1. E UROPE ’ S H IDDEN
J EWEL : A N A RGUMENT
FOR A RBITRATING IN
I RELAND
2011 W&L Law Symposium on International Commercial Arbitration
Presented By: Chris O’ Connell, Alice Ward, Roisin Costello, Eden Hoey, Benjamin Ersing
2. P RESENTATION F ORMAT
I. Arbitration in Ireland Pre -2010 (Chris)
a) Roots and Influences of Modern Arbitration Laws in Ireland
b) An Examination of those Laws
II. The Arbitration Act 2010 (Alice)
III. Attractiveness of Ireland as a Venue (Eden)
IV. Challenges Facing Ireland (Ben)
V. European Legislation Affecting Ireland
(Róisín)
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
3. R OOTS & I NFLUENCES
Brehon Laws
• Ancient Customary Celtic Laws
• Governed by “Brehons”
• Dealt with Issues before them:
•Principles of Fairness
•Durability
English Common Law
•1698 Act
New York Convention
•1980 Arbitration Act
Model Law
•1998 Arbitration Act
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
4. T HE A RBITRATION A CTS
1954 Arbitration Act
• Influenced Heavily by English Arbitration Act 1950
• Governed Domestic Arbitration
• Very Standard Procedures
• Interesting Features:
• Potential Interference of High Court
• Employer/ Employee Arbitrations not under
scope
• Repealed in 2010
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
5. T HE A RBITRATION A CTS
1980 Arbitration Act
• Main Features:
• Mandatory Staying of Court Proceedings
• Gave Effect to NY Convention of 1958
• Gave Effect to Washington Convention of
1965
• Repealed in 2010
1998 Arbitration (International Commercial) Act
• Adopted UNCITRAL Model Law
• Repealed in 2010
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
6. I RISH A RBITRATION A CT 2010
Single most important development in Arbitration in Ireland to date
• What brought about this change?
• Significant arbitration figures who initiated this
development
• AG Dispute Resolution Symposium
• Arbitration Bill 2008
• Arbitration Act 2010
• Significant developments brought about by the 2010 Act
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
7. W HO BROUGHT ABOUT
THIS CHANGE ?
Klaus Reichert Nael G Bunni Michael Collins
Dudley Solan Brian Hutchinson Michael Corrigan
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
8. R ORY B RADY
Attorney General 2002-2007
Suggested that a
symposium be organized
to examine whether
legislative change was
needed
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
9. ATTORNEY G ENERAL’ S D ISPUTE
R ESOLUTION S YMPOSIUM
Held on April 28, 2007
Engineers Ireland (IEI), Clyde Road, Dublin:
Panel
Michael Carrigan (VP IAA)
Michael Collins (President IAA)
Nael G Bunni (Former Chairman CIA)
Dudley Solan (CIA)
Brian Hutchinson (CIA)
IAA – Irish CIA-Chartered
Arbitration Institute of Irish
Association
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION Arbitration
10. S UMMARY OF S YMPOSIUM
General consensus reached that great reform in Arbitration laws
was necessary to promote Ireland as a modern venue for
international arbitration.
Findings:
• 1954 Arbitration Act was out of date.
• “Multi million dollar business”
• “A system of appeal undermined the raison
d’etre of arbitration.”
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
11. I NTRODUCTION OF
A RBITRATION B ILL 2008
ICCA opening ceremony
(June 2008)
that Taoiseach Brian Cowen
announced a new bill on
arbitration was ready to be
presented to the Dáil
Intervening period (2008 – 2010) was
used by various interested bodies such
as the Chartered Institute of Arbitrators,
to make submissions to the draft
legislation.
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
12. 2008 B ILL A CCEPTED
“The Desire for Finality
will be met through this
enactment…”
Michael Collins, President IAA
Paul Gallagher AG 2008-2011
“*This development+ was particularly
marked by support from the Irish
Government and the Attorney General,
Paul Gallagher SC.”
“A very welcome development as it incorporates
international best practice into Irish law…. A very
important positive step in establishing Ireland as an
attractive option...”
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION Colm O Hoisin, Secretary IAA
13. A RBITRATION A CT 2010
• Signed into law by the
President 8/3/2010 and comes
into operation on 8/6/2010.
• It repeals all previous
arbitration legislation in Ireland.
• The new legislation will apply
to ALL arbitrations which
commence in Ireland after 8 June
2010 (retrospective affect)
President Mary MacAleese
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
14. I RISH A RBITRATION A CT
2010
Layout:
1. Main Body of Act
Preliminary and General
Substantive provisions of arbitration in Ireland
Reference to Arbitration before Court
6 schedules attached to the act
“Virtually pure
1. – UNCITRAL Model Law (2006)
model law” 2. – New York Convention (1998)
3. – Washington Convention (1965)
4. – Geneva Convention (1927)
Klaus Reichert
5. – Geneva Protocol (1923)
– PRO IAA
6. – Amendments to other Acts
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
15. S IGNIFICANT D EVELOPMENTS
UNDER THE “2010 A CT ”
Domestic vs International
Single Arbitration Judge
“One Shot” Challenge
Case Stated Procedure
Reasons
Costs
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
16. A RBITRATION IN IRELAND
TODAY
• Action is now self contained with
limited access to the courts
• Reduced right of appeal
• No case stated procedure
• Focus in is on PARTY AUTONOMY Killarney,
Ireland
• Standard legal regime applicable to
domestic and international arbitration
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
17. ATTRACTIVENESS OF I RELAND
AS AN ARBITRATION VENUE
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
18. A W INNING C OMBINATION
1. Model Law
2. Common Law
3. English Speaking
4. Signatory of the New York Convention
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
19. M ODEL L AW
• Party Autonomy
• Limited Judicial Intervention
• Modern outlook
• Familiarity
Entire text of the model law present in the
Arbitration Act 2010
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
20. O THER N OTABLE F EATURES
• Section 22: Full immunity
• Section 13: Default No. of Arbitrators
•Section 20: An arbitral tribunal, unless otherwise agreed
by the parties, can make an award requiring specific
performance of a contract
• Section 18: Arbitrators have express power to award
compound interest and security for costs
• Section 17: Tribunal can order intermediary relief
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
21. ATTRACTIVENESS OF THE
I RISH C OURTS
• Neutrality
• Judicial Independence
• Speedy and Efficient disposal of Arbitration related
court applications
•‘One Stop Shop’ Application to the High Court (s. 11)
• Appointment of a Specialized Arbitration Judge s (9)2
• Commercial Court track record is excellent
• Average time for disposal from commencement is 21
weeks
• Arbitration cases are dealt with efficiently and without
delay
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
22. P UBLIC P OLICY
• Irish courts completely accept the exceptional and limited
nature of the public policy exception to recognition and
enforcement of the UNCITRAL Model Law
• Expressly adopted U.S decision Parsons v Whittemore to
the effect that enforcement should be denied on the
basis of public policy only in the most exceptional cases
• “The Public policy defense to an enforcement application
is one which is of narrow scope. . . It extends only to a
breach of the most basic concepts of morality and
justice.” Brostrom Tankers v Factorias Volcano (2004) 2 IR
191
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
23. W HY IS I RELAND BETTER
THAN E NGLAND ?
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
24. C OST
Ireland England
• Courts will recognize • Under section the UK
whatever agreement the Arbitration Act,
parties make regarding agreements or clauses
costs. S (21)1 regarding costs are
• This includes the decision unenforceable.
of each party to bear
their own cost • Section 60 – such
irrespective of the agreement will be
outcome rendered void unless
made after the dispute
has arisen.
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
25. R ECOURSE A GAINST
THE AWARD
Ireland England
• Grounds for setting aside an • Section 69 of the UK
Arbitration Act: Appeals on
award (s 34). In accordance with
point of law are permitted.
the NY Convention
• “ One stop shop only!”:
• Potential for becoming
• Parties may only challenge meshed in a piece of litigation
subject to one Court only – The for a long period of time
High Court. following the arbitration
• No appeals on point of law
taken. • Lack of finality
• Switzerland has a similar
approach
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
26. O THER L OGISTICAL
A DVANTAGES
• Modern Economy with exceptionally skilled personnel and
infrastructure
• Strong transport network
• Dublin is a small city so no office, hotel, restaurant is too far
away
• First class hearing room and conference facilities
• Best stenographers in the world
• Best lawyers in the world
• Undoubtedly the best bars!
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
27. F UTURE L OOKS B RIGHT...
Outside Interest
Default Location for ICC Arbitration
Establishment of Arbitration Ireland
Future Focus
See You
In Dublin!
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
28. C HALLENGES
FACING I RELAND
I. Sole Customer Base
II. Competition with London
III. Global Perception of Irish Economy
• Why?
• Potential Remedies?
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
29. I. S OLE C USTOMER B ASE
The Americans
WHY? :
Ethnic ties/Irish-American community
Large presence of US Corporations in Ireland
Common Language
Solution?
Market to Developing Countries
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
30. II. C OMPETITION WITH LONDON
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
31. III. G LOBAL P ERCEPTION OF
I RISH E CONOMY
FUTURE OF THE EUROZONE?
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
32. T HE B RUSSELS R EGULATION :
A N I NTRO
The Brussels Regulation 44/2001/EC
Article 1(2) provides:
"The Regulation shall not apply to:...(d) arbitration.”
Article 1(2)(d) is known as the "arbitration
exclusion".
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
33. C HANGES AND C HALLENGES
European Commission has proposed to bring
arbitration-related court proceedings within the
scope of the Brussels Regulation
West Tankers decision and its consequences
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
34. E UROPEAN C OMMISSION ’ S
R EPORT
The Commission presented its report and a green
paper proposing reforms to the Regulation on
the 21st of April 2009.
Subsequent to this review, Professors Hess,
Pfeiffer and Schlosser were commissioned to
prepare a study into the workings of the Brussels
Regulation-the Heidelberg Report
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
35. W EST TANKERS D ECISION
Coleman J in the HC agreed granting the
injunction.
During the proceedings, Allianz SpA questioned
whether it would be consistent with the Brussels
Regulation for an English court to grant an
injunction restraining proceedings in another
Member State.
House of Lords suggested that an injunction
would not be inconsistent with the Regulation.
However they referred question to the ECJ for
determination.
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
36. E FFECTS OF W EST
TANKERS
This undermines the concept of party autonomy
as regards choice of seat, denying some of the
benefit of ‘arbitration-friendly’ jurisdictions
where courts limit any pre-award review to a
minimum.
It is also inconsistent with the concept of
Kompetenz-kompetenz.
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
37. P ROPOSED S OLUTIONS
G OING F ORWARD
Preservation the status quo.
Reversal of the effects of West Tankers.
Implementation of the green paper's approach
on the basis of the Heidelberg report.
Implementation of a modified version of the
green paper's approach.
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION
38. C ONCLUSION
Adoption of a modified form of the green paper
proposals
Under EU law Regulations have Direct Effect on
all member states
As a dualist system Ireland will have to enact
legislation incorporating any new regulation into
law
2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION