{"id":4347,"date":"2018-09-24T10:23:12","date_gmt":"2018-09-24T10:23:12","guid":{"rendered":"https:\/\/legalblog.ie\/arbitration-proceedings\/"},"modified":"2018-09-24T10:23:12","modified_gmt":"2018-09-24T10:23:12","slug":"arbitration-proceedings","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/arbitration-proceedings\/","title":{"rendered":"Arbitration Proceedings"},"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-proceedings\/#Commencement_of_Arbitration\" title=\"Commencement of Arbitration\">Commencement of Arbitration<\/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-proceedings\/#Appointment_of_Arbitrator\" title=\"Appointment of Arbitrator\">Appointment of Arbitrator<\/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-proceedings\/#The_Arbitrator\" title=\"The Arbitrator\">The Arbitrator<\/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-proceedings\/#Arbitration_Procedures\" title=\"Arbitration Procedures\">Arbitration Procedures<\/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-proceedings\/#Preliminary_Hearing\" title=\"Preliminary Hearing\">Preliminary Hearing<\/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-proceedings\/#The_Parties_Case\" title=\"The Parties\u2019 Case\">The Parties\u2019 Case<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Commencement_of_Arbitration\"><\/span>Commencement of Arbitration<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Arbitration must be commenced within the time limits for commencement of litigation.\u00a0 Generally, a breach of contract claim must be commenced within six years of the date of the breach.\u00a0 See the chapter on the Statute of Limitations. \u00a0Sometimes, shorter time limits are provided by the contract concerned. These time limits will generally be upheld by the courts in commercial contracts, but they be will be interpreted against the interests of the person who relies on them. Such time limits may not be upheld in consumer cases, where they may be deemed an unfair contract term.<\/p>\n<p>Arbitration is usually commenced by a request to the other party, to submit to arbitration. The request must be communicated, in order to be effective. The proceedings are deemed commenced on the date so specified in the contract. Where no such date is identified, the date of the written communication requesting that the dispute be referred to arbitration is the commencement date.<\/p>\n<p>Standard form contracts commonly specify how arbitration proceedings are to commence. The particular requirements of the contract for initiation of proceedings should be followed.\u00a0 If nothing is specified, clear notice of reference to arbitration, details of the parties, details of the claim and particulars of the relief sought should be communicated.\u00a0 The notice should require the other party to appoint or, more commonly to concur an appointment of the arbitrator. The substance of the notice and request is important, and no particular form is required unless the contract otherwise provides.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Appointment_of_Arbitrator\"><\/span>Appointment of Arbitrator<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The parties are free to decide the arbitrator or the manner of his appointment.\u00a0 An application may be made to the High Court to make the appointment if the appointment mechanism has not been provided or cannot be agreed.\u00a0 Commonly, one party gives the other a list of potential arbitrators of which the other selects one. \u00a0Where an arbitrator dies, ceases to act, refuses to act the High Court can appoint a substitute.<\/p>\n<p>Arbitration clauses as included or incorporated in standard form contracts usually provide procedures for the appointment and replacement of arbitrators. \u00a0Often in the event of disagreement, the arbitrator is appointed by a third party in the appropriate field e.g. in building contracts, by the President of the Royals Society of Chartered Surveyors Irish Branch).<\/p>\n<h3><span class=\"ez-toc-section\" id=\"The_Arbitrator\"><\/span>The Arbitrator<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A single arbitrator is usually appointed. \u00a0There may be provision for the appointment of several arbitrators, who sit together and who may act by a majority. An arbitrator does not need to be qualified as such.\u00a0 However, it is desirable that the arbitrator has knowledge and expertise and experience in the relevant area and that he is experienced in arbitration proceedings.<\/p>\n<p>The arbitrator\\&#8217;s appointment becomes effective on his acceptance.\u00a0 He need not accept the appointment. The arbitrator must be paid for his service.\u00a0 This is unlike position with civil Judges, who are paid by the State. The arbitrator will usually require agreement on his fees at the outset. He may require an initial brief fee together with an hourly rate, \u00a0costs and expenses.\u00a0 He may require fees to be paid on a rolling basis.\u00a0 An arbitrator\\&#8217;s costs may be taxed on the High Court scale or the Circuit Court scale.<\/p>\n<p>The arbitrator must have no interest in the matter.\u00a0 He must be impartial and fair. \u00a0He must disclose any circumstances which would give rise to any justifiable doubt regarding his impartiality or independence.\u00a0 It may be possible for one party to challenge the arbitrator\u2019s appointment on the basis of qualifications, independence, impartiality or failure to act.\u00a0 The challenge must firstly be made to the arbitrator himself.\u00a0 If this is rejected, an Application can be made to the High Court.<\/p>\n<p>Generally, the Application must be made within 15 days of the party becoming aware of the circumstances of the grounds of challenge. The terms of the agreement may provide grounds upon which an arbitrator may be challenged. Where the potential ground of challenge is disclosed and not challenged in time, the right to do so is lost. .<\/p>\n<p>Arbitrators are generally immune from personal liability in the performance of their duties. They cannot be sued for steps taken in the exercise of their functions. This immunity is similar to that enjoyed by Judges. There have been proposal s to modify this immunity.<\/p>\n<p>The arbitrator should ensure that his communications with the parties are open and visible to both sides.\u00a0 One-sided contact may give the impression of bias. \u00a0Communications with the arbitrator must be shown to the other side.