Arbitration Act 2010

PART 1 Preliminary and General

1.. Short title and commencement.

1.— (1) This Act may be cited as the Arbitration Act 2010.

(2) This Act shall come into operation 3 months after its passing.

2.. Interpretation.

2.— (1) In this Act:

“arbitration” means—

(a) an international commercial arbitration, or

(b) an arbitration which is not an international commercial arbitration;

“arbitration agreement” shall be construed in accordance with Option 1 of Article 7;

“award” includes a partial award;

“consumer” means a natural person, whether in the State or not, who is acting for purposes outside the person’s trade, business or profession;

“Geneva Convention” means the Convention on the Execution of Foreign Arbitral Awards done at Geneva on the 26th day of September, 1927, the text of which is set out in Schedule 4;

“Geneva Protocol” means the Protocol on Arbitration Clauses opened at Geneva on the 24th day of September, 1923, the text of which is set out in Schedule 5;

“Minister” means the Minister for Justice, Equality and Law Reform;

“Model Law” means the UNCITRAL Model Law on International Commercial Arbitration (as adopted by the United Nations Commission on International Trade Law on 21 June 1985, with amendments as adopted by that Commission at its thirty-ninth session on 7 July 2006), the text of which is set out in Schedule 1;

“New York Convention” means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958, the text of which is set out in Schedule 2;

“State authority” means—

(a) a Minister of the Government,

(b) the Commissioners of Public Works in Ireland,

(c) the Irish Land Commission,

(d) the Revenue Commissioners,

(e) a body established by or under any enactment, andfinanced wholly or partly, whether directly or indirectly, by moneys provided, or loans made or guaranteed, by a Minister of the Government or the issue of shares held by or on behalf of any Minister of the Government;

“Washington Convention” means the Convention on the Settlement of Investment Disputes between States and Nationals of Other States opened for signature in Washington on 18 March 1965, the text of which is set out in Schedule 3.

(2) In this Act—

(a) a word or expression that is used in this Act and that is also used in the Model Law has, unless the context otherwise requires, the same meaning in this Act as it has in the Model Law, and

(b) a reference to an Article is a reference to an Article of the Model Law.

3.. Application of Act.

3.— (1) This Act shall not apply to an arbitration under an arbitration agreement concerning an arbitration which has commenced before the operative date but shall apply to an arbitration commenced on or after the operative date.

(2) In this section, “operative date” means the date on which this Act comes into operation pursuant to section 1.

4.. Repeals and effect of repeals.

4.— (1) Subject to subsection (2), the Arbitration Acts 1954 to 1998 are repealed.

(2) Subject to section 3, the repeal of the Acts referred to in subsection (1) shall not prejudice or affect any proceedings, whether or not pending at the time of the repeal, in respect of any right, privilege, obligation or liability and any proceedings taken under those Acts in respect of any such right, privilege, obligation or liability acquired, accrued or incurred under the Acts may be instituted, continued or enforced as if the Acts concerned had not been repealed.

(3) In this section “proceedings” includes arbitral proceedings and civil or criminal proceedings.

5.. Expenses.

5.— The expenses incurred by the Minister in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.

5A. F1[Maintenance and champerty not to apply to dispute resolution proceedings

5A.—...]

PART 2 Arbitration

6.. Adoption of Model Law.

6.— Subject to this Act, the Model Law shall have the force of law in the State and shall apply to arbitrations under arbitration agreements concerning—

(a) international commercial arbitrations, or

(b) arbitrations which are not international commercial arbitrations.

7.. Commencement of arbitral proceedings.

7.— (1) For the purposes of this Act and for the purposes of section 496 of the Merchant Shipping Act 1894 (as amended by section 29) arbitral proceedings shall be deemed to be commenced on—

(a) the date on which the parties to an arbitration agreement so provide as being the commencement date for the purposes of the commencement of arbitral proceedings under the agreement, or

(b) where no provision has been made by the parties as to commencement of proceedings as referred to in paragraph (a), the date on which a written communication containing a request for the dispute to be referred to arbitration is received by the respondent.

(2) The Statute of Limitations 1957 is amended by substituting the following section for section 74:

“74.— (1) For the purposes of this Act and for the purposes of any other limitation enactment, arbitral proceedings shall be deemed to be commenced on—

(a) the date on which the parties to an arbitration agreement so provide as being the commencement date for the purposes of the commencement of arbitral proceedings under the agreement, or

(b) where no provision has been made by the parties as to commencement as referred to in paragraph (a), the date on which a written communication containing a request for the dispute to be referred to arbitration is received by the respondent.

