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Arbitration

Arbitration

by gamk, Dec. 2014

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Can an agreement to arbitrate be made after the relevant dispute has arisen?	Yes
Does an arbitration clause continue to apply even if the substantive contract is voided?	Yes
What act governs arbitrations in England and Wales?	The Arbitration Act 1996
What type of dispute resolution process is arbitration?	Adjudicative	Adjudicative/non-adjudicative
What are the two types of provisions in the AA 1996?	Mandatory and non-mandatory
What do mandatory provisions of the AA 1996 cover?	Only matters which are essential to the effective resolution of matters referred to arbitration.
What are the two main respects in which arbitration differs from litigation?	1. A dispute will only be referred to arbitration if that is the course agreed by the parties. 2. Arbitrators are appointed by the parties (or through a mechanism agreed by the parties) whereas in litigation a judge is appointed by the state.
How is an arbitrator appointed?	By the parties or through a mechanism agreed by them
What does the Arbitration Act 1996 s 1(a) say?	The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense.
What does the Arbitration Act 1996 s1(b) say?	The parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest
What does the Arbitration Act 1996 s 1(c) say?	In matters governed by this Part the court should not intervene except as provided by this Part.
For there to be an agreement to arbitrate, whose must the decision be?	That of the arbitral tribunal alone, and not in conjunction with anyone else (Turville Heath Inc v Chartis Insurance [2012])
What did Lord Hoffmann identify in Fili Shipping Co Ltd v Premium Nafta Products Ltd [2007] as the fundamental features of arbitration?	Disputes to be decided: - Chosen: by a tribunal chosen by the parties - Neutral: in a neutral location and with neutral arbitrators - Privacy: in privacy - Speedily: by the arbitrators speedily and efficiently - Light supervision: with light but efficient supervision by the courts	COFFEE, Not Pumpkin Spiced Latte.
With regards to the Arbitration Act 1996, how should the word 'shall' be interpreted?	As connoting a mandatory requirement
Where the 1996 Arbitration Act covers a point, should reference be made to pre-1996 Act cases?	No (Seabridge Shipping AB v AC Orssleff's Eft's A/S [1999])
What type of dispute is arbitration most commonly used to resolve?	Disputes arising out of a contract between the parties
What four contracts will often exist when a contractual dispute is referred to arbitration?	- underlying substantive contract - agreement to arbitrate (as a matter of law, this is a separate contract) - agreement between the parties and an arbitral institution - agreement between the parties and/or arbitral institution and individuals, appointing those individuals as arbitrators.
If a finding is made that a substantive agreement is invalid or discharged, is an arbitration clause also ineffective?	No. AA 96 s 7 provides that an arbitration agreement shall be treated as a distinct agreement. See also Fili Shipping.
When can arbitrators be deprived of jurisdiction on the grounds that an agreement is invalid?	Only if the alleged invalidity affects the arbitration clause itself (Fili Shipping)
On what does the jurisdiction given to an arbitral tribunal depend?	The mandate given to it by the parties
When will an arbitral tribunal have jurisdiction?	Only when the dispute comes within the terms of the particular reference to arbitration.
What two things limit the particular reference to arbitration?	The terms of the arbitration agreement. The agreement between the tribunal and the parties appointing the tribunal.
Can arbitrators make a decision against a person who is not a party to the arbitration agreement?	No
Can arbitrators make a decision on matters not covered by the arbitration agreement?	No
Can arbitrators make a decision on matters not covered by the parties' agreement with the arbitrators?	No
Who can arbitrators make a decision against?	Only parties to the arbitration agreement.
On what matters can the arbitrators make a decision?	Only those covered by the arbitration agreement and the parties' agreement with the arbitrators.
What dispute is the tribunal authorised to determine and on what terms?	The dispute referred to it on the terms of the agreement between the parties and the arbitrators.
