Arbitration In Ireland

Presented By: Chris O’ Connell, Alice Ward, Roisin Costello, Eden Hoey, Benjamin Ersing

EUROPE’S HIDDEN JEWEL: AN ARGUMENT FOR ARBITRATING IN IRELAND

2011 W&L Law Symposium on International Commercial Arbitration

PRESENTATION FORMAT

I. Arbitration in Ireland Pre -2010 (Chris)

a) Roots and Influences of Modern Arbitration Laws in Ireland

b) An Examination of those Laws

II. The Arbitration Act 2010 (Alice)

III. Attractiveness of Ireland as a Venue (Eden)

IV. Challenges Facing Ireland (Ben)

V. European Legislation Affecting Ireland (Róisín)

2011 W&L LAW SYMPOSIUM ON INTERNATIONAL COMMERCIAL ARBITRATION

ROOTS & INFLUENCES

Brehon Laws• Ancient Customary Celtic Laws• Governed by “Brehons”• Dealt with Issues before them:

•Principles of Fairness•Durability

English Common Law•1698 Act

New York Convention•1980 Arbitration Act

Model Law•1998 Arbitration Act


THE ARBITRATION ACTS

1954 Arbitration Act• Influenced Heavily by English Arbitration Act 1950• Governed Domestic Arbitration• Very Standard Procedures• Interesting Features:

• Potential Interference of High Court• Employer/ Employee Arbitrations not under scope

• Repealed in 2010


THE ARBITRATION ACTS

1980 Arbitration Act• Main Features:

• Mandatory Staying of Court Proceedings• Gave Effect to NY Convention of 1958• Gave Effect to Washington Convention of 1965

• Repealed in 2010 1998 Arbitration (International Commercial) Act

• Adopted UNCITRAL Model Law• Repealed in 2010


IRISH ARBITRATION ACT 2010


• What brought about this change?

• Significant arbitration figures who initiated this development

• AG Dispute Resolution Symposium

• Arbitration Bill 2008

• Arbitration Act 2010

• Significant developments brought about by the 2010 Act

Single most important development in Arbitration in Ireland to date

WHO BROUGHT ABOUT THIS

CHANGE?


Klaus Reichert Nael G Bunni Michael Collins

Dudley Solan Brian Hutchinson Michael Corrigan

RORY BRADY


Attorney General 2002-2007

Suggested that a symposium be organized to examine whether legislative change was needed


Held on April 28, 2007

Engineers Ireland (IEI), Clyde Road, Dublin:

Panel

Michael Carrigan (VP IAA)

Michael Collins (President IAA)

Nael G Bunni (Former Chairman CIA)

Dudley Solan (CIA)

Brian Hutchinson (CIA)

ATTORNEY GENERAL’S DISPUTE RESOLUTION

SYMPOSIUM

CIA-Chartered Institute of Irish Arbitration

IAA – Irish Arbitration Association

SUMMARY OF SYMPOSIUM


General consensus reached that great reform in Arbitration laws was necessary to promote Ireland as a modern venue for

international arbitration.

Findings:• 1954 Arbitration Act was out of date.

• “Multi million dollar business”

• “A system of appeal undermined the raison d’etre of arbitration.”

INTRODUCTION OF ARBITRATION BILL 2008


ICCA opening ceremony (June 2008)

that Taoiseach Brian Cowen announced a new bill on arbitration was ready to be presented to the Dáil

Intervening period (2008 – 2010) was used by various interested bodies such as the Chartered Institute of Arbitrators, to make submissions to the draft legislation.

2008 BILL ACCEPTED


“The Desire for Finality will be met through this

enactment…”

Paul Gallagher AG 2008-2011

Michael Collins, President IAA

Colm O Hoisin, Secretary IAA

“[This development] was particularly marked by support from the Irish

Government and the Attorney General, Paul Gallagher SC.”

“A very welcome development as it incorporates international best practice into Irish law…. A very important positive step in establishing Ireland as an attractive option...”

ARBITRATION ACT 2010


• Signed into law by the President 8/3/2010 and comes into operation on 8/6/2010.

• It repeals all previous arbitration legislation in Ireland.

• The new legislation will apply to ALL arbitrations which commence in Ireland after 8 June 2010 (retrospective affect)

President Mary MacAleese

IRISH ARBITRATION ACT 2010


Layout:1. Main Body of Act

Preliminary and GeneralSubstantive provisions of arbitration in IrelandReference to Arbitration before Court

6 schedules attached to the act1. – UNCITRAL Model Law (2006)2. – New York Convention (1998)3. – Washington Convention (1965)4. – Geneva Convention (1927)5. – Geneva Protocol (1923)6. – Amendments to other Acts

Klaus Reichert – PRO IAA

“Virtually pure model law”

SIGNIFICANT DEVELOPMENTS

UNDER THE “2010 ACT”

Domestic vs International

Single Arbitration Judge

“One Shot” Challenge

Case Stated Procedure

Reasons

Costs


ARBITRATION IN IRELAND TODAY


• Action is now self contained with limited access to the courts

• Reduced right of appeal• No case stated procedure

• Focus in is on PARTY AUTONOMY• Standard legal regime applicable to domestic and international arbitration

Killarney,

Ireland

ATTRACTIVENESS OF IRELAND AS AN

ARBITRATION VENUE


A WINNING COMBINATION

1. Model Law

2. Common Law

3. English Speaking

4. Signatory of the New York Convention


MODEL LAW

• Party Autonomy

• Limited Judicial Intervention

• Modern outlook

• Familiarity Entire text of the model law present in the Arbitration Act 2010


OTHER NOTABLE FEATURES

• Section 22: Full immunity • Section 13: Default No. of Arbitrators

• Section 20: An arbitral tribunal, unless otherwise agreed by the parties, can make an award requiring specific performance of a contract

• Section 18: Arbitrators have express power to award compound interest and security for costs

• Section 17: Tribunal can order intermediary relief


ATTRACTIVENESS OF THE IRISH

COURTS • Neutrality• Judicial Independence • Speedy and Efficient disposal of Arbitration related court applications

•‘One Stop Shop’ Application to the High Court (s. 11)• Appointment of a Specialized Arbitration Judge s (9)2• Commercial Court track record is excellent• Average time for disposal from commencement is 21 weeks

• Arbitration cases are dealt with efficiently and without delay


PUBLIC POLICY

• Irish courts completely accept the exceptional and limited nature of the public policy exception to recognition and enforcement of the UNCITRAL Model Law

• Expressly adopted U.S decision Parsons v Whittemore to the effect that enforcement should be denied on the basis of public policy only in the most exceptional cases

• “The Public policy defense to an enforcement application is one which is of narrow scope. . . It extends only to a breach of the most basic concepts of morality and justice.” Brostrom Tankers v Factorias Volcano (2004) 2 IR 191


WHY IS IRELAND BETTER THAN

ENGLAND?


COST


Ireland

• Courts will recognize whatever agreement the parties make regarding costs. S (21)1

• This includes the decision of each party to bear their own cost irrespective of the outcome

England

• Under section the UK Arbitration Act, agreements or clauses regarding costs are unenforceable.

• Section 60 – such agreement will be rendered void unless made after the dispute has arisen.

RECOURSE AGAINST THE

AWARDIreland

• Grounds for setting aside an award (s 34). In accordance with the NY Convention• “ One stop shop only!”:• Parties may only challenge subject to one Court only – The High Court. • No appeals on point of law taken. • Switzerland has a similar approach


England • Section 69 of the UK Arbitration Act: Appeals on point of law are permitted.

• Potential for becoming meshed in a piece of litigation for a long period of time following the arbitration

• Lack of finality

OTHER LOGISTICAL ADVANTAGES

• Modern Economy with exceptionally skilled personnel and infrastructure

• Strong transport network• Dublin is a small city so no office, hotel, restaurant is too far

away• First class hearing room and conference facilities• Best stenographers in the world• Best lawyers in the world • Undoubtedly the best bars!


FUTURE LOOKS BRIGHT...

Outside Interest

Default Location for ICC Arbitration

Establishment of Arbitration Ireland

Future Focus


See You In Dublin!

CHALLENGES FACING IRELAND


I. Sole Customer Base

II. Competition with London

III. Global Perception of Irish Economy

• Why?• Potential Remedies?

I. SOLE CUSTOMER BASE

The Americans WHY? :

Ethnic ties/Irish-American community Large presence of US Corporations in Ireland Common Language


Solution?Market to Developing Countries

II. COMPETITION WITH LONDON


III. GