International

Arbitration (International Commercial) Act, 1998

Domestic Arbitration
Rules

proposed Arbitration Rules of the Bar Council of Ireland.

ICDR International Arbitration Rules - Dublin and New York
ICDR - Dublin Office - 2001

Cases - Domestic
Extension of time

Magner -v- Assicurazioni Generali (High Court, Lavan J., 10/02/03)

Remit Award

McCarrick v. The Gaiety (Sligo) Ltd. ITLR 4/6/01 (High Court, Herbert J., 16/04/01)

Stay
All courts are empowered to grant an order staying court proceedings where the dispute being litigated comes within the terms of an arbitration agreement. An application to stay proceedings is brought in the court in which the proceedings have been instituted
(Mitchell v. Budget Travel Ltd. [1990] ILRM 739 (Supreme Court)).

In Re Via Net Works Ireland Limited [2002] 2 I.R. 47 (Supreme Court, Keane C.J., 23/04/2002; High Court, Lavan J., 16/05/01) (2002) C.L.P.

O'Dwyer and another -v- Boyd (Supreme Court, Geoghegan, J., 04/07/02) FL 5883

Gleeson and Another -v- Grimes and McQuillan (High Court, Finlay Geoghegan J., 1/11/02) FL 6473

Refuse Stay
Section 39 of the 1954 Act also empowers the High Court to order that an arbitration agreement shall cease to have effect where the dispute involves the question of whether a party has been guilty of fraud.

Administratia Asigurarilor de Stat, Winterthur Swiss Insurance Company and Others -v- Insurance Corporation of Ireland PLC (under administration) [1990] I.L.R.M. 159 (High Court, O'Hanlon J., 21/07/1989)

Liston -v- O'Malley (High Court, Murphy J., 2/11/1992) (I.T., 03/11/1992)

Aylmer -v- Malcolmson (High Court, Kelly J., 14/02/03 I.T. 15/02/03)

Removal of arbitrator

The High Court, on the application of any party, may remove an arbitrator
for failure to use reasonable dispatch in the discharge of his duties (section 24, 1954 Act) and
where the arbitrator has misconducted himself or the proceedings (section 37, 1954 Act).

Riney -v- Mahon and Donegal VEC (No 2) (High Court, McCracken J., 22/07/02).

Pratt -v- Swanmore Builders Ltd and Baker [1980] 2 Lloyd's R. 504 (High Court, Pain J.)

Where an arbitrator is removed, section 40 of the 1954 Act empowers the High Court, on the application of any party, to appoint a person to act as arbitrator.

Lynam and Sons Limited -v- Leonard and Donnelly Limited and McKenna (No. 2) (High Court, Kenny J., 31/05/72)

Arbitrator's fees
Until his fees are paid, an arbitrator may withhold his award. In these circumstances, section 33 empowers the High Court, on application, to order that the arbitrator deliver the award on payment into the High Court by the applicant of the fees demanded to be taxed. The taxed fee is then paid to the arbitrator. However the arbitrator should agree his fee in advance, and the parties must pay it.

If removed under s. 24 for failure to use reasonable dispatch in the discharge of his duties - the arbitrator is not entitled to remuneration.

Set Aside/ Remission of Award

The High Court is empowered to remit an award to an arbitrator for reconsideration pursuant to section 36(1) of the 1954 Act.

If a party persuades the High Court that the arbitrator has been guilty of misconduct, the High Court has the power to set aside or remit the award (section 38, 1954 Act).

Keenan v. Shield Insurance Co. Ltd. [1988] I.R.89. (Supreme Court, McCarthy J.) [1987] I.R. 113. (High Court, Blayney J.)

Sheahan -v- FBD Insurance Plc (High Court Kelly J., 25/03/98; Supreme Court, Keane J., 20/07/99).

Vogelaar & Another -v- Callaghan (No. 1) [1996] 1 I.R. 88; [1996] 2 ILRM 226 (High Court, Barron J., 30/04/96)
Vogelaar & Another -v- Callaghan (No. 2) (Supreme Court, Keane J., 13/07/98; High Court, O'Sullivan J., 28/07/97)
Extension of Time

Section 45 of the 1954 Act, provides:-

Where -

(a) the terms of an agreement to refer future disputes to arbitration provide that any claims to which the agreement applies shall be barred unless notice to appoint or some step to commence arbitration proceedings is taken within a time fixed by the agreement, and

(b) a dispute arises to which the agreement applies

the High Court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, but without prejudice to section 42 of this Act, extend the time for such period as it thinks proper.

