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A CONCISE GUIDE TO ARBITRATION IN DUBLIN

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A Concise Guide to Arbitration in Dublin

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A Concise Guide to Arbitration in Dublin

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Whileresolution.others

Foreword

can speak and write more eloquently than I about the virtues of Dublin as a venue and seat for international arbitrations, with its excellent facilities, skilled and experienced practitioners, common law legal system and friendly and welcoming people, I do want to make brief reference to the strong support which the Irish judiciary has traditionally given to arbitration, both domestic and international. That support can be seen in numerous judgments of the Irish courts under the Arbitration Act 2010. Irish judges have consistently commented on the importance of the parties’ freedom to agree to arbitration (or other methods of resolving their disputes) as well as on the finality of arbitration awards, the relatively restrictive grounds on which awards can be set aside or not recognised or enforced and on the extensive powers of the Irish courts to aid and assist the arbitration process generally, under the 2010 Act. A significant body of case law has developed in this area since the enactment of the 2010

It is my great pleasure to write this foreword to Arbitration Ireland’s Concise Guide to Arbitration in Dublin. I offer my strong encouragement to, and support for, Arbitration Ireland and all involved in the business of international arbitration in Ireland in their ongoing efforts to promote Dublin as a venue and seat for international arbitrations as well as the considerable skills and experience of Irish arbitrators and other practitioners and professionals in the field of international arbitration in Ireland.

The work of Arbitration Ireland and others in this area complements and dovetails nicely with the wider initiative to promote Ireland as a global centre for international dispute resolution which is supported by the Irish government and by the Irish judiciary as well as by both branches of the legal profession in Ireland and their representative professional bodies and other professionals involved in dispute

A Concise Guide to Arbitration in Dublin

Finally, I conclude by wishing Arbitration Ireland great success with this important publication and with its ongoing efforts, and those of others, to promote Dublin as a venue and seat for international arbitrations.

The Hon Mr Justice David Barniville President of the High Court of Ireland and Designated Arbitration Judge August 2022

Act. This has been greatly assisted by the provision in the legislation for a single judge of the High Court to hear and determine arbitration related cases.

Ireland strives to bring together interested bodies, firms and persons who practise in the field of international arbitration and combine their talents to drive forward Dublin amd Ireland as a venue of the highest calibre for both domestic and international disputes.

Membership of Arbitration Ireland is open to all nationalities and practitioners, irrespective of their level of experience. Its corporate and institutional members includes leading law firms and corporations, in addition to the professional bodies for barristers, solicitors and engineers. Individual members of the Association are internationally recognised practitioners with broad knowledge of arbitration and Arbitrationexpertise.

Arbitration Ireland is an organisation that promotes the awareness of Dublin as a venue and seat for international arbitration, and seeks to increase the profile of Irish arbitrators and practitioners amongst the wider international arbitration community.

Arbitration Ireland is a unique collaboration between major law firms, the Bar of Ireland, the Law Society of Ireland, Chambers Ireland, Chartered Institute of Arbitrators (Ireland) and Engineers Ireland, as well as individual barristers, solicitors and other members of the professions. These organisations are represented on the Executive Committee of Arbitration Ireland which manages the Association.

About Arbitration Ireland

The Association hosts regular seminars, networking meetings, discussions and conferences, both in Ireland and abroad, to assist in developing Ireland as a centre of excellence in arbitration. Arbitration Ireland has chapters located in London and New York, which are managed by local committees.

A Concise Guide to Arbitration in Dublin

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Arbitration Ireland 3 September 2022

More information about Arbitration Ireland can be found at arbitrationireland.com.

Chapter

9 The Enforcement of Arbitral Awards in Ireland .................................................... 45

Chapter

Contents Foreword ................................................................................................................. v About Arbitration Ireland vii Contents ix About the Authors ................................................................................................... xi PART I INTRODUCTION .............................................................................................. 1 PART II

1 The Arbitration Act ................................................................................................ 3 Chapter 2 The Arbitration Agreement..................................................................................... 5

3 The Arbitral Tribunal .............................................................................................. 9 Chapter 4 The Arbitral Proceedings 13 Chapter Evidence5............................................................................................................... 25 Chapter 6 The Award ............................................................................................................ 31 Chapter 7 Costs .................................................................................................................... 33 Chapter Challenges8 to an Award 37

Chapter Commercial Court Decisions

11 The

51 Chapter 12 Court

CONTRACT LAW ................................................................................. 75 PART IV PRACTICALITIES ............................................................................................. 83 PART V

1 .................................................................................................... 101

A Concise Guide to Arbitration in Dublin x Chapter Designated10 Arbitration Judge ............................................................................... 49

APPENDIX

2 MODEL CLAUSES 103

55 PART III

APPENDIX

IRISH

Michael Collins SC

Michael has extensive experience of international commercial arbitration, with appointments as arbitrator from the ICC, the LCIA and UNCITRAL. He is a Fellow of the International Academy of Trial Lawyers in the US, a member of the panel of arbitrators for the International Arbitration Centre in Kazakhstan and a former chair of the Bar Council of Ireland. Michael is currently Chairman of the Irish Sport Anti-Doping Disciplinary Panel, a member of the ICC national committee and Adjunct Professor at the Sutherland UCD Law School.

Klaus Reichert SC

Klaus Reichert is a barrister based in London at Brick Court Chambers. He commenced practice at the Bar of Ireland in 1992 and was later admitted to the Bar of England & Wales in 1996. For many years he practiced on the South Western Circuit in Ireland before becoming a Senior Counsel and Member of the Inner Bar of Ireland in 2010. His work now exclusively focusses on international arbitration, and he has undertaken cases across a wide spectrum of commercial and investorstate matters in most of the major arbitral venues.

About the Authors

Colm Ó hOisín SC

Colm has been in practice in Dublin at the Irish Bar since 1988 and became a Senior Counsel in 2005. He has a wide-ranging practice concentrated on commercial and public law litigation and on international arbitration. He has been appointed as arbitrator in international disputes under the rules of ICSID, LCIA, ICC, ICDR and DIAC. He was a member of the ICC International Court of Arbitration between 2015 and 2021 and is currently designated by Ireland to the ICSID Panel of Arbitrators.

Patrick Mair is a barrister in Dublin specialising in commercial litigation and arbitration. Prior to commencing practice in Ireland, Patrick worked in New York at Cravath, Swaine and Moore, and WilmerHale. He has appeared in numerous high profile commercial matters in Ireland and the United States. Patrick has substantial experience in the litigation and arbitration of disputes involving

Nathy Dunleavy BL

Sinead Drinan BL

Gillian Cahill is a Barrister-at-Law, called to the Bar in Ireland, as well as England and Wales. She joined Uría Menéndez in July 2017 as a Consultant and has more than 12 years’ experience in international arbitration (both investment and commercial). She is also an expert in EU law. Within Uría Menéndez, Gillian is part of the international arbitration team and works on arbitrations or cases related to common or international law. In addition, she forms part of the team that deals with questions of EU law and proceedings before the Court of Justice of the European Union.

Nathy Dunleavy is a barrister specialising in Commercial disputes, with extensive experience in litigation, mediation and arbitration. He also has an EU and Public law practice, which includes Competition and Public Procurement cases. A member of the Bars of New York and England and Wales, before coming to the Irish Bar, Nathy practised in the litigation group of Sullivan and Cromwell LLP.

A Concise Guide to Arbitration in Dublin

Sinéad is a barrister with a practice in commercial, banking and financial litigation. She regularly advises on cross-border disputes and enforcement of foreign awards. She is an ACIArb and an accredited mediator (CEDR). Sinéad is the former Chair of the Young Practitioners of Arbitration Ireland.

Gillian Cahill BL

Patrick Mair BL

Hayley O’Donnell BL

xii

Hayley is a barrister with a general practice. She has experience in domestic arbitrations and has previously worked with the International Centre for Dispute Resolution in New York. Hayley is an MCIArb and currently sits on the Arbitration Ireland Young Practitioners Committee.

securities law, complex contractual arrangements, tort law, intellectual property law, and many others. He has a bachelor’s degree in law from University College Dublin, a barrister-at-law degree from the Honourable Society of King’s Inns, and a master’s degree in law from New York University School of Law. As well as being called to the Bar of Ireland, Patrick is admitted to the New York Bar.

xiii

Barry Mansfield BL

Barry Mansfield is a barrister specialising in commercial law and in arbitration. He is also an adjunct assistant professor at Trinity College Dublin and is the author of ‘Arbitration in Ireland – Arbitration Act 2010 and Model Law: A Commentary, 2nd edn (Clarus Press 2018). He previously practised as an attorney in both New York and London with the US firm of Davis Polk and Wardwell LLP.

Úna Ní Chatháin BL

Hannah Godfrey is a barrister practising from the Law Library in Dublin. She specialises in EU, public and commercial law, with a particular focus on competition and regulatory law. She has an interest in cross-border disputes and has appeared as counsel in ICC arbitration proceedings.

Úna Ní Chatháin is a barrister at the Law Library, Dublin, with a general civil practice. She is experienced in arbitration and mediation, and teaches Alternative Dispute Resolution at the Honorable Society of King›s Inns.

Hannah Godfrey BL

About the Authors

Cian McGoldrick BL

Cian McGoldrick is a barrister practising at the Law Library in Dublin. Cian holds an undergraduate degree in law from Trinity College Dublin and a barrister-at-law degree from the Honorable Society of King’s Inns. Cian primarily practises in the fields of commercial, banking, property and insolvency law.

Alex Layden BL

Alex is a barrister specialising in international litigation and arbitration. He is also an Adjunct Assistant Professor at Trinity College Dublin teaching international law, adjunct faculty at the King’s Inns Dublin, and an external examiner with the Institute of Bankers, University

xiv

A Concise Guide to Arbitration in Dublin College Dublin. Alex holds degrees in law and international relations from University College Dublin, Trinity College Dublin and the University of Cambridge, and is admitted to practice law in Ireland, England and Wales, and the United Arab Emirates (DIFC & ADGM).

Arbitratingarbitrations.in

Part IntroductionI

There has been a strong history of arbitration being supported in Ireland with recognition of arbitration in the Arbitration Act 1954, the Arbitration Act 1980 and the Arbitration (International Commercial) Act 1998. The Arbitration Act 2010 repealed these Acts and now governs domestic and international arbitrations in Ireland. The Arbitration Act 2010 adopted the UNCITRAL Model Law (2006 version) on International Commercial Arbitration virtually unchanged into Irish law save for certain minor additions. The commencement of the Act reinforced judicial recognition of arbitration in Ireland and established Dublin as a familiar and reliable venue for international

Dublin offers a recognised legal framework along with a pool of experienced arbitrators and lawyers, top-class facilities, and all the conveniences one would expect of a modern, cosmopolitan city. Those who choose Dublin as the venue for their arbitration can rely on the familiar applicable law, the UNCITRAL Model Law, and requisite court facilitation of arbitration which the Model Law requires. As Ireland is a New York Convention signatory, parties can be assured that international arbitral awards are directly enforceable and awards rendered in Dublin have reciprocal recognition and enforcement in other States. Parties, their advisers and their arbitrators have the assurance and security of the highest standard recognisable in arbitration law.

In choosing Dublin as the seat of arbitration, parties have chosen a venue with a common law legal tradition similar to that of England and Wales, with common precedent, procedures and remedies. As the headquarters of a large number of international companies and industries are located in Dublin, the Irish legal services sector has developed into a sophisticated and commercially astute industry with

edition of Concise Guide to Arbitration in Dublin provides the essentials for anyone participating in an arbitration in Dublin, from the basis of the arbitration agreement, the appointment of arbitrators and the conduct of the arbitral process, to the making, challenging and enforcement of the award. This text includes a synopsis of decisions under the Arbitration Act 2010, a summary of the Commercial Court in Ireland and considers the role of Ireland’s designated arbitration judge in addition to general guidance on Irish contract law.

A Concise Guide to Arbitration in Dublin

Irish law solicitors and barristers providing world class legal services to domestic and international clients.

This guide provides practical information for individuals and lawyers visiting Dublin for an arbitration, including estimated costs of an arbitration in Dublin, entry into Ireland, travel and getting around, hearing venues, hotels and dining, and sightseeing.

We hope you find this Guide to be of use when you are next involved in an arbitration in Dublin.

Irish courts have long recognised that by agreeing to arbitrate parties have made a value judgment regarding the benefits of arbitration over litigation. The Irish courts are experienced and efficient in taking measures supportive of arbitration in Ireland. These measures include: (i) mandatory stays on court proceedings where an arbitration clause is not null and void, inoperative and incapable of being performed; and (ii) limited grounds for setting aside or refusing to enforce an Thisaward.first

The Arbitration Act

The 2010 Act governs both domestic and international arbitration. The only legislative distinction between international arbitration and domestic arbitration concerns a party’s ability to demand the taxation of the costs of an arbitration from the Irish courts, which is only applicable in the case of a domestic arbitration.

Section 9 of the Arbitration Act specifies that the court of competent jurisdiction for the exercise of all supervisory functions in respect of arbitral proceedings in Ireland is the High Court.

3 Part ChapterII 1

Arbitration in Ireland is governed by the Arbitration Act 2010 (hereinafter referred to as the ‘2010 Act’). The 2010 Act was passed on 8 March 2010 and commenced operation on 8 June 2010. The Arbitration Act applies to all arbitral proceedings commenced on or after 8 June 2010.

Section 6 of the Arbitration Act adopts the United Nations Commission on International Trade Law Model Law (hereinafter referred to as the ‘Model Law’), including its 2006 amendments, for all arbitral proceedings seated in Ireland.

Article 7 of the Model Law provides for two distinct definitions of the term ‘arbitration agreement’ that can be selected by a State adopting its provisions: option I, which requires an arbitration agreement to in writing, and option II, which does not. The 2010 Act has adopted option I, which means that an arbitration agreement must be in Thewriting.requirement

Agreements in commercial arbitration come in one of two varieties: firstly, submission agreements whereby an existing dispute is referred to arbitration; secondly, arbitration clauses which are contained in underlying contracts where it is agreed that any future disputes that may arise under the contract will be referred to arbitration. Neither the 2010 Act nor the Model Law make a distinction between submission agreements and arbitration clauses.

that an arbitration agreement ‘be in writing’ is liberally interpreted. An arbitration agreement will be deemed to be in writing where its content is recorded in any form, irrespective of whether it has been concluded orally, by conduct, or by other means. Similarly, an arbitration agreement will be deemed to be in writing where it is recorded by an electronic communication, where it is contained in an exchange of pleadings in arbitral proceedings, or where a written agreement to arbitrate is incorporated by reference into a contract. Irish jurisprudence has held that an arbitration agreement may be incorporated by reference into an underlying matrix contract, may exist based on the business dealings between the parties and on business realities and that a standard form contract may constitute a valid arbitration agreement.

The requirement for a written arbitration agreement

Chapter 2

The Arbitration Agreement

A Concise Guide to Arbitration in Dublin

Legal capacity to enter into an arbitration agreement

The position of non-signatories

Specific principles under which this might be possible include agency, implied consent, the ‘group of companies’ doctrine, estoppel, subrogation and legal succession or assignment. The key issue in determining whether an arbitration agreement may be enforced by or against a non-signatory generally depends on whether deemed consent to arbitration has been provided.

There is, however, an increasing modern trend for both tribunals and the courts to hold that arbitration agreements may capture more than their immediate signatories. The circumstances under which a non-signatory may be deemed to be a party to an arbitration agreement are not covered by the 2010 Act or the Model Law. The normal rules of Irish contract law, therefore, apply to determine whether a legal person, although a non-signatory, is to be properly regarded as a party to an arbitration agreement.

Whether or not a non-signatory to an arbitration agreement can be brought into arbitral proceedings is a complex legal question that will often turn on the facts of a particular case. In general, arbitral tribunals have no jurisdiction to adjudicate upon disputes which are not specifically covered by an arbitration agreement and nonsignatory parties usually cannot be bound to arbitration agreements which they did not sign, given that consent to the arbitral process is, more often than not, evidenced by signing the arbitration agreement.

Whether a party has legal capacity to enter into an arbitration agreement is not covered by the 2010 Act or the Model Law. The normal rules of contract law, therefore, apply to determine whether a party has capacity to enter into an arbitration agreement. Minors, intoxicated persons, and those suffering from mental incapacity do not typically have capacity to enter into a binding contract under Irish law.

In the decision of the High Court in P Elliot & Co Ltd (In Receivership & Liquidation) v FCC Elliot Construction Ltd [2012] IEHC 361 it was held that no valid arbitration agreement existed between the plaintiff and the defendant. However, the High Court also held, in principle,

A party who wishes to object to the jurisdiction of an arbitral tribunal must do so not later than the time of submission of its statement of defence in the arbitral proceedings. A failure to raise an objection before the arbitral tribunal prevents a party from making objection in subsequent enforcement proceedings.

“the question is not whether the party relying upon the arbitration clause itself agreed the clause, but rather, whether it has a sufficient connection, whether factually or by operation of law, with the party who agreed to the arbitration clause to invoke the clause and stay the proceedings in which it is a defendant”.

that a non-signatory could rely on an arbitration agreement where there is a sufficient connection between it and a signatory to such an agreement. In this regard, the High Court stated (at p 17) that:

The doctrine of ‘competence-competence’ is provided for at Article 16 of the Model Law. Although an arbitral tribunal has power to rule on its own jurisdiction, this power is neither final nor exclusive as the arbitral tribunal’s decision is subject to review by the High Court.

Article 16(3) of the Model Law provides that an arbitral tribunal may rule on its jurisdiction as either a preliminary question, or as part of

The doctrine of ‘competence-competence’ permits arbitral tribunals to consider and to rule on disputes concerning their own jurisdiction. The purpose of this doctrine is to permit arbitral proceedings to continue where one party alleges that an arbitral tribunal lacks jurisdiction over the dispute in question.

The concept of the separability of an arbitration agreement provides that where an arbitration agreement forms part of an underlying contract, it must be considered separate from the remainder of the contract and it will survive any termination of the contract. Article 16(1) of the Model Law provides for the separability of an arbitration agreement from an underlying contract and that a decision by an arbitral tribunal that the contract is null and void will not invalidate the arbitration agreement.

The doctrine of ‘competence-competence’

Separability of an arbitration agreement

Te Arbitration Agreement

an award on the merits. Where an arbitral tribunal decides that it has jurisdiction to determine the dispute as a preliminary question, a party may seek a review of this decision from the High Court within 30 days of having received notice of the ruling. Where an arbitral tribunal decision forms part of an award on the merits, a party may seek to set aside the award pursuant to Article 34 of the Model Law.

A Concise Guide to Arbitration in Dublin

There are no formal qualifications that an arbitrator must possess under Irish law. The parties are, however, free to agree that a prospective arbitrator must have certain qualifications such as a specific professional credential. Similarly, Article 11(1) of the Model Law provides that no person can be precluded from acting as an arbitrator because of his or her nationality, unless the parties agree otherwise. An arbitrator may be challenged where he or she does not possess the qualifications agreed on by the parties.

