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Arbitration Notes

BPTC Law Notes > Alternative Dispute Resolution Notes

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A more recent version of these Arbitration notes – written by City Law School students – is available here.

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ARBITRATION N.B. Provisions highlighted in red = mandatory provisions Procedure (often non-mandatory and can be excluded to reduce chance of going to court)

(1) commenced by a notice (2) preliminary hearing (sort out how arbitration going to work cf case management hearing) e.g.

o o o o

points of claim / defence disclosure witness statements expert reports (and meetings?)

(3) hearing (mostly oral) (4) award Key principles

? what is arbitration?
o = a procedure by which an impartial tribunal decides the outcome of a dispute between parties, following their submission to that procedure

o place on spectrum of dispute resolutionflexible, depends on type: quick and dirty (no set rules, decision possibly not made on legal basis) v arbitration by supreme court justices

o med-arb - must try mediation before arbitration
? terminology o tribunal / arbitral panel / arbitrators = sir or madam o claimant o respondent o arbitration sometimes called a reference o seat = the jurisdictional seat of the arbitration designated by agreement of the parties / those authorised by them

? how do parties end up in arbitration under AA?
o by effective reference: (a) dispute (s6) / "difference" (s82(1)) +
(b) private law dispute (including ECHR + EU competition law) +
(c) agreement to arbitrate / arbitration clause (submit present and future disputes to arbitration (s6(1)) +

o can be before or after dispute arises o party bound by pre-existing arbitration clause even if subsequently changes its mind; if party ignores, can stay litigation under s9 (see below)

o NOT discharged by death of a party (s8) (d) dispute comes within arbitration clause +
o tribunal's mandate conferred by clause itself

o not a technical exercise (e) parties have capacity to enter arbitration agreement +
(f) condition precedent in arbitration clause complied with e.g. medarb, arb-lit +

(g) willing tribunal
? separability of arbitration clause o usually 4 contracts: (1) substantive contract on which dispute based (2) agreement to arbitrateeven if just a term in substantive contract = distinct agreement ? even if substantive contract invalid, agreement to arbitrate = valid (s7)

(3) agreement between parties + arbitral institution referring dispute to arbitration under rules of institution

(4) agreement between parties and / or arbitral institution +

? typical content of arbitration clause o must:be in writing, "recorded by any means" (s5)agree to submit all present and future disputes to arbitration

o may set out:seatvenuelanguagenumber of arbitratorsqualifications of arbitratorshow arbitrators to be appointedcriteria to be met before arbitration started e.g. how long after dispute arisesdates for disclosurecostsad hoc / institutional?basis of arbitrator's decision (legal? factual?)(if desired) med-arb clausetiming before arbitration kicks inplacement of mediation windowsescalation clause: make clear if failure to settle results in litigation or arbitrationwhether mediator and arbitrator will be same person (confidentiality problems, usually only in very specialised dispute)


(if desired) arb-med clausetiming before mediation kicks in(if desired) exclusion of appeal on point of law(if desired) specify institutional rules

? types of arbitration o institutional:arbitration administered by arbitral institution + conducted in accordance with its rulesinstitutional rules sit alongside AA e.g. AA "reasonable time" ?
institution "28 days = reasonable"Act silent ? agreement / rulesif rules silent ? Act

o ad hoc: no arbitral institution - parties decide procedure themselves
? 3 key principles (s1) (1) object: fair resolution of disputes by impartial tribunal without unnecessary delay or expense (cf general duties s33 (tribunal) / s40 (parties))

(2) party autonomy: parties free to agree how their disputes are resolved, subject only to safeguards necessary in the public interestpre-existing arbitration clausewritten agreement after dispute arisesduring course of arbitration (s34)

(3) judicial non-intervention: court should not intervene except as provided by AA (s1(c))

? duty of court and parties o parties (s40)ensure proper and expeditious conduct of arbitration - comply without delay with all orders of tribunal

o tribunal (s33)act fairly and impartially between partiesgive parties reasonable opportunity to put case and deal with opponentsadopt suitable procedurescan be inquisitorial as opposed to adversarial (s34(2)(e) and (g))avoid unnecessary delay and expenseproduce fair resolution

? seat (s3) o = system of law that governs arbitration o courts of seat have supervisory jurisdiction over arbitration o unlike litigation, need NOT be a jurisdictional connection to seat

o seat need NOT be where hearing takes place o law governing substantive contract need NOT be that of seat, NOR must tribunal decide on strictly legal principles (s46(1))

o decided by intention of parties, directly / via institution o English court will grant stay under s9, regardless of whether seat is England (s2(2)(a))

o awardseat = place award treated as being made, unless parties agree otherwise (s53)applications for enforcement of award take place in country of enforcement NOT seat (s2(2)(b))

o if seat = Englandprocedure = AA + English lawsupervisory jurisdiction = English courtshearing = anywhereaward made in Englandapplicable law of substantive contract = any

? mandatory provisions o s9 - 11 o s12 o s13 o s24 o s26(1) o s28 o s29 o s31 o s32 o s33 o s37(2) o s40 o s43 o s56 o s60 o s66 o ss67, 68, 70, 71 o s72 o s73 o s74 o s75
? non-mandatory provisions

stay of legal proceedings power of court to extend time for beginning arbitral proceedings application of Limitation Acts power of court to remove an arbitrator effect of death of an arbitrator liability of parties for fees + expenses of arbitrators immunity of arbitrators objections to the substantive jurisdiction of arbitrators determination of preliminary point on jurisdiction general duty of arbitral tribunals items to be regarded as expenses of arbitrators general duties of parties securing the attendance of witnesses power to withhold award on non-payment of arbitrator fees agreements between parties to pay costs in any event enforcement of award challenging award for lack of substantive jurisdiction / serious irregularity parties not taking part in arbitration loss of right to object immunity of arbitral institutions charge to secure payment of solicitors' costs

o = detailed default provisions o can override expressly or impliedly (by choice of other rules) o don't apply unless parties don't specify procedure in relevant area o s3 seat o s4 whether to adopt institutional rules o s7 whether to agree the arbitration clause is not a separable agreement o s8 effect of death of a party o s14 when arbitral proceedings are regarded to commence o ss15 - 22 constitution etc. of tribunal o s23 circumstances in which arbitrator's authority may be revoked o s30 whether tribunal can rule on own jurisdiction o s35 conferring power to consolidate o s36 rights to be represented in arbitration o s37 tribunal's power to appoint experts o ss38 - 41 powers available to tribunal o s44 exclusion of court's powers in support of arbitration o s45 exclusion of court's power to determine points of law o s46 which substantive law should apply o ss47 - 49 powers available to tribunal when making award o ss52 - 58 form, date etc. of final award o s69 excluding appeals to court on point of law o ss 76 - 79 time limits and service of notices
? When can court get involved?
o general rule: judicial non-intervention o exceptions:enforcement of arbitration clause in an agreementcommencing an arbitration: composition of tribunalinterim stages and remedies e.g. compelling witness, security for costs (tribunal can make BUT can't enforce, court will look whether tribunal has tried; court = last resort)reviewing awardsenforcement of awards

The arbitral tribunal

? commencement o time limitslimitation applies (s13)expiry of time limit in arbitration clause bars commencement:

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