Walsh -v- Shield Insurance Co. Ltd. [1976] I.L.R.M. 218 (High Court, Hamilton J., 8/12/1976)
followed in -
Magner -v- Assicurazioni Generali (High Court, Lavan J., 10/02/03)

Enforcement
The High Court is empowered to enforce domestic and foreign/international arbitral awards.

Certain basic criteria must be satisfied, (1954, 1980 and 1998 Acts).

These are the same internationally (following the New York Convention).

Note section 14 of the 1998 Act and Articles 35 and 36 of the UNCITRAL Model Law.

International Arbitration
The Arbitration (International Commercial) Act, 1998, emphasises the importance of the High Court.

Article 6 of the Model Law provides that a State, when adopting the UNCITRAL Model Law, should specify the court competent to perform certain functions indicated in Article 6. Those functions deal with the scope of court intervention in the international commercial arbitration process and include, for example, the power of the court to set aside an arbitral award in accordance with Article 34(2).

Section 6 (1) of the 1998 Act specifies the High Court as the court for the purposes of Article 6, Article 9 (the granting of interim measures of protection) and the court of competent jurisdiction for the purposes of Article 27 (assistance in taking evidence). The High Court is also the court for the purposes of Article 35 (recognition and enforcement of arbitral awards) and Article 36 (refusal of recognition and enforcement of arbitral awards).

Section 6 (2) and (3) provide for procedural issues governing the bringing of applications to the High Court, e.g. specific reference to the President of the High Court, etc. This should ensure consistency of approach and, in appointing the most senior Judge, shows the importance given to international arbitration matters by the Irish Government.

Challenge to Award
Chapter VII governs challenges to or recourse against awards. Article 34(3) provides that an application for setting aside an award may not be made after three months have elapsed from the date the party making the application received the award.

S.13 of the 1998 Act provides that this time limit "shall not apply to an application to the High Court to have an arbitral award set aside on the grounds that the award is in conflict with the public policy of the State.

Article 34(2)(a) provides that an award may only be set aside if

"(a)(i) [1] a party to the arbitration agreement referred to in article 7 was under some
incapacity; or

[2] the said arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of this State; or

(ii) [3] the party making the application was not given proper notice of the
appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case, or

(iii) [4] the award deals with a dispute not contemplated by or not falling within the
terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on the matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside.

(iv) [5] the composition of the arbitral authority or the arbitral procedure was not in
accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Law from which the parties cannot derogate or, failing such agreement, was not in accordance with this law.

(b) the court finds that:

(i) [6] the subject-matter is not capable of settlement by arbitration under the law of
the State; or

(ii) [7] the law is in conflict with the public policy of this State".

The then Attorney General (1998 Bar Review 422) stated:-

"It should be noted, however, that Article 34(2)(b) provides that an award may be set aside if the Court finds that the award is in conflict with the public policy of the State. In my opinion, any award procured by fraud, bribery or corruption would be contrary to the public policy of this State and as a consequence would be unenforceable. Consequently, although the Scottish and New Zealand provisions do add clarity, they are probably unnecessary having regard to the specific provision of the original Model Law contained in Article 34(2)(b)".

Time limits for setting aside award - public policy

Section 13 provides that the time limit specified in Article 34 (3) of the Model Law for setting aside an arbitral award (three months subject to the conditions set out in that Article) shall not apply to an application to the High Court to have an arbitral award set aside on the grounds that the award is in conflict with the public policy of the State.

Fast-Track - Small Claims - Arbitration.
forthcoming Bar Council of Ireland Seminar - July 2003
Ercus Stewart.

Articles

Introduction to Commercial Arbitration in Ireland Ercus Stewart, S.C.
(1994) C.L.P. 21 - Commercial Law Practitioner, January, 1994, p.21.

The Special Case Stated in Arbitration in Ireland, Ercus Stewart, S.C.
(1994) C.L.P. 71 - Commercial Law Practitioner, March 1994, p.71.

Remission to Remedy "Procedural Mishap" - McCarrick -v- Gaiety Sligo Limited
(2202) Bar Review, January, 2002 Rory White, B.L. & Ercus Stewart, S.C.