Number of arbitrators

Procedure for appointment

The parties are free to agree on the procedure for the appointment of an arbitral tribunal. In the absence of an agreed procedure for the appointment, Article 11 of the Model Law provides default rules of appointment. Different default rules apply depending on whether the arbitral tribunal consists of three arbitrators or a sole arbitrator. Where an arbitration agreement provides for three arbitrators, each party must appoint one arbitrator; the two party-appointed arbitrators must then appoint the third, presiding, arbitrator. Where a party fails to appoint an arbitrator within 30 days of receipt of a request to do so from the other party, or if the two party-appointed arbitrators fail to agree on the third arbitrator within 30 days of their appointment, a

Chapter 3

The parties to an arbitration are free to agree on the number of arbitrators on an arbitral tribunal. In the absence of agreement, section 13 of the 2010 Act provides that the default position is that an arbitral tribunal will consist of a sole arbitrator. This is a modification from the default position for a tribunal of three arbitrators in the Model Law.

The Arbitral Tribunal

Arbitrators’ qualifications

A Concise Guide to Arbitration in Dublin

Impartiality, independence and challenge to an arbitrator

The parties are free to agree on the procedure for challenge to an arbitrator. In many cases a challenge procedure will be provided for in the rules of an arbitral institution that the parties may choose to apply to their arbitration. However, the parties may not exclude the power of the High Court to review any decision rejecting a challenge to an arbitrator.

A party challenging an arbitrator must demonstrate justifiable doubts to an arbitrator’s impartiality or independence for the challenge to be successful. This is an objective test that is determined on a case-bycase basis.

In the absence of an agreed procedure for challenge, Article 13 of the Model Law provides for default rules for challenge to an arbitrator. A party seeking to challenge an arbitrator must apply initially to the arbitral tribunal within 15 days after becoming aware of the constitution of an arbitral tribunal or within 15 days of when the party became aware of the circumstances giving rise to the challenge. The challenge must be made in writing and, unless the challenged arbitrator unilaterally withdraws, the arbitral tribunal must adjudicate on the challenge.

party can request the High Court to appoint an arbitrator. Where an arbitration agreement provides for a sole arbitrator and the parties are unable to agree on one, a party may request that the High Court make the appointment. A decision of the High Court to take necessary measures to appoint an arbitrator or an arbitral tribunal cannot be appealed.

Article 12 of the Model Law provides that a prospective arbitrator must disclose all circumstances that may give rise to justifiable doubts as to his or her impartiality or independence. In addition, an ongoing duty to disclose any new facts or circumstances that give rise to such doubts continues throughout the duration of the arbitral proceedings. The disclosure must be sufficiently detailed to inform the recipient about the potential conflict in order to enable a decision to be made about whether the appointment should be challenged.

Te Arbitral ribunal

A party cannot invoke the jurisdiction of the High Court until it has exhausted all previously available remedies for challenge. However, if a challenge is rejected by an arbitral tribunal, the aggrieved party may apply to the High Court for a final decision on the challenge within 30 days of having received notice of the arbitral tribunal’s decision to reject the challenge. There is no appeal from a decision of the High Court on a challenge to an arbitrator. An arbitral tribunal may continue arbitral proceedings and may even make an award while an application to the High Court to decide on a challenge is pending. This serves to limit the disruption and delay occasioned by unmeritorious challenges. An application to challenge an arbitrator is made to the High Court in a summary matter by way of originating notice of motion grounded on affidavit.

Termination of an arbitrator’s mandate due to failure or impossibility to act

An arbitrator’s mandate terminates where he or she becomes de facto or de jure unable to perform his or her functions or fails to act without undue delay, or where either the arbitrator unilaterally withdraws from office or the parties agree to terminate his or her mandate. A party may apply to the High Court to terminate an arbitrator’s mandate where it alleges that an arbitrator is unable to perform his or her functions or fails to act without undue delay and the arbitrator refuses to withdraw or the other party does not agree to terminate his or her mandate.

Appointment of a substitute arbitrator

Where the mandate of an arbitrator is terminated, Article 15 of the Model Law provides that a substitute arbitrator will be appointed in accordance with the rules which were applicable to the appointment of the original arbitrator. This does not mean that the substitute arbitrator need be appointed in the same way as the original arbitrator; it only requires that the same set of rules apply. For example, where a party had not appointed an original arbitrator, thereby requiring the original arbitrator to be appointed by the High Court, and this arbitrator subsequently resigned, the party would enjoy the right to appoint a substitute arbitrator.

Immunity of an arbitral tribunal

A Concise Guide to Arbitration in Dublin

Section 22 of the 2010 Act provides for full immunity for an arbitral tribunal from all civil liability. This immunity also extends to experts engaged by an arbitral tribunal and to arbitral institutions themselves. The immunity applies even where an arbitrator or other person has acted in ‘bad faith’. Because of this immunity, an arbitral tribunal should not be joined as a party to any application to the High Court to fulfil its supervisory functions in connection with arbitral proceedings.

13 Chapter 4

Provided that due process is adhered to, Article 19 of the Model Law provides that the principle of party autonomy applies to arbitral proceedings and where the parties agree on the rules of procedure to be adopted by an arbitral tribunal, they must be followed. An award that does not comply with the agreed rules of procedure will be liable to challenge.

Party autonomy and due process

Equal treatment of the parties has long been a fundamental feature of arbitration under Irish law and this principle is enshrined in Article 18 of the Model Law, which is frequently described as the ‘due process’ clause of arbitration. The parties therefore enjoy a wide discretion on what procedural rules apply provided only that due process is not violated. One-sided rules of procedure may result in an award being challenged. Although an arbitral tribunal must ensure that one party is not given an advantage over the other, it is not required to sacrifice efficiency in order to accommodate unreasonable procedural demands by one party.

In the absence of agreed rules of procedure, the arbitral tribunal may conduct an arbitration in the manner it considers appropriate, which includes the ability to determine the admissibility, relevance, materiality and weight of any evidence. Similarly, the arbitral tribunal may adopt the rules of procedure it considers appropriate where the parties’ agreed rules of procedure do not touch upon a particular point. An arbitral tribunal’s discretion to conduct arbitral proceedings in the manner it considers appropriate is extensive.

Commencement of arbitral proceedings

The Arbitral Proceedings

The date of commencement of the arbitral proceedings is significant

A Concise Guide to Arbitration in Dublin

Section 7 of the 2010 Act provides that arbitral proceedings commence on either the date on which the parties to an arbitration agreement agree as being the commencement date or, where no date has been agreed, the date on which a written communication containing a request for the dispute to be referred to arbitration is received by the respondent. A request for arbitration must be made in writing.

A written communication containing a request for the dispute to be referred to arbitration must adequately identify the dispute in question in order to permit the proposed respondent to ascertain the nature of the case against it. The question of whether a notice to refer to arbitration sufficiently identified a dispute was considered by the High Court in the decision in Bowen Construction Ltd (In Receivership) v Kelly’s of Fantane (Concrete) Ltd (In Receivership) [2019] IEHC 861. The High Court, inter alia, held that the words of the notice to refer should not be construed as if they were contained in a statute and should not be analysed in an over legalistic manner and that it is appropriate to consider the exchanges between the parties prior to and up to the point of the notice to refer to arbitration.

for the application of relevant limitation periods, which apply equally to arbitral proceedings as they do to civil litigation. The relevant limitation period depends on the substantive nature of the claim. For example, for claims (common in arbitral proceedings) concerning breaches of contract, the limitation period will typically be six years from the date of the accrual of a cause of action.

The location of the arbitral seat is of significance in international arbitration as it determines what law is to apply to the conduct of the

A written communication is deemed to have been received on the day it was delivered to a respondent, where delivered to the respondent occurs by personal delivery to the respondent’s place of business, habitual residence or postal address or, where any of those places cannot be found after 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.

The place of arbitration

The language of arbitral proceedings

Te Arbitral Proceedings 15

Article 23 of the Model Law provides that a claimant must submit a statement of claim and a respondent must subsequently submit its defence within the time agreed by the parties or determined by an arbitral tribunal.

Where the documentary evidence relevant to a matter is not in the language agreed by the parties or determined by the arbitral tribunal, an arbitral tribunal is permitted to order that the documentary evidence be accompanied by a translation into the language to be used in arbitral proceedings.

A claimant need only deliver a request or notice for the dispute to be referred to arbitration to the respondent in order to commence an arbitration. A claimant can, if it so chooses, submit a statement of claim when requesting the commencement of arbitral proceedings. Unless the parties agree otherwise, Article 23 of the Model Law provides that the only essential contents of a statement of claim are

arbitral proceedings and because recourse against an award may only be sought from the national courts of the arbitral seat.

Pleadings in arbitral proceedings

Article 20 of the Model Law provides that where the parties agree on the arbitral seat, their choice must be followed. In the absence of an agreed seat, the arbitral tribunal must determine the arbitral seat having regard to the circumstances of the case, including the convenience of the parties. Unless otherwise agreed by the parties, hearings and other meetings of the arbitral tribunal need not actually take place at the location designated as the arbitral seat. An arbitral tribunal may meet at places other than the arbitral seat in order to facilitate consultation among its members, to hear witnesses, experts or the parties and to inspect goods, other property or documents.

Article 22 of the Model Law provides that where the parties agree on the language or languages to be used in arbitral proceedings, their choice must be followed. In the absence of an agreed choice of language or languages, the arbitral tribunal is to determine the language or languages to be used in arbitral proceedings.

An arbitral tribunal must give the parties sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of goods, other property or documents. A party will only be in default as a result of its failure or refusal to appear at a hearing where it has been given advance notice of the scheduled

Inhearing.order to ensure equal treatment of the parties, all statements, documents or other information supplied to the arbitral tribunal by one party must be communicated to the other party.

Hearings and written proceedings

The parties are entitled, but not required, to submit all relevant documents or to at least refer to all relevant documents with their statement of claim or defence. However, the arbitral tribunal in its general discretion may set a timetable for document production, where such production is necessary and require a party to submit the documents it intends to rely upon within a prescribed period of time.

Article 24 of the Model Law provides that where the parties have agreed whether the arbitral proceedings are to include an oral hearing or are to be conducted on the basis of documents only, their agreement must be followed. Where the parties have not agreed whether arbitral proceedings are to include an oral hearing, the arbitral tribunal must decide if an oral hearing is appropriate. However, the arbitral tribunal’s discretion is limited as, in the absence of the agreement of the parties, where any party so requests, an oral hearing must be held. Objections to an arbitral tribunal’s decision to dispense with an oral hearing must be made promptly.

that it must state the facts supporting the claimant’s claim, the points at issue and the relief or remedy sought. Likewise, the only essential contents of a respondent’s defence are that it must state its defence to these particulars. The same requirements apply to a counter-claim and a defence to a counter-claim if those pleadings are delivered.

An arbitral tribunal has discretion whether to permit a party to amend a statement of claim, defence, counter-claim or defence to a counterclaim.

A Concise Guide to Arbitration in Dublin

Court assistance in taking evidence

Te Arbitral Proceedings 17

Default by a party

A party will be held in default where a claimant fails or refuses to deliver a statement of claim without sufficient cause, where a respondent fails or refuses to submit its defence without sufficient cause, and where either party fails or refuses to appear at a hearing or fails to produce documentary evidence.

Article 25 of the Model Law provides an arbitral tribunal with powers to either terminate or to continue arbitral proceedings where there has been a default by a party. The purpose of these powers is to impede a delinquent party from delaying or preventing the resolution of the dispute in question.

Article 27 of the Model Law provides that an arbitral tribunal, or a party with the approval of an arbitral tribunal, may request assistance in the taking of evidence in arbitral proceedings from the High Court. The High Court may then execute the request in accordance with its own rules on procedure concerning the taking of evidence. The approval of the arbitral tribunal is required in order to prevent abuse

Irish jurisprudence has typically been supportive of decisions taken by arbitral tribunals where a party has defaulted. For example, in O’Cathain v O’Cathain [2012] IEHC 223, the High Court refused an application to annul an award in circumstances where the applicant alleged that the arbitral tribunal violated due process by refusing him an adjournment of the arbitral proceedings. Similarly, in Hoban v Coughlan [2017] IEHC 301, the High Court rejected an application to set aside a default award in circumstances where the respondent to the arbitration had refused to engage with arbitral proceedings for a period of over 18 months and then sought an adjournment on the eve of the hearing date.

Where the party in default is the claimant, an arbitral tribunal may terminate the proceedings. Where the party in default is the respondent, an arbitral tribunal may continue the arbitral proceedings without treating the respondent’s failure as an admission of the claimant’s case and may ultimately proceed to make an award on the evidence before it.

Consolidation of arbitral proceedings

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Article 28 of the Mode Law provides that an arbitral tribunal must decide a dispute in accordance with the substantive law chosen by the parties. Parties are free to choose for themselves the law or the legal rules applicable to their contractual relationship. The parties’ choice of law need not be limited to a national legal system and they may use transnational rules or religious law. The parties’ choice of law is limited only by the requirement that any such choice is not contrary to public policy.

Section 16 of the 2010Act supplements the Model Law by expressly providing for the consolidation of arbitral proceedings and the holding of concurrent hearings. Consolidation may only take place where all the parties to each of the constituent arbitral proceedings agree to consolidate the matters into a single set of arbitral proceedings.

by parties who might seek assistance in the taking of evidence only for the purpose of delay.

The assistance which may be offered by the High Court is governed by Order 39 of the Rules of the Superior Courts. Potential assistance includes the examination of witnesses and the issue of subpoenas for the attendance of witnesses. A request for assistance in the taking of evidence is made ex parte to the High Court and must be grounded on affidavit.

Where expressly permitted to do so by the parties, an arbitral tribunal is permitted to act ex aequo et bono or as amiable compositeur. This permits the arbitral tribunal to decide the parties’ dispute in accordance with general notions of fairness, equity and justice rather than by a strict application of legal rules.

In the absence of a designated choice of law by the parties, the arbitral tribunal must determine the substantive law that it considers applicable to decide a dispute, in accordance with international conflict of law rules.

Rules applicable to the substance of the dispute

Te Arbitral Proceedings 19

Conditions for the grant of interim measures

Article 17A of the Model Law provides that a party seeking an interim measure from an arbitral tribunal must demonstrate that it will suffer harm not adequately reparable by damages if the measure sought is not granted and it must demonstrate that it has a reasonable prospect of success on the merits of a claim. The requesting party must also prove to the Tribunal’s satisfaction that the harm it may suffer substantially outweighs the harm that is likely to result to the party against whom the measure is directed if the interim measure is granted.

Unless otherwise agreed by the parties, an arbitral tribunal has power to grant interim measures in respect of arbitral proceedings. The interim measures which may be granted by an arbitral tribunal include measures to maintain or restore the status quo pending determination of the dispute, measures to prevent current or imminent harm or prejudice to the arbitral proceedings themselves, measures to preserve assets out of which an award may be satisfied, and measures to preserve evidence that may be relevant and material to the resolution of the dispute.

The Model Law provides for a concurrent power for both arbitral tribunals and national courts to order interim measures in support of arbitral proceedings. The purpose of such measures is to safeguard parties from issues that may disrupt the parties’ status quo and have an effect on the final outcome of the arbitration. Where such issues might result in the dissipation of assets, the destruction of evidence, the loss of market value of a property, the disruption of a joint venture’s operations, disclosure or misuse of intellectual property, and interference with customer relations, then orders for interim measures may be required or desirable. Whether an application is made to the arbitral tribunal or the High Court will be a strategic choice for the party seeking the relief.

Interim Measures in Arbitration

Purpose of interim measures

Where the interim measure sought is the preservation of evidence, the requirements that a party demonstrate that it will suffer irreparable harm and that it has a reasonable prospect of success on the merits

Preliminary orders

An arbitral tribunal cannot extend the ex parte phase of the proceedings indefinitely as a preliminary order must expire within 20 days from the date on which it was issued by an arbitral tribunal. Although preliminary orders are binding on the parties, they are not enforceable by the courts.

Article 17B of the Model Law provides that, unless otherwise agreed by the parties, an arbitral tribunal may grant an interim measure on an ex parte basis by way of a ‘preliminary order’ in circumstances where it is feared that a party against whom an interim measure is granted may frustrate the purpose of the measures if prior disclosure is granted. As per Article 17A, a party seeking a preliminary order from an arbitral tribunal must demonstrate that it has a reasonable prospect of success on the merits of a claim and it must demonstrate that it will suffer harm not adequately reparable by damages if the preliminary order sought is granted or not granted.

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Modification of an interim measure

Article 17D of the Model Law provides that an arbitral tribunal may modify, suspend or terminate an interim measure or a preliminary order it has granted upon application of any party or, in exceptional circumstances and upon prior notice to the parties, ex officio on its own motion. An arbitral tribunal cannot alter an interim measure ordered by the High Court.

of a claim applies only to the extent the arbitral tribunal considers appropriate. This gives an arbitral tribunal a wide discretion to grant interim measures to preserve evidence.

Article 17C of the Model Law provides that an arbitral tribunal must give immediate notice to all parties of its determination in respect of an application for a preliminary order. The arbitral tribunal must then provide an opportunity to a party against whom a preliminary order is directed to present its case at the earliest practicable time. The effect of these provisions is to turn the preliminary order into an inter partes application for an interim measure as soon as possible.

Duty of disclosure

A party requesting an interim measure or a preliminary order is liable for any costs and damages caused by the measure or the order to any other party where the arbitral tribunal later determines that the measure or the order should not have been granted. A similar

Arbitral tribunal’s power to require the provision of security

Although an Irish court cannot compel a party to give an undertaking as to damages, where no undertaking is given then injunctive relief is typically refused.

Where an interim measure is granted, an arbitral tribunal may require any party to disclose promptly any material change in the circumstances surrounding the granting of the measure. After any such disclosure is made, the arbitral tribunal may modify, suspend or terminate the interim measure.

Liability for costs and damages

Te Arbitral Proceedings 21

A party applying for an ex parte preliminary order must disclose to the arbitral tribunal all circumstances that are likely to be relevant to the arbitral tribunal’s determination to grant or maintain the order. This duty continues until the party against whom the order has been requested has had an opportunity to present its case. The typical sanction for a violation of the duty to disclose is either the suspension or termination of the measure, or the award of damages. A similar requirement exists under Irish law where a party making an ex parte application is required to make full and frank disclosure of facts unhelpful to its position.

Article 17E of the Model Law provides that an arbitral tribunal may require that a party seeking an interim measure to provide appropriate security. In contrast to the discretion which an arbitral tribunal enjoys to require the party requesting an interim measure to provide appropriate security, an arbitral tribunal must require a party applying for a preliminary order to provide security in connection with the order unless it considers it inappropriate or unnecessary to do so. A similar requirement exists under Irish law, where a party seeking an injunction generally is required to give an undertaking as to damages.

(1) At the request of the party against whom the interim measure is invoked, the High Court is satisfied that the party was under some incapacity when entering into the arbitration agreement or the arbitration agreement was not valid under the law to which the parties have subjected it or the law of the country where the interim measure was granted;

(2) At the request of the party against whom the interim measure is invoked, the High Court is satisfied that the party was not given proper notice of the appointment of an arbitrator, or of the arbitral proceedings, or was otherwise unable to present its case;

Article 17H provides that an interim measure issued by an arbitral tribunal must be recognised as binding and must be enforced by court of competent jurisdiction (i.e., in Ireland the High Court) in a State enacting the Model Law, irrespective of the country in which the interim measure was issued.

