1. USE OF COMMERCIAL ARBITRATION
1.1 Describe the prevalence of commercial arbitrations as a method of settling disputes, both domestic and international.
Arbitration is the preferred (and almost exclusive within standard form contracts) method of binding dispute resolution in the large construction field in Ireland. It is extensively used in the burgeoning financial services and commercial sectors. Arbitration is the norm in all property transactions.
Historically, arbitration has always been of considerable importance in Ireland for the resolution of commercial disputes. Native Brehon (or Gaelic) laws attributed great weight to arbitration, and that continued with the introduction of the common law to Ireland. The first Irish Arbitration statute was passed in 1698, which continued in force until the passing of the Arbitration Act 1954.
In 1980 Ireland adopted the New York and Washington Conventions. Finally, in 1998, Ireland passed a new Arbitration Act to cover international cases with the adoption, in unamended form, of the UNCITRAL Model Law (the ‘Model Law’).
2.1 What are the principal sources of law and regulation relating to domestic and international arbitration? (Describe the role of federal or state laws and relevance of court decisions.)
Arbitration as a whole in Ireland is governed by the Arbitration Acts 1954–1998. There are different regimes for international and domestic disputes.
International arbitration is governed by the Arbitration (International Commercial) Act 1998 (the ‘1998 Act’), which adopts in whole the Model Law.
Domestic arbitration is governed by the Arbitration Act 1954 (the ‘1954 Act’) (which bears a very close resemblance to the English Arbitration Act 1950). The Arbitration Act 1980 (the ‘1980 Act’) made some small amendments to the 1954 Act, though its principal aim was to make the New York and Washington Conventions part of Irish law. Part III of the 1998 Act makes some further amendments to the 1954 Act.
These Acts are available at www.irishstatutebook.ie.
In line with other common law jurisdictions court decisions interpreting the Acts are of considerable importance. The classic statement of the Irish courts on arbitration was made in the Supreme Court in Keenan v Shield Insurance Company Limited [1988] IR 89:
‘ … the field of international arbitration is an ever expanding one. It ill becomes the court to show any readiness to interfere in such a process; if policy considerations are appropriate as I believe they are … , then every such consideration points to the desirability of making an arbitration award final in every sense of the term’ (per the late Mr Justice McCarthy).
Applications to court concerning arbitration matters are regulated by the Rules of the Superior Courts. Applications are heard by the High Court with possible appeal to the Supreme Court in some cases. There are express provisions in the rules for the Commercial List of the High Court to adjourn cases to allow the parties to consider resolving their disputes by arbitration, mediation or conciliation. The Commercial List of the High Court also deals with arbitration-related applications where the underlying claims are in excess of €1,000,000.00 (subject to the permission of the judge in charge of the Commercial List to admit the application to that List). If a case is admitted to the Commercial List it is immediately subject to stringent case-management, and a rapid hearing is assured.
2.2 List and briefly describe relevant arbitration statutes, international treaties and conventions.
In addition to the Acts and Conventions listed in section 2.1 above, the Geneva Convention is also part of Irish law pursuant to the 1954 Act.
* The author wishes to acknowledge and thank Dr Daniel Simms, Barrister-at-Law, Law Library, Dublin, and Lecturer in International Arbitration Law at Trinity College, Dublin, and Stephen Burke, Solicitor and Attorney-at-Law, for their valuable input and assistance in the preparation of this chapter.
3.1 What are/describe the principal institutions and/or government agencies that assist in the administration or oversight of international and domestic arbitrations?
Dublin is the location of the European office of the International Centre for Dispute Resolution (www.adr.org/icdr). The ICC has a national arbitration committee (www.chambers.ie), and there is an active branch of the Chartered Institute of Arbitrators (www.arbitration.ie).
In the construction field Engineers Ireland (www.iei.ie), The Royal Institute of the Architects of Ireland (www.riai.ie) and the Construction Industry Federation (www.cif.ie) perform appointment roles pursuant to their standard-form contracts. These contracts are widely used in the large construction sector in Ireland, though FIDIC contracts have been seen more often recently.