Arbitration Clause and Shareholders Nominees
(2002) CLP 246, Commercial Law Practitioner (Dec., 2002)
Rory White, B.L. & Ercus Stewart, S.C

Arbitration Clauses and the Infant Plaintiff Derek Sheahan, B.L.
(2001) The Bar Review 74 (December, 2001)

Procedural Mishap and the Remission of Arbitral Awards: Martin Clarke, B.L.
Catherine McCarrick -v- The Gaiety (Sligo) Limited
(2001) 8 C.L.P. 221 (Commercial Law Practitioner, Oct, 2001)

Staying Litigation Pending Arbitration, Brian Hutchinson, B.L.
(1994) CLP - 133 Commercial Law Practitioner, May 1994, p.133.

Should Arbitration be like Litigation? Barry Doherty, B.L.
(1995) CLP 204 Commercial Law Practitioner, September 1995, p.204

Arbitration - The Superior Courts' Attitude, Anthony P. Quinn., B.L.
(1991) Law Society Gazette, November 1991, 361.

The Superior Courts' Role in Commercial Arbitration compared with their Role
in Administrative Law,
(1991) 9 ILT 218 Irish law Times, September 1991, Anthony P. Quinn, B.L.

Dublin as a Centre for International Commercial Arbitration"
"Business Contact", Dublin Chamber of Commerce, October/November, 1991, p 17.

Arbitration - An Apt Way of Resolving Disputes, in E.C. and International Context,
Irish Tax Review, November 1991, p.611. Anthony P. Quinn, B.L.

The Rome Convention on Contract, its Relevance to Arbitration Anthony P. Quinn, B.L.
(1992) 10 I.L.T. 244

The Arbitration Acts: Ripe for Reform
(1996) Bar Review 14 Rory Brady, S.C.

Ireland's Place in International Commercial Arbitration David Byrne, S.C.
(1998) Bar Review 422

Some Costs Issues in International Arbitration in Ireland James Gilhooley, B.L.
(1998) Bar Review 402

International Commercial Arbitration and the International Roderick H. Murphy, S.C.
Arbitration Bill
(1997) Bar Review 92

International Conference on Arbitration and Maritime Law Barcelona Colm O'hOisin, B.L.
(1998) Bar Review 52

Arbitration Award
(1996) Bar Review 68 Garrett Simons, B.L.

Arbitration Clauses and the Void or Terminated Contract Garrett Simons, B.L.
(1998) Bar Review 247

"Procedural Mishap" - Remission in Domestic Arbitration
(2002) IBA Newsletter Committee D, Vol. 7, No. 1, p.30
Ercus Stewart, S.C. and Rory White, B.L.

Ireland's Arbitration (International Commercial) Act, 1998 Dr. Nael Bunni
International Business Law Journal - Revue de Droit des Affaires Internationales

"The Review of Arbitration Awards by the Courts" Garrett Simmons B.L.
(1994) ILT 37-77

Holiday Arbitrations - Primacy of Arbitration

Arbitration Journal, U.K., 1997 p. 222 Ercus Stewart, S.C.

The Lawyer's Duty to Arbitrate in Good Faith V.V. Veeder, Q.C.
(2002) LCIA Arbitration International, p. 431

Standards of Conduct for Counsel in International Arbitration Jan Paulsson
(1992) 3 Amer. Rev. Int. Arb. 214.

Donnett -v- Railtrack Plc [2002] 2 All ER 850 (Court of Appeal) Mark Roe
(2003) IBA Newsletter (Committee D), Vol 8., p. 115

Counsel's Obligation of Confidentiality in Mediations
(2003) IBA Committee D. Newsletter, 2003 (Vol 8, No. 1) p.17 David A.R. Williams, QC

Ethics in Arbitration, Otto de Witt Wijen
IBA Newsletter, Committee D (2003), Vol 8, p. 115 David Rivkin
(Article 12(2), UNCITRAL Model Law, consistent with
Article 6 of the European Convention on Human Rights

IBA Working Group on Guidelines regarding
the standard of bias and disclosure in International Commercial Arbitration
(final IBA guidelines Dr. Nathalie Voser, Secretary)

Legal Materials on the Internet
(1998) Bar Review 196 & 229 Cian Ferriter, B.L.

Vol. 12 No. 1, Arbitration International p.27 Neil Kaplan, Q.C.