Article 17I of the Model Law specifies an exhaustive list of grounds where recognition and enforcement of an interim measure may be refused:

As s 22 of the Arbitration Act provides a complete immunity from civil liability for arbitrators for any act or omission in the course of arbitral proceedings, this includes a complete immunity for liability for any costs and damages caused by the grant of an interim measure or preliminary order.

(4) At the request of the party against whom the interim measure is invoked, the High Court is satisfied that the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing the agreement of the parties, that the composition of the arbitral tribunal or the

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(3) At the request of the party against whom the interim measure is invoked, the High Court is satisfied that the interim measure deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration;

Recognition and enforcement of an interim measure and the grounds for refusal of enforcement

requirement exists under Irish law where a party seeking an injunction generally gives an undertaking as to damages.

(8) The High Court ex officio on its own motion, finds that the subject-matter of the dispute is incapable of settlement by arbitration under Irish law; or

Under Irish law, the test for whether or not injunctive relief will be granted at an interim or interlocutory stage has traditionally been

(9) The High Court ex officio on its own motion, finds that the recognition or enforcement of the award would be contrary to the public policy under Irish law.

arbitral procedure was not in accordance with the law of the country where the arbitration takes place or under the law of which that interim measures was granted;

The High Court is not permitted to undertake a review of the substance of the interim measure when determining whether to refuse recognition or enforcement of an interim measure. The burden of proof lies on the party resisting enforcement.

(7) The High Court ex officio on its own motion, finds that the interim measure is incompatible with the powers conferred upon the arbitral tribunal;

Section 10 of the 2010 Act and Article 17J of the Model Law provide that the High Court has the same powers to order interim measures in respect of arbitral proceedings as it does in any civil litigation pending before it, irrespective of where the arbitral proceedings are taking place. Although the term ‘interim relief’ under Irish law typically refers to urgent injunctive relief sought on an ex parte basis to maintain the status quo for a short period until an interlocutory application is be heard, in arbitration the term ‘interim measures’ has a broader meaning that covers both ‘interim’ and ‘interlocutory’ relief.

(5) At the request of the party against whom the interim measure is invoked, the High Court is satisfied that the arbitral tribunal’s decision with respect to the provision of security in connection with the interim measure issued by the arbitral tribunal has not been complied with;

Power of the High Court to order interim measures in support of arbitral proceedings

Te Arbitral Proceedings 23

(6) At the request of the party against whom the interim measure is invoked, the High Court is satisfied that the interim measure has been terminated or suspended by the arbitral tribunal or, where so empowered, by the court of the State in which the arbitration takes place or under the law of which that interim measure was granted;

(iii) the balance of convenience favours the granting of the injunction.

As Article 9 of the Model Law provides arbitral tribunals and national courts with concurrent jurisdiction to provide interim measures of protection, a party is free to commence civil litigation with the sole aim of obtaining interim or interlocutory injunctive relief without jeopardising its right to have the balance of a dispute subsequently resolved by arbitration. In matters of extreme urgency, it may be prudent for a party to obtain interim measures from the High Court prior to the commencement of arbitral proceedings. This is particularly true in circumstances where a party may be concerned about the possibility of the dissipation of assets or destruction of evidence.

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based on the so-called ‘Campus Oil’ test. This three-tier test requires an applicant for injunctive relief to establish that:

(i) there is a bona fide legal question to be tried; (ii) damages would not be an adequate remedy for the party seeking injunctive relief if it was refused its request but was later successful at the trial of the action; and

In Osmond Ireland On Farm Business v McFarland [2010] IEHC 295, the High Court approved the Campus Oil test in the context of an application for injunctive relief in support of arbitral proceedings. More recently, however, the Supreme Court (O’Donnell J ) in Merck Sharp & Dohme Corporation v Clonmel Healthcare Ltd [2019] IESC 65, indicated“thethat:preferable approach was to consider the adequacy of damages as part of the balance of convenience, or the balance of justice, as it is sometimes called.”

The Court emphasised the flexible nature of the remedy.

The legal burden of proof is the threshold that a party must meet to satisfy the decision-maker as to the existence or non-existence of a fact or matter. Where the burden is borne by a party in relation to an issue, it must persuade the decision-maker in accordance with the relevant standard of proof. In most civil matters, the standard of proof is proof on a balance of probabilities. To meet this standard, a

Procedural Autonomy and Tribunal’s Discretion

Article 19 of the Model Law permits the parties to an arbitration to agree on the procedural rules applicable to the proceedings. In the absence of an express agreement by the parties, the arbitral tribunal has a broad discretion and may conduct the arbitral proceedings in the manner which it considers appropriate. This includes the power to determine the applicable rules of evidence.

The only limitation on the autonomy of the parties or in the absence of such agreement on the tribunal’s discretion are the mandatory requirements of Irish and international law. Typically, the only relevant mandatory requirements will be those which are based on procedural fairness and equality of treatment of the parties. Those principles are recognised specifically in the Model Law in Article 18 and Article 34(2)(ii) and Article 36(1)(a)(ii).

The burden and standard of proof

Chapter Evidence5

The parties to an international arbitration seated in Ireland will typically have agreed to the rules of an international arbitral institution or to the UNCITRAL Rules. Such rules will provide some of the detail on procedure. They may also agree to adopt some, or all, of the procedures set out in IBA Rules on the Taking of Evidence in International Arbitration.

party must satisfy the decision-maker that its version of events is more probable than the version of events advanced by its opponent.

In civil proceedings before the Irish courts, a witness will give oral evidence either under oath or by affirmation. In contrast, Section 14 of the Arbitration Act provides that an arbitral tribunal has discretion over whether or not it requires a witness to give evidence under oath.

Expert witnesses

As a general principle in civil matters, the party who asserts the veracity of a particular fact must prove its existence. This typically means that proof of the facts necessary to establish a cause of action will rest on the party bringing the proceedings while the proof of a defence to an action will lie on the party relying upon it. Where a party raises a counterclaim as part of its defence, it will bear the burden of proof in respect of the counterclaim.

Oral evidence

Expert witnesses may be called in relation to matters that require specialist knowledge or expertise. Unlike witnesses to fact, expert witnesses may give opinion evidence on matters which lie within their domain of expertise. The weight which is to be attached to the

A Concise Guide to Arbitration in Dublin

In civil proceedings before the Irish courts, oral evidence is typically given by a witness at the hearing of an action. However, it is becoming increasingly commonplace for written witness statements to be delivered. This is particularly true in the case of commercial proceedings as it is mandatory for witness statements to be delivered in proceedings which have been admitted to the Commercial List. Where witness statements are delivered, they will typically replace direct evidence. The opposing party will then be given the opportunity to cross-examine the witness on the content of the witness statement.

As the parties or the arbitral tribunal are free to agree on the rules of procedure applicable to the arbitral proceedings, it is open to them to choose whether direct evidence shall be given orally or by written witness statement and, indeed, whether oral evidence is required at all. Although document-only arbitrations are permitted, they are relatively rare in Ireland.

As in most common law jurisdictions, expert witnesses in Ireland are typically called by the parties rather than the arbitral tribunal. Despite this, an expert witness must be independent of the party engaging him or her and he or she owes a duty to the arbitral tribunal. However, in addition to the standard practice whereby the parties engage their own respective expert witnesses, Article 26 of the Model Law permits an arbitral tribunal to appoint an expert witness to report to it on specific issues in order to provide expertise that the arbitral tribunal may lack, such as expertise in respect of a technical or scientific matter. In the course of the arbitral proceedings, the appointed expert may then be cross-examined by the parties and the parties may call their own experts to counter the opinion of the experts appointed by the arbitral tribunal. The manner in which the expert witness offers his or her evidence will typically be a matter for the arbitral tribunal.

(3) Such witnesses should state the facts or assumptions upon which their opinion is based, and consider material facts which could detract from their concluded opinion;

(1) The evidence of an expert witness should be, and be seen to be, independent and uninfluenced in form or content by the exigencies of the dispute resolution process;

In the decision in O’Leary v Mercy University Hospital Cork Ltd [2019] IESC 48, the Supreme Court recognised that the principles and duties which are applicable to expert witnesses as identified by the English High Court in the well-known ‘Ikarian Reefer’ case continue to apply in Irish law. These principles require that:

(6) If the witness is not sure that their report contains the truth,

(4) Expert witnesses should make it clear when a particular question or issue is outside their expertise;

(5) If such witnesses consider that insufficient data is available, they should say so, and indicate that the opinion is provisional only;

(2) Such witnesses should provide independent assistance to the decision-maker by way of objective, unbiased, opinion in relation to matters within their expertise and should never act as advocates;

evidence of a particular expert will typically depend on a number of factors including the expert’s qualifications and experience, the extent to which the expertise forms a recognised body of practice within a particular field, and the extent to which the methodology applied by the expert is generally accepted.

Evidence

Document production

Nothing in the Model Law limits the scope of disclosure that an arbitral tribunal is entitled to order from the parties, with the subject instead being left, like other procedural matters, to the parties’ agreement and the arbitrators’ general procedural discretion. he Model Law also does not

the whole truth and nothing but the truth, without some qualification, they should state that qualification in their report. If an expert witness changes his or her views on a material matter such change of views should be communicated to the other side without delay; and

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(7) Where expert evidence refers to photographs, plans, calculations analyses, measurements, survey reports or other similar documents these must be provided to the opposite party at the same time as the exchange of reports.

In Ireland, as in most common law jurisdictions, parties to litigation can obtain disclosure or production of documents (usually referred to as ‘discovery’) relevant to the issues that are in the possession or control of another party prior to the trial of an action. The basic purpose of discovery is to ensure, as far as possible, that the full facts concerning any matter in a dispute are capable of being presented by the parties so that justice may be done based on full, rather than limited or partial, information. However, discovery can be a cumbersome and expensive process, which serves to delay the resolution of an action. The Irish courts have frequently attempted to minimise the scope and extent of discovery in recent years.

the arbitral tribunal’s general procedural powers, including particularly with regard to evidence-taking, including particularly its powers with regard to evidence-taking, encompass an inherent authority to order disclosure by the parties.

Disclosure or the production of documents or discovery is not expressly mentioned in the Model Law. Clearly the parties have the right to agree (either expressly or implicitly) that the tribunal should or should not have such a power. In the absence of such agreement, the tribunal’s broad discretion under Article 19(2) read together with other provisions of the Model Law imply that a tribunal has a power to order production of documents if it deems appropriate. Born has observed that the drafting history of the Model Law leaves no question that:

Nothing in Irish law renders discovery mandatory nor is there a right to discovery. It is a matter which is in the hands of the parties to agree as part of the procedure for the arbitration. In default of same, it will be a matter for the arbitrator to decide whether or not to order it.

Evidence

Arbitral tribunals lack the coercive power to enforce procedural decisions as regards the taking of evidence, which can range from the calling of a witness to the requirement to produce a document. As a result, arbitral tribunals must rely on the coercive power of national courts in taking evidence. Article 27 of the Model Law provides that an arbitral tribunal, or a party with the approval of an arbitral tribunal, may request assistance in the taking of evidence in arbitral proceedings. In Ireland, an application of this nature is made to the High Court and is provided for under Order 56, rule 4(4) of the Rules of the Superior Courts. The assistance which may be offered by the High Court includes the examination of witnesses and the issuing of a subpoena for the attendance of witness in accordance with Order 39 of the Rules. A request for assistance in the taking of evidence is made ex parte to the High Court and must be grounded on affidavit.

Court assistance in taking evidence

limit the types of procedural mechanisms that an arbitral tribunal may employ in ordering disclosure, thereby permitting document disclosure, site inspections, interrogatories, depositions and any other means of disclosure calculated to assist the tribunal in its adjudicative mandate.

See Gary B Born, International Commercial Arbitration: Volume II (3rd ed, Wolters Kluwer 2021) at 2500.

All that is necessary is that the arbitrators should set out what, on their view of the evidence, did or did not happen and should explain succinctly why, in the light of what happened, that they have reached their decision and what that decision is. That is all that is meant by a reasoned award ….

In F.B.D. Insurance plc v Samwari Ltd [2016] IEHC 32, McGovern J indicated that an award must be “on the merits of the case” and meet the formal requirements of Article 31 of the Model Law. In that case he held that an interim determination on the status of the claimant made by the tribunal did not constitute an award.

McGovern J stated as follows:

The formal requirements for an award

The Arbitrator is not under an obligation to provide the sort of reasoned judgment that would be expected from a Judge of the Superior Courts, but he still must give a reasoned Award to the extent required to enable a party to see why he reached his decision.

31 Chapter 6

As provided for under Article 31 of the Model Law, an award must be made in writing, signed, dated and state the place in which it is made. The award should set out the reasons on which it is based and a signed copy should be provided by the arbitral tribunal to each party. The award should be final and conclusive. Where a reasoned award has been provided, the reasons should be set out in sufficient detail in order to allow the court to consider any issue of law arising from it.

In Hoban v Coughlan & Another [2017] IEHC 301, McGovern J approved of the dicta of Donaldson LJ in Bremer Handelsgesellschaft GmbH v Westzucker GmbH (No 2) [1981] 2 Lloyd’s Rep 130:

The Award

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Within 30 days of receipt of the award (unless an alternative period has been agreed by the parties) any party may, with notice to the other party, request the tribunal to correct any error in computation or any clerical or typographical errors or errors of similar nature (Article 33(1)(a)). Any correction, interpretation or additional award must also be made in writing, signed by the arbitrator and state the reasons upon which it is based.

Correction and interpretation of award

Furthermore, if agreed by the parties, the party may, within that same period, request the arbitral tribunal to give an interpretation of a specific point or part of the award (Article 33(1)(b)). The tribunal may make the correction or give the interpretation within 30 days of the receipt of the request.

Furthermore, a tribunal may, on its own initiative, correct any of the types of errors referred to earlier within 30 days of the date of the Articleaward.

33(3) provides that a party may also request, within a period of 30 days and on notice to the other party, that the tribunal make an additional award in respect of any claims that had formed part of the arbitration but were subsequently omitted from the award. If the arbitral tribunal is satisfied that this request is justified, it will make an additional award within a period of 60 days from the date of the request or such longer period as shall be deemed necessary.

(b) the items of recoverable costs, fees or expenses, as appropriate, and

(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.

For the avoidance of any doubt, ‘costs’ is expressly defined in section 21 to include “costs as between the parties and the fees and expenses of the arbitral tribunal”.

Section 21 of the 2010 Act sets out the rules governing costs in domestic and international arbitration to which the Act applies. In keeping with international best practice, section 21 in the first instance affords the parties full discretion to decide on how the issue of costs is to be determined, either in the arbitration agreement itself or by reference to the specific institutional rules chosen by the parties. Section 21 provides as follows:

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

As is clear from the description of section 21, in the absence of

ChapterCosts7

Where the parties have not made provision for the costs of the arbitration, section 21(3) directs that the “tribunal shall … determine by award those costs as it sees fit.” In this scenario, the tribunal is required by section 21(5) to specify:

The allocation of costs

(a) the grounds on which it acted;

Discretion of the tribunal in awarding costs

Absent the parties’ agreement, it falls on the tribunal to ascertain the measure of costs which is to be awarded. As noted above, the 2010 Act provides for this in section 21(5), which directs the tribunal to specify the amount of costs the relevant parties must bear in circumstances where it is exercising its discretion under section 21(3).

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the discretion of the tribunal in cases where the parties have not expressly provided for costs, the acceptance of the principle that costs follow the event in Irish law and in international arbitral regimes in general means that the typical costs award will be in favour of the prevailing party. Even in this scenario, however, the tribunal may be required to exercise its discretion and adopt a nuanced approach to the question of costs, particularly where there is some uncertainty as to what constitutes the ‘event’ for the purposes of the award—for example, where the prevailing party unsuccessfully asserted claims that drove up the cost of the arbitration. Irish law permits such an approach and—in civil litigation—the courts encourage a more sophisticated assessment of the outcome of a case in light of the complexity of its issues (see for example, Fyffes plc v DCC plc [2009] 2 IR 417). Likewise, a tribunal may opt to consider the misconduct of a prevailing party during the arbitral proceedings in its exercise of discretion as to the allocation of costs.

an agreement between the parties, the tribunal has considerable discretion regarding the allocation of costs under the 2010 Act. In practice, tribunals will exercise this discretion in conformity with the well-established principle that costs follow the event—in other words, the unsuccessful party will be liable to an order for costs against it. However, this principle is not expressed in the 2010 Act (in contrast, for instance, to section 61(2) of the Arbitration Act 1996 in England) and thus the tribunal is not inhibited from taking an alternative approach where it deems it appropriate (within the bounds of the applicable Notwithstandinglaw).

A costs award is an enforceable award for the purposes of the 2010 Act and may accordingly be challenged—but only on the exhaustive grounds for the annulment of an arbitral award as set out in Article 34 of the Model Law. Thus, by way of illustration, a failure by a tribunal to follow fair procedures in the making of a costs award— for example, by refusing to hear submissions regarding costs—may

Costs 35

The question of whether security for costs should be ordered in an arbitration to which the 2010 Act applies is generally reserved to the arbitral tribunal: Section 10(2) of the 2010 Act expressly precludes the court from exercising its powers to grant the relief unless the parties otherwise agree.

render the award at risk of being set aside. However, a mere error of law that does not fall within the categories set forth in Article 34 will not. Irish courts do not have jurisdiction under the 2010 Act to substitute their own assessment of an appropriate costs allocation for that of the tribunal.

Security for costs

Section 19 of the 2010 Act is silent as regards the criteria for obtaining security for costs, except that it specifies that a party shall not be ordered to provide the security solely on the ground that, in the case of an individual, he or she is domiciled, habitually resident, or carrying on business outside the State, or, in the case of a company, it is established under a law of a place other than the State or its centre of main interests is situated outside the State.

This goes beyond Art 17(2)(c) of the Model Law, which permits the tribunal merely to grant interim measures directing a party to “[p]rovide a means of preserving assets out of which a subsequent award may be satisfied”.

The procedural mechanism of security for costs allows a respondent to seek an order directing the claimant to post a sum of money to cover the respondent’s costs in the event that the respondent successfully defends against the claim and is awarded its costs as a result.

Section 19 of the 2010 Act expressly provides that:

In Irish law, a respondent seeking an order directing the claimant to provide security for costs will be required to demonstrate that it has a prima facie defence to the claim against it and that the claimant will not be able to pay the respondent’s costs if the respondent successfully

the arbitral tribunal may, unless otherwise agreed by the parties, order a party to provide security for the costs of the arbitration.

Even where these two factors are present, however, security for costs may be denied where the court in its discretion deems it inappropriate. This most commonly arises where the claimant’s difficulty in paying the respondent’s costs arises from the conduct of the respondent or where there is a significant delay in bringing the application.

Although arbitral tribunals have “a broad discretion to order security for costs on a case-by-case basis” (Mansfield, Arbitration in Ireland –Arbitration Act 2010 and Model Law: A Commentary (2nd edn, Clarus Press 2018) at p 58), a tribunal applying Irish law to an application for security for costs is unlikely to deviate significantly from the foregoing principles. However, a tribunal may also have regard to another factor arising uniquely in arbitral proceedings and weighing against an order requiring security—specifically, that parties to an arbitration agreement generally have the opportunity to ascertain the enforceability of potential claims against each other, including with regard to the recovery of costs attendant on a failed action, and accordingly they can make provision for that in their agreement if they wish. (see Reichert, ‘Security for Costs in Arbitration – A New Landscape in Ireland’ (2010) 2 Arbitration and ADR Review 130.)

This, among other factors, contributes to the relative scarcity of security for costs orders in Irish arbitration practice.

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defends the claim (see the decision of the High Court in Connaughton Road Construction Ltd v Laing O’Rourke Ireland Ltd [2009] IEHC 7).

37 Chapter 8

Section 9 of the 2010 Act provides that the High Court is specified for the purposes of Article 6 of the Model Law as the court of competent jurisdiction and accordingly an application under Article 34 to set aside an arbitral award is made to the High Court. Section 9 further provides that the functions of the High Court under Article 34 shall be performed by the President of the High Court or by such other judge of the High Court nominated by the President.

Order 56 of the Rules of the Superior Courts prescribes the procedure for applications under the 2010 Act. Order 56, r 2 and r 3 provide that an application for an order under Article 34 may be made by way of originating notice of motion, entitled ‘In the matter of [the arbitration to which the application relates] and in the matter of the Arbitration Act 2010’, and naming as respondent(s) the other party or parties to the arbitration. The arbitral tribunal should not be named as a party to the proceedings, but must be put on notice of the Applicationsapplication.

As section 6 of the Arbitration Act 2010 gives the Model Law the force of law in Ireland, and subject only to the 2010 Act, there are very few derogations or deviations from the text of Article 34 of the Model Law in Ireland.

Challenges to an Award

to set awards aside are heard on affidavit unless otherwise directed by the Court. It is necessary to ground the originating notice of motion on an affidavit sworn by or on behalf of the moving party, setting out the basis upon which the moving party alleges the High Court has jurisdiction to grant the relief sought in the notice of motion. Order 56, r 6 provides that copies of the originating notice

Procedure

Applications for setting aside arbitral awards

“is unhappy with an award made by an arbitral tribunal, the only recourse available to it is to apply to set aside the award ... there can be no grounds to set aside an award that are not contained in the Model Law.”

In O’Leary v Ryan [2015] IEHC 280, the High Court restated that the grounds upon which an arbitral award might be set aside were limited to those grounds as specified in Article 34 and that the award might not be set aside on the basis that it was incorrect either in fact or in Furthermore,law.

section 11 of the 2010 Act provides that no appeal may be brought from any determination by the High Court of an

No alternative recourse

of motion and of the grounding affidavit and any exhibits are to be served on each respondent and delivered to the arbitral tribunal not later than fourteen days before the date the motion is listed for hearing. If the respondent wishes to oppose the application, it may do so by filing a replying affidavit and serving a copy on the applicant and any other respondent within seven days of service of the motion and grounding affidavit on it. The applicant may file a further affidavit within seven days of service of the respondent’s replying affidavit. Finally, an affidavit giving the names and addresses of, and the places and dates of service of all persons who have been served with the originating notice of motion and grounding affidavit must be filed before the motion is heard, and if a person who ought to have been served has not been served, the affidavit must state that fact and the reason for it. The motion is listed before the judge of the High Court for the time being nominated by the President of the High Court to deal with applications in respect of arbitrations.

An Irish arbitral award cannot be challenged on the merits, in other words there is no scope to challenge the tribunal’s findings of fact.. Furthermore, there is no provision for a challenge on the grounds of an error of law. No exception is made to the express provision of Article 34 that recourse to a court against an arbitral award may only be sought in accordance with Article 34. It was confirmed by the High Court in Snoddy v Mavroudis [2013] IEHC 285 that when a party

A Concise Guide to Arbitration in Dublin

Time limits

Challenges to an Award

application for setting aside an award under Article 34 of the Model Law and accordingly the determination of the High Court on such an application is final.

In O’Leary v Ryan [2015] IEHC 820, an application was brought to set aside an award under Article 34(2)(a)(ii) and (iii). One of the arguments advanced was that the arbitral tribunal had not made an award on the applicant’s counterclaim. The motion was issued on the day before the expiry of the three-month time limit under Article 34(3). The High Court held that having regard to the failure of the applicant to request the arbitral tribunal within 30 days of receipt of the award under Article 33(3) to make an additional award, it was too late to bring a challenge against the refusal to make an order on the counterclaim as the alternative remedy available to the applicant had not been availed of.

Deluxe Art & Teme Ltd. v Sheffs Ltd. (in receivership & liquidation) [2014] IEHC 695, the applicant was not permitted to rely on Article 34(2)(b)(ii) as the application had not been brought within 56 days of the making of the award. The applicant was permitted to advance arguments under Article 34(2)(a) although the application was ultimately refused.

“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.”

Article 34(3) provides that an application for setting aside may not be made after three months have elapsed from the date of receipt of the award by the moving party (or from the date of disposal of a request for an additional award under Article 33). However, section 12 of the 2010 Act provides that an application 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:

There is no provision in the 2010 Act for the extension of these time Inlimits.

The 2010 Act does not define ‘award’ or ‘arbitral award’ except for specifying in section 2 of the Act that ‘award’ includes a partial award. Decisions and determinations of arbitral tribunals that do not amount to ‘awards’, such as administrative and procedural decisions, are not amenable to challenge under Article 34.

The issue of what amounts to an arbitral award for the purposes of an application under Article 34 was considered in F.B.D. Insurance plc v Samwari Ltd [2016] IEHC 32 where the arbitrator made an “interim determination on status of claimant company.” It was determined that the respondent to the application (the moving party in the arbitration) was entitled to continue with the arbitration despite it having passed a resolution that it be wound up. The respondent company held an insurance policy with the applicant in respect of premises that had been damaged by fire. The applicant argued that as a result of the resolution that it be wound up, the respondent had no insurable interest which might be the subject matter of a claim in the arbitration and the decision on whether to arbitrate was a matter for the liquidator. The applicant applied to have the determination of the arbitrator set aside on the grounds set out in Article 34(2)(b) (ii), i.e. that the award was in conflict with the public policy of the State. The High Court refused the application on the basis that the determination of the status of the respondent was not an award and was not amenable to challenge under Article 34. The court held that for the court to have jurisdiction to set aside an arbitral tribunal’s decision under Article 34,

Interpretation of Article 34

In Hoban v Coughlan [2017] IEHC 301, the High Court commented that the basis upon which an award might be set aside under Article 34 was very limited, and it is a jurisdiction which the court should only exercise sparingly. In Ryan v Kevin O’Leary (Clonmel) Ltd [2018] IEHC 660, the High Court stated that there was no doubt that the

Meaning of ‘award’

A Concise Guide to Arbitration in Dublin 40

“the decision must be one which has been made on the merits of the case and meet the formal requirements of Article 31 … this must include a partial award if it meets those criteria. Procedural orders or rulings made in the course of an arbitration are not amenable to challenge under Article 34.”

In O’Cathain v O’Cathain [2012] IEHC 223, the applicant maintained that he could not file his points of defence and counterclaim because of a lack of necessary information, despite having been provided with all the documents and materials he sought. He was refused an adjournment on the hearing date, and left the hearing. The High Court held that the applicant had demonstrated a pattern of obstructive behaviour and that instead of engaging with the procedure in a meaningful way, the applicant had sought to delay matters. The arbitrator had given the applicant every possible opportunity to make his case but he had refused to do so and it was stated that he did not enjoy a monopoly over fair procedures. The relief sought was refused as the Court determined that there were no grounds for setting aside the award.

Article 34(2)(a)(i) provides for an award to be set aside where a party to the arbitration agreement was under an incapacity, or the agreement was not valid under the relevant law. A lack of contractual capacity in Irish law can arise in certain circumstances such as where a party was a minor, of unsound mind, or intoxicated at the time of the purported entry into the agreement.

Article 34(2)(a)(ii) provides for an award to be set aside where the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case. Two decisions have dealt with the issue of a party which has not engaged in any meaningful way with an arbitration and ultimately failed to participate in a hearing of which it had notice. In both cases, the arbitrator proceeded under Article 25 to hear the matter in the absence of the party, and to make an award, and in both cases the party who did not participate challenged the award under Article 34(2)(a)(ii).

Challenges to an Award

policy behind the 2010 Act and the Model Law was to uphold the finality of an award and therefore that the courts were required to construe narrowly the grounds on which an award may be set aside under Article 34, and to exercise the jurisdiction to set aside in a sparing manner. The discretionary nature of the power to set aside arbitral awards under Article 34 was reaffirmed in Delargy v Hickey [2015] IEHC 436.

More recently, in Hoban v Coughlan [2017] IEHC 301, in the fourteen months from appointment of the arbitrator to the hearing, the applicant had communicated with the arbitrator and respondent only once in order to seek documentation and which was subsequently furnished to him. The arbitrator wrote to the applicant countless times without receiving a reply. Directly before the hearing, the applicant sought an adjournment by telephone, which was refused. He did not seek an adjournment on the hearing date. After the hearing, which he did not attend, the applicant requested the arbitrator not to make an award so that the applicant could file points of defence. When the award was published notwithstanding his request, he sought to have it set aside. The High Court held that there was no basis for an order setting aside the arbitral award and stated that the applicant had been given proper notice of the appointment of the arbitrator, an opportunity to partake in the arbitral process, and had been informed of the date of the arbitration. The Court further stated that from the very beginning of the arbitral process there had been a complete lack of meaningful engagement from the applicant and that the arbitrator was entitled to proceed with the hearing.

In Snoddy v Mavroudis [2013] IEHC 285, the applicant claimed the arbitral tribunal had exceeded its jurisdiction in deciding the claim, a contractual dispute, on equitable principles without being so authorised by the parties under Article 28(3). The applicant’s submission was that under the parties’ agreement, the respondent was only entitled to payment for services authorised and agreed in writing. The arbitral tribunal made an award in favour of the respondent in respect of additional works, which the applicant submitted could not have been based on the contract. The High Court refused the relief sought, stating that a comparison of the claims with the facts of the case revealed that the claims did not stand up to scrutiny as the arbitral tribunal’s decision was made by reference to the contract between the parties. The High Court further commented that the application was an effort to have the Court second-guess the arbitral tribunal’s construction of the contract.

Article 34(2)(a)(iii) provides for an award to be set aside where the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration.

A Concise Guide to Arbitration in Dublin

Article 34(2)(b) provides that an award may be set aside if the court finds that:

Article 34(2)(a)(iv) provides for an award to be set aside where the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or with the Model Law. The applicant in Hoban v Coughlan [2017] IEHC 301 had also advanced arguments under Article 34(2)(a)(iv), specifically that the arbitrator had not made a reasoned award. It was not in dispute that a reasoned award was required. The applicant had not engaged in the process and had not delivered points of defence. The High Court, in refusing the relief sought, held that an arbitrator was not under an obligation to produce the sort of reasoned judgment that would be expected from a judge of the superior courts but he must still give a reasoned award to the extent required to enable a party to see why he had reached his decision. The High Court was satisfied that that standard had been met. The award recorded the proving of relevant documents and correspondence, oral evidence on relevant matters, and consideration of the issues in the case.

(ii) the award is in conflict with the public policy of this State.

In Ryan v Kevin O’Leary (Clonmel) Ltd [2018] IEHC 660, the applicants sought to set aside an award under Article 34(2)(a)(iii) on the basis, inter alia, that there had been a joinder of a third party to the arbitration. The respondents contended that not only had the applicants not previously objected to the joinder of the third party, but they had pleaded their case against that party in their statement of claim. The High Court refused the relief sought on the basis that there was no merit to any of the applicants’ grounds or arguments.

The Irish approach to public policy was considered prior to the enactment of the 2010 Act in the context of an application to enforce an arbitral award under the New York Convention, in Broström ankers AB v Factorias Vulcano SA [2004] 2 IR 191. The High Court stated that:

the notion of public policy as it has come to be recognised in the context of the enforcement of an arbitral award” was one which was

(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this State; or

Challenges to an Award

of “a narrow scope” and extended only to “a breach of the most basic notions of morality and justice.

The power of the court under Article 34(4) to suspend an application to set aside and to permit the arbitral proceedings to be resumed was considered in Delargy v Hickey [2015] IEHC 436. In that case, the applicant’s points of defence had been struck out for non-compliance with an order of the arbitral tribunal. The applicant had been on notice that the tribunal proposed to proceed with the arbitration. The applicant failed to object to the proposed course of action or to cooperate in any way with the arbitral process. The application for an order setting aside the award or remitting the matter to the arbitral tribunal was refused. The High Court stated that it was clear that the grounds for referring the process back to the arbitral tribunal (or setting the award aside) were to be construed narrowly, and that the onus of proof was on the applicant.

A Concise Guide to Arbitration in Dublin

In FBD Insurance plc v Samwari Ltd. [2016] IEHC 32, an application was made to set aside a finding by an arbitral tribunal that a company was entitled to proceed with a claim arising out of an insurance dispute, despite having passed a resolution to have the company wound up. The applicant argued that the ‘interim arbitral award’ was in conflict with the public policy of the State as reflected in the Companies Act 2014 in that the company, according to the applicant, was in liquidation, and thus the choice as to whether or not to proceed with the arbitration was strictly a matter for the liquidator. The High Court held that the decision was not an arbitral award for the purposes of an application under Article 34. However, the Court cited the decision in Broström ankers AB v Factorias Vulcano SA [2004] 2 IR 191 and indicated obiter that the scope of the public policy ground was very limited.

Remittal

Enforcement of arbitral awards

1. with leave of the High Court; or

Under section 23 of the 2010 Act, all awards, whether the seat was in Ireland or elsewhere, may be enforced as follows:

2. as an independent cause of action arising from the breach of an implied term in the arbitration agreement that the award would be honoured.

45 Chapter 9

The Enforcement of Arbitral Awards in Ireland

Under section 25(5) of the 2010 Act, pecuniary obligations imposed by an award made under the Washington Convention (the ‘ICSID Convention’) may be sought by leave of the High Court and where

In practice, however, almost all awards are enforced by leave of the High Court.

Any respondent seeking to resist an application for leave is required to file and serve a replying affidavit within seven days of the service by the applicant of the originating Notice of Motion. The replying affidavit should set out in full the grounds relied upon by the respondent in resisting the application for leave to enforce.

Procedure for an application for leave to enforce

In order to seek enforcement by leave of the High Court, it is necessary to issue an originating Notice of Motion (Ord 56, r 6(2) of the Rules of the Superior Courts). The motion is grounded on an affidavit setting out the basis upon which the application is made. The award should be exhibited with the application. If it is not in the English or Irish languages, a translation should also be exhibited.

The grounds for resisting the recognition and enforcement of an international arbitral award are set out in Article 36 of the Model Law. These do not an apply to an award that has been made in the State. In respect of an award rendered in Ireland, the sole remedy for the dissatisfied party is to seek to set aside the award under Article 34.

A Concise Guide to Arbitration in Dublin

Grounds for refusing recognition and enforcement

An arbitral award, ‘irrespective of the country in which it was made’, is recognisable and enforceable in Ireland, under Article 35 of the Model Law, provided that the original or a copy of the award is available and supplied. The 2010 Act does not discriminate between awards made in state parties to the New York Convention and those states that are not state parties to the New York Convention. That said, it is likely the New York Convention will apply to most awards that are sought be enforced in Ireland.

It is not necessary to demonstrate that the respondent to an application for recognition and enforcement of a foreign award has assets in the jurisdiction. However, before the courts will permit service of an originating summons or an originating notice of motion on a defendant outside the jurisdiction, the Court will need to be satisfied that ‘a solid practical benefit’ would ensue if the award was to be recognised or enforced. (See Avobone NV v Aurelian Oil & Gas Ltd. [2016] IEHC 636; Yukos Capital SARL v OAO omskneft VNK [2014] IEHC 115.

Enforcement of an award must be commenced within six years from the date of the accrual of the cause of action (unless the arbitration agreement is under seal, where the time limit is 12 years). The accrual of the cause of action will arise on the date of the failure to honour the award, as this is a breach of the implied term in the arbitration agreement that the award would be honoured.

enforcement is granted, the pecuniary obligations of the award have the same effect as a judgment of the High Court.

Limitation period for the enforcement of awards

The grounds upon which an application seeking to enforce a foreign

The two further grounds, under which an application seeking to enforce a foreign award may be refused, may also be raised ex officio by the High Court on its own motion. These are as follows:

c. that the award deals with the dispute not contemplated by the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submissions to arbitration;

a. that the subject matter of the dispute is incapable of resolution by arbitration under Irish law; or

Te Enforcement of Arbitral Awards in Ireland

d. that the composition of the arbitral tribunal, or the procedure, was not in accordance with the agreement of the parties, or was not in accordance with the law of the country where the arbitration took place; or

b. that the award is in conflict with the public policy of the Irish State.

b. that the party against whom the award is invoked was not given proper notice of the appointment of an arbitrator or of the proceedings, or was unable otherwise to present its case;

award may be refused, are almost identical to those grounds as provided by Article 34, for the set aside of an award:

a. that a party to the arbitration agreement was under some incapacity, or that the agreement is not valid under the law applicable to the agreement, or under the law of the country where the award was made;

e. that the award has not yet become binding on the parties, or has been set aside, has been suspended by a court of a country in which, or under the law of which, that award was made. This is the only ground that moves beyond the grounds to set aside an award under Article 34 of the Model Law. Article 36(2) further provides that in such circumstances, the court may adjourn its decision and may also, on the application of the party claiming recognition and enforcement of the award, order the other party to provide appropriate security. In Danish Polish elecoms v elekomunikacja Polska SA [2011] IEHC 369 Finlay Geoghegan J stated that the mere existence of a set aside application would not normally be enough for the adjournment of an enforcement application, and that the court should give brief consideration to the strength of the set aside application. If the court did not find the award manifestly invalid, but that there were reasonable grounds established for the set aside, then the court should consider whether to require security as a condition of the adjournment.

This designated arbitration judge hears all applications under the 2010 Act for so long as that person remains in the role. Although the principle of stare decisis already directs courts to follow apposite decisions of courts of equal jurisdiction, the practice of concentrating arbitration-related functions in one judge enhances continuity, predictability and consistency in judicial decision-making on arbitration matters. It also ensures that those matters will be heard by a judge who has built up significant expertise and experience in the area of arbitration.

However, the 2010 Act goes further than merely designating a court for these supervisory and ancillary arbitral functions. It directs that all of the functions are to be performed by the President of the High Court or such other High Court judge as nominated by the President of the High Court. To date, the President has opted to nominate another judge for this role.

The current assigned arbitration judge, Mr Justice Mark Sanfey, was appointed to the High Court in 2019. While in practice as a barrister he specialised in commercial litigation and insolvency law.