The professional bodies of both sides of the legal profession (Ireland has a solicitor/barrister division) each have arbitration committees. The Law Society (being the governing body for the solicitors’ profession, www.lawsociety.ie) has an important role in the appointment of arbitrators in the context of disputes arising from property conveyances (the standard form contract in Ireland has an arbitration clause). The Bar Council (www.lawlibrary.ie) is the host organisation for the ICCA 2008 Conference due to be held in Dublin from 8–10 June of that year to mark the fiftieth anniversary of the New York Convention (www.iccadublin2008.org).
Beyond these, essentially private, bodies, supervision of arbitration in Ireland is conducted by the courts (usually the High Court in Dublin) and the legislature. The legal advisor to the Government, the Attorney-General Mr Rory Brady SC, takes a notable personal interest in the well-being of arbitration in Ireland.
4.1 What is the relationship between agreements to arbitrate and access to the courts? Is there a presumption of arbitrability/policy support for arbitration? Will the courts stay court actions in favour of agreements to arbitrate?
Irish courts have a strong policy in favour of staying proceedings in favour of agreements to arbitrate. However, if a timely objection is not raised in court litigation where an arbitration clause is in the parties’ agreement, they will be deemed to have waived the right to arbitrate and the proceedings will continue.
The relevant sections of the Arbitration Acts mandating stays in favour of arbitration are, in practice, the provisions most often seen in the courts. Usually stay applications are quickly dealt with in a summary manner without a written judgment. The experience is that a stay is almost always ordered in favour of an arbitration agreement, and it is almost unheard of for a court to refuse a stay once there is a prima facie indication of the existence of such a clause
The provisions for domestic and international arbitration are slightly different as s 5 of the 1980 Act (concerning stays in favour of domestic arbitration agreements) requires that ‘there is not in fact any dispute between the parties with regard to the matter agreed to be referred’ (in addition to the usual ‘null and void’, ‘inoperative’ or ‘incapable of being performed’ defences) before a stay order is made. Also, if allegations of fraud are made in a case, s 39(2) of the 1954 Act removes jurisdiction from the arbitrator to deal with that question, and a stay would be refused. This, though, is not carte blanche for those who wish to avoid an arbitration clause as it is a requirement of the Irish courts that fraud be very fully pleaded rather than simply alleged.
In the 1998 Act which governs international arbitration, art 8 of the Model Law applies to stay applications and does not have the ‘is there a dispute’ formula.
4.2 May an arbitral tribunal rule on a party’s challenge to its own jurisdiction (‘competence-competence’)? Need a tribunal suspend its proceedings if a party seeks to test jurisdiction in the courts?
In international arbitration art 16 of the Model Law empowers a tribunal to rule on its own jurisdiction. A plea that the tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence. The High Court in Dublin is designated by the 1998 Act as the relevant court for the purposes of art 16(3) of the Model Law and any subsequent challenge by a party to a tribunal’s ruling on jurisdiction. The tribunal can proceed with the arbitration while any such challenge is pending in the High Court.
In domestic arbitration, unfortunately, no such provision regarding competence-competence is present in the 1954 Act. Unless the parties confer the power upon the tribunal to make such a ruling then jurisdiction, if a challenge is made, can only be determined by the courts. In such circumstances, and in practice, the arbitration would be suspended until the court’s determination.
5.1 Provide a selected bibliography of the most influential publications in or relied upon in the jurisdiction – books, journals, newsletters and pamphlets.
International arbitration
Books
A Redfern, M Hunter, N Blackaby and C Partasides Law and Practice of International Commercial Arbitration (London: Sweet & Maxwell, 4th edn, 2004)
J Tackaberry and A Marriott Berstein’s Handbook of Arbitration and Dispute Resolution Practice (London: Sweet & Maxwell, 4th edn, 2003)
Journals
Arbitration International
International Arbitration Law Review
Domestic Arbitration
Lord Mustill and S C Boyd Law and Practice of Commercial Arbitration (London: Butterworths, 2nd edn, 1989) – as the 1954 Act is based to a considerable extent on the 1950 English equivalent, Mustill & Boyd is of importance and influence in Ireland on issues relating to the domestic arbitration legislation.
