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