Chapter 10

Designated Arbitration Judge

Article 6 of the UNCITRAL Model Law directs implementing States to designate a particular court within its judicial system to fulfil the supervisory functions provided for in the Model Law. The Arbitration Act 2010 provides that in Ireland this is the High Court. The 2010 Act also stipulates that the High Court is the relevant court for the purposes of Article 9 of the Model Law (relating to interim measures) and the court of competent jurisdiction for the purposes of Articles 17H-J (also relating to interim measures), Article 27 (relating to court assistance in taking evidence), and Articles 35-36 (relating to recognition and enforcement of awards).

In general, to be admitted to the Commercial Court a dispute must be of a commercial nature and involve a claim for at least €1 million, although certain categories of dispute, including those relating to intellectual property and the judicial review of administrative decisions, are not subject to the monetary threshold. The designated judge in charge of the Commercial Court has wide discretion to admit commercial disputes that do not meet the monetary threshold and to exclude commercial disputes that do—the latter scenario typically arising where there has been a significant delay in seeking admission or where the court believes that the parties will not be able to comply with its stringent procedural directions.

The Commercial Court

Any party to a dispute can apply to have the matter admitted to the Commercial Court, but should bring an application promptly. The Court is likely to refuse admission of a case to the Commercial Court

Ireland’s Commercial Court was established in 2004 as a dedicated forum for the resolution of domestic and international commercial disputes. The Commercial Court handles approximately 200-300 cases annually and is typically assigned five judges, each sitting individually. These judges have particular experience and expertise in commercial law matters, including arbitration, securities, insolvency and restructuring, insurance and intellectual property among others.

The Commercial Court operates as a distinct list within the High Court—which is Ireland’s highest court of first instance—and thus is known also as the ‘commercial list’. The Commercial Court has all the powers of the High Court, including the power to make references on EU law to the Court of Justice in Luxembourg, but in addition applies a dedicated set of procedural rules aimed at streamlining the litigation process and promoting speed and efficiency in the conduct of commercial proceedings.

Chapter 11

with a policy of promoting alternative dispute resolution, the Commercial Court will normally encourage and facilitate mediation of disputes. Additionally, the Commercial Court is receptive to the use of technology in the conduct of proceedings, including paperless trials.

At the directions hearing, the Court will normally make directions regarding the parties’ trial preparation, including, for example, the exchange of witness statements, the filing of legal submissions, and the preparation of issue lists. In particularly large or complex cases, the court may assign a specific judge to manage the case through the commencement of the trial or may schedule an additional pre-trial Consistentconference.

if there has been an unexplained delay either in seeking admission or in bringing proceedings in the first place.

The paramount objective of the Commercial Court is to ensure that cases which have been admitted to the list proceed to trial efficiently and expeditiously. That is reflected in the proactive role the court plays in directing pre-trial steps and in its intolerance of any delaying tactics by the parties. In the years since its inception, the Commercial Court has developed a positive reputation for disposing of complex commercial matters in a skilled and impartial manner and with efficiency and expedition. In recent years the Commercial Court has conducted some of its hearings remotely. It has also facilitated hybrid

A Concise Guide to Arbitration in Dublin

Once admitted, proceedings in the Commercial Court are subject to rigorous case management by the Court. The court will often treat the hearing of an application for admission to the Commercial Court as an initial directions hearing and will make orders regarding, among other things, the exchange of pleadings, any interlocutory motions, and discovery and interrogatories. Usually, once the pleadings are closed (or very nearly closed), the court will hold a further directions hearing where it will allocate a date for the trial of the matter. The time period from initial directions to the allocation of a hearing date typically ranges from a matter of weeks to several months, depending on the nature of the case and the extent of interlocutory motion practice and discovery. Naturally, some large and complex cases by their nature take considerably longer.

hearings where it was necessary for a particular witness as to fact or expert witness to furnish testimony by video link.

Te Commercial Court

Chapter 12

Court Decisions

TheIreland.Irish

Ireland has a common law legal system which adheres to the doctrine of stare decisis. Decisions of the courts are accordingly of central importance to the development of the law in Ireland, including in connection with a statutory regime such as that as provided for under the Arbitration Act 2010. Since the commencement of the 2010 Act there have been a number of significant decisions covering a range of issues arising under the Act and the Model Law. This has contributed to an enhancement of the relevant principles governing arbitration in

This chapter provides an overview of a number of significant Irish court decisions on the Model Law.

courts are generally receptive to authorities from other common law jurisdictions, which can have persuasive but not binding effect. This most often arises in conventional litigation where decisions of the courts of England and Wales are often (but not always) followed. The adoption of the Model Law has enhanced this practice even further, however, since the courts now interpret and apply the very same text that courts in other jurisdictions have considered. The result has been a broad—and growing—alignment of Irish jurisprudence with a number of key global arbitration hubs such as Hong Kong and Singapore. Irish courts also continue to have regard to decisions of the courts of England and Wales under the Arbitration Act 1996.

Application for stay of litigation under Article 8 of the Model Law

In Córas Iompair Éireann v Spencer Dock Development Company Ltd. & Anor [2011] IEHC 185 (Laffoy J), an application was made for an order directing the respondent to pay over a particular percentage of commercial rent as an additional rent payment following an

In O’Meara v Commissioners of Public Works in Ireland [2012] IEHC 317 (Charleton J), the defendant sought to stay the proceedings and to refer the dispute to arbitration under the terms of an arbitration clause in a commercial lease. The plaintiff opposed the application on the grounds that the clause did not cover particular types of claims. The Court rejected this argument, opting against making fine distinctions between categories of claim in an arbitration clause and approving the approach of the House of Lords in Fiona rust Corp. v Privalov [2007] 4 All ER 951, in which Lord Hoffman emphasised that:

A Concise Guide to Arbitration in Dublin

“it is the agreement of the parties that is to be enforced by the Court and […] the commercial nature of such an agreement is to be vindicated”.

The Court noted also that it “had little choice [in respect of issuing a stay] where a valid arbitration clause occurs in a lease or contract” and made clear the narrow breadth of the circumstances in which it would not refer a dispute to arbitration under Article 8.

The defendant applied to the Court to exercise its jurisdiction under Article 8(1) of the Model Law and refer the dispute over the calculation of additional rent to arbitration. The Court declined to do so, finding that it had no jurisdiction under Article 8(1) in circumstances where the arbitration had already taken place, the application before the Court comprised proceedings to enforce the award, and the parties were not ad idem as to the effect of the award. Instead, the Court observed that the logical and sensible course was for the parties to avail of the arbitrator’s invitation to make further submissions.

In P. Elliot & Company Ltd. v FCC Elliot Construction Ltd [2012] IEHC 361 (MacEochaidh J) the defendant sought to stay court proceedings and refer the dispute to arbitration pursuant to an arbitration clause in a joint venture agreement. The defendant conceded that it was not a party to the joint venture agreement but argued that it was nevertheless entitled to invoke the arbitration clause because it was the entity incorporated for the purposes of effecting the joint venture.

arbitral award in which the arbitrator had found that the applicant was entitled to additional rent (but had not specified the percentage amount sought by the applicant).

“does not create a discretion to refer or not to refer matters to arbitration but directs a court to grant or not to grant a stay, depending on the threshold issue of whether the parties to the proceedings are parties to an arbitration agreement”.

“the fact that the applicant for a stay is not a party to the arbitration agreement with the respondent is a complete answer to the application and an insurmountable barrier insofar as Article 8 of the Model Law is concerned”.

The Court rejected the plaintiff’s argument (at para 42) and stated:

Court Decisions

Instead, the Court observed (at para 42) that the question was whether the party relying on the clause “has a sufficient connection, whether factually or by operation of law, with the party who agreed to the arbitration clause to invoke the clause and stay the proceedings in which it is a defendant”.

In this instance, the Court found that the defendant did not meet that test. As a general matter, the Court confirmed (at para 56) that Article 8:

In Mitchell v Mulvey Developments Ltd. & Ors. [2012] IEHC 561 (Hogan J), the plaintiff opposed the defendant’s application for a stay under Article 8 on the grounds that the defendant had delayed in invoking the relevant arbitration clause and was therefore estopped from doing so. Although the defendant had not submitted a defence in the proceedings, the court found that its conduct—including a request for a statement of claim and requests for forbearance by the plaintiff in taking further steps—comprised a representation that it was going to engage in the litigation and defend the case on its merits. Accordingly, the Court said, it was precluded from invoking the arbitration clause. Cf. Go Code Ltd. v Capital Business Services Ltd. [2015] IEHC 673 (McGovern J).

In Barnmore Demolition & Civil Engineering Ltd. v Alandale Logistics & Ors [2010] IEHC 544 (Feeney J), the defendant sought a stay of the proceedings and a referral to arbitration based on an arbitration clause in a draft agreement that the plaintiff claimed had never been executed. As a threshold matter, the Court determined that Article 16 of the Model Law, while permitting a tribunal to determine questions

of jurisdiction, including the existence of an arbitration agreement, does not preclude the Court also from determining whether an arbitration clause exists for the purposes of Article 8.

A Concise Guide to Arbitration in Dublin

In considering the application, the Court first affirmed the core principle of the separability of arbitration clauses. The Court then noted that the requirement under Article 7(3) that an arbitration agreement be in writing would be satisfied so long as the content of the agreement was recorded in any form. Notwithstanding this permissive approach, however, the Court found that there was no valid arbitration clause in existence: the document which had been relied upon by the respondent was an unexecuted draft contract and there was no evidence that the arbitration clause formed the subject matter of a separate agreement between the parties.

In Mount Juliet Properties Ltd. v Melcarne Developments Ltd & Ors [2013] IEHC 286 (Laffoy J), the Court was required to determine whether the arbitration clause contained within a standard form agreement had been incorporated into the parties agreement. The Court held that the reference to the standard form contract—without a specific reference to the arbitration clause it contained—was sufficient to incorporate the terms of that agreement, including the arbitration clause. This did not change, the court said, even if the respondent claimed to have been unaware of those terms.

Franmer Developments Ltd. v L&M Keating Ltd. & Ors [2014] IEHC 295 (Ryan J) involved an application by a defendant contractor to stay proceedings which had been brought against it by the plaintiff property developer and to refer the dispute to arbitration. The plaintiff accepted that a valid arbitration clause governed the dispute with the contractor but contended that it was incapable of being performed, primarily on the basis that there was a multiplicity of other defendants in the proceedings who were not bound by the agreement to arbitrate and that there would be practical difficulties when claiming damages against all defendants. It was argued that this gave rise to an exception to the mandatory stay provision contained in Article 8 of the Model

TheLaw.Court rejected the plaintiff’s argument, finding that an arbitration clause would only be deemed incapable of being performed where it

Court Decisions

The case turned on the question of whether the parties had in fact executed a master contract and, if so, whether that contract incorporated the charter-party agreement containing an arbitration clause. Much of the judgment is taken up by the Court’s analysis of the appropriate standard of review in respect of an Article 8 application—that is, should the Court merely ascertain on a prima facie basis whether an arbitration agreement exists or should it give full judicial consideration to that question. The Court ultimately determined that full judicial consideration was the correct approach on the grounds, inter alia, that a prima facie analysis would leave open the essential question of whether there was an arbitration agreement between the parties on a final and conclusive basis.

In Te Lisheen Mine v Mullock and Sons (Shipbrokers) Limited & Anor [2015] IEHC 50 (Cregan J), the plaintiff sought a declaration that it had not concluded any contract with the defendants for the carriage of cargo. Opposing the claim, one of the defendants sought a referral of the dispute to arbitration on the grounds that the alleged master contract between the parties incorporated a standard charter-party agreement, which in turn contained an arbitration clause.

“The courts in this jurisdiction have long been supportive of the arbitral process and there is a line of recent authority which clearly establishes

The Court determined that the parties had not concluded a master agreement. Even if they had, however, the Court indicated that it would not have incorporated the charter-party agreement containing the arbitration clause: this was a two-contract situation (i.e., separate contracts without fully overlapping parties) and, adopting the restrictive approach set out by Clarke J in Habas Sinai Ve ibbi Gazlar Isthisal Endustri v. Sometal S.A.L. [2010] EWHC 29, incorporation by reference would not in those circumstances be appropriate.

In BAM Building Limited v UCD Property Development Company Limited [2016] IEHC 582 (McGovern J), an application was brought to stay the proceedings and refer the matter to arbitration. The Court observed at para. 6:

was “incapacitated” as distinct from being inconvenient, complex, or practically difficult to carry out.

The issue that the Court had to decide was whether obligations arising from the outcome of the conciliation process (which had occurred) should be determined by the Court or by the arbitral tribunal. The Court relied upon, inter alia, the decision of the House of Lords in Fiona rust and Holding Corporation & Ors v Privalov & Ors. [2007] All ER 951 to the effect that the construction of an arbitration clause

The Court was satisfied to stay the proceedings on the basis that the dispute between the parties clearly came within the meaning of a clause in the agreement providing for referral to arbitration.

A Concise Guide to Arbitration in Dublin

“must be influenced by whether the parties, as rational businessmen, were likely to have intended that only some of the questions arising out of their relationship were to be submitted to arbitration and others were to be decided by national courts”.

In Kelly’s of Fantane (Concrete) Limited (In Receivership) & Anor v Bowen Construction Limited (In Receivership) & Anor [2017] IEHC 357 (McGovern J), the defendant sought a stay of proceedings brought by the plaintiff on foot of a conciliator’s recommendation that the defendant was required to pay approximately €6.4 million to the plaintiff in connection with a public works project. The parties had agreed a split-level dispute resolution procedure whereby if a party was dissatisfied with the outcome of mandatory conciliation it could subsequently invoke an arbitration clause and have the issue conclusively determined that way. However, the party challenging the conciliator’s recommendation was first required to make the recommended payment and the party resisting the challenge was in turn required to post a suitable bond.

In this case, the Court found that the parties had intended to divide the issues which might be decided by the tribunal and those which might be decided by the court. The Court thus declined to issue a stay under Article 8.

that Article 8 of the Model Law does not create a discretion to refer or not to refer matters to arbitration. If there is an arbitration clause and the dispute is within the scope of the arbitration agreement and there is no finding that the agreement is null and void, inoperative or incapable of being performed, then a stay must be granted.”

Court Decisions

“(1) In construing an arbitration agreement, the court must give effect,

The Court then set out in detail the principles governing its consideration of the scope of an arbitration agreement for the purposes of an application for a stay of litigation. Helpfully, the Court provide the following summary of those principles (at para 53):

In K&J ownmore Construction Ltd v Kildare and Wicklow Education and raining Board [2018] IEHC 770 (Barniville J), the defendant sought a stay of the proceedings and a referral to arbitration pursuant to an arbitration clause contained in a public works contract. The plaintiff resisted the stay on the grounds that the dispute in the proceedings had not arisen under the contract.

The Court took the opportunity to set out the relevant principles concerning an assessment of an arbitration agreement. The Court emphasised the strong support for the arbitral process and the appropriateness of applying a broad interpretation to an arbitration agreement (at paras 30-31):

While in the past the outcome of cases may have turned on differences between the meaning of disputes arising ‘ under’ and those arising ‘ out of’ a contract, the effect of more recent authorities is that courts are less likely to differentiate between those phrases and are more likely to interpret them broadly so as to bring the dispute at issue within the terms of the arbitration agreement. However, the parties” freedom of contract means that it is always open to them to agree clearly as to which disputes between them fall within the scope of the arbitration agreement and which fall outside its scope.”

“The determination of the scope of an arbitration agreement involves an exercise of contractual interpretation. That exercise, however, while attracting the general principles of contractual interpretation, is conducted in a particular context. The authorities … establish that a presumption arises that the parties intend that where a contract incorporates an arbitration agreement it is presumed that the parties intend all of their substantive disputes to be determined by arbitration. This presumption is given concrete effect by the strong support for the arbitral process shown by the Irish courts, particularly, but not only, following the enactment of the 2010 Act. The endorsement given by the Irish courts in the context of the 2010 Act to the broad or liberal approach to the construction of arbitration agreements is but an example of the significant support which the Irish courts have shown for the arbitral process.

(3) The arbitration agreement should be construed in accordance with that assumption or presumption unless the terms of the agreement make clear that certain questions or issues were intended by the parties to be excluded from the jurisdiction of the arbitrator.

The Court found that the dispute in question was encompassed by the arbitration clause and should therefore be referred to arbitration. The court also rejected, inter alia, a submission from the plaintiff that the respondent was estopped from relying on the arbitration agreement. The court found (at para 72) that such an estoppel could only arise where there has been:

(2) The construction of an arbitration agreement should start from an assumption or presumption that the parties are likely to have intended any dispute arising out of the relationship which they entered into to be decided by the same body or tribunal. In other words there is a presumption that they intended a “one-stop” method of adjudication for their disputes.

In Ocean Point Development Company Ltd. (In Receivership) v Patterson Bannon Architects Ltd. & Ors [2019] IEHC 311 (Barniville J), the plaintiff opposed an application by one of the defendants for a stay of

(5) The court should construe the words “arising under” a contract and the words “arising out of” a contract when used in an arbitration agreement broadly or liberally so as to give effect to the presumption of a “one-stop” adjudication and the former words should not be given a narrower meaning than the latter words. Fine or “ fussy” distinctions between the two phrases are generally not appropriate.”

“a ‘clear unequivocal promise or representation’ to the effect that the arbitration agreement would not be relied upon and (b) the party seeking to oppose the reference to arbitration must have acted on the basis of the representation”.

A Concise Guide to Arbitration in Dublin

(4) A liberal or broad construction of an arbitration agreement promotes legal certainty and gives effect to the presumption that the parties intended a “one-stop” method of adjudication for the determination of all disputes.

so far as the language used by the parties will permit, to the commercial purpose of the arbitration agreement.

That was not the case in this instance.

“In order for the provisions of Article 8(1) of the Model Law to be engaged, various requirements must be satisfied. First, an action must have been brought before the court in respect of a dispute between the parties. Second, the action must concern a ‘matter which is the subject of an arbitration agreement’. Third, one of the parties must request the reference to arbitration ‘not later than when submitting his first statement on the substance of the dispute’. If those requirements are satisfied, the court must refer the parties to arbitration (the word ‘shall’ is used). The only circumstances in which the court’s obligation to refer the parties to arbitration does not arise is where the court finds that the arbitration agreement is (i) ‘null and void’ or (ii) ‘inoperative’ or (iii) ‘incapable of being performed’. The onus of establishing the existence of one or more of these disapplying factors rests on the party who seeks to rely on them (see Sterimed Technologies International v. Schivo Precision Ltd [2017] IEHC 35 (per McGovern J at para. 12, pp. 5 4)).”

The Court assessed a number of England and Wales authorities and concluded (at para 52) that the position in Ireland was as follows:

“in order for the mandatory obligation on the court under Article 8(1) to refer the parties to arbitration to be disapplied, what must be ‘null

“a breach of an arbitration agreement by bringing other proceedings is only repudiatory if it is done in circumstances that make very clear that the party in question no longer intends to be bound to arbitrate and that such intention could not lightly be inferred and could only be inferred from conduct which was clear and unequivocal”.

The Court also rejected the plaintiff’s arguments that the noninvolvement of the other parties to the plenary proceedings in any arbitration rendered the arbitration agreement incapable of being performed. In particular, the Court followed the earlier decision of the High Court in Franmer Developments Ltd v L&M Keating Ltd. & Ors [2014] IEHC 295 in noting (at para 62) that

Court Decisions 63

the proceedings and a referral to arbitration on the grounds that the defendant had repudiated the arbitration agreement by commencing earlier summary proceedings and that it was only one of a number of defendants to the proceedings. At para. 26 of his judgment, Barniville J. set out the approach which is required to be taken in considering applications brought pursuant to Article 8(1):

The plaintiff had not satisfied that test.

In K&J ownmore Construction Ltd v Kildare and Wicklow Education and raining Board [2019] IEHC 666 (Barniville J), the plaintiff brought proceedings to obtain payment of a number of invoices which had been issued in connection with the construction of an educational facility. The defendant sought a stay of the proceedings and a referral to arbitration on the basis of an arbitration clause in the parties’ original agreement. The plaintiff resisted the application on the grounds that a subsequent agreement containing a provision to have an expert determine the dispute between the parties had disapplied the arbitration clause.

In accepting the plaintiff’s argument and holding that the arbitration clause was inoperative, the Court noted the extensive scope and terms of the agreed expert engagement. Specifically, it found (at para 17) that the parties had agreed to be bound by any determination or

and void, inoperative or incapable of being performed’ is the arbitration agreement itself and not an arbitration taking place under it”.

In XPL Engineering Limited v K & J ownmore Construction Limited [2019] IEHC 665, Barniville J. was confronted with an application by the defendant to refer the parties to arbitration in respect of the issues the subject matter of the proceedings. The Court acceded to the application and made an order under Article 8(1) of the Model Law referring the parties to arbitration. The Court was satisfied that in respect of the part of its claim which the plaintiff had sought to pursue in the proceedings, there was a dispute which was the subject of an arbitration agreement to which the plaintiff and defendant were parties and thus the Court was required to make an under pursuant to Article 8(1).

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As a general matter, the Court highlighted the mandatory nature of Article 8(1)—that is, the court must refer the parties to a dispute to arbitration if the requirements of Article 8(1) are satisfied and the only circumstances in which the Court would not obliged to do so were those specified in the provision: where the arbitration clause in question is null and void, inoperative, or incapable of being performed. The court also confirmed that the onus is on the party resisting a stay to establish the existence of one of these disapplying factors.

Court Decisions

This, by necessary implication, had disapplied the arbitration clause covering the disputes that were the subject of the expert determinations.

“[e]ven if the parties had not made express provision in the agreement for the determinations of the expert to be ‘final’ and ‘binding’, the default position would, in any event, have been that they were final and binding”..

In Charwin Limited /A Charlie’s Bar v Zavarovalnica Sava Insurance Company D.D [2021] IEHC 489, the defendant brought an application seeking to have the matter referred to arbitration. The plaintiff had sought various declarations as well as damages against the defendant on foot of an insurance policy arising from the closure

series of determinations issued by the expert in accordance with the jurisdiction and powers given to it by the parties.

In Narooma v HSE [2020] IEHC 315 (Barniville J), the plaintiff had contended that the Health Service Executive of Ireland was required under a contract to pay for some 350 ventilators at a cost of almost €7.5 million to treat those who had fallen seriously ill as a result of being infected with the Covid-19 virus. Payment was not made, primarily on the basis of the accuracy of representations which had been made by the plaintiff concerning its status as an authorised agent or distributor for the manufacture of ventilators. Proceedings were commenced to recover the sum. An application was made to refer the parties to arbitration pursuant to Article 8 and an order was made to that effect by the Court. Barniville J. was satisfied that clause 21 of the contract between the parties was an arbitration agreement for the purposes of Article 8 and that the issues the subject of the proceedings fell within that agreement. The Court reiterated the mandatory obligation to make the reference to arbitration where the requirements of Article 8(1) were satisfied and that no discretion existed in such circumstances.

The crux of the analysis of whether the expert determination agreement had rendered the arbitration clause inoperative was whether the expert determinations were to be final and binding. As noted, the Court found that the parties had agreed that they would be. It also recognised (at para. 91) that:

A Concise Guide to Arbitration in Dublin

Barniville J. cited his decision in Ocean Point Development Company Limited (In Receivership) as well as other previous decisions delivered by the Court in XPL Engineering Limited1 and in K&J ownmore Construction Limited2 as setting out the agreed approach to be taken in determining an application for a reference pursuant to Article 8(1). As regards the principles specifically applicable to the interpretation of arbitration agreements, the Court cited the decision of the House of Lords in Fiona rust as well as the Irish cases that had approved that decision. The Court concluded that:

See the decisions also in Bam Building Ltd. V UCS Property Development Company Ltd. [2016] IEHC 582 (McGovern J); Sterimed echnologies

“the grounds on which the mandatory obligation to refer parties to arbitration under Article 8 may be disapplied, must, in my view, be narrowly construed. The absence of expressly agreed procedures such as those mentioned by the plaintiff, is not, in my view, a reason for concluding that the arbitration agreement is “null and void, inoperative or incapable of being performed.” That conclusion is supported by Franmer and Ocean Point.

1 [2019] IEHC 665 (Unreported, High Court, Barniville J, 11 October 2019).

“the role of the court is to uphold and enforce an arbitration agreement which complies with the requirements of Article 8. The court is enforcing the parties’ agreement and it would be inappropriate for the court to refuse to do so on the grounds that the parties may not have incorporated into that agreement certain procedural rights and entitlements. That was something within the control of the parties to agree or not to agree as the case may be.”

2 [2019] IEHC 666 (Unreported, High Court, Barniville J, 11 October 2019).

The Court further observed that:

of the plaintiff’s public house in Galway in March 2020 due to the Covid-19 outbreak. The Claimant argued that the dispute was not arbitrable on the grounds that it gave rise to fundamental issues of public policy. The Court, however, was satisfied the matter was one which was clearly arbitrable and that there were no reasons to conclude otherwise on the grounds of public policy. The Court recited the extensive jurisprudence in respect of the approach to be taken to an application for an order under Article 8(1).

Application for interim measures under Article 9 of the Model Law

In Mayo County Council v Joe Reilly Plant Hire Limited [2015] IEHC 544 (McGovern J), the applicant relied on Article 16(3) of the Model Law to challenge a determination by an arbitral tribunal that it had

The Court accepted submissions to the effect that the procedure to be followed was not an appeal of the arbitrator’s determination and that it could consider such evidence as it saw fit. Adopting that approach, the Court found that, contrary to the arbitrator’s finding, there was nothing in the documentation put before the Court from which it could be implied that the standard form contract containing the arbitration clause had been incorporated by reference into the parties’ contract or otherwise agreed.

In Osmond Ireland On Farm Business v McFarland [2010] IEHC 295 (Laffoy J, a dispute had arisen in respect of an agency agreement between a vendor of agricultural products and an independent salesperson. Having decided that the matter should be referred to arbitration in accordance with Article 8(1) of the Model Law—and thus the litigation would be stayed—the Court affirmed that it had jurisdiction under Articles 9 and 17J of the Model Law to grant interim measures, including an interlocutory injunction. The Court assessed the plaintiff’s entitlement obtain the injunction in accordance with the applicable principles under Irish law and determined that it was not so entitled.

Challenge to jurisdiction of an arbitrator under Article 16 of the Model Law

In John G Burns Ltd. v Grange Construction & Roofing Co Ltd [2013] 1 IR 707 (Laffoy J), an arbitrator had been appointed to determine a dispute between the parties pursuant to an arbitration clause contained in a standard form contract issued by a trade federation. The arbitrator determined as a preliminary question that he had jurisdiction over the dispute and the applicant brought an application under Article 16(3) of the Model Law to challenge that determination.

International Ltd. & Anor v Schivo Precision Ltd. & Ors [2017] IEHC 35 (McGovern J.); XPL Engineering Ltd v K&J ownmore Construction Ltd [2019] IEHC 665 (Barniville J).

Court Decisions

The Court dismissed the application, finding that even if the issue of accord and satisfaction arose, that was a defence to the claim asserted in the arbitration and it did not deprive the tribunal of jurisdiction. The Court emphasised that a challenge under Article 16(3) related only to the tribunal’s jurisdiction and was not an appeal against its substantive construction of the agreement. The Court observed:

The decision in Achill Sheltered Housing Association CLG v Dooniver Plant Hire Ltd [2018] IEHC 6 (McGovern J) involved a challenge by the applicant under Article 16(3) of the Model Law to the appointment of an arbitrator and to the arbitrator’s preliminary ruling that his appointment was valid and that he had jurisdiction over the dispute. The basis of the applicant’s claim was that the disputes referred to arbitration had not been the subject of a mandatory, pre-arbitration conciliation procedure and thus the arbitration clause could not be invoked in respect of those disputes.

The Court accepted the applicant’s contention, finding that matters which were the subject of the referral to arbitration had not earlier

jurisdiction over a dispute between the parties in circumstances where the applicant contended that there had been an accord and satisfaction of the claim arising from the contract containing the arbitration clause.

“In circumstances where the existence of an arbitration clause is not in dispute, the courts will be very slow to interfere with the arbitrator’s ruling on his own jurisdiction having regard to the competencecompetence principle. A challenge under Article 16(3) is a challenge to the arbitrator’s jurisdiction. It is not an appeal against his construction of the agreement. Rather, it is a challenge to his entitlement to embark on such an exercise. What this Court has to decide is whether [the arbitrator] had jurisdiction to hear the preliminary issue, or whether the arbitration clause giving him that power was spent. If he has jurisdiction there it is a matter for him as to how he construes that agreement. In this case, there is no challenge to the arbitration clause. The court therefore has to decide whether or not the arbitrator was correct in law in holding that he has jurisdiction to commence the hearing and rule on his jurisdiction including any objections with respect to the existence or validity of the arbitration agreement. In my view, he did have jurisdiction and was therefore competent to rule on the preliminary issues before him. It is for the arbitrator and not this Court to determine the issues before him.”

A Concise Guide to Arbitration in Dublin

“is not under an obligation to provide the sort of reasoned judgment that would be expected from a judge of the Superior Courts but […] still must give a reasoned award to the extent required to enable a party to see why he reached [the] decision”.

In Hoban & Anor v Coughlan & Anor [2017] IEHC 301 (McGovern J), the applicant sought to set aside an arbitral award on the grounds, inter alia, that the tribunal had failed to issue a reasoned award (following a hearing in which the applicant had declined to participate). Having regard to the fact that the arbitration involved an uncontested hearing, the court found that the tribunal’s award was sufficiently reasoned; the court noted (at para 38) that a tribunal:

Court Decisions

been referred to conciliation and thus the conditions required under the contract for the appointment of an arbitrator were not met. This meant that the appointment of the arbitrator was invalid. The Court also found that the respondent was in breach of the provision in the arbitration clause to refer matters to arbitration forthwith in circumstances where it had waited almost four and a half years to do so.

The applicant also challenged the award on the grounds that the tribunal had appointed its own expert without the parties’ consent. The Court flatly rejected this claim, finding that Article 26 of the Model Law permitted the tribunal to appoint the expert unless otherwise agreed by the parties.

Application to set aside an award under Article 34 of the Model Law

In O’Cathain v O’Cathain [2012] IEHC 223 (Hedigan J), the applicant sought to have an award set aside on the grounds that the respondent had not provided him with information he required to present his case and that the tribunal conducted the hearing in his absence, having refused his application for adjournment. On the first ground, the Court found that there was no evidence that the applicant had insufficient information; on the second, the Court found that he had failed to engage with the arbitration and the tribunal was entitled to continue with it in his absence.

Requirement that arbitral award be reasoned under Article 31

In Snoddy & Ors v Mavroudis [2013] IEHC 285 (Laffoy J), an application was made to set aside an interim award arising from a construction-related arbitration on the grounds of Article 34(2)(a) (iii) of the Model Law. The Court noted its very limited jurisdiction to set aside arbitral awards and emphasised the exclusive nature of the provisions as set out in Article 34. Rejecting the set aside application, the Court noted that in this case the applicant was asking the Court to second-guess the tribunal’s construction of the contract in question and if it were to do so it would be usurping the tribunal’s role.

pointed out by Lord Steyn in Lesotho Highlands Development v Impreglio [2006] 1 AC 221, s. 68 of the UK Arbitration Act 1996 was modelled on the New York Convention and on the Model Law. In considering the application of that statutory provision, Lord Steyn considered Article V(1)(c) of the New York Convention stating (at p. 236):

“It deals with cases of excess of power or authority of the arbitrator. It is well established that article V(1)(c) must be construed narrowly and should never lead to a re-examination of the merits of the award.”

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The Court also declined to remit the award to the tribunal to cure certain defects pursuant to Article 34(4) of the Model Law (at para 35) on the grounds that the jurisdiction to do so was “dependent upon the Court being satisfied that a ground has been proved for setting aside the award”. Finally, the Court emphasised (at para 36) that Article 33 of the Model Law confers no jurisdiction on the Court “to compel a party to see, or an arbitrator to give, an interpretation of a specific point or part of an award”.

Lord Steyn cited a decision of the US Federal Courts as authority for that last proposition: Parsons & Whittemore Overseas Co Inc v Sociéte Générale de l’Industrie du Papier (1974) 508 F 2d 969 (2nd Circuit). The limits on the excess of jurisdiction ground for setting aside an arbitration are, in my view, clearly brought home by the following passage from the opinion of Judge Smith in the Parsons case where he stated:“Although the Convention recognises that an award may not be enforced where predicated on a subject matter outside the

Laffoy J. analysed the basis on which an arbitral award could be set aside by way of an application brought pursuant to Article 34(2) of the Model Law.“Aswas

arbitrator’s jurisdiction, it does not sanction second-guessing the arbitrator’s construction of the parties’ agreement. The appellant’s attempt to invoke this defense, however, calls upon the Court to ignore this limitation on its decision making powers and usurp the arbitrator’s role.”

basis of the respondent’s claim was that the tribunal had jurisdiction over disputes as to minor defects in the property but not over disputes as to major defects. Accordingly, the respondent said, the award fell within the terms of Article 34 and could be set aside. The Court noted (at para 69) that the set aside remedy under Article 34 was discretionary and thus the Court could take all material facts into account when deciding to set aside an award in full (or to remit part of an award back to the arbitrator). The Court accordingly rejected the set aside application, noting that if a party:

The application turned on whether the Court had jurisdiction under Article 34 to set aside an award of this nature. In considering the text of the Model Law, the Arbitration Act 2010, and the UNCITRAL Digest of Case Law, the Court determined that, for the purposes of

Court Decisions

“could simply opt out of the proceedings, by reason of strategy or opportunism, and then come back in after the fact complaining of an error of due process, it would be against the spirit upon which the Model Law was constructed”.

In Delargy v Hickey & Anor [2015] IEHC 436 (Gilligan J), the respondent sought to resist the enforcement of an adverse arbitral award arising from a dispute about major construction defects in a commercial property and applied to have the award set aside. Early in the arbitration, the tribunal had made an interim award striking out the respondent’s points of defence for failure to comply with an order for discovery. Thereafter, the respondent took no part in the arbitral proceedings and the tribunal issued the final award in the applicant’s Thefavour.principal

In FBD Insurance PLC v Samwari Ltd [2016] IEHC 32 (McGovern J), an application was made to set aside an interim arbitral award by which the tribunal directed that a company could continue to prosecute arbitration proceedings in circumstances where it had resolved to undertake a creditors’ voluntary winding up.

The Court also found that there was no merit to the applicants’ other Article 34 grounds for seeking to set aside the award.

The Court stated at para 34:

“There is no doubt … that the policy behind the 2010 Act and the Model Law is to uphold the finality of an award and, therefore, courts are required to construe narrowly the grounds on which an award may be set aside under Article 34 and to exercise the jurisdiction to set aside in a sparing manner.”

the set aside procedure under Article 34, an award must be one which has been made on the merits of the case and must meet the formal requirements of Article 31. It was stated that may be a partial or final award but the procedural ruling at issue in this application was not such an award.

In Ryan & Anor v Kevin O’Leary (Clonmel) Ltd. & Anor [2018] IEHC 660 (Barniville J), the applicants sought to set aside an arbitral award on various grounds provided for in Article 34, including that it was in conflict with the public policy of the State (Article 34(2)(b)). In assessing this ground, the Court relied upon the decision Broström ankers AB v Factorias Vulcano SA [2004] 2 IR 191, which was a pre-2010 Act case relating to the enforcement of an award. The Court found (at para 68) that in order to impugn an arbitral award on grounds of public policy, it must be established that the award “is, or was procured, in violation of the ‘most basic notions of morality and justice’ of the State”. The Court went on to underscore that the public policy ground under Article 34(2)(b) was extremely narrow and would be satisfied in only the most extreme circumstances. At para. 31, the Court stated:

A Concise Guide to Arbitration in Dublin

“Two important principles which can be derived from the Irish cases are as follows. First, the cases stress the importance of the finality of arbitration awards. Second, they make clear that an application to set aside an award is not an appeal from the decision of the arbitrator and does not afford the court the opportunity of second-guessing the arbitrator’s decision on the merits, whether on the facts or on the law.”

Court Decisions

Thesuccessful.Court

In Des Hennessy Building Contractors v O’Beirne [2015] IEHC 596, the respondents sought the dismissal of a bankruptcy summons issued by the petitioner on foot of an unpaid arbitral award. The respondents had failed to seek to set aside the actual award and were out of time to do so, but they argued nevertheless that the bankruptcy summons should be dismissed on the grounds that the arbitrator had been invalidly appointed and that the petitioner was not entitled to enforce

Recognition and enforcement of award under Articles 35-36 of the Model Law

found that Ireland’s pro-enforcement arbitration policy meant that the mere existence of a set aside application would not normally be sufficient for an adjournment of an enforcement application: the Court should give brief consideration to the strength of the set aside application. If the Court found that the award was manifestly invalid, there should be an adjournment and no order for security. If the court found that the award was manifestly valid then it followed that there should be an order for immediate enforcement or for substantial security.

Finally, the Court held that section 23 of the Arbitration Act 2010 permitted the Court only to enter judgment in terms of the award. It could not order enforcement of an unliquidated sum in circumstances where the award did not separately direct payment of the sum.

The Court addressed the respondent’s adjournment application first. It found that it was neither necessary nor appropriate for the court to determine questions of Austrian law, but instead it only needed to be satisfied that there were reasonable or substantial grounds for the respondent’s contention that the set aside application would be

The decision in Danish Polish elecoms v elekomunikacja Polska SA [2012] 3 IR 44 involved an application to enforce a €268 million partial award issued by a tribunal following an arbitration in Vienna, Austria. The respondent had earlier brought an application to the Commercial Court of Vienna seeking to set aside the award and requested the Irish court to adjourn the enforcement application pending the Austrian Court’s determination of the set aside application.

