1. Arbitration Arran Dowling Hussey Dip. Arb. Law, Dip. Int. Com. Arb., F.C.I.Arb, Barrister-at-Law ADHussey@Lawlibrary.Ie; www.arrandowlinghussey.com Co-author with Derek Dunne B.L; DerekDunne01@Yahoo.Co.uk Of Arbitration (Thomson Roundhall, 2008)

2. Arbitration- Increasingly Important? The McCarthy Report, otherwise known as An Bord Snip Nua, was published in July 2009- recommended state bodies use ADR. Chief Justice John. L. Murray: “ Arbitration will be increasingly important in the years to come.” 30th November 2007 Growth in Arbitration/ ADR in Ireland: Adjudication and Mediation used by Private Residential Tenancies Board. GAA has set up Dispute Resolution Authority; Just Sport Ireland launched in 2007. Bar Council Small Claims Arbitration Scheme. Mediation of Pat Kenny (RTE) dispute in April, 2008. Recent Dispute Resolution conference in Dublin; launched by Ian Paisley: November, 2007. Larger conference followed in 2008.

3. Arbitration- What is it? As Dunne and Dowling-Hussey note in Irish Law Times, Volume 25, Number 9 at 138: “ In Arenson v Arenson, the House of Lords summarised the essential indica of arbitration in the following terms: (a) there is a dispute or difference between the parties which has been formulated in some way or another; (b) the dispute or difference has been remitted by the parties to the person to resolve in such a manner that he is called upon to exercise a judicial function; (c) Where appropriate, the parties must have been provided with an opportunity to present evidence and/or submissions in support of their respective claims in the dispute; and the parties have agreed to accept his decision.” [1977] AC 405. “ It is possible that a clause purporting to create an obligation upon the parties to refer a dispute between them to arbitration, is not in fact an arbitration procedure……Whether a procedure provided for by a contract for the resolution of disputes is arbitration or another form of dispute resolution (such as e.g conciliation mediation, negotiation or expert determination) will, in the first instance depend on the objective meaning of the clause and the intentions of the parties. The express terminology will not be decisive; as in all areas of contract law, the substance and not the form of the agreement will prevail.”

4. Arbitration- What is it/ A Dispute? A distinction needs to be made between arbitration and expert determination; which are different forms of dispute resolution. As Forde notes: “ the test of whether a person selected to make a valuation is an arbitrator or simply a valuer, it would seem, is whether under the contract, he is automatically part of a process for completing the substantive agreement…[or whether ]he only becomes involved where the parties are in dispute about the proper valuation, he is an arbitrator.” See Sutcliffe v Thackrah 1974 A.C The word ‘dispute’ should be given its ordinary meaning and encompasses any claim of one party to the agreement which the other party will not admit. In addition the subject matter of the dispute must fall within the scope of the arbitration clause; and The subject matter of the dispute must be capable of being the subject of arbitration. It would appear that the question of whether a dispute has in fact arisen within the meaning of the arbitration agreement is a matter for the Arbitrator to decide. The courts do not have jurisdiction to grant an injunction in respect of a controversy as to whether a dispute has arisen: see inter alia Bremer Vulken Schiffbau v South India Shipping Corp [1982] A.C 909.

6. Speed

7. Privacy

8. Expense.

9. As enforceable as a court award.

12. Divorce.

13. Bankruptcy/ Winding up of companies.

14. Disputes within the jurisdiction of the following:

15. Personal Injuries Assessment Board.

16. Residential Tenancies Act 2004.

19. There is no manual available listing arbitrators working in the Republic of Ireland.

20. An arbitrator is nearly always someone who practices in another profession or trade.

21. Biographical details of the arbitrator will be available in any directory published by whichever other professional or trade body they belong to.

22. But such an entry will be catered to those looking for an engineer, solicitor or which ever other profession is applicable.

23. A handful of individual arbitrators maintain websites: www.maddenmediation.com; http://ercus.com

26. Tradax Export SA v Volkswagen [1970] 1 Lloyd’s Rep 62:

27. Above sets outs that an appointment is when the other side is notified, the appointee is notified and there is acceptance by appointee.

