Court Powers In Arbitration Notes

ADR: COURT POWERS IN ARBITRATION Objectives: * Orders preventing parties breaching agreement to arbitrate * Assistance in appointment, removal and replacement of arbitrators * Procedural orders, including interim remedies to preserve the status quo * Judicial review of arbitral proceedings * Preliminary points of law * Appeal on point of law * Appeals to Court of appeal ORDERS PREVENTING BREACH OF AGREEMENT TO ARBITRATE Stay of Proceedings * * Where court proceedings have been started, s9(1) - allows other party may apply for a stay which will present the court from taking the proceedings any further. * Can be sought where proceedings brought by claim or counterclaim Stays under s9 are usually permanent, as the dispute will usually then be determined by arbitration. Procedure (r62 CPR) * Application made in court where claim is proceedings. * Party seeking files an acknowledgement of service (Form N9) before making the application. * Application made by issuing application notice (Form N244), with * Witness statement in support - setting out relevant circumstances inc: # arbitration agreement as an exhibit, and # explaining why dispute falls within that agreement. * Application served on all other parties to the litigation Determination of Application * Main Q (s9): Whether dispute raised in the litigation is a matter which under the arbitration agreement is to be referred to arbitration. * If yes - court shall grant a stay (s9(4) (shall = must)) unless satisfied arbitration agreement is null and void, inoperative or incapable of being performed. * If unclear, court may: * Decide question on hearing of application for stay, or * Give directions on how question to be decided and consider granting a stay pending that decision. * Court cannot grant a stay if parties to court proceedings are not parties (or persons claiming through/under parties) to the arbitration agreement - both parties to litigation have to be parties to arbitration agreement (not enough for a party to have a mere commercial connection to a party to the agreement) Anti-Suit Injunction * * * CPR, Part 25 Where proceedings about to be commenced, may apply for an anti-suit injunction to prevent proceedings being started. Great reluctance in granting. Procedure * * * Typically brought in Commercial Court of High Court, by: * Application notice * Supported by evidence in witness statements Application notice served on other party to arbitration agreement Must also comply with additional requirements in CPR, Part 58, PD 58 and Commercial Court Guide - impose time-limits for: * filing witness statements by applicants and respondents, and * for compilation and filing of bundles for the hearing, skeleton arguments and authorities. APPOINTMENT, REMOVAL & RESIGNATION OF ARBITRATORS * * Usual position: arbitrators appointed by parties/through agreed mechanisms Where problems in securing appointment of tribunal or with members of panel, AA gives courts some powers to solve. Extending Time for Beginning Arbitration Proceedings * * Where arbitration clause provides claim will be barred/claimant's rights extinguished unless certain steps to begin arbitration taken within fixed time-limit. s12(1) - Court has power to extend time before time or after has elapsed - on grounds that: * there has been a change of circumstances not contemplated by the parties, or * conduct of the other side makes it unjust to hold claimant to strict terms of time-limit Failure of Appointment Procedure * * Whether failure of agreed procedure, either party can apply to court for directions/other orders under s18(3) Powers aimed at insuring there is a properly constituted tribunal, includes court power to make appointment itself * Court has similar powers where vacancy arises during the course of arbitration (s27(3)) Setting Aside Appointment of Sole Arbitrator * Where: * arbitration agreement provides for each party to appoint an arbitrator, * one party fails to do so, and * other party gives notice under s17(1) appointing its arbitrator as sole arbitrator, * non-appointing party may apply to the court to set aside the appointment of the arbitrator as sole arbitrator (s17(3)) Removal of Arbitrators * * A party can apply, under s24, for the removal of an arbitrator s24(1) - Grounds: * Justifiable doubts over arbitrator's impartiality, * Arbitrator does not have qualifications required by arbitration agreement * Mental or physical incapacity, or * Refusal or Failure to conduct arbitration properly with all reasonable despatch Impartiality * Good practice to require arbitrator to conduct "conflicts of interest" check, and communicate results before their appointment is confirmed. * UNCITRAL Model Law Art.12(1) - When approached about being an arbitrator, required to disclose any circumstances likely to give rise to justifiable doubts over impartiality or independence - duty continues after appointment made. "Justifiable Doubts" * Justifiable if a fair-minded and informed observer would conclude there was a real possibility of bias or reasonable appearance of bias. Resignation of Arbitrator: Relief from Liability * * After resigning, arbitrator may apply for (s25(3)): * relief from any liability for breaking contract, and * an order relating to entitlement to fees or expenses. Whether granted - Question: Whether in all the circumstances it was reasonable to resign (s25(4)) PROCEDURAL ORDERS * * Powers available to arbitral tribunal depend on agreement of parties, or AA (NM) powers to: * appoint experts (s37) * inspect, preserve, order samples/experiments on subject-matter of dispute in possession of party (s38(4)) * preserve evidence in custody/control of party (s38(6)) * give permission for party to apply to court for witness summons (if witness in UK) (s43) Unclear if power to order interim injunction - probably not as s48 relates to final awards. s44 AA - Court's Powers * Unless otherwise agreed, court has powers to (same power as in litigation): * take evidence of witnesses, * preservation of evidence * make orders relating to property which is subject-matter of proceedings/to which any question arises in proceedings, * sale of any goods which are the subject of proceedings * granting of interim injunctions * appointment of receiver * Therefore can order: * Recording of evidence of witnesses in depositions, * Preservation/inspection/sampling etc of evidence (ie. in possession of non-party) * Purpose: Give court powers where tribunal cannot act effectively. * Belair - Order to deal with certain property in period until tribunal could be constituted Exclusion of s44 * Requires clear words (as powers support arbitration and are beneficial) - clauses making equivalent provisions to s44 will not be taken to exclude. * Courts unlikely to find powers excluded by allegedly inconsistent provisions Disclosure Norwich Pharmacal Orders * s43 - When dispute referred to arbitration, court procedures to procure documents or other material evidence may only be used with permission of the arbitral tribunal or agreement of the parties * Does not prevent court making a Norwich Pharmacal order in period before reference. 

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