{"id":4326,"date":"2018-09-24T10:00:59","date_gmt":"2018-09-24T10:00:59","guid":{"rendered":"https:\/\/legalblog.ie\/arbitration-agreements\/"},"modified":"2018-09-24T10:00:59","modified_gmt":"2018-09-24T10:00:59","slug":"arbitration-agreements","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/arbitration-agreements\/","title":{"rendered":"Arbitration Agreements"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/arbitration-agreements\/#Arbitration_Agreements\" title=\"Arbitration Agreements\">Arbitration Agreements<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/arbitration-agreements\/#Features_of_Arbitration_I\" title=\"Features of Arbitration I\">Features of Arbitration I<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/arbitration-agreements\/#Features_of_Arbitration_II\" title=\"Features of Arbitration II\">Features of Arbitration II<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/arbitration-agreements\/#Limitations_and_Time_Limits\" title=\"Limitations and Time Limits\">Limitations and Time Limits<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/arbitration-agreements\/#Parties_to_Arbitration_Agreement\" title=\"Parties to Arbitration Agreement\">Parties to Arbitration Agreement<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/arbitration-agreements\/#Appointment\" title=\"Appointment\">Appointment<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/arbitration-agreements\/#Appointment_Issues\" title=\"Appointment Issues\">Appointment Issues<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/arbitration-agreements\/#Powers\" title=\"Powers\">Powers<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/arbitration-agreements\/#Scope_of_Appointment\" title=\"Scope of Appointment\">Scope of Appointment<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/arbitration-agreements\/#Challenging\" title=\"Challenging\">Challenging<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/arbitration-agreements\/#Termination_of_Appointment\" title=\"Termination of Appointment\">Termination of Appointment<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Arbitration_Agreements\"><\/span>Arbitration Agreements<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>At common law, an agreement to submit a dispute to arbitration might be written or oral.\u00a0 Prior to arbitration legislation, arbitration agreements were referred to as submissions.\u00a0 At common law, the submission could be oral.\u00a0 A submission required an existing dispute and nomination of the arbitrator.\u00a0 The authority of the arbitrator might be revoked but this may give rise to a right to damage at common law.\u00a0 The revocation must require to take place before the publication of the award.<\/p>\n<p>Written arbitration agreements are labelled \u201carbitration agreements\u201d by modern legislation. Where it is provided that in the event of disagreement between the parties, the dispute is to be referred to the decision of a third person, that person is termed an arbitrator.\u00a0 The decision of an arbitrator is termed an award.<\/p>\n<p>Under arbitration legislation, an agreements to submit a dispute to arbitration must be in writing.\u00a0 It need not be signed or executed as a deed. It may be recorded on paper or in an electronic medium. It does not require to be signed by the parties. It may be part of the main contract or in a separate agreement. It may be entered before or after a dispute has arisen.<\/p>\n<p>Arbitration generally arises from the express agreement of the parties. An arbitration agreement may be incorporated expressly or by implication by reference to another document. The details of the arbitration process may, for example, be incorporated in the standard terms and conditions of a trade body. Arbitration may arise from a statutory provision or under the rules of a club, society or other body which has contractual effect.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Features_of_Arbitration_I\"><\/span>Features of Arbitration I<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Arbitrators must hear disputes in a judicial manner.\u00a0 This is in contrast to a determination by an expert or by agreement to be bound by opinion of counsel.\u00a0 Similarly, evaluations and appraisal are not arbitrations.\u00a0 They are not based exclusively on evidence submitted but on substantially on the expertise of the determining party.<\/p>\n<p>Where under a building or engineering contract, provision is made for a certificate of an architect or engineer to be final, this does not constitute arbitration.\u00a0 References of disputes in sporting matters to stewards, racing stewards, referees in the Jockey Club are not arbitrations.<\/p>\n<p>An arbitration involves the reference of a matter in actual dispute.\u00a0 It is enough that there are matters in dispute.\u00a0 If a matter is referred to a valuer, there is likely to be a dispute about the valuation. However, \u00a0because the valuer does not act judicially, there is no arbitration.