28. The arbitration must be commenced within the normal limitation periods set down in the 1957 Act.

29. It is possible to apply to the Court to extend the time to appoint an Arbitrator; s.45 of the 1954 Arbitration Act: considered in inter alia Walsh v Shield Insurance [1976] ILRM 218

32. In such a situation the side that believes there is an arbitration agreement will bring a motion before the court to stay the litigation under s.5 of the 1980 Act.

33. There was historically a concern that such a motion had to be brought in the High Court regardless of where the litigation had been initiated. This is not the case; the motion should be brought in the same court in which the proceedings have been initiated.

34. See Mitchell v Budget Travel Ltd [1990] ILRM 739

35. Whereas there is stated to be an obligation to bring an application to stay litigation as soon as is possible in the United Kingdom; it seems that there is no such onus placed on a party who seeks such a relief in the Republic of Ireland. The position in the former jurisdiction is said to be that-

37. ‘Where the other party wishes to have the dispute referred to arbitration he must apply without delay to the court for a stay of the proceedings brought in breach of the agreement to arbitrate.’

39. Grounds for refusing a stay Amendment to Arbitration Act, 1980. 18.-Section 5 of the Arbitration Act, 1980, is hereby amended by the insertion of the following subsection after subsection (2): "(3) Nothing in this section shall prevent any party to an arbitration agreement from invoking the alternative method, provided by the Rules of Court (as amended from time to time), of commencing and dealing with a civil proceeding in respect of a small claim.". i.e if you have a small claim connected to a holiday or a car where the value of the claim is less than €2000 you can not be compelled to go to arbitration. This is a sound rule on public policy grounds; the small claims court does not tend to award legal costs; it encourages consumers to attends without lawyers and the cost of lodging a claim is very small.

40. Grounds for granting/ refusing a stay 5 (1) If any party to an arbitration agreement or any person claiming through or under him commences any proceedings in any court against any other party to such an agreement, or any person claiming through or under him in respect of any matter agreed to be referred to arbitration, any party to the proceedings may at any time after an appearance has been entered and before delivering any pleadings or taking any other steps in the proceedings apply to the court to stay the proceedings, and the court unless it is satisfied that the arbitration agreement is- (i) null and void. (ii) Inoperative or (iii) Incapable of being performed or (iiii) that there is not in fact any dispute between the parties with regard to the matter agreed to be referred Shall make an order staying the proceedings.

42. Inoperative: In McCarthy v JWT [1991] ILRM 3(scheme capped holiday companies liability and Carroll J held same to be inoperative; not explicitly drawn to holiday maker attention)

43. Incapable of performance.

44. The nature of what constitutes a dispute has already been discussed.

45. Step in proceedings-

46. As Forde notes, at 27: ‘What is required is conduct which shows that the party has decided to use the courts to advance his case against the other party.’

48. Grounds for refusing/ granting a stay In Brenton Dewick (a Minor) v Falcon Group Overseas Limited (High Court, 2001 ) the then Mr Justice Johnson held that Section 5 cannot be used to oust the jurisdiction conferred on the Court by Order 22 Rule 10 of the Rules of the Superior Courts in relation to cases involving children. In Administratia Asigurarilor de Stat and Ors -v- Insurance Corporation of Ireland Plc 1990 ILRM 159 the High Court held that it has an overriding jurisdiction to refuse a stay where there are bona fide allegations of fraud. Other intervention by the court. As Forde notes- “ The whole point of arbitration is to have disputes resolved outside the ordinary court system.”

50. S.14 Presumption that only 1 arbitrator

51. S.24 Removal for unreasonable delay.

52. S. 36 Remit An Award To Arbitrator- New Award Must Be Made.

53. S.37 Removal Having Misconducted Himself Or The Proceedings.

54. Re Enoch Zaretsy Bock & Co [1910] 327 inter alia