Arbitration

Question 1

Arbitration

Answer 1

What is the process where an impartial adjudicator resolves a dispute

Question 2

Alternative to litigation

Answer 2

What type of dispute resolution is arbitration considered to be?

Question 3

Arbitration clause in contract; agreement after dispute arises

Answer 3

At what two key stages might the question of arbitration arise?

Question 4

Privacy and confidentiality; easier enforcement in certain jurisdictions; choice of specialist; flexibility

Answer 4

Name some advantages of choosing arbitration over litigation.

Question 5

Tribunal

Answer 5

In arbitration

Question 6

The reference

Answer 6

What is another term sometimes used to refer to the arbitration itself?

Question 7

Claimant and respondent

Answer 7

What are the terms used for the parties in arbitration (instead of claimant/defendant)?

Question 8

Sir or Madam

Answer 8

How is the arbitrator typically addressed at an arbitration meeting or hearing?

Question 9

Legal seat

Answer 9

What term designates the system of law ‘anchoring’ the arbitration

Question 10

Place of arbitral hearings

Answer 10

What is another

Question 11

Arbitration Act 1996

Answer 11

If the seat of an arbitration is in England and Wales

Question 12

Fair resolution without unnecessary delay or expense; parties’ freedom to agree resolution (subject to public interest); minimal court intervention (except as provided by Act)

Answer 12

What are the three general principles of the Arbitration Act 1996 (s. 1)?

Question 13

Act fairly; cooperate with the process

Answer 13

What does the Arbitration Act require of the arbitrator and the parties?

Question 14

Mandatory (cannot be excluded) and non-mandatory (parties can contract out)

Answer 14

What are the two types of provisions found in the Arbitration Act 1996?

Question 15

Schedule 1

Answer 15

Where in the Arbitration Act 1996 are the mandatory provisions set out?

Question 16

Parties may decide procedure (subject to mandatory requirements); non-mandatory provisions fill gaps if no agreement

Answer 16

How does the Arbitration Act 1996 allow parties to determine the arbitration procedure?

Question 17

Institutional arbitration (selecting an institution) or ad hoc arbitration (writing own procedure or adopting rules)

Answer 17

What are the two main ways parties can choose their arbitration procedure?

Question 18

Valid arbitration agreement

Answer 18

What is required for a matter to be dealt with by way of arbitration?

Question 19

Contract for resolution of disputes by arbitration rather than court

Answer 19

What is an arbitration agreement or clause?

Question 20

In writing or evidenced in writing (s. 5)

Answer 20

What is the requirement for an arbitration agreement to be enforceable under the Act?

Question 21

Agreement to submit to arbitration present or future disputes (s. 6 and s. 82)

Answer 21

How does the Act define an arbitration agreement?

Question 22

Stand alone agreement (existing dispute) or part of another contract (future disputes)

Answer 22

What forms can an arbitration agreement take?

Question 23

Acknowledge service and indicate contesting jurisdiction; apply to court under CPR 62.8 to stay proceedings (s. 9)

Answer 23

If court proceedings are commenced despite an arbitration agreement

Question 24

CPR 62.8

Answer 24

Under which Civil Procedure Rule does a party apply for a stay of proceedings to allow arbitration?

Question 25

Application notice; draft order; evidence in support (witness statement or application notice)

Answer 25

What documentation is required to apply for a stay under CPR 62.8?

Question 26

Binding agreement exists; there is a dispute; contract contains binding arbitration agreement; dispute falls within scope of clause

Answer 26

What should the evidence in support of a stay application confirm?

Question 27

Obliged to grant unless agreement is null and void

Answer 27

inoperative or incapable of being performed (s. 9(4))

Question 28

Written request to arbitrate

Answer 28

What is the most common procedure for commencing an arbitration?

Question 29

Names and addresses of parties; brief statement of dispute and relief sought; list of possible arbitrators/appointment method

Answer 29

What information is typically included in a written request to arbitrate?

Question 30

Arbitration agreement or incorporated rules

Answer 30

Where is the procedure for appointing arbitrators usually found?

Question 31

ss. 16-18 of the Act (imposing time limits)

Answer 31

In the absence of an agreement on appointing arbitrators

Question 32

State how arbitrator(s) will be appointed

Answer 32

What is more common than naming an arbitrator in the arbitration agreement?

Question 33

One arbitrator each

Answer 33

with a third by co-arbitrators or institution

Question 34

Adopt rules of an arbitration institution

Answer 34

What do parties commonly agree to regarding arbitration procedure and arbitrator appointment?