Covering both international and domestic arbitration
Professor N Bunni ‘Ireland’ in J Paulsson (ed) ICCA International Handbook on Commercial Arbitration (Kluwer, Suppl. 33 (April/2001)) M Carrigan Handbook on Arbitration in Ireland (Dublin: Law Society of Ireland, 1998) E Stewart Arbitration-Sources and Commentary (Dublin: First Law, 2003)
There have been two notable publications in German and French on Irish arbitration law: Dr D Simms Das Recht der Schiedsgerichtbarkeit in Irland (Frankfurt: Peter Lang Verlag, 2002) P Pinsolle and P Griffin ‘Quelques Observations sur la Loi Irlandais sur l’Arbitrage International de 1998’ [2000] 4 Revue de l’Arbitrage.
Journals
Articles on arbitration appear from time to time in the Law Society’s Gazette, the Bar Review published by the Bar Council and Commercial Law Practitioner. The Chartered Institute of Arbitrators, Irish Branch, produces a regular newsletter.
6.1 Are there form and/or content requirements for an enforceable agreement to arbitrate? How may they be satisfied?
In international arbitration art 7 of the Model Law governs the requirements for agreements to arbitrate.
In domestic arbitration there is an older, and somewhat more restrictive definition in s 2(1) of the 1954 Act, namely, ‘“arbitration agreement” means a written agreement to refer present or future differences to arbitration, whether an arbitrator is named therein or not’.
Despite the restrictive definition in the 1954 Act the usual practice in the courts is readily to refer parties to arbitration as long as an intention to be bound by an arbitration agreement can be identified in documentation passing between the parties when they formed their contract.
Arbitration is not mandated, apart from a statutory scheme for the assessment of the value of land which is being compulsorily purchased by the state for (usually) road-building.
7.2 Is arbitration prohibited for certain types of dispute (restraints of fundamental public policy)?
Arbitration is usually believed to be unavailable in the fields of crime, family law and constitutional matters.
The domestic arbitration regime has certain further specific restrictions, namely, any question relating to the terms or conditions of employment or the remuneration of any employees including persons employed by or under the state or local authorities, specific performance of a contract relating to land or any interest in land and allegations of fraud.
8.1 May an arbitral clause be considered valid even if the rest of the contract in which it is embedded is invalid?
In international arbitration art 16(1) of the Model Law applies, namely: ‘[A] decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.’
There is no express statutory provision for domestic arbitration, but the courts have found that an arbitral clause can have a separate life from the rest of contract and can survive to govern disputes arising out of and in connection with such invalidity (Doyle v Irish National Insurance Company plc [1998] 1 IR 89). The reliance on a common law fall-back is an indication of the 1954 Act’s antiquity, and its replacement is much awaited by many practitioners.
9. QUALIFICATION/APPOINTMENT/LIABILITY OF ARBITRATORS
9.1 Are there specific provisions regulating the qualifications of arbitrators? Are there requirements (including disclosure) for ‘impartiality’ and ‘independence’, and do such requirements differ as between domestic and international arbitrations?
There are no specific provisions regulating the qualifications of an arbitrator under both the international and domestic regimes, and the parties can choose whom they wish in accordance with their agreement.
It is only the context of the 1998 Act and the international regime that there is a specific provision in relation to ‘impartiality’ and ‘independence’. Article 12 of the Model Law applies, namely, ‘An arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties’. The mandatory disclosure requirements of art 12 apply to arbitrators.