The Court rejected the respondent’s arguments, finding that an application to affirmatively challenge the jurisdiction of the tribunal was time barred and that the defences to enforcement set forth in Article 36 of the Model Law were inapplicable because that provision did not apply to domestic arbitrations such as the one at issue. The Court emphasised that the respondents had the opportunity to challenge the tribunal’s determination of its jurisdiction under Article 16 and to apply to have the award set aside under Article, but did not avail itself of those opportunities.

the arbitral award though issuance of a bankruptcy summons. They also argued that the allegedly invalid appointment of the arbitrator could be relied upon as a defence to the enforcement proceedings.

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In Avobone N.V. v. Aurelian Oil and Gas Ltd. & Ors [2016] IEHC 636 the applicant sought to enforce an arbitral award obtained in England and Wales. The respondent contested the jurisdiction of the Court on the grounds, inter alia, that it had no assets in the jurisdiction. The Court rejected the respondent’s claim and upheld its jurisdiction by reference to the “solid practical benefit” test as enunciated in the decision in Insurance Corporation of Ireland v Strombus International Insurance Co. [1985] 2 Lloyd’s Rep 138.

Significant emphasis is placed by Irish courts on party autonomy and the courts’ primary role in contractual disputes is to give effect to the bargain which has been reached between the parties.

Contract Formation

In determining whether a contract has been formed, Irish contract law applies the concept of offer and acceptance. As it was put by the High Court in ansey v College of Occupational Terapists [1995] 2 ILRM

Irish Contract Law

601:“Contractual

obligations derive from agreement made between two or more parties under which one promises or undertakes with the other the performance of some action. Ordinarily, the existence of an agreement presupposes an offer by one party to perform the action on certain terms and the acceptance of that offer by the other. Logical analysis would suggest that the offer must be communicated to the person for whom it is intended and in turn his acceptance must likewise be communicated to the offeror. In the absence of such communication, whether expressed or implied, there would not be that

Ireland is a common law jurisdiction and Irish contract law is largely based on the common law. While historically based on English contract law, the Irish courts have developed a significant body of jurisprudence on the Irish law of contract. Nonetheless, the substance of Irish contract law remains very close to English contract law. Decisions of the English courts, and those of other common law jurisdictions such as Australia, can have persuasive effect in many cases and inform the further development of the Irish law of contract. (*author: consider splitting sentence into two?] Where it applies, legislation can also impact upon parties’ contractual relations.

Introduction

Part III

meeting of minds which is implicit in the concept of any agreement. It must be recognised, however, that the innumerable authorities dealing with the law of contract and academic analyses of those decisions over many years reveal refinements of this analysis and apparent exceptions to it. Nevertheless, it seems to me that the case made on behalf of the plaintiff must be examined with a view to identifying the offer and acceptance constituting the alleged agreement.”

The law on implied terms is complex but, broadly speaking, the courts will imply a term into a contract where the term can be inferred on the basis of the presumed intention of the parties, or, in particular circumstances, where the implied term derives from the nature of the contract itself. The general approach of the courts to implied terms, as affirmed by the Court of Appeal in Flynn v Breccia [2017] IECA 74, is as follows:“(1)

(4) it must be capable of clear expression;

Unlike many continental systems, Irish contract law does not impose a duty on the parties to perform the contract in good faith. In Flynn

(5) it must not contradict any express term of the contract . . . .”

Implied terms

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(3) it must be so obvious that ‘it goes without saying’;

it must be reasonable and equitable;

(2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;

Good faith

The general rule is that contracts do not have to be in written form and an oral agreement can result in a binding contract. This position is modified by a number of statutory sources which may be applicable in particular circumstances. These include the Statute of Frauds (Ireland) 1695; the Statute of Frauds Amendment Act 1828; the Land and Conveyancing Law Reform Act 2009; the Copyright and Related Rights Act 2000; certain consumer protection legislation; and the Arbitration Act 2010. Section 2 of the Arbitration Act 2010 defines an arbitration agreement by reference to the UNCITRAL model law, which requires that it shall be in writing. An oral agreement to arbitrate would remain enforceable at common law but would not be governed by the Arbitration Act 2010.

Interpretation of contracts

Irish Contract Law

The general approach was described by the High Court in UPM Kymmene Corporation v BWG Limited [1999] IEHC 178 and repeated by the Supreme Court in Reid v HSE [2016] IESC 8:

“The Court’s task is to ascertain the intention of the parties, and the intention must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. Moreover, in attempting to ascertain the presumed intention of the parties, the Court should adopt an objective, rather than subjective approach and should consider what would have been the intention of reasonable persons in the position of the parties.”

“Contracts8:

The primary role of the courts in interpreting contracts is to ascertain the intention of the parties. In doing so, the wording of the contract, set in its context, is of central importance.

This broadly mirrors the approach to contractual interpretation which had been set out by the House of Lords in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896, a decision which has been cited with approval in Ireland, including by the Supreme Court in Analog Devices BV v Zürich Insurance Company [2005] 1 IR 274.

must be given business efficacy, since negotiations take place for a purpose, most commonly to render certain the obligations of the parties in language which makes it mutually clear what each expect the other to do. Thus, the objective meaning of words within a contract are informed by an objective consideration of the background knowledge of the parties to whom the contract is addressed”.

The Irish courts will also seek to ensure that commercial contracts are given business efficacy. As the Supreme Court stated in Reid v HSE [2016] IESC

It can be seen therefore that the approach to contractual interpretation is not overly literal. However, it should be remembered that the starting point for the interpretation of a contract remains the natural

v Breccia [2017] IECA 74, the Court of Appeal held that there is no general implied term of good faith or fair dealing in Irish contract law.

“It is important however to note that where the parties have committed their responsibilities to written form, in a particular manner, it must be assumed that they have intended to give effect to their obligations in that way. Such must be recognised as their right, both commercially and under contract law. Accordingly it is important that, when faced with a construction issue, a court should focus its mind on the language adopted by the parties being that which they have chosen to best reflect their intentions. It is not for the court, either by means of giving business or commercial efficacy or otherwise, to import into such arrangement a meaning, that might also be available from an understanding of the more general context in which the document came to exist, but is one not deducible by the use of the interpretive rules as mentioned.”

There are various circumstances in which a contract will be held to be void or otherwise not enforceable.

The point was also made by McKechnie J in Marlan Holmes Ltd v Walsh [2012] IESC 23, in which he made the following statement of principle:

“This passage, particularly para 4, should not be misunderstood as advocating a loose and unpredictable path to interpretation. A court will always commence with an examination of the words used in the contract. Moreover, words will, as Lord Hoffman emphasises, normally be interpreted in accordance with their “natural and ordinary meaning …”. Business people will be assumed to know what they are doing and will normally be bound by what they have signed. The exercise is to be conducted objectively. The parties are not permitted to give evidence of their subjective intentions or of the negotiations leading to the conclusion of the contract.”

A Concise Guide to Arbitration in Dublin and ordinary meaning of the words used. This was noted by Fennelly J in ICDL GCC Foundation FZ-LLC v European Computer Driving Licence Foundation Ltd [2012] IESC 55, [2012] 3 IR 327. Referring to Lord Hoffman’s five principles in the West Bromwich case, he said:

Certain kinds of mistake can lead to invalidity. In general, a common mistake shared by the parties will lead to a contract being declared void. If there is a mutual mistake, it may also be held that there was no consensus and therefore no contract ever came into force. In some

Invalidity of contracts

In addition, at common law, there are a number of circumstances where a party can treat its obligations as having been discharged and terminate the contract. These include where there is a breach of a condition (as opposed to a warranty); a sufficiently serious breach of an intermediate/innominate term; and where there is a refusal to perform the contract by the other party, amounting to renunciation of the contract.

contract will typically set out particular circumstances which give a party a right to terminate. The parties may also agree to terminate the contract by subsequent agreement.

circumstances, a fundamental mistake as to identity can result in a contract being void.

Termination

A party may also be released from its obligation to perform a

In general, termination of commercial contracts takes place pursuant to contractual termination rights and/or under common law rights of Atermination.commercial

Irish Contract Law 79

A contract can be rescinded where there has been a fraudulent misrepresentation and, in some cases, where there has been a negligent or innocent misrepresentation.

A contract may also be set aside where it has been concluded as a result of threats or undue persuasion. The common law doctrine of duress and the equitable doctrines of undue influence and unconscionability can intervene to result in the invalidity of a contract.

The courts may also refuse to enforce a contract which is illegal. However, following the Supreme Court decision in Quinn v IBRC [2015] IESC 29, [2016] 1 IR 1, the illegality rule has become more flexible, so that the courts will consider the purpose of the legal rule which has been breached, and a range of other factors, before reaching a conclusion that a contract should not be enforced on account of illegality. A similar approach has since been adopted in English law (in Patel v Mirza [2016] UKSC 42, [2017] AC 467).

Remedies for breach of contract

The special remedy of specific performance may be available in certain circumstances but the remedy in commercial cases is usually damages.

Causation must be established and so the plaintiff must show that the breach of contract has caused the loss and that loss must be proved. Pursuant to the rule in Hadley v Baxendale, damages are limited to those arising from the usual course of things, or which may reasonably be supposed to have been in the contemplation of both parties at the time the contract was made, or which arise from special circumstances communicated by the plaintiff to the defendant.

There are a number of different remedies which a party can potentially claim for breach of contract.

“The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.”

contract where performance is frustrated by some external event or circumstance. The doctrine of frustration is “one of limited application and narrowness” however and arises

The basic rule is that damages should compensate the plaintiff for the breach of contract, by putting it in the position it would have been in, had the contract been performed. An old authority which states the rule is Robinson v Harman (1848) 1 Ex 850, where Parke B noted:

Whether exemplary damages can be awarded for a breach of contract in Irish law is not entirely clear (a point made by the Irish Law Reform Commission in a 2000 report on damages). The traditional position was that no such award could be made for a breach of contract and to the extent that exemplary damages could be awarded, this will arise in only very exceptional circumstances.

“in circumstances where performance of a contract in the manner envisaged by the parties is rendered impossible because of some supervening event not within the contemplation of the parties” (Ringsend Property Ltd v Donatex Ltd [2009] IEHC 568).

A Concise Guide to Arbitration in Dublin

In certain circumstances, damages for breach of contract may be awarded on a restitutionary basis so as to strip unlawful gains made by the wrongdoer (Hickey v Roches Stores (No 1) (14 July 1976)).

Separately, a party to a contract may have a separate cause of action for unjust enrichment, arising out of the relationship between the parties. This is not a breach of contract claim however, but a distinct cause of action.

A party may also seek specific performance of a contract, which is a remedy obliging the other party to perform the contract. An injunction of some type may also be sought in the contractual context. These are equitable reliefs and are discretionary remedies.

The parties to a contract may agree clauses which exempt or limit liability for damages.

Further sources

Irish Contract Law

Clark, Contract Law in Ireland (8th edn, Round Hall 2016).

McDermott and McDermott, Contract Law (2nd edn, Bloomsbury Professional 2017).

Enright, Principles of Irish Contract Law (Clarus Press 2007).

Ireland is also one of the most open and globally connected countries in the world. Its geographic position allows for easy transport links to Europe, the United States and the Middle East. With ‘Brexit’ now upon us, Ireland’s membership of the European Union and Euro provides easy access to some of the richest markets in the world.

Dublin is an ideal location for international arbitration. It provides a familiar legal framework, experienced practitioners and world class facilities. However, there are many other excellent reasons to bring your arbitration to our capital city. There is an incredible pro-business environment, it is a great place from which to recruit local and international talent and the infrastructure is constantly improving, including one of the most advanced telecommunications infrastructures in Europe.

Entry into Ireland

83 Part

PracticalitiesIV

In order to help you get to know the real city, Dublin City Council have created Dublin.ie — a one stop shop for living, working, investing and studying in our great city. Dublin.ie is packed with listings, interesting content and articles that will help you enjoy the city even more. For more, visit Dublin.ie.

Introduction

How to apply for a visa

Visitors may check if a visa is required for their journey through the following web page: www.inis.gov.ie/en/INIS/Pages/check-irish-visa.

Visitors should be aware that Ireland is not a member of the ‘Schengen Agreement’ and so a Schengen visa will not be sufficient to enter Ireland. This includes a permit to reside in the ‘Schengen Area’.

Applicants should bring copies of their conference invitation letter, employment letter, hotel booking, return flights and evidence of obligations at home with them when presenting at the border. An Immigration Officer may request any and all documents they feel necessary in making a decision to grant or refuse entry to Ireland at the border.

A Concise Guide to Arbitration in Dublin

1. Passport – current original passport and copies of previous passports;

3. Employment/college letter, corroborating the above;

4. Invitation letter from the conference organiser, stating that the applicant is due to attend the conference, the dates of the conference, and the extent to which the organiser will be funding the applicant’s visit;

Documents Required

2. Application letter, outlining the relevance of the conference to the applicant, ie, that the conference is on a subject relevant to the applicant’s employment or studies;

The most important documents to include with the application are:

5. Proof of obligations to return home. This will differ for each individual applicant but usually would include employment, family or social reasons the applicant must return to their home country;

Similarly, Ireland is not a part of the United Kingdom. A separate Irish visa will be required, except in limited circumstances. These circumstances will be outlined on the INIS website in the section titled ‘Short Stay Visa Waiver Programme’, see: www.inis.gov.ie/ en/INIS/ ProgrammePages/Irish%20Short%20Stay%20Visa%20Waiver%20.

Requirements for a business visa/conference

6. Financial documents. These fulfil two purposes, showing the visa officer that the applicant can support themselves while in Ireland, and also demonstrating that the applicant has a stable financial situation in their home country.

Processing for short stay visas can take up to eight weeks on average, depending on the office to which your application is submitted, the volume of applications on hand at the time, and the complexity of your case. During peak application times (summer, Christmas) applications can take up to 12 weeks.

• Dublin Airport is located 12km north of Dublin city centre;

Some facts about Dublin Airport:

• Linking three continents Africa-Europe-America with 5th freedom Ethiopian Airlines ADD DUB LAX;

Practicalities

Visiting Dublin and the surrounding counties Dublin Airport

• Dublin Port Tunnel cuts journey time from the airport to the city centre, to 12-15 minutes;

• Most international car rental companies have representation in the airport terminal’

• 328 flights per week to North America by 10 airlines serving 11 destinations in the US and four in Canada;

• Dublin – London is the busiest route in EU and second busiest in World;

• Private/public bus services that operate from the airport: Aircoach, Airlink;

Visitors who require a visa should visit the web page below for full details on the process and documents required: www.inis.gov.ie/en/ INIS/Pages/Conference%20or%20Event%20Visa.

For emergency assistance from the police, the fire brigade, the ambulance service etc., dial 112. Emergency calls from pay phones are free of charge. Dial 114 14 for non-urgent matters.

Travel to and around Dublin Dublin Airport is one of Europe’s busiest airports, with 60 airlines flying to over 179 destinations. Dublin Airport now offers services to over 30 airports in the UK and the ever expanding European network – now more than 100 airports.

• Taxis are readily available for hire outside the airport (a taxi journey into the city centre from the airport should cost approximately €25);

• Check-in capacity of 165 desks.

In emergencies

Dublin Airport manages an average of 60,000 passengers per day, rising to 80,000 during the peak season, with more than 600 aircraft movements every day.

• Only EU capital with all day United States pre-clearance;

Transportation around Dublin

Dublin is one of the top ten bicycle-friendly cities on earth. 120km of cycle lanes and an excellent City Bike Scheme —Dublin Bikes— makes it easy for visitors to enjoy Dublin on two wheels.

Dublin’s ‘DART’ (Dublin Area Rapid Transit) system offers a fast and frequent way to get to Dublin’s picturesque coastal villages. The service travels along the picturesque Irish Sea coastline for much of its journey with routes to Malahide and/or Howth in north Dublin, to the city and southwards to towns and villages including Dún Laoghaire, Dalkey, Bray and Greystones, County Wicklow. The Leap visitor card is valid for journeys the DART or a single/return ticket can be purchased at any DART station ticket machines.

A Concise Guide to Arbitration in Dublin

‘Luas’ is Dublin’s light-rail tram crossing the city on two lines (the Red line and the Green line). Single/return or flexi-tickets can be purchased, covering travel for seven or 30 days, from vending ticket machines at street side Luas stops or use their Leap visitor card.

Dublin has an extensive network of public bus routes, making it easy to get around the city and to the suburbs too. The Dublin Bus website provides route, timetable and fare information making it easy for your clients to bus around the sights, and a real time information service shows when buses are due to arrive at stops.

The ‘Leap Visitor Card’ (www.leapcard.ie) offers visitors unlimited transport across Dublin city and suburbs (including Airport to City transfer) for 1, 2 or 7 days, with top up options, on any public transport (bus, Luas, Dart). Available 24 hours at Dublin Airport or for purchase in the city, from Dublin Airport (Bus and Travel Information Desk (T1 Arrivals) and 24-hour Spar Convenience Store (T2 Arrivals) and Dublin City Centre (Dublin Bus, 59 Upper O’Connell St, Discover Ireland Centre, 14 Upper O’Connell St and Visit Dublin Centre, 25 Suffolk St).

‘Do Dublin’ card (www.dodublin.ie) provides 72 hours of unlimited journeys on Airlink Express (airport to city centre) Green Hop-on Hop-off open-top City Tour bus and Dublin Bus Public Transport.

The Dublin Dispute Resolution Centre

Hearing venues

The Dublin Dispute Resolution Centre (‘DDRC’) is a purpose built centre which operates as a ‘one stop shop’ for dispute resolution from the time initial contact is made, to the conclusion of the process. The Centre caters for arbitrations, mediations, and other forms of alternative dispute resolution, as well as ancillary activities such as meetings. The facilities have been used by leading national and international clients.

The rooms come equipped, so many of the things associated as ‘extras’ come as standard at the DDRC, such as flipcharts and pens. A digital projector and screen is included with Room 1, and a roving microphone with Rooms 1 and 2 together. Room 4 comes equipped with a wall mounted screen for presentations, with direct HDMI / VGA links from your desk.

The DDRC has been designed specifically with dispute resolution in mind, but is flexible enough to cater to any meeting from 2 to 100 persons. The DDRC has nine basic spaces. Four large hearing rooms are complemented by five smaller breakout or consultation rooms, all designed and specified to the highest quality. Each room is individually airconditioned and has its own telephone for use. Every desk in every room has dedicated power and data lines. All furnishings have been chosen carefully with the user’s comfort and meeting needs in mind – leather chairs complement the powered desks. Each room has a credenza stocked with stationery basics.

Practicalities

For everything else, DDRC have partnered with local services to provide a complete solution. Parking, catering and other essentials can all be arranged.

A Concise Guide to Arbitration in Dublin

Room Hour HalfDay Day Week Seating

Room 8 €52.50 €157.50 €283.50 €1,134.00 8

• direct HDMI / VGA links from your desk.

Room 6 €57.75 €173.25 €304.50 €1,207.50 10

Room 7 €52.50 €157.50 €283.50 €1,134.00 8

• Podium Mic, roving Mic, Lapel Mic, 3 top table mics.