Can disputes/differences of law as well as of fact be referred to arbitration?	Yes
How are 'dispute' and 'difference' to be interpreted?	Natural meanings
Can the courts intervene to stop an arbitration if they think that the defendant doesn't have an arguable defence?	No (Halki Shipping Corp v Sopex Oils Ltd [1998])
Is there a dispute if the defendant does not dispute liability?	No
Is there a dispute if the contention now being relied upon by the defendant was never put to the claimant?	No (Edmund Nutall Ltd v RG Carter Ltd [2002])
Is there a dispute where the right to dispute the matter has been lost under contract or by law?	No (Watkins Jones and Sons Ltd v Lidl UK GmbH [2002])
Are public law matters arbitrable?	No
Are matter relating to legal status arbitrable?	No
Are disputes about marital status arbitrable?	No
Are disputes about care of children arbitrable?	No
Once a dispute is referred to arbitration, how do the courts tend to interpret what is included in the tribunal's mandate?	Widely (one-stop policy; recognition that scope of a dispute tends to involve as it is investigated)
Are disputes about the validity of patents arbitrable?	No
Are disputes about the status of a public right of way arbitrable?	No
Are disputes about bankruptcy arbitrable?	No
Are disputes about criminal liability arbitrable?	No
Are disputes about JR arbitrable?	No
Are arbitrators obliged to respect EU competition law?	Yes
Do the provisions of the ECHR have to be given effect in arbitrations?	Yes
When can an agreement to arbitrate be made?	Before or after a dispute has arisen
Is a party bound by a pre-dispute agreement to arbitrate?	Yes. If an arbitration is ignored, any litigation may be stayed under AA 96 s9.
What action can be taken if a party brings legal proceedings in respect of a matter which comes under an arbitration agreement?	The other party may apply for the proceedings to be stayed (AA 96 s9), and the court shall grant the stay unless the arbitration agreement is ineffective.
Who decides on the procedure to be followed and when?	The parties, by agreement as at the time the tribunal is appointed, which may include a framework for further agreements between the parties on procedural matters. This may include adhering to a set of institutional rules and the tribunal cannot go behind what the parties have agreed.
What effect may starting court proceedings have on an arbitration agreement?	Repudiation (Delta Reclamation Ltd v Premier Waste Management Ltd [2008])
What effect may correspondence denying the existence of an arbitration agreement have on that agreement?	Repudiation (Downing v Al Tameer Establishment [2002])
Can a party in breach of an arbitration agreement be liable in damages?	Yes (Donohue v Armco [2002])
Is a clause in a subsidiary contract adopting some or all of the terms of the main contract effective to make the subsidiary contract subject to the arbitration clause?	It's a matter of construction.
Why might an arbitration clause from a main contract not apply to a subsidiary contract?	- the contracts are very different in nature. - the sub contract is a transferable document of title issues under a charter party.
What is the rule in construction and shipping cases concerning subsidiary contracts and arbitration clauses?	An arbitration clause in the main contract will only be imported into the subsidiary contract if there is specific reference to it in the sub contract.
What is the effect of the Contracts (Rights of Third Parties) Act 1999 s 8 (1)?	Third parties may be subject to arbitration agreements in contracts between other parties in relation to disputes over terms made for their benefit.
Is it easy for third parties to establish that they are entitled to rely on C(RTP)A 99 s 8(1)?	No
Where C(RTP)A 99 s 8(1) applies, is the third party bound and can they be required to refer disputes covered by the clause to arbitration?	Yes
Where does C(RTP)A 99 s 8(1) apply?	Where a substantive term in the contract relied on by the third party is subject to an arbitration clause in writing
By accepting an appointment, what does an arbitrator agree to do?	Consider the evidence and make decisions on the matters referred to them.
When C(RTP)A 99 s 8(2) applies, does the third party have a choice of whether to refer a dispute to arbitration?	Yes
What happens when a single dispute raises issues based on a number of contracts with different arbitration clauses?	It must be determined which clause takes precedence. This can be done by agreement, but if this isn't possible, the clause in the contract at the commercial centre of the transaction applies (UBS AG v HSH Nordbank AG [2009]).
What is the effect of AA 96 s5(1)?	The Act applies only to agreements in writing.
What types of arbitration agreement are counted as being 'in writing' for the purposes of the AA 96?	AA 96 s5(2) - Agreements made in writing, whether or not signed by parties. This includes agreement by reference to terms in writing (s5(3)). - agreements made by the exchange of communications in writing. - agreements evidenced in writing - by one party or by a third party with the authority of the parties to the agreement (s5(4)). - references to writing include recording by any means (s5(6)).
Can there be an arbitration agreement without consensus if documents are exchanged containing an arbitration clause?	No
Are oral agreements to refer a matter to arbitration effective?	Yes (AA 96 s81 (1)(b))
How are oral agreements to refer a matter to arbitration governed?	By the common law
What is the range of disputes to be covered by an arbitration agreement?	That intended by the parties (a matter of contractual construction).
May parties refer disputes based on tort law to arbitration?	Yes
May parties refer disputes based on the law of unjust enrichment to arbitration?	Yes
What issues are arbitrators obliged to make decisions on?	All the central issues of the dispute, including all matters that are critical to overall decision and such subsidiary issues which must be decided to reach those central issues.