In domestic arbitration the position is less clear. The High Court has the power to remove an arbitrator for misconduct (s 37 of the 1954 Act), which would include a demonstrated lack of impartiality. However, a party wishing to challenge a domestic arbitrator would have to await something going wrong in the course of the arbitration (and thus engage in the expense of conducting the case). Thus, rather than an explicit and up-front requirement for impartiality, an impartial arbitrator risks being removed at a later date. The risk is, though, more a theoretical one as the courts traditionally treat applications to remove arbitrators on the grounds of impartiality with great scepticism. The level of evidence required to succeed in such an application, in practice, would need to be substantial and substantiated (indeed of a ‘smoking gun’ variety).
9.2 Are there provisions governing the challenge or removal of arbitrators? Do the courts or other jurisdictions play/have a role in any such challenge?
In international arbitration art 13 of the Model Law applies to the challenge of an arbitrator, with the High Court in Dublin being the designated court for the purposes of art 13(3).
As noted in section 9.1 above the domestic arbitration situation is less clear as regards a challenge to an arbitrator. In effect, a challenging party at the outset would have the difficult, if not impossible task, to show actual bias on the part of the challenged arbitrator to the High Court in order for an application under s 39 to succeed. This, in effect, makes it very difficult to mount a successful challenge to an arbitrator at the start of a domestic arbitration.
9.3 Does legislation govern, or have the courts developed rules regarding the liability of arbitrators for acts related to their decision-making function?
In international arbitration s 12 of the 1998 Act provides that an arbitrator shall not be liable for anything done or omitted in the discharge or purported discharge of his or her functions as arbitrator unless the act or omission is shown to have been in bad faith.
Arbitrators under the 1954 Act do not enjoy such express immunity. However, the High Court (judgment of Mr Justice Gilligan on 29 July 2005 in Redahan v Minister for Education [2005] IEHC 271) has held that an arbitrator appointed under the 1954 Act acts in a quasi-judicial capacity sufficient to attract immunity from suit at common law in the absence of having acted in bad faith. Nonetheless, it is common practice for most experienced arbitrators in Ireland to provide for immunity from suit in their standard retention agreements.
10. PARTY REPRESENTATION
10.1 Are there particular qualification requirements for representatives (‘counsel’) appearing in the jurisdictions?
There are no particular qualification requirements for representatives. Practitioners should note, though, for international arbitration, the provisions of s 12(7) of the 1998 Act:
‘A person who—
This is the traditional immunity of advocates from suit for things said (and, perhaps more pertinently, not said) while before a court. A similar provision is made for patent agents (s 12(8) of the 1998 Act) when addressing a tribunal on patent matters.
11. PLACE OF ARBITRATION/PROCEDURES
11.1 Are there provisions governing the place (seat) of arbitration, or any requirement for arbitral proceedings to be held at the seat?
In international arbitration the place of arbitration is governed by art 20 of the Model Law. Article 20(2) allows hearings and the like to be held outside of Ireland. No provision is made in the 1954 Act for the venue of hearings in domestic arbitration.
11.2 Are specific procedures mandated in particular cases, or in general?
In international arbitration the mandatory provisions of art 18 of the Model Law require equal treatment of parties and a full opportunity to present their case.
While no such express provisions are present in the domestic legislation, the potential for an arbitrator to be removed for impartiality or misconduct does, indirectly, impose (and this is the case in practice) a duty to treat the parties equally.
12. EVIDENCE GATHERING
12.1 What is the general approach to the gathering and tendering of evidence at the pleading stage and at the hearing stage (production, discovery, privilege, use of witness statements etc)? Are there differences between domestic and international arbitrations?
Chapter V of the Model Law applies to the conduct of international arbitration in Ireland and, importantly, confers a wide discretion on the tribunal to conduct the proceedings in the manner it considers appropriate absent agreement of the parties, including powers to determine the admissibility, relevance, weight and materiality of any evidence and the balance between hearings and written proceedings. The usual norms in modern international arbitration practice are followed in Ireland such as two rounds of memorials to each side, use of the IBA Rules of on the Taking of Evidence in International Commercial Arbitration and limited production orders. There is one provision in the 1998 Act which should be noted, namely, s 12(6): ‘[A] witness who gives evidence in proceedings before an arbitral tribunal shall have the same privileges and immunities as witnesses have in proceedings before the High Court.’ An example is the privilege against self-incrimination.
