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ADR – Arbitration - NotesPast Exam Question: The Arbitration Act 2010 has changed the arbitration landscape in Ireland. Outline the key changes that have occurred, the implications of having adopted the UNICITRAL Model Law.Introduction:The Arbitration Act 2010 repealed entirely the Arbitration Acts ...

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ADR – Arbitration - Notes Past Exam Question: The Arbitration Act 2010 has changed the arbitration landscape in Ireland. Outline the key changes that have occurred, the implications of having adopted the UNICITRAL Model Law. Introduction: The Arbitration Act 2010 repealed entirely the Arbitration Acts of 54.80.90 upon coming into force on June 8th, 2010. Bunni states that a new and vastly differently Arbitration Act is now in force in Ireland. Most significant change in the 2010 Act gives force of law to the United Nations Commission on International Trade Law (UNICITRAL) Model law on International Commercial Arbitration. This submission shall examine the 2010 Act and its provisions and how an arbitrator is appointed. Context: Arbitration is defined as an extra judicial mechanism for resolving disputes by referring them to a neutral party for a binding decision or award. The Act itself comprises of three parts and six schedules. Part 1 deals with the introductory sections. Part 2 contains S.6-31 inclusive. Part 3: S.32 regards the power of the courts to refer pending matters to arbitration. Appointing of Arbitrator: Art 11(2) Model Law provides that in first instance, parties are required to agree the appointment of an arbitrator between themselves. Most nominating an arbitrator will be guided in doing so by legal advisors who are acting for them in relation to the dispute. It may be difficult for those who have no access to professional advice because there is at present no Irish version of the guides used in International Arbitration such as Smit & Misteli’s Smits Roster of International Arbitrators. The Members of details are then available on the chartered Institute of Arbitrators website. Its common for arbitration agreements in this jurisdiction to contain default provision which will become applicable where the parties fail to agree upon the nomination of an arbitrator. Moreover, those nominated should exercise sound judgement over whether it is appropriate for them to go on to accept an appointment that has been offered. Under Art. 12 arbitrators can only be challenged for specific reasons that the party bringing the challenge becomes aware of after the appointment has been made. Art, 11(1) goes on to say that challenges must be lodged within 15 days after the appointment of the challenged arbitrator has been notified to the challenging party, or within 15 days after circumstances giving rise to justifiable doubts as to the arbitrator’s impartibility or independence have become known as the challenging party. Art. 13(1) states that within 15 day of becoming aware of the grounds for challenge, send or written statement including the reasons for the challenge to the arbitral tribunal. You then have 80 days to appeal and the decision is final. Changes to the Act: Commencement: S.7(1) deals with the commencement of arbitral proceedings. New provision, in accordance with which such proceedings are deemed to have commenced on either the date provided by the parties or the date on which the respondent receives written communication from the claimant requesting a dispute be referred to arbitration. S.7(2)

amends Statute of limitations 1957 by substituting for S.74 of that Act an entirely new section as regards the commencement of arbitral proceedings, which reflects what is contained within S.7(1). Obligations to give reasons: Art 31(1): award shall be signed by majority where there is more than one arbitrator provided that the reason for any omitted signature is stated. Art 31(2): Shall state the reasons upon which it is based, unless the parties have agreed that no reasons are to be given or the award is one under agreed terms under Art.23(1) Model Law. S.31(3) shall state its date and place arbitration as determined in accordance with Art.20(1) Model Law. Finally, an award made pursuant to the 2010 Act shall be binding on the parties between whom it is made. Judicial powers of the Court: S.11 of the 2010 Act essentially removes any powers that had been given to the Supreme Court under S.53 of the 1954 Act. S.11 provides that the determination of the High Court in certain applications under the Model Law, the Geneva Convention & the New York or Washington Convention is final. Removes any right of appeal to the Supreme Court of a decision to the High Court. Opinions on whether this is a good/bad thing will differ amongst practitioners in the arbitration world, due it be “such a young piece of legislation” Bunni. Context (amended) AA 2010 very closely modelled upon the UNCITRAL Model Law and is the principle piece of arbitration law in this jurisdiction. Incorporated the provisions of the UNCITRAL Model Law on International Commercial Arbitration (The Model Law) into Irish Law. AA 2010 also gives the force of the law to the New York Convention of 1958 (concerns the recognition and enforcement of foreign arbitral awards) and to the Washington Convention of 1965 (concerns the settlement of investment disputes between states and nationals of other states). Recognition/Enforcement of the Arbitral Award Art 33(1) Model Law; arbitral award, irrespective of the country it was made in, shall be recognised as binding and upon application in writing to the competent court, shall be enforced subject to the provision of this article. Missing from the Act? Now there is no equivalent to S.35 of the 54/98 Acts and therefore the HC no longer possesses the power to decide a special case stated by an arbitrator. High Court no longer has power to direct an arbitrator to state a special case for the opinion of the HC. Provisions of S.35 were specifically aimed at situations where a question of law arose in an arbitration. From June 8 2010, parties must be careful in choosing arbitrators that are proficient in the intricacies of the law. Galway City Council v Samuel Kingston -

