral awards?
- 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
How can you enforce a domestic arbitral award?
- 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
How is permission sought to enforce an award?
• Issue an arbitration claim form in HC (considered without notice)
How are cross-border arbitral awards enforced?
• New York convention 1958
How to decide if the NY Convention applies?
- 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
What happens with NY Convention if permission is given?
• Judgment may be entered in terms of the award
What are the 4 types of award and orders that arbitrators can make?
- 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
Are arbitration awards/orders binding?
yes
Is arbitration private and confidential?
yes
Who decides approach of hearing to be taken?
arbitrators
Approaches that can be taken to hearing?
- Adversarial-traditional English court method
* Inquisitorial-civil law system
What is the general rule after closing of proceedings?
• No further evidence or submissions can be given to the tribunal
13) Who decides whether and to what extent there should be oral or written evidence or submissions?
• Tribunal (subject to contrary agreement between the parties)
What will tribunal consider in deciding whether to allow oral/written evidence or submissions?
- The need to act fairly-every party needs a reasonable opportunity to put their case
- Need to avoid unnecessary expense and delay
Are there institutional rules allowing a party to insist on an oral hearing?
yes
16) Who decides if bundles are to be provided?
• Tribunal
17) what is contained in the bundles?
- Docs referring to arbitration and a tribunal
- SoC
- Procedural orders and directions
- WS
- Expert evidence
- Written opening submissions
- Skeleton arguments and authorities
18) When will there be a pre-trial hearing/conference?
• More complex cases
19) When will a pre-trial hearing/conference take place?
• Few weeks before start of hearing
20) Who decides all the procedural and evidential matters?
• Tribunal – subject to the right of the parties
21) What can procedural matters include?
- 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
22) When will preliminary meeting happen?
• Shortly after tribunal is appointed
23) What happens at preliminary meeting?
- Parties and arbitrator meet
- Discuss jurisdictional matters
- Make procedural directions of evidence needed
24) Is there a set agenda for a preliminary meeting?
no
25) How are preliminary meetings often held?
• Video or telephone conference
26) What is the overall aim of arbitration?
• Fair resolution of dispute without unnecessary delay or expense
27) What happens with the stages in the absence of an agreement?
• Provisions of arbitration act apply
28) Typical stages of arbitration?
- Preliminary meeting
- Directions on procedure and evidence
- Pre-trial hearing/conference
- Bundles
- Right to an oral hearing?
- Hearing
- Closing of proceedings
29) How are arbitrations commenced?
- Sending a notice of arbitration
* Then appointing the members of the arbitral tribunal
30) How does a notice of arbitration have to be sent?
- In writing
* Comply with requirements for appointing arbitral tribunal
31) Who can agree on procedure for appointing the arbitrator?
parties
32) What is the usual position where parties agree to a three-member tribunal?
- Each party selects one arbitrator
* Those 2 select an arbitrator as chairman
33) What can a party do to prevent a party from breaching agreement to arbitrate?
• S.9 application for a stay of those court proceedings
34) What does s.9 apply to?
- Claims and counterclaims
- Unfair prejudice petitions under s996 companies act 2006
- Part 7 claims
35) What does a stay under s9 do?
• Imposes a halt on legal proceedings
36) Main question raised under s9?
• Whether dispute is a matter under the arbitration agreement
37) What happens if the matter is for arbitration agreement under s9?
• The court must grant a stay
38) When must the court not grant a s9 stay?
- Satisfied that the agreement is null and void
- Inoperative
- Incapable of being performed
39) Does the arbitrator have jurisdiction over parties and matters not covered in the agreement?
no
40) what type of disputes is arbitration mostly used for?
• Those coming from contract
41) 4 contracts you’ll have with arbitration?
- Substantive contract
- Agreement to arbitrate
- Agreement between parties and arbitral institution
- Agreements appointed by arbitrators
42) Requirements to refer dispute to arbitration?
- 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
43) Why might a party want to use arbitration?
- Fast
- Neutral location
- Privacy
- Light but efficient supervision by courts
- Choose their own tribunal/arbitrator
44) Should the courts intervene in arbitration?
no