Can parties agree to refer all disputes arising out of a substantive contract (whatever the cause of action) to arbitration?	Yes
Can parties agree that only certain types of dispute will be referred to arbitration?	Yes
Are arbitration clauses interpreted narrowly and technically or broadly and inclusively?	Broadly and inclusively
When deciding how the scope of an arbitration clause is to be construed, what is the assumption the court should start with?	That the parties, as rational businessmen, are likely to have intended that any dispute arising out of their relationship should be decided by the same tribunal (Fili Shipping).
Can widely worded clauses cover causes of action in trust?	Yes
In Hillcrest Homes, was a misrep claim covered by a clause covering "any dispute or difference of any kind whatsoever"?	No. It did not arise "under the contract".
Can registered companies enter into arbitration agreements?	Yes (CA 06 s31)
Is lack of capacity a reason for not recognising an arbitration agreement when a party seeks to enforce it in court?	Yes (AA 96 s103(2)(a) and NY Convention 58)
Where a clause says that a dispute may be referred to arbitration "at the request" of a party, is this a condition precedent?	Yes
What is a Scott v Avery clause?	a clause providing that court proceedings shall not be brought until after an arbitration award has been made. It can be pleaded as a defence to a claim.
What happens if a tribunal fails to reach a decision on a central issue in the dispute?	The award may be challenged in court, as there is a serious irregularity for the purposes of the AA 96 s68 (Ascot Commodities v Olam [2002]).
Does a Scott v Avery clause prevent a party applying for an injunction to enforce the arbitration agreement?	No
Does a Scott v Avery clause prevent a party from seeking a freezing injunction in support of arbitral proceedings?	Yes (B v S [2011])
Must the arbitral tribunal always apply the appropriate law?	No. The parties can agree that the tribunal can apply some other system of rules or principles.
Must parties comply without delay with any orders made by the tribunal?	Yes. (AA 96 s40(2)).
What are the general duties of the arbitral tribunal?	AA 96 s33(1): (a) to act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting its case and dealing with that of its opponent; and (b) to adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, with a view to providing a fair means for the resolution of the matters falling to be determined.
Must the arbitral tribunal follow the rules of natural justice?	Yes
Do arbitrators have to give parties an opportunity to deal with factors that they intend to take into account?	Yes
Are arbitrators obliged to follow strict court procedures such as allowing the claimant the last word?	No
Can arbitrators adopt an inquisitorial system?	Yes (subject to the agreement of the parties).
Can arbitrators make decisions on matters arising after their appointments?	In some circumstances, depending on the terms of the appointment of the arbitrators (Rederij Lalemant v Transportes Generales Navigacion SA [1986] - demurrage at both port of loading (pre-appointment) and port of discharge (post-appointment) could be decided).
What are the 9 requirements for an effective reference to arbitration?	1. DISPUTE: There must be a dispute or difference. 2. ARBITRABLE: The dispute must be 'arbitrable'. 3. AGREEMENT: There must be an agreement to arbitrate. 4. WRITING: For the AA 96 to apply, the agreement to arbitrate must be in writing. 5. NATURE: The nature of the dispute must come within the terms of the arbitration agreement. 6. CAPACITY: The parties must have the capacity to enter into the arbitration agreement. 7. CONDITIONS: Any condition precedent to arbitration must be complied with. 8. TRIBUNAL: Parties must find an arbitral tribunal willing to act and decide the dispute. 9. PARTICULAR reference: The dispute must come within the terms of the particular reference to arbitration.	Duh! Arbitration Agreements Will Never Cover Claims That're Public
How does AA 96 s6(1) define an arbitration agreement?	One to submit present or future disputes (whether they are contractual or not) to arbitration.
What does s82 of the AA 96 include in the definition of 'dispute'?	Any difference
What does sch 1 of the AA 96 contain?	Mandatory provisions
What are the four ways in which parties may agree to depart from the non-mandatory provisions of the AA 96?	1. Before the dispute arises, where the contrary provisions will be found in the detailed wording of the arbitration agreement. 2. Where the arbitration clause on the underlying contract adopts the rules of an arbitral institution (s4(3)). 3. After a dispute has arisen where there is no pre-existing arbitration agreement, by subsequent written agreement to refer the matter to arbitration. 4. During the course of the arbitration (see s34).
What does s 34 of the AA 96 say?	All procedural and evidential matters are for the tribunal to decide but subject to the right of the parties to agree any matter
Are there any exceptions to the rule that arbitrations are based on agreement?	Yes. Certain types of dispute must be referred to arbitration under statute (AA 96 ss94-98). These include disputes in some contexts in landlord and tenant and company law.