(2) For the purposes of subsection (1)(b), unless the parties otherwise agree, a written communication is deemed to have been received if it is served or given to the respondent in one or more of the following ways:

(a) by delivering it to the respondent personally;

(b) by delivering it to the respondent’s place of business, habitual residence or postal address;

(c) where none of the addresses referred to in paragraph (b) can be found after making reasonable inquiry, by sending it by pre-paid registered post or by any other form of recorded delivery service addressed to the respondent at his or her last known place of business, habitual residence or postal address.

(3) Unless the parties otherwise agree, where a written communication under this section has been delivered to a respondent in accordance with subsection (2), the communication is deemed to have been received on the day it was so delivered.

(4) For the purposes of subsection (2), a company registered under the Companies Acts shall be deemed to be habitually resident at its registered office in the State and every other body corporate (wherever it is incorporated) and every unincorporated body (wherever it carries out its activities) shall be deemed to be habitually resident at its principal office or place of business.”.

8.. Construction of Model Law and construction of arbitration clauses.

8.— (1) Judicial notice shall be taken of the travaux préparatoires of the United Nations Commission on International Trade Law and its working group relating to the preparation of the Model Law.

(2) The travaux préparatoires referred to in subsection (1) may be considered when interpreting the meaning of any provision of the Model Law and shall be given such weight as is appropriate in the circumstances.

(3) Where parties agree that disputes under a contract or agreement or disputes arising out of a contract or agreement shall be submitted to arbitration, this shall include disputes as to the existence or validity of the contract or agreement.

9.. Functions of High Court.

9.— (1) The High Court is—

(a) specified for the purposes of Article 6,

(b) the relevant court for the purposes of Article 9, and

(c) the court of competent jurisdiction for the purposes of Articles 17H, 17I, 17J, 27, 35 and 36.

(2) The functions of the High Court—

(a) under an Article referred to in subsection (1), or

(b) under sections 10, 23 or 25,

shall be performed by the President or by such other judge of the High Court as may be nominated by the President, subject to any rules of court made in that behalf.

(3) An application may be made in summary manner to the President or to such other judge of the High Court as may be nominated by the President under subsection (2).

(4) In this section “ President ” means the President of the High Court.

10.. Court powers exercisable in support of arbitral proceedings.

10.— (1) Subject to subsection (2), the High Court shall have the same powers in relation to Articles 9 and 27 as it has in any other action or matter before the Court.

(2) When exercising any powers in relation to Articles 9 or 27, the High Court shall 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.

11.. Determination of court to be final.

11.— There shall be no appeal from—

(a) any court determination of a stay application, pursuant to Article 8(1) of the Model Law or Article II(3) of the New York Convention,

(b) any determination by the High Court—

(i) of an application for setting aside an award under Article 34 of the Model Law, or

(ii) of an application under Chapter VIII of the Model Law for the recognition and enforcement of an award made in an international commercial arbitration,

or

(c) any determination by the High Court in relation to an application to recognise or enforce an arbitral award pursuant to the Geneva Convention, New York Convention or Washington Convention.

12.. Time limits for setting aside awards on grounds of public policy.

12.— Notwithstanding Article 34(3), an application to the High Court to set aside an award on the grounds that the award is in conflict with the public policy of the State shall be made within a period of 56 days 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.

13.. Default number of arbitrators.

13.— Unless otherwise agreed by the parties, the arbitral tribunal shall consist of one arbitrator only.

14.. Examination of witnesses.

14.— Unless otherwise agreed by the parties, the arbitral tribunal may for the purposes of the arbitral proceedings concerned—

(a) direct that a party to an arbitration agreement or a witness who gives evidence in proceedings before the arbitral tribunal be examined on oath or on affirmation, and

(b) administer oaths or affirmations for the purposes of the examination.

15.. Taking evidence in State in aid of foreign arbitration.

15.— The reference in Article 27 to an arbitral tribunal includes a reference to an arbitral tribunal conducting arbitral proceedings in a place other than the State.

16.. Consolidation of and concurrent arbitrations.

16.— (1) Where the parties to an arbitration agreement so agree—

(a) arbitral proceedings shall be consolidated with other arbitral proceedings, including arbitral proceedings involving a different party or parties with the agreement of that party or parties,

(b) concurrent hearings shall be held,

on such terms as may be agreed between the parties concerned.

(2) The arbitral tribunal shall not order the consolidation of proceedings or concurrent hearings unless the parties agree to the making of such an order.

17.. Reference of interpleader to arbitration.

17.— (1) Subject to subsection (2), where in legal proceedings relief by way of interpleader is granted by a court and it appears to the court that the issue between the claimants is one in respect of which there is an arbitration agreement between the claimants, the court shall direct that the issue between the claimants be determined in accordance with the agreement.

(2) A court shall not direct that the issue between the claimants referred to in subsection (1) be determined in accordance with the arbitration agreement concerned where the court finds that the arbitration agreement is null and void, inoperative or incapable of being performed.

(3) Where subsection (1) applies but the court does not direct that the issue be determined in accordance with the arbitration agreement, any provision that an award is a condition precedent to the bringing of legal proceedings in respect of any matter shall not affect the determination of that issue by the court.

18.. Interest.

18.— (1) The parties to an arbitration agreement may agree on the arbitral tribunal’s powers regarding the award of interest.

(2) Unless otherwise agreed by the parties, the arbitral tribunal may award simple or compound interest from the dates, at the rates and with the rests that it considers fair and reasonable—

(a) on all or part of any amount awarded by the arbitral tribunal, in respect of any period up to the date of the award, or

(b) on all or part of any amount claimed in the arbitration and outstanding at the commencement of the arbitration but paid before the award was made, in respect of any period up to the date of payment.

(3) Unless otherwise agreed by the parties, the arbitral tribunal may award simple or compound interest from the date of the award (or any later date) until payment, at the rates and with the rests that it considers fair and reasonable, on the outstanding amount of any award (including any award of interest under subsection (2) and any award of costs).

(4) References in this section to an amount awarded by the arbitral tribunal include an amount payable in consequence of a declaratory award by the arbitral tribunal.

(5) This section is without prejudice to any other power of the arbitral tribunal to award interest.

19.. Security for costs.

19.— (1) Without prejudice to the generality of Article 19, the arbitral tribunal may, unless otherwise agreed by the parties, order a party to provide security for the costs of the arbitration.

(2) A party shall not be ordered by an arbitral tribunal to provide security for the costs of the arbitration solely on the ground that the party is—

(a) an individual who is domiciled, habitually resident, or carrying on business outside the State, or

(b) a body corporate established under a law of a place other than the State or whose central management and control is situated outside the State.

20.. Specific performance.

20.— Without prejudice to the generality of the Model Law, an arbitral tribunal shall, unless otherwise agreed by the parties, have the power to make an award requiring specific performance of a contract (other than a contract for the sale of land).

21.. Recoverability of costs, fees and expenses of tribunal.

21.— (1) The parties to an arbitration agreement may make such provision as to the costs of the arbitration as they see fit.

(2) An agreement of the parties to arbitrate subject to the rules of an arbitral institution shall be deemed to be an agreement to abide by the rules of that institution as to the costs of the arbitration.

(3) Where no provision for costs is made as referred to in subsection (1) or where a consumer is not bound by an agreement as to costs pursuant to subsection (6), the arbitral tribunal shall, subject to subsection (4), determine by award those costs as it sees fit.

(4) In the case of an arbitration (other than an international commercial arbitration) the arbitral tribunal shall, on the request of any of the parties to the proceedings made not later than 21 working days after the determination by the tribunal in relation to costs, make an order for the taxation of costs of the arbitration by a Taxing Master of the High Court, or as the case may be, the County Registrar; and the Taxing Master, or as the case may be, the County Registrar, shall in relation to any such taxation, have (with any necessary modifications) all the functions for the time being conferred on him or her under any enactment or in any rules of court in relation to the taxation of costs to be paid by one party to another in proceedings before a court.

(5) Where the arbitral tribunal makes a determination under subsection (3), it shall specify—

(a) the grounds on which it acted,

(b) the items of recoverable costs, fees or expenses, as appropriate, and the amount referable to each, and

(c) by and to whom they shall be paid.

(6) F2[…]

shall be deemed to be an unfair term for the purposes of those Regulations.

(7) Section 3 of the Legal Practitioners (Ireland) Act 1876 shall apply as if an arbitration were a proceeding in the High Court and the Court may make declarations and orders accordingly.

(8) In this section references to—

“costs” include costs as between the parties and the fees and expenses of the arbitral tribunal;

“ fees and expenses of the arbitral tribunal ” include the fees and expenses of any expert appointed by the tribunal.

22.. Restriction on liability of arbitrators, etc.

22.— (1) 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.

(2) Subsection (1) shall apply to an employee, agent or advisor of an arbitrator and to an expert appointed under Article 26, as it applies to the arbitrator.

(3) An arbitral or other institution or person designated or requested by the parties to appoint or nominate an arbitrator shall not be liable for anything done or omitted in the discharge or purported discharge of that function.

(4) An arbitral or other institution or person by whom an arbitrator is appointed or nominated shall not be liable for anything done or omitted by the arbitrator (or his or her employees or agents) in the discharge or purported discharge of his or her functions as arbitrator.