\u00a0 It must be clear that a judicial type hearing is intended, not merely that the referee or appointed person should determine the matter without hearing evidence, taking into account his own skill, knowledge and experience.<\/p>\n<p>An agreement to refer a matter to a judge is not an arbitration.\u00a0 The judge may sit as an arbitrator in an arbitration agreement other than as a judge.\u00a0 Reference to a foreign court may be treated as an arbitration for the purpose of giving jurisdiction. An agreement that the decision should be unappealable is not an arbitration agreement.\u00a0 The decision is a judgment not an award.\u00a0 The judge is not an arbitrator.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Features_of_Arbitration_II\"><\/span>Features of Arbitration II<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>If there is no dispute on the matter, there can be no arbitration. \u00a0Where a person agrees that he is liable for a sum, there is no case to prove. The dispute must be of a type which is capable of being tried in a civil court.\u00a0 Such a dispute is generally one of fact or law.\u00a0 It has a characteristic that it is capable of being settled. The dispute must not be one concerning a public or criminal matter.\u00a0 This is not capable of lawful settlement between private parties.\u00a0 It may not arise out of an unlawful matter, such as a gaming contract.<\/p>\n<p>Matters which refer to the status of persons may not be the subject of arbitration.\u00a0 For example, a petition for divorce may not be arbitrated.\u00a0 An arbitrator may not make a determination or give a judgment \u201cin rem\u201d.\u00a0 This is the judgment binding on third parties in relation to the status of a thing. See the separate section on judgments and orders. In contrast to a judgment \u201cin personam\u201d, which is enforceable against the relevant party, a judgment in \u201crem\u201d is binding on all persons.<\/p>\n<p>It is possible for parties to litigation to agree to refer matters in dispute to an arbitrator.\u00a0 The litigants may agree a reference and the court may agree that it be embodied in an order of the court.\u00a0 The court has inherent power to make a reference to referees and assessors.<\/p>\n<p>Arbitrators are not liable for anything done or omitted in the discharge of their function. as arbitrator, unless it is shown to be undertaken in bad faith.\u00a0 Arbitral institutions generally have similarly immunities.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Limitations_and_Time_Limits\"><\/span>Limitations and Time Limits<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Statute of Limitations applies to civil disputes referred to arbitration, in the same way as it applies to civil actions.\u00a0 A reference to arbitration is equivalent to commencement of proceedings and accordingly, it may be barred notwithstanding a provision in the arbitration agreement that no cause of action is to accrue until an award is made.\u00a0 The claim or cause is deemed to have \u201caccrued\u201d at the date on which it would have accrued, but for the arbitration agreement.<\/p>\n<p>Parties may contract for a shorter limitation period.\u00a0 Questions of unfair contract terms may arise if the provision is unduly short in a consumer contract.<\/p>\n<p>Arbitration commences for the purpose of the Statute of Limitations when one party gives notice to the other party requesting or requiring him to appoint an arbitrator or agree to the appointment of an arbitrator.\u00a0 Where the arbitration agreement provides that reference is to be made to a designated person, the arbitration is commenced when the person is required to submit the dispute to the nominated person. The notice may be served in a manner equivalent to that provided for commencement of civil proceedings.<\/p>\n<p><em>\u00a0<\/em>Where the courts\\&#8217; order that an arbitration award be set aside, or that the arbitration agreement shall cease to have effect, it may order that the period between the commencement of the arbitration and the date of the order is excluded in counting time under the Statute of Limitations, or any other equivalent limitation period.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Parties_to_Arbitration_Agreement\"><\/span>Parties to Arbitration Agreement<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A party who has the legal capacity to enter a contract may enter an arbitration agreement.\u00a0 The agreement to submit to arbitration is binding on the parties to the arbitration agreement.\u00a0 Where the agreement is capable of being assigned, it is also binding on the assignees.\u00a0 An arbitration agreement is binding on the personal representatives of the deceased and can be enforced by or against them.\u00a0 A limited category of actions are purely personal actions and cease on death.<\/p>\n<p>An agreement to arbitrate is binding on the Official Assignee and a trustee in bankruptcy.\u00a0 However, they may be able to adopt or repudiate the contract on insolvency law.<\/p>\n<p>Parties may include what they wish in the arbitration agreement subject to the general rules in relation to public policy and lawfulness.