Where there is a statutory arbitration, how is the relevant legislation treated for the proposes of the AA 96?	As if it were an arbitration agreement.
Can arbitrations be used in consumer disputes?	Yes, but there are restrictions which can be found in ss 89-91.
What happens in med-arb if an agreement cannot be reached by mediation?	The dispute is then arbitrated, either with the person appointed as mediator becoming the arbitrator, or with a different person as arbitrator.
What are some problems with med-arb?	- if the parties first refer the matter to mediation, and this is successful, the settlement will not be enforceable under the AA 96 or NY convention 58. Parties can get round this by starting with a formal reference to arbitration. - there are ethical problems with the mediator changing roles. - information disclosed in confidence in the mediation may influence the arbitration, which may mean parties are more reticent in mediation.
What are the two main reasons for which a court might intervene in an arbitration?	- in order to give support to the arbitral proceedings. - in order to put aside any serious injustice.
What are some advantages of an institutional arbitration?	- the institution may provide a range of support services, such as machinery for appointing arbitrators, arranging facilities for hearings, support in drawing up enforceable awards &c. - some institutions have an internal appeal process.
What is an ad hoc arbitration agreement?	An agreement by which the parties have agreed to arbitrate and not to use one of the arbitral institutions for the administration of the arbitration.
Can the parties in an ad hoc arbitration use an institution as an appointing authority?	Yes
Can the parties in an ad hoc arbitration adopt the rules from an arbitral institution?	Yes
Where there is a statutory arbitration, how is the relevant legislation treated for the purposes of the AA 96?	As if it were an arbitration agreement.
What are some disadvantages of an ad hoc arbitration?	If one party becomes obstructive, arbitrators have limited powers to force the parties into making progress in preparing the case.
In a non-binding arbitration, is a final award made?	No
Is the arbitrator's decision in a non-binding arbitration usually admissible in subsequent litigation or binding arbitration?	No, usually via clauses in the agreement for non-binding arbitration.
What is the important difference with arbitrations under the IFLA scheme?	The jurisdiction of the court cannot be ousted.
How do the family courts treat IFLA awards?	- In the absence of some very compelling countervailing factor, the award should be determinative of the order made by the court (S v S [2014]). - there is a streamlined procedure for approving consent orders based on an IFLA award.
In dispute resolution clauses providing for more than two tiers of ADR, is each tier a condition precedent to proceeding to the next?	It's a matter of construction
How have the courts generally dealt with arguments that arbitration clauses infringe Art 6 ECHR?	Arbitration has generally been held to be Art 6 compliant.
Can arbitrators make final awards for injunctive relief?	Yes (AA 96 s48(5))
Can arbitrators enforce their awards by committal?	No
Can arbitrators grant orders equivalent to search orders and freezing injunctions?	No
Is it generally thought that it is easier to overturn an arbitral award or a judgment of a court?	A judgment of a court
Is it easier to enforce an arbitral award or a court judgment in international disputes?	An arbitral award (through the NY convention 58)
Is it easier to enforce an arbitral award or a court judgment in domestic disputes?	A court judgment (as there is no need to register the award as a judgment).
Is it cheaper to arbitrate or go to court?	It depends...
What are some disadvantages of having parties appoint their own tribunal?	- obstructive parties can cause delays and it may be necessary to go to court to secure the appointment of arbitrators. - it is difficult to find individuals better qualified than high court judges, who are provided 'free' in litigation. - arbitrators charge fees at commercial rates which can be expensive, particularly where there are three arbitrators.
Is arbitration often less formal than litigation?	Yes
Why might businesses wish to refer disputes involving sensitive information to arbitration?	Privacy
Is it possible to arbitrate when there are three or more parties?	Yes, but there are difficulties.
What are some difficulties of arbitrating disputes involving three or more parties?	- agreeing rules, especially where substantive contracts have inconsistent arbitration clauses. - arbitrators cannot join parties unless express provision is made for this or consolidate two or more arbitrations.
Can arbitrators join additional parties to an arbitration or consolidate two or more arbitrations?	Only if express provision is made for this.
Can arbitrators compel disclosure from a third party/non-party?	No
Are the powers of arbitrators to impose sanctions on non-compliant parties equivalent to those of judges?	No, they are relatively weak.
Can arbitrators grant interim injunctions?	Not unless the parties agree to confer such a power, and arbitrators can't enforce their orders by committal.
By agreeing to arbitrate do parties effectively waive their rights to a trial in the courts for the purposes of Art 6 ECHR?	Yes.