Procedure in domestic arbitration is usually conducted in the manner in which court litigation is pursued and only with the consent of the parties can an arbitrator depart from that norm. The 1954 Act has no equivalent of Chapter V of the Model Law and experienced arbitrators regularly insert such powers into their standard retention agreements. Parties to whom the domestic regime will apply may be well advised, when concluding their agreement to arbitrate in the original contract, to include such powers and provisions to enable the arbitrator more expediently conduct the case.
12.2 What powers of compulsion or court assistance are there for arbitrators to require attendance of witnesses or production of documents, either prior to or at the substantive hearing? Is there a difference between domestic and international tribunals or as between parties and non-parties? Do special provisions exist for arbitrators appointed pursuant to international treaties (ie bilateral or multilateral investment treaties)?
The High Court has virtually identical powers under s 22 of the 1954 Act and s 7 of the 1998 Act in relation to compulsion of witnesses and production of documents. These are:
There is some potential for confusion in the 1998 Act as to whether or not a party can apply to the High Court without the permission of the tribunal for an order for the discovery of documentation. Section 7 of the 1998 Act sets out the aforementioned powers of the High Court as being ‘For the purposes of giving effect to Article 9 or 27’ of the Model Law. Article 27 of the Model Law provides that ‘The arbitral tribunal or a party with the approval of the arbitral tribunal may request from a competent court of this State assistance in taking evidence’ which ostensibly covers court orders in relation to documentation. However, the reference in s 7 of the 1998 Act to discovery of documentation does not sit well with the language of art 27 and the expression ‘assistance in taking evidence’. What the Model Law seems to envisage is a more passive role for a court to assist a tribunal in the enforcement of evidentiary rulings, rather than deploying the distinct court jurisdiction of discovery of documentation. It would have been preferable had the 1998 Act been made more explicit in this regard. The interaction and nexus between s 7 of the 1998 Act and art 27 of the Model Law in relation to the court’s role in assisting in the taking of evidence has yet to be clarified.
No special provisions apply exist for arbitrators appointed under international treaties.
13. INTERIM MEASURES/ROLE OF THE TRIBUNAL
13.1 Are there special provisions relating to the granting of interim and preliminary relief? Have the courts recognised and/or limited any such authority? Do the courts themselves play a role in interim relief in arbitration proceedings?
In international arbitration the tribunal has the power to order interim measures of protection pursuant to art 17 of the Model Law. Thus a tribunal may order any party to take such interim measure of protection as may be considered necessary in respect of the subject-matter of the dispute. The tribunal can order appropriate security in connection with any such measure. Such orders shall be enforced by the High Court on application (s 14(3) of the 1998 Act).
No such powers are expressly conferred upon domestic arbitrators under the 1954 Act. To the extent that it can be structured in the form of an interim award, interim and preliminary relief may be granted by a tribunal (ss 2(2) and 25 of the 1954 Act). There is a potential difficulty with enforcement of such an interim award if it is one which preserves the status quo rather than finally deciding an issue between the parties.
In practice the High Court’s powers in aid of arbitration are of more importance. The 1954 Act (s 22) and the 1998 Act (s 7) are broadly identical in the powers granted to the High Court and are:
Applications to the High Court for such relief do not prejudice the arbitration agreement.
If an application is made for a Mareva injunction in aid of an arbitration a high burden of proof is required by the High Court. It must be demonstrated that the respondent is taking steps to render him, her or itself judgment proof as against the applicant. This has been described as a nefarious intention test, and has made the Mareva injunction quite a difficult relief to obtain in Ireland.
14. TAXATION OF ARBITRATORS’ FEES
14.1 Does the state, or any of its sub-divisions, purport to tax domestically the fees of foreign arbitrators conducting hearings in the state? Is there a difference if the arbitration is ‘seated’ in the state or elsewhere?