Room 4 €126 €378 €672 €2,688.00 20-30 + Extra to room 4

Room 2 €94.50 €283.50 €504 €2,016.00 15-25

Room 3 €84 €252 €451.50 €1,795.50 10-16

• A wall mounted screen presentationsfor

1&2Room €157.50 €472.50 €850.50 €3,402.00 30-100 + Extra to room 1 & 2 (combined)

Room Rates (euro, ex vat) prices applied 2022 and may be subject to change.

• changed.canConfigurationbeeasily

• Top table, Podium

Room 5 €52.50 €157.50 €283.50 €1,134.00 8

• A ScreenProjectorDigital&

Room 1 €94.50 €283.50 €504 €2,016.00 15-25

Room 9 €52.50 €157.50 €283.50 €1,134.00 8

ConferencingVideo

Reception staff are always on hand to provide a range of administrative support, from assistance with printing and photocopying to booking catering, couriers and making hotel recommendations. Staff will assist you with all aspects of event / hearing planning to ensure that your time with us is as productive as possible.

onconnection,Rate.Includedp/hr:VideoconferencingskypeinrentalMultiwayPriceRequestSkypeUnit:Includedinrentalrate.TV,PC&speakers–Priceonrequest

The Centre offers high speed videoconferencing in all of its rooms. We can accommodate ISDN videoconferencing at 384 kb / s.

•

ServicesStenographyGwenStenography:Malones

Service Description Cost ServicesReception

DDRC have partnered with Gwen Malone Stenography Services (GMSS) to provide our clients with first class stenography and transcription services. GMSS is Ireland’s foremost provider for court reporting services and professional transcripts and are experts in videographic depositions and all technological innovations that apply to realtime reporting across Europe.

•

Included in Rate

Included in rental rate Stenography ServicesTranscription&

Practicalities

Service Rates

&TeleconferencingTelephoneuse

All rooms in the DDRC have their own dedicated telephone lines and are equipped with Nortel Networks M3904 speaker phones.

Price on request

The Centre can offer a variety of translation and interpretation services through partnership with a variety of external service providers. Clients can avail of translation and interpretation from industry specialists, in over 40 languages, and in various forms (simultaneous, whispering, consecutive, etc.).

Catering

We offer complimentary tea and coffee in our self-service facility. The DDRC can offer a broad range of catering options, in line with your specific requirements. From in house catering from the Distillery Building’s beloved onsite restaurant (Te Dock), to booking lunches in the many local cafes and restaurants, or organising conference dinners on your behalf. Staff have a wealth of event management experience and are happy to assist you.

The DDRC has partnered with Park Rite Car Park in Smithfield (Queen Street), less than a five minute walk from the Centre. Park Rite offers a secure and reliable car parking option in the heart of Dublin’s legal district and provides preferred rates to DDRC clients

Printing Photocopyingand

servicesTranslation

Car parking

The DDRC boasts its own print room, providing clients with their own confidential printing and photocopying facilities. Clients can print directly from their own devices or alternatively, our staff are always on hand to assist you with your printing needs.

Colour Print/Copy p/ 5page:cent A4 B&W, 25 cent A4 colour 45 cent A3 colour

We have partnered with a number of local hotels and serviced apartments to offer clients reduced rates.

Accommodation

• Translation services: Price on request

A Concise Guide to Arbitration in Dublin

• Data Projector p/day

The experienced and friendly staff are on hand to assist with all your meeting requirements and would be happy to discuss your needs with you prior to your meeting.

Ormond building

• 24 seater room €120 per hour, €360 per half day and €500 per full day.

• 30 seater room €150 per hour, €450 per half day and €700 per full day.

• TV/Video/DVD p/day

Our breakout rooms are charged as follows:

Ormond Meeting Rooms has 14 state of the art meeting rooms, fully fitted with all mod cons, including air conditioning, teleconference facilities and hi-speed WiFi. Rooms vary in size from eight to 44 people boardroom style and up to 110 people theatre style so whether you’re just meeting a client for a quick chat, attending a late night meeting or hosting a seminar, all your meeting needs can be catered for. The largest room seats 110 people theatre style, 44 boardroom style and 60 round table with a top table for four speakers, two 65 inch multi-media monitors with audio/visual and podium, making it ideal for seminars, training courses or an evening meeting with wine and canapes for networking events,

• 10 seater rooms €70 per hour, €230 per half day and €330 per full day.

• 18 seater rooms €100 per hour, €320 per half day (any 4 consecutive hours between 8.30am and 5.30pm) and €470 per full day (8.30am to 5.30pm).

We offer a wide range of administration services, i.e.

• 8 seater rooms €55 per hour, €175 per half day and €270 per full day.

Included in rental rate

• 44 sear room €200 per hour, €550 per half day and €900 per full day.

• Courier Services

Miscellaneous

*Prices apply from September 2022 and maybe subject to change.

Price on request

Included in rental rate Price on Includedrequestinrental rate

• Document Visualizer p/day

AGM’s, ceremonies, etc.

• Security Shredding

Practicalities

• We offer secure shredding.

• Telephone calls are charged at the local rate.

Five Star Hotels

• Tea/coffee & biscuits @ €4.50 per person can be ordered anytime throughout your booking, as can mineral water @ €1.50 per bottle. Lunch (tea/coffee, sandwiches & biscuits) @ €11.50 per person can be ordered up to close of business the evening before your meeting.

The Merrion Hotel, Upper Merrion Street, Dublin 2.Telephone +353 1 603 0600

DublinWestmorelandCollegeThehttps://www.doylecollection.com/hotels/the-westbury-hotelDublinBalfeThehttps://www.theshelbourne.com/Dublin27Thehttps://www.merrionhotel.comShelbourneHotel,St.StephensGreen,2.Telephone+353-1-663-4500Westbury,Street,2.Telephone+35316791122Westin,Green,Street,2

• Photocopy/printing = A4 B&W 10c per sheet, A4 colour 30c per sheet, A3 B&W 20c per sheet, A3 colour 60c per sheet.

A Concise Guide to Arbitration in Dublin

• Rooms 2, 4 and 10 are equipped with 55 inch multi-media monitors and rooms 12, 13 and 14 are equipped with 65 inch multi-media monitors with audio visual and rooms 9 and 11 are equipped with an overhead projector and screen. These monitors are portable and can be used in any of our rooms. All of these can be used in conjunction with a laptop for presentations, etc.

• We have a Stenographer, Grainne Smith, who we can contact for you. Grainne quotes for stenography separately.

Hotels

• We offer a courier service, the cost of which can be added to your final invoice.

Telephone +353 1 645 https://www.marriott.com/hotels/travel/dubwi-the-westin-1000dublin/ConradDublin,EarlsfortTerrace,SaintKevin’s,Dublin2.Telephone+35316028900https://www.hilton.com/en/hotels/dubhcci-conrad-dublin/

Practicalities 93

Morrison Hotel, Ormond Quay Lower, Dublin 1.Telephone +353 1 887 2400 https://www.TelephoneDublinSmithfield,6-11Thehttps://www.thegibsonhotel.ie/TelephoneDublinPointThehttps://TelephoneDublin6-8Thehttps://wwwDublin.TelephoneGoldenRadissonhttps://www.morrisonhotel.ie/BluRoyalHotelDublin,Lane,+35318982900.radissonhotels.com/en-us/hotels/radisson-blu-dublinClarenceHotel,WellingtonQuay,2.+35314070800theclarence.ie/GibsonHotel,Square,1.+35316815000HendrickSmithfield,HendrickSt,7.+35316815000hendrickdublin.ie/

Four Star Hotels

Gourmet Patrick Guilbaud, 21 Upper Merrion Street, Dublin Telephone2. +353 (0)1 676 https://restaurantpatrickguilbaud.ie/4192

A Concise Guide to Arbitration in Dublin

Cliff Town House, 22 St Stephen’s Green, Dublin Telephone2. +353 1 638 www.claytonhotelburlingtonroad.com/TelephoneDublinLeesonBurlingtonClaytonhttps://www.thealexhotelTelephoneDublin41-47Thehttps://clifftownhouse.ie/3939AlexDublin,FenianSt,2.+35316073700.ie/Hotel,Road,StreetUpper,4.+35316185600

Dining

Dublin has an exceptional dining scene and its multiculturalism is reflected in the food. Whether it’s dining at a Michelin-starred restaurant, like Chapter One, sampling the exquisite fare at a place favoured by locals in the know, like Forest Avenue, or being spoilt for choice in the Asian restaurants of Parnell and Capel streets, you’ll be well fed in Dublin.

Chapter One, 18-19 Parnell Square N, TelephoneDublinRotunda,1. +353 1 8732266

Mid-Range Restaurants

https://www.onepico.TelephoneDublin5/6Onehttps://www.thegreenhouserestaurant.ie/TelephoneDublin21JoshuaThehttps://www.chapteronerestaurant.com/Greenhouse,House,DawsonSt,2.+35316767015Pico,MolesworthPlace,2.+35316760300com/

Pearl Brasserie, 20 Merrion St Upper, Dublin Telephone2. +353 1

Practicalities

https://www.dax.ie/restaurant/TelephoneDublin23Daxhttps://gloversalley.ie/TelephoneDublin128Glovershttps://www.pearl-brasserie.com/6613572Alley,Stephen’sGreen,2.+35312440733Restaurant,PembrokeStreetUpper,2.+35312440733

A Concise Guide to Arbitration in Dublin

Mr Fox, 38 Parnell Sq West, Dublin Telephone1. +353 1 874 7778 TelephoneDublin4Pigshttps://www.mrfox.ie/Ear,NassauSt,2.+3531670

http://www.musashidublin.com/TelephoneDublin15Musashi,https://www.unomas.ie/TelephoneDublin6Unohttps://www.elywinebar.ie/location/ely-wineTelephoneDublinElyElyhttps://TelephoneDublin16Peploes,http://www.thepigsear.ie/3865StStephensGreen,2.+35316763144www.peploes.com/WineBar,Place,2.+35316339988-bar/Mas,AungierStreet,2.+35314758538CapelStreet,1.+35315328068

Tourism

Dublin is wonderfully diverse, whether you’re seeking art and antiques on Francis Street in the old Liberties area of the city, or enjoying arthouse cinema and cutting edge design in Temple Bar. Dublin’s numerous museums and galleries chronicle our capital’s rich history and entry to most is free.

Saba Thai and Vietnamese Eatery, 22 Upper Baggot Street, Dublin Telephone4. +353 1 56 31 https://www.picklerestaurant.com/TelephoneDublinSaint43Picklehttps://www.sabadublin.com/baggot-street999IndianRestaurant,CamdenStreetLower,Kevin’s,2.+35315557755

The theatre lover

Practicalities

Dublin is a vibrant, cosmopolitan place famed for its culture and nightlife, but it’s so much more than just a city. Its unique setting, next to sea and mountain, makes it as exciting for the outdoor adventurer as it does for those who love to pound city pavements.

Dublin is a UNESCO World City of Literature and our playwrights have truly left a mark on the global stage. Going to the theatre won’t break the bank, whether it’s at the Gate or Gaiety — or in one of the great suburban theatres like Dun Laoghaire’s Pavilion. A behind-thescenes tour of our national theatre, the Abbey, is a must.

No matter what your interest or obsession, Dublin will surprise and delight and while there are attractions like Trinity College and the Guinness Storehouse that many will be sure to visit, do take some time to discover the sights and experiences that reward the true explorer:

The culture vulture

The beer aficionado

The thrill seeker

Expect the unexpected in Dublin. Fancy kayaking along the Liffey which runs through the heart of the city? No problem, you can do that here. And if you really want to get the pulse racing, head to the Grand Canal Dock in the buzzing Silicon Docks to experience the thrill of wake-boarding. The amphibious Viking Splash Tour calls here too.

Dublin’s pub scene is celebrated the world over — and with good reason: we’ve got some of the very best bars. Why not try the Victorian splendour of Te Stag’s Head, the panoramic city views afforded by Johnnie Fox’s or a pint with locals in the Oarsman, Ringsend, with the spectacular vista of the Aviva Stadium close by.

The trendsetter

Want to hang out where the cool kids go? Hook up with the people behind the Le Cool walking tours — they’ll be able to give you a sense of what’s hot, and not, when it comes to restaurants, bars, clubs and shops. Explore the Creative Quarter around South William Street, sip a coffee at Kaph, grab that something special in Georgian splendour of the Powerscourt Townhouse and check out the Dingle Whiskey Bar.

A Concise Guide to Arbitration in Dublin

The bookworm

The great outdoors explorer

A love of storytelling runs deep in Dublin’s DNA and it’s possible to follow in the footsteps of our great writers by having a pint in McDaid’s, a venerable pub, off Grafton Street, that was frequented by Brendan Behan, or dinner at the Woollen Mills restaurant: James

How about abseiling in Dalkey or cliff-diving in Howth? Fancy ziplining in Tibradden Wood or mountain biking high up in Ticknock?

Dublin has miles of coastline and beautiful coastal villages, like Skerries, to explore and to the south of the city the Dublin Mountains offer a real sense of ‘getting away from it all’. There’s so much to do.

The history buff

Dublin is steeped in history and there are so many ways to uncover it, whether it’s walking along one of the Dublin Discovery Trails such as The Dublin Trail, which traces the spine of the old city and which takes in Kilmainham Gaol. Then there are wonderful storytellers, such as historian Pat Liddy, who can bring the heart of the city alive like few others.

For more information: www.visitdublin.com

Cultural Attractions

The culturally curious

There’s so much to do in the city you may not want to leave, but if you fancy exploring some of Dublin’s beautiful coastal villages, they’re just a short train ride away. Go to Howth to experience some of the best fish in Ireland — this fishing port is beautifully located — and visit Dalkey for a drink at Finnegan’s and a walk along the spectacular cliff-hugging Vico Road.

Joyce once worked in this building. Speaking of Joyce, there’s a fine little museum dedicated to him at Sandycove’s Martello Tower.

National Gallery of Ireland, Merrion Square West, Dublin Telephone2. + 353 1 661 https://www.nationalgallery.ie5133/

Practicalities

The escapist

One of the best ways to get to know Dublin is to take a walking tour through the streets in the company of an expert. And we’ve plenty of those whether it’s the Fab Food Tours that celebrate the best in Irish food and drink or the Art & Design Tour that takes visitors well off the beaten track and showcases the wonderful creativity throughout the city.

Nationalhttps://www.museum.ie/TelephoneDublinStoneybatter,BenburbCollinsNationalCollinshttps://www.museum.ie/7444Barracks,MuseumofIreland,Barracks,Street,1.+35316777444MuseumofIreland–

A Concise Guide to Arbitration in Dublin 100

Archaeology, Kildare Street, Dublin Telephone2. +353 1 677 https://www.museum.ie/7444

of Ireland–Natural History Museum, Merrion St Upper, Dublin Telephone2. +353 1 677

Nationalhttps://imma.ie/Museum

Irish Museum of Modern Art, Royal Hospital Kilmainham, Military TelephoneDublinKilmainham,Rd,8.+353 1 612 9900

The Arbitration Act 2010 is the available in full at the excellent state resource, The Irish Statute Book. The following link will bring you directly to the Act and related https://www.irishstatutebook.ie/eli/2010/act/1/enacted/en/htmlresources:.

101 Part AppendixV 1

Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be Dublin, Ireland. The language of the arbitration shall be English.

ICDR (sole arbitrator)

ICDR (three arbitrators)

Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators shall be three. The place of arbitration shall be Dublin, Ireland. The language of the arbitration shall be English.

ICC (sole arbitrator)

All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a sole arbitrator appointed in accordance with the said Rules. The place of arbitration shall be Dublin, Ireland. The language of the arbitration shall be English.

All disputes arising out of or in connection with the present

103 Appendix 2

The following sample Model clauses are a useful guide to counsel when drafting arbitration clauses but care should be taken to ensure the clause is appropriate to the potential dispute in question. The clauses indicate Dublin as the chosen seat.

Model clauses

ICC (one or more arbitrators; number to be determined by the ICC)

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contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The place of arbitration shall be Dublin, Ireland. The language of the arbitration shall be English.

UNCITRAL (Sole arbitrator. Appointing authorities: Chartered Institute of Arbitrators/Engineers Ireland/ Law Society of Ireland/The Bar of Ireland)

LCIA (three arbitrators)

Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force. The appointing authority shall be the chairman for the time being of the Chartered Institute of Arbitrators/ Engineers Ireland/Law Society of Ireland/The Bar of Ireland. The number of arbitrators shall be one. The place of arbitration shall be Dublin, Ireland. The language to be used in the arbitral proceedings shall be English.

Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three. The seat, or legal place, of arbitration shall be Dublin, Ireland. The language to be used in the arbitral proceedings shall be English.

LCIA (sole arbitrator)

A Concise Guide to Arbitration in Dublin

Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of Arbitration (LCIA) Rules, which Rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be Dublin, Ireland. The language to be used in the arbitral proceedings shall be English.

Any controversy or claim arising out of or in connection with this

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• if either party fails to appoint an arbitrator within 30 days of receipt of notice of the appointment of an arbitrator by the other party, such arbitrator shall at the request of that party be appointed by the chairman for the time being of the Chartered Institute of Arbitrators; Engineers Ireland; Law Society of Ireland; The Bar of Ireland;

Any controversy or claim arising out of or in connection with this agreement shall be settled by arbitration. The place of arbitration shall be Dublin, Ireland. The language to be used in the arbitral proceedings shall be English. There shall be three arbitrators, appointed as follows:

• if the two arbitrators to be appointed by the parties fail to agree upon a third arbitrator within 30 days of the appointment of the second arbitrator, the third arbitrator shall be appointed at the written request of either party by the chairman for the time being of the Chartered Institute of Arbitrators/Engineers Ireland/Law Society of Ireland/The Bar of Ireland.

Ad hoc arbitration (Sole arbitrator. Appointing authorities: Chartered Institute of Arbitrators/ Engineers Ireland/ Law Society of Ireland/The Bar of Ireland)

UNCITRAL (Three arbitrators. Appointing authorities: Chartered Institute of Arbitrators/Engineers Ireland/Law Society of Ireland/The Bar of Ireland)

Model clauses

• each party shall appoint an arbitrator, and the two arbitrators so appointed shall appoint a third arbitrator who shall act as chairman of the tribunal;

Ad hoc arbitration (Three arbitrators. Appointing authorities: Chartered Institute of Arbitrators/ Engineers Ireland/ Law Society of Ireland/The Bar of Ireland)

Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force. The appointing authority shall be the chairman for the time being of the Chartered Institute of Arbitrators/ Engineers Ireland/Law Society of Ireland/The Bar of Ireland. The number of arbitrators shall be three. The place of arbitration shall be Dublin, Ireland. The language to be used in the arbitral proceedings shall be English.

A Concise Guide to Arbitration in Dublin agreement shall be settled by arbitration. The place of arbitration shall be Dublin, Ireland. The language to be used in the arbitral proceedings shall be English. The Arbitration Tribunal shall consist of a single arbitrator appointed by agreement between the parties or, failing agreement between the parties within 30 days after a request for arbitration is made by any party, appointed on the application of any party by the chairman for the time being of the Chartered Institute of Arbitrators/Engineers Ireland/Law Society of Ireland/The Bar of Ireland.

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