SC was requested to overturn a HC decision to refuse to set an arbitrators award aside. Council sought removal because he fell asleep during the hearing and made an inappropriate ex parte contract with on the parties.

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Request was successful. Were similar incidents to occur after June 8th, 2010, could one apply to the High Court to set aside an award under S.34 Model Law? Under Art(2)(b) only if (1) subject matter is not capable of settlement by arbitration or (2) the award is in conflict with public policy of the State.

Redfern v Hunter Kelly J: “ It is understandable that a state may wish to have the right to refuse to recognise and enforce an arbitration award that in some way offends the states own notions of public policy.” Sample Exam Paper -

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The AA 2010 repealed entirely the AA’s of 1954, 1980 & 1990 upon coming into force on June 8th ,2010. In the words of Bunni, a new and vastly different AA is now in force in Ireland. Most significant change of the Act is that it gives force of law to the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration. Arbitration is defined as an extra judicial legal mechanism for resolving disputes by referring them to a neutral party for a binding decision or award. The AA 2010 gives force of law to the New York Convention of 1958 which concerns the recognition and enforcement of foreign arbitral awards and to the Washington Convention of 1965 which concerns the settlement of investments disputes between the states and nationals of other states. Article 11(2) ML provides that in first instance parties are required to agree the appointment of an arbitrator between themselves. Most nominating an arbitrator will be guiding in doing so by their legal advisors. Concurrently this may be difficult for those who have no access to professional advice. There is also no Irish version of the guides used in International Arbitration, such as Smit & Misteli’s: Smits Roster of International Arbitrators. Its also common for arbitration agreements in this jurisdiction to contain default provisions which will become applicable where the parties fail to agree upon the nomination of an arbitrator. Those nominated should exercise sound judgement over whether it is appropriate for them to go on to accept an appointment that has been referred. Article 12 ML outlines that arbitrators can only be challenged for specific reasons that the party bringing the challenge becomes aware of after the appointment has been made. Article 11(1) goes on to say that challenges must be lodged within 15 days after the appointment of the challenged arbitrator. Article 13(1) then states that challenge is in the form of a written statement including the reasons for the challenge to the arbitral award S.7(1) deals with the commencement of arbitral proceedings, this is a new provision in accordance with which such proceedings are deemed to have commenced on either the date provided by the parties or the date on which the respondent receives written communication from the claimant requesting a dispute be referred to arbitration. Art 31(1) states that an award shall be signed by the majority where there is more than one arbitrator provided that the reason for any omitted signature is stated. This article runs concurrent with subsection two which says that the award shall state reasons upon which it is based unless the parties have agreed that no reasons are to be given.

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An award made pursuant to the 2010 Act shall be binding on the parties between whom it is made. Moreover the 2010 Act introduced significant changes to the judicial powers of the court regarding arbitration, this is evident by way of S.11 which essentially removes any powers that had been given to the Supreme Court under S.53 of the 1954 Act. This section provides that the determination of the HC is final in certain applications under the Model law, the Geneva Convention and the New York or Washington Convention. It also removes any right of appeal to the Supreme Court of a decision of the High Court. There has been a mixed consensus amongst practitioners in the arbitration world. As stated by Bunni; “This being such a young piece of legislation, the effects of such a provision have obviously not yet been seen and may not be seen for years to come”. There is a new implementation by way of S.35 of the 2010 AA. Which is a provision specifically aimed at situations where a question of law arose in Arbitration. From June 2010, parties must be careful in choosing arbitrators that are proficient in the intricacies of the law. The application of S.35 came up in Galway City Council v Samuel Kingston, where the Supreme Court was requested to overturn a HC decision to refuse to set an arbitrators award aside after he fell asleep during the hearing. Were similar incidents to occur after June 2010, could one reapply to the H.C to set aside an award? This is explicitly mentioned in Article 34(2)(b) that you can but only if the subject matter is not capable of settlement...