The fees of foreign arbitrators are not taxed in Ireland (assuming that the foreign arbitrator does not spend so much time in Ireland in a tax year – the calendar year – as would make him or a her resident for tax purposes – 183 days). Irish Value Added Tax is not chargeable by foreign arbitrators, nor must Irish arbitrators charge VAT when sitting outside Ireland.
15. DEFAULT PROCEEDINGS
15.1 Are there provisions governing a tribunal’s ability to determine the controversy in the absence of a party who, on appropriate notice, fails to appear at or seek adjournment of the arbitral proceedings?
Article 25 of the Model Law allows the tribunal to proceed, despite the default of a party to the arbitration, and make the award on the basis of the evidence before it if any party without sufficient cause fails to appear at a hearing or to produce documentary evidence.
While no express provision is made in the 1954 Act with regard to default, the parties are, however, obliged to do all such things required by the tribunal (s 19(1) of the 1954 Act). However, the courts have recognised that flowing from the tribunal’s inherent jurisdiction to issue directions as to the conduct of the reference, it may proceed despite the absence of a party which has been given sufficient notice (Grangeford Structures Limited (in liquidation) v S H Limited [1990] ILRM 277 at 285).
16. THE ARBITRAL AWARD
16.1 Must an award take any particular form, eg in writing, signed, dated, place, the need for reasons, delivery etc?
Article 31 of the Model Law applies to the form and content of international arbitral awards rendered in Ireland. They must be in writing, signed by at least the majority of the arbitrators, stating the reasons, the date and the place of arbitration.
There are no provisions as to form for domestic awards in the 1954 Act. In practice most domestic awards give the dispositif only and do not state the reasons unless the agreement or rules stipulate otherwise. Parties wishing to have a reasoned award in the domestic regime must therefore provide for this in their agreement.
16.2 Are there limits on arbitrators’ powers to fashion appropriate remedies, eg punitive or exemplary damages, rectification, injunctions, interest and costs?
The arbitrators’ powers are determined by the applicable law chosen by the parties. Irish law has the full panoply of common law remedies, and these would, it is generally believed, be available to an arbitrator sitting in Ireland. However, there are no statutes in Ireland providing for punitive or trebled damages, and it is likely that any award of such a remedy would not bear scrutiny as a matter of public policy.
Article 28(3) of the Model Law allows the arbitral tribunal, in international cases, to decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorised it to do so.
In relation to interest, arbitral tribunals sitting both under the 1954 and the 1998 Acts have virtually identical powers to award simple or compound interest from the dates, at the rates and with the rests that they consider meet the justice of the case.
In relation to costs, again the powers of arbitral tribunals sitting under both regimes are virtually identical, namely, that costs can be awarded on the basis which is thought fit.
17. RECOURSE FROM AN AWARD
17.1 Are there provisions governing modification, clarification or correction of an award?
Article 33 of the Model Law governs modification, clarification or correction of an international award. Unless otherwise agreed the parties have 30 days from the receipt of the award to request the tribunal to correct any errors in computation, any clerical or typographical errors or any errors of similar nature, or may also request the arbitral tribunal to give an interpretation of a specific point or part of the award. The tribunal may make an additional award as to claims before the proceedings but omitted from the award. These powers can be exercised by the tribunal at its own behest. The High Court, when asked to set aside an award, may give the tribunal an opportunity to take such action as may eliminate the grounds for setting aside (art 34(4) of the Model Law).
In the domestic regime the arbitrator has the power to correct any clerical mistake or error arising from any accidental slip or omission (s 28 of the 1954 Act). The High Court, in addition to its power to direct and hear a case stated on a point of law (on application of a party) during the course of a reference (s35 of the 1954 Act), may remit such matters for the reconsideration of the tribunal (s 36 of the 1954 Act). These powers, particularly that of case stated, are outdated, overdue for abolition and have been the source for potential delays in cases where one side wishes (usually without any merit) to cause trouble. While the High Court invariably refuses such applications, the fact that these can be brought is sufficient reason for the speedy abolition by the Irish legislature of these provisions. The Tobin & Twomey Services Limited v Kerry Foods Ltd series of cases in the High and Supreme Courts (available at www.bailii.org) demonstrate the pressing need for the removal of these provisions from the domestic arbitration regime. It is understood, though, that a review of this legislation is underway. For non-Irish parties these provisions are of no concern.