\u00a0 Reports relied on by the arbitrator, must be communicated to both sides.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Arbitration_Procedures\"><\/span>Arbitration Procedures<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The parties are largely free to set out the procedure for arbitration. This may be provided in the underlying contract entered before the dispute arose, which contains the arbitration clause. It may be agreed after the dispute has arisen. Various bodies provide standard rules, which may be incorporated by being referred to.\u00a0 The arbitrator must abide by the rules which the parties have agreed to.<\/p>\n<p>If the arbitration procedures have not been agreed, the arbitrator may determine the relevant procedure. \u00a0It is essential, however, that the arbitrator follows basic rules of justice.\u00a0 The parties must be treated equally.\u00a0 Each must be given an opportunity to present his case.\u00a0 The arbitrator must determine the dispute in accordance with law, the terms of the contract, the facts and the customs of the trade. \u00a0He cannot simply decide on the basis of his own sense of fairness or common sense.<\/p>\n<p>The parties usually exchange statements of their claim and a defence within a period. They should set the facts alleged and denied and the consequent relief and remedies sought.\u00a0 The arbitrator decides whether or not to hold an oral hearing.\u00a0 The arbitrator may be entitled to appoint experts in relation to the determination of particular issues.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Preliminary_Hearing\"><\/span>Preliminary Hearing<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The arbitrator usually arranges a preliminary meeting to deal with procedural issues, at an early date.\u00a0 This is similar to the case management type conferences found in some legal proceedings. At the preliminary meeting, he will review the terms of the contract and consider the dispute in hand. He will deal with the likely course of the arbitration. \u00a0He may also consider issues regarding his fees and terms of appointment.<\/p>\n<p>The preliminary meeting will generally specify a timetable for the exchange of the claim and the defence plus any reply or reply to defence.\u00a0 The arbitrator may order an inspection of documents. The arbitrator decides whether an oral hearing should be held. \u00a0Some disputes may relate only to the interpretation of documents in which event an oral hearing may not be necessary.<\/p>\n<p>If parties are to be required to give more details of their claim and defence, this may be specified. \u00a0A timetable for the various steps may be set or agreed.\u00a0 If discovery is required, the details of how it will be ordered are provided for. The time, nature and venue of the hearing will be determined. Witness statements may be required, to be exchanged beforehand.<\/p>\n<p>The modern trend is that witness statements are exchanged and advanced.\u00a0 This reflects the England and Wales case management system. As with the English case management rules, the experts may be limited or they may be directed to agree to meet and agree on matters insofar as possible.\u00a0 They will then give details of the common grounds or grounds of the dispute between them.<\/p>\n<p>The arrangements regarding experts will be discussed.\u00a0 Limitations may be imposed in relation to the number of witnesses.\u00a0 Considerations relating to expert witnesses will be considered.\u00a0 There may be a requirement that the witness statements of experts be exchanged. \u00a0The arbitrator himself may appoint an expert. A site visit may be important in some cases.\u00a0 It should be done either alone or in the company of both sides to avoid any question of bias.<\/p>\n<p>The arbitrator will make orders\/directions after the meeting.\u00a0 These will set out the procedural course of the dispute.\u00a0 The cost will usually be borne by the party who will most ultimately pay costs.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"The_Parties_Case\"><\/span>The Parties\u2019 Case<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Each party must set out the facts which support his claim for the reliefs and orders sought. \u00a0The respondent must set out the particular facts if any which constitute his defence. Each party may submit documents which he claims to be relevant. As with Court proceedings, matters which are not pleaded or set out may not be raised at the hearing.\u00a0 It is possible to apply to amend the claim, but the arbitrator has discretion as to whether to allow it. Costs may be awarded against the person seeking the amendment to compensate for the waste time.<\/p>\n<p>Ordinary pleadings (claim and defence) are referred to as Points of Claim and Points of Defence. In some more complex types of dispute, a more detailed statement of case is required. This may include not only points of claim and defence but also detailed summaries of evidence.\u00a0 Statements of the case are more complex up front, but reduce the time taken at the hearing.<em>\u00a0<\/em><\/p>\n<p>The arbitrator may give an award which would be equivalent to do a\u00a0 decision or judgment.\u00a0 The reasons may not necessarily be required.\u00a0 The 2010 Act require reasons to be given in the award unless the parties otherwise agree<em>.<\/em><\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-4347\" data-postid=\"4347\" class=\"themify_builder_content themify_builder_content-4347 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Commencement of Arbitration Arbitration must be commenced within the time limits for commencement of litigation.\u00a0 Generally, a breach of contract claim must be commenced within six years of the date of the breach.\u00a0 See the chapter on the Statute of Limitations. \u00a0Sometimes, shorter time limits are provided by the contract concerned. These time limits will [&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\/4347"}],"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=4347"}],"version-history":[{"count":0,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/4347\/revisions"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=4347"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=4347"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=4347"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}