\u00a0 It is generally implied that the arbitrator is to determine the dispute in accordance with the ordinary law.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Appointment\"><\/span>Appointment<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Parties have considerable latitude in determining how the arbitration tribunal or arbitrators are constituted and ascertained.\u00a0 They may determine the number of arbitrators and whether there should be a chairman or umpire. If they do not determine it, the default rules under the Arbitration Act apply.<\/p>\n<p>The arbitrators may be actually named. More commonly, provision is made for their appointment.\u00a0 Arbitrators are commonly appointed by the Chairperson or President of certain professional organisations. The Arbitration Act seeks to make provision where there is default in operation of the arbitration machinery, including, the provisions as to appointment.<\/p>\n<p>When a person accepts appointment as an arbitrator, he enters into a contract with the parties in the terms agreed.\u00a0 It will set out the basis on which the arbitration is to take place, the dispute(s) the subject of adjudication, the terms on which the adjudicator is prepared to act and an agreement to conduct the arbitration without undue delay.\u00a0 Arbitrators are contractually bound to complete their appointment.<\/p>\n<p>There are no requirements for any particular qualification, in order to act as an arbitrator.\u00a0 Commonly, arbitrators have specialist qualifications in the relevant industry.\u00a0 In the case of certain classes of international arbitration, certain professional qualifications and membership of certain organisations may be required.<\/p>\n<p>Arbitrators must be impartial.\u00a0 They may be removed if they are or appear to be impartial or compromised. Actual or perceived bias or the risk of bias may be sufficient. Some arbitration rules including the UNCITRAL Model Law specifically require that arbitrators be independent.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Appointment_Issues\"><\/span>Appointment Issues<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The general presumption is that in the absence of an indication to the contrary, that the matter is to be referred to the decision of a single arbitrator.\u00a0 Where an arbitration agreement provides for reference to more than one arbitrator, one is generally to be appointed by each party, unless the contrary is clearly expressed. \u00a0If either refuses to act, is incapable of acting or dies, the party who has appointed him, may appoint a substitute to act in his place.<\/p>\n<p>If where more than one arbitrator is required, one party fails to appoint an arbitrator after the other person has appointed an arbitrator, the other party may serve a notice of default and may appoint his appointee to act as sole arbitrator. The court may set aside an appointment made under the above provision.<\/p>\n<p>Where the reference is two arbitrators, it is implied unless the contrary is shown, that the two arbitrators are to appoint a chairman or umpire after they have been appointed themselves.\u00a0 Arbitration agreements are deemed to provide where appropriate, in the absence of an indication to the contrary, that if the arbitrators can\u2019t agree on an award, that the umpire is to enter under reference in place of the arbitrators.<\/p>\n<p>Where an agreement provides for three arbitrators, one to be appointed by each and the third to be appointed by the two appointees, the agreement is deemed to provide for the appointment of an umpire and not for the appointment of a third arbitrator.\u00a0 The umpire is to be appointed by the appointed arbitrators.<\/p>\n<p>Where the arbitration agreement provides that there should be a reference to three arbitrators, the award of any two of the arbitrators is binding, in the absence of an agreement to the contrary.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Powers\"><\/span>Powers<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Provisions regarding the examination of witnesses on oath or affirmation are implied in an arbitration agreement unless the contrary is provided.\u00a0 They are deemed to contain a provision that the arbitrator shall have the same power as the High Court to order specific performance of a contract, other than a contract relating to real property.\u00a0 Arbitration agreements are presumed to contain a provision that the award, to be made by the arbitrator, is to be final and binding on the parties and persons who claim through them.<\/p>\n<p>It is implied that an arbitrator has the power to make an interim award.\u00a0 It is implied that the arbitrator may make an order in relation to costs.\u00a0 He may direct who is to pay the costs.\u00a0 He may tax and settle the amount of costs.\u00a0 The costs may be \u201ctaxed\u201d in the High Court unless otherwise directed under the award.\u00a0 A provision in an arbitration agreement, other than an agreement to submit a dispute which has already arisen, that the parties shall pay their own costs in relation to the reference, in any event, \u00a0is deemed void.