The High Court also exercises an assumed jurisdiction at common law to remit a domestic arbitral award with an error on its face.
17.2 May an award be appealed to or set aside by the courts? If so, on what grounds and by what procedures?
In an international arbitration the only recourse to the High Court against an award are grounds provided for in Chapter VII of the Model Law. These are:
(iii) 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 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;
(i) the subject-matter of the dispute is not capable of settlement by arbitration under Irish law; or
(ii) the award is in conflict with Irish public policy. The three-month time period of limitation for the bringing of a setting-aside action provided for in art 34(3) of the Model Law has been specifically changed by s 13 of the 1998 Act to say that such time period does not apply if the ground of incompatibility with Irish public policy is that being advanced.
In the domestic regime there is a statutory basis for setting aside an award where a member of the tribunal has misconducted him or herself or the proceedings, or the arbitration or the award has been improperly procured (s 38(1) of the 1954 Act). The court has an established jurisdiction at common law (under the domestic regime) to set aside an award which shows on its face an error of law.
18. ENFORCEMENT OF AWARD
18.1 What are the procedures and standards for enforcing an award? Is there a difference between ‘domestic’ and ‘non-domestic’ awards?
Enforcement of an award is undertaken by an application to the High Court in Dublin. The Rules of the Superior Courts (to be found at www.courts.ie) determine the nature, form and content of the documentation required to be lodged by the party seeking enforcement in Ireland and the relevant court procedures. Enforcement of an award is a summary procedure (ie the court application is dealt with on affidavit evidence only), though delays can occur as parties exchange affidavits if the application is contested. Once the affidavit evidence (in a contested application) is completed, and depending on the possible length of the court hearing, a date is usually assigned reasonably quickly by the High Court.
As with other indications of judicial support for arbitration, the courts have shown a similar approach when dealing with enforcement. In May 2004, the High Court (Mr Justice Kelly) delivered judgment in the case of Broström Tankers AB v Factorias Vulcano SA [2004] IEHC 198 (available at www.bailii.org) and dismissed an application to have recognition and enforcement of a foreign arbitral award refused based on the public policy exception in the New York Convention. The High Court made it abundantly clear that the public policy exception would only be available if there was: ‘[S]ome element of illegality, or that the enforcement of the award would be clearly injurious to the public good, or possibly that enforcement would be wholly offensive to the ordinary responsible and fully informed member of the public.’
There are several statutory provisions for the enforcement of arbitral awards:
Additionally, there is a common law action available, though rarely used, under general contractual principles for breach of the implied obligation to honour the award.
19. CONFIDENTIALITY OF PROCEEDINGS
19.1 What are the confidentiality requirements of the arbitral process, ie existence of the arbitration, pleadings, documents produced, hearing, award?
There are no express provisions in either the 1954 Act or the 1998 Act concerning confidentiality. While confidentiality is often cited by some commentators in Ireland as an advantage of arbitration, that is not borne out either by any court decision or legislative provision. However, court applications concerning arbitration are not heard in camera and often the full details of cases make their way into the public domain via the court’s decisions. Further, it is possible for any member of the public to sit in on a court application concerning an arbitration. With that in mind the safest position to take would be that arbitration in Ireland is a private, but not confidential, process. Parties who desire that their arbitration be confidential should provide for this in their agreement; however, the interaction of such a clause with the Irish constitutional imperative that court proceedings be held in public has yet to be tested.
20.1 Is there any particular aspect of the approach to arbitration in the jurisdiction which bears special mention?
There are no particular aspects of the approach to arbitration in Ireland which bear special mention.
