Arbitration Flashcards
(20 cards)
What is arbitration and when might parties agree to it?
- Arbitration is a private, binding dispute resolution process handled by one or more impartial arbitrators
- Parties may agree to arbitration either:
- In an arbitration clause within a contract
- After a dispute arises, through a standalone agreement
What are the advantages of arbitration over litigation?
- Privacy and confidentiality
- Enforceability in foreign jurisdictions (via New York Convention)
- Flexibility in procedure
- Selection of a specialist decision-maker
What key terminology is used in arbitration?
- Tribunal = arbitrator(s)
- Claimant and respondent = parties
- ‘Reference’ = the arbitration process
- ‘Seat’ = legal system governing the arbitration
- Hearings = conducted in private, arbitrator addressed as ‘Sir’ or ‘Madam’
What makes an arbitration agreement valid under the Act?
- Must be in writing or evidenced in writing
- May cover present or future disputes
- May be a standalone agreement or a clause in a broader contract
What happens if a party commences litigation despite an arbitration agreement?
The other party should:
- Acknowledge service and contest jurisdiction
- Apply to stay proceedings under CPR 62.8 and s. 9 of the Act
Court must stay unless the arbitration agreement is null, void, inoperative or incapable of being performed
What documents are required for an application under CPR 62.8 - Stay Proceedings?
- Application notice
- Draft order
- Evidence confirming existence and scope of arbitration agreement
How is arbitration commenced?
By notice/request to arbitrate, usually including:
- Parties’ names and addresses
- Summary of dispute and relief sought
- List or procedure for appointing arbitrators
How are arbitrators appointed?
- Agreement or institutional rules specify method
- Failing agreement: s. 16–18 of the Act impose default rules
- Often: each party appoints one, with a third appointed jointly
What is the duty of an arbitrator?
- Act fairly and impartially
- Allow each party a reasonable opportunity to present their case
- Avoid unnecessary delay or expense
What is the duty of the parties?
- Do all necessary for expeditious conduct
- Comply with tribunal’s directions and procedural rulings
- Take steps to obtain court decisions where appropriate
What is the purpose of a preliminary meeting?
- Establish procedure and timetable
- Discuss case outlines, disclosure, evidence, hearing details
When can the court intervene in arbitration?
- Taking evidence or preserving evidence
- Interim injunctions or receivers
- Preserving or inspecting property
- Court assistance only where tribunal lacks power or cannot act effectively
What is an arbitration claim and how is it brought?
- Application under CPR Part 8 using Form N8
- Filed under CPR 62.4
- Used to obtain court orders supporting arbitration
What happens at an arbitration hearing?
- Conducted in private unless agreed otherwise
- Tribunal and parties decide procedural approach (inquisitorial or adversarial)
- Evidence presented according to party agreement and tribunal directions
What law governs the resolution of disputes in arbitration (s. 46)?
- Law chosen by the parties
- May be English law, equitable/commercial principles, or another specified framework
What is an award in arbitration?
- Final and binding decision of the tribunal
- Equivalent to a judgment in litigation
Who decides costs and under what rules?
- Tribunal may award costs
- Parties may agree their own cost rules
- Clause requiring one party to bear costs regardless of outcome is void unless agreed after dispute (s. 60 – mandatory)
- Costs typically follow the event (non-mandatory)
What are the grounds to challenge an arbitral award?
- s. 67: Jurisdictional challenge (mandatory)
- s. 68: Serious irregularity (mandatory)
- s. 69: Appeal on a point of law (non-mandatory; can be excluded by agreement)
How can a domestic award be enforced?
- Apply to High Court for permission to enforce as a judgment
- Summary procedure under s. 66 applies automatically
How are foreign arbitration awards enforced?
- Through the New York Convention
- Enforcement in approx. 150 countries without re-examining the merits
- Easier than enforcing English court judgments in many countries