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Scope_of_Appointment\"><\/span>Scope of Appointment<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Where the agreement is to refer all matters in difference or in dispute to arbitration, the reference is to include disputes and claims in different capacities and disputes of law and fact.\u00a0 Where the agreement is between more than two parties, differences arising between the parties jointly and severally and jointly or severally may be determined. However, a provision for reference of all disputes in a contract with an arbitration clause may be impliedly limited by the nature of the of the dispute that arises under it.<\/p>\n<p>When an agreement contains a foreign element, the essential validity and interpretation is governed by the proper law of the contract.\u00a0 General conflicts of law provisions apply.<\/p>\n<p>The authority of the arbitrator is presumed to be irrevocable, except with the leave of the High Court.\u00a0 An application for leave is made to the Master of the High Court. The court may exercise its jurisdiction to revoke an appointment of an arbitrator or an umpire on the basis of misconduct, lack of partiality and bias. The court may instead appoint a new arbitrator.The courts will not readily dismiss an arbitrator.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Challenging\"><\/span>Challenging<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Where it is apprehended that the arbitrator may make a mistake, an application may be made to the arbitrator to state a case.\u00a0 The fact that a contract is frustrated or repudiated does not prevent the operation of the arbitration clause to refer disputes arising out of it to arbitration.\u00a0 Parties may, for example, refer to arbitration the very question of whether the agreement has been discharged or frustrated.<\/p>\n<p>Where a party repudiates a contract on the basis of a claim that it is void or voidable, he may be precluded from relying on the arbitration clause.\u00a0 However, if he simply alleges repudiation or a breach by the other party, he may rely on the clause, even if he has accepted the repudiation or breach. The arbitration clause remains binding on both parties.<\/p>\n<p>The court has inherent power to restrain arbitration proceedings by injunction directed to the arbitrator.\u00a0 This jurisdiction will be exercised sparingly only.\u00a0 There is power to terminate an arbitration agreement where a party has been guilty of fraud, where the tribunal is removed by an order of the court or where the authority is revoked by the leave of the court.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Termination_of_Appointment\"><\/span>Termination of Appointment<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The parties may agree on the circumstances in which an arbitrator may be removed or may resign.\u00a0 Generally, in the absence of agreement, the arbitrator\\&#8217;s authority may not be revoked without the consent of each party to the dispute. An arbitral institution may have powers in this regard.\u00a0 Early termination of the appointment may be a breach of contract for which the relevant party may be entitled to damages.<\/p>\n<p>Institutional rules which may apply may allow removal of the arbitrator.\u00a0 If they are exhausted, it may be possible to apply to the court to remove the arbitrator.<\/p>\n<p>The resignation of an arbitrator may constitute a breach of contract unless otherwise provided by the agreement. \u00a0An arbitrator may apply to the court for relief in some jurisdictions.<\/p>\n<p>Arbitrators agreement may determine how vacancies are to be filled.\u00a0 They will determine the status of the existing proceedings and deal with the effect of cessation of office. In the absence of agreement, the same procedures as apply to the initial appointment, apply to the appointment in the case of vacancies.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-4326\" data-postid=\"4326\" class=\"themify_builder_content themify_builder_content-4326 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Arbitration Agreements At common law, an agreement to submit a dispute to arbitration might be written or oral.\u00a0 Prior to arbitration legislation, arbitration agreements were referred to as submissions.\u00a0 At common law, the submission could be oral.\u00a0 A submission required an existing dispute and nomination of the arbitrator.\u00a0 The authority of the arbitrator might be [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[320],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4326"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=4326"}],"version-history":[{"count":0,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4326\/revisions"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=4326"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=4326"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=4326"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}