Question 35

Act fairly and impartially; reasonable opportunity to put case and deal with opponent; adopt suitable procedures (avoiding delay/expense) for fair resolution (s. 33)

Answer 35

What is the general duty of the arbitrator according to section 33 of the Act (mandatory)?

Question 36

Competent and has time; agreement gives power to act; validly appointed

Answer 36

What should an arbitrator decide upon receiving notification of appointment?

Question 37

Do all things necessary for proper and expeditious conduct; comply with tribunal's determinations/orders; take necessary steps for court decision on preliminary jurisdiction/law (s. 40)

Answer 37

What is the general duty of the parties in an arbitration according to section 40 of the Act (mandatory)?

Question 38

Preliminary meeting / procedure hearing

Answer 38

What is a common practice for the tribunal to arrange with the parties after appointment to establish a procedural timetable?

Question 39

Outline statements of case; timetable; preliminary issues; disclosure; witness/expert evidence; hearing details (venue

Answer 39

language)

Question 40

Make further orders seeking to enforce compliance

Answer 40

What power does the arbitrator have if a direction from the preliminary meeting is not complied with?

Question 41

Minimal intervention (s. 1); rare unless arbitrator has no power or order ineffective; consent needed (unless urgent for preservation)

Answer 41

What is the general level of court involvement in arbitration?

Question 42

Taking evidence/preserving evidence; inspecting property; selling goods; interim injunctions; appointing receiver (s. 44)

Answer 42

What powers does the court have under section 44 of the Act in relation to arbitration?

Question 43

Arbitration claim

Answer 43

What is an application made to court under section 44 of the Act known as?

Question 44

Arbitration claim form (Court Form N8) under CPR Part 8

Answer 44

How is an arbitration claim commenced?

Question 45

Decide whether order sought under s. 44 should be made

Answer 45

What is the sole purpose of an arbitration claim?

Question 46

Exclude all or part of s. 44 powers (non-mandatory)

Answer 46

How can parties limit the court's power to intervene under section 44?

Question 47

Parties and arbitrator decide at preliminary meeting; generally private with only tribunal

Answer 47

parties

Question 48

Choose convenient venue; decide language of proceedings

Answer 48

How can arbitration be particularly suitable for international disputes?

Question 49

Arbitrator decides (similar to litigation or more inquisitorial)

Answer 49

Who decides whether the arbitration procedure will be similar to litigation or more inquisitorial?

Question 50

Under the law chosen by parties or other agreed considerations (s. 46)

Answer 50

Under what basis will the arbitrator decide the dispute?

Question 51

Equivalent to a judgment in litigation; final and binding (subject to limited challenge)

Answer 51

What is the status of an arbitration award?

Question 52

Arbitrator can make award in relation to costs

Answer 52

Who is able to make an award regarding the costs of the arbitration?

Question 53

Parties can agree on costs (subject to s. 60)

Answer 53

What is another way the costs of arbitration can be determined?

Question 54

Clause that one party pays all costs regardless of outcome is void (unless agreed after dispute arose) (s. 60 - mandatory)

Answer 54

What type of costs agreement in arbitration is void according to section 60 of the Act?

Question 55

Arbitrator can order one party to pay; costs follow the event (general principle); costs can include arbitrator's fees

Answer 55

What are some non-mandatory provisions in the Act relating to costs?

Question 56

Final on questions of fact (unless agreed otherwise)

Answer 56

What is the status of the arbitrator's decision on questions of fact?

Question 57

Challenge on jurisdiction (s. 67 - mandatory); challenge for serious irregularity (s. 68 - mandatory); appeal on point of law (s. 69 - non-mandatory)

Answer 57

What are the basic types of challenge and appeal of an arbitrator's decision?

Question 58

Ordinary civil claim in High Court or summary procedure under s. 66 (mandatory)

Answer 58

How can domestic arbitration awards be enforced?

Question 59

Apply to High Court for permission to 'convert' award into court judgment (s. 66)

Answer 59

What does the summary procedure in section 66 of the Act allow for regarding enforcement?

Question 60

New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards

Answer 60

Through which convention are cross-border arbitration awards typically enforced?

Question 61

Automatically enforceable in approximately 150 ratifying countries without re-examination of merits

Answer 61

What is the effect of the New York Convention on arbitration awards from Convention states?

Question 62

Displaces court jurisdiction if parties have agreed; subject to Arbitration Act 1996 (mandatory and non-mandatory); agreement must be written; litigation stayed if valid agreement exists; arbitrator duty to act fairly; award binding with limited challenge; enforcement via High Court or New York Convention

Answer 62

Summarise the key points about arbitration in England and Wales.