Arbitration Act 2010

The Arbitration Act 2010 repeals all existing Irish arbitral legislation and replaces it with a single statute which applies, with a few minor additions, the UNCITRAL Model Law on International Commercial Arbitration (as adopted in 1985 and amended in 2006) to all domestic and international arbitrations commenced after 8 June 2010, regardless of when the arbitration agreement was entered into. The Act also continues in force the New York and Washington Conventions and the Geneva Protocol.

The Act is divided into three parts. Part 1 (sections 1-5) deals with certain preliminary and general matters. Part 2 (sections 6-31) sets out the substantive provisions that apply to all arbitrations in Ireland. Key provisions include:

• Section 6 provides that the Model Law applies to all arbitrations.
• Section 7 provides that in the absence of agreement between the parties, arbitral proceedings will be deemed to be commenced on the date that a written request for arbitration is received by the respondent.
• Section 8 provides that judicial notice shall be taken of the preparatory works of UNCITRAL and its working group relating to the development of the Model Law.
• Section 9 provides that the High Court is the relevant Court for the purposes of the Act and that the functions of the High Court are to be carried out by the President of the High Court (or such other judge as he shall nominate.) It also provides that all applications to the High Court under the Act shall be made in a summary manner.
• Section 10 provides that the High Court may not, unless otherwise agreed by the parties, make any order relating to security for costs of the arbitration or make any order for discovery of documents.
• Section 11 provides that there shall be no appeal from the determination of the High Court in applications to it which are permitted by the Act.
• Section 12 imposes a 56 day time limit on applications to the High Court to set aside an arbitration award on the grounds of public policy from the date on which the circumstances giving rise to the application became known or ought reasonably to have become known to the party concerned.
• Section 14 provides that in the absence of agreement between the parties, the arbitral tribunal is to consist of one arbitrator.
• Section 16 provides that arbitral proceedings can only be consolidated, or concurrent hearings held, where the parties agree.
• Section 18 provides that the parties to an arbitration agreement may agree on the arbitral tribunal’s powers regarding the award of interest.
• Section 21 provides that the parties to an arbitration agreement may make such provision as to the costs of the arbitration as they see fit. Where no provision for costs is made the arbitral tribunal shall, determine by award those costs as it sees fit.
• Section 22 provides that an arbitrator shall not be liable in any proceedings for anything done or omitted in the discharge or purported discharge of his or her functions.
• Section 23 provides that arbitral awards may be enforced in the same manner as court orders.
• Section 28 provides that the Act shall apply to arbitrations to which a State authority is a party.
• Section 31 provides that consumers will not be bound by arbitration agreements where the claim does not exceed €5,000.00.

Part 3 (section 32) provides the High Court and Circuit Court with the power to adjourn proceedings to facilitate arbitration.

Applications to the High Court under the Act are made under Order 56 of the Rules of the Superior Courts. Applications are to be on notice to the respondent and in certain cases the arbitral tribunal. Applications are, in general, to be made by way of originating notice of motion upon an affidavit sworn by or on behalf of the moving party. Applications include:

(a) for any interim measure of protection in relation to an arbitration or an intended arbitration under Article 9 of the Model Law; or

(b) to appoint an arbitrator pursuant to Article 11(3)(a) or 11(3)(b) of the Model Law; or

(c) to take the necessary measure pursuant to Article 11(4) of the Model Law in the event of a failure to act, an inability to reach agreement or a failure to perform a function under an appointment procedure agreed upon by the parties; or

(d) to decide on a challenge to an arbitrator pursuant to Article 13(3) of the Model Law (provided that the application is made within the period prescribed in that Article); or

(e) to decide on the termination of the mandate of an arbitrator pursuant to Article 14(1) of the Model Law; or

(f) to decide on a plea that the arbitral tribunal does not have jurisdiction pursuant to Article 16(3) of the Model Law (provided that the application is made within the period prescribed in that Article); or

(g) to recognise or to recognise and enforce an interim measure issued by an arbitral tribunal in accordance with Article 17H(1), but subject to the provisions of Article 17I, of the Model Law; or

(h) to issue any interim measure in relation to arbitration proceedings in accordance with Article 17J of the Model Law; or

(i) to make an order in accordance with Article 34 of the Model Law (provided, in a case to which section 12 of the Act applies, the application is made within the period prescribed in that section); or

(j) for the leave of the Court to enforce or to enter judgment in respect of an award pursuant to section 23(1) of the Act; or

(k) to enforce an award in accordance with Article 35(1), but subject to the provisions of Articles 35 and 36, of the Model Law; or

(l) to enforce the pecuniary obligations imposed by an award, within the meaning of section 25 of the Act, under that section; or

(m) for any other relief under or in pursuance of the Act, for which provision is not otherwise made in Order 56.

Applications for interim measures may be made and heard ex parte and orders are to be made “subject to such terms as to costs or otherwise, and subject to such undertaking, if any, as the Court may think just” and any party affected by such order may, within twenty eight days of receipt of notice of the making of such order, move by motion on notice to vary it or set it aside. Order 56(6) provides that where proceedings have been entered in the Commercial Court, subject to the provisions of Order 63A and of any order made or direction given by the Court under that Order, the procedure specified in Order 56 shall apply to proceedings by originating notice of motion in accordance with Order 56..

http://www.irishstatutebook.ie/2010/en/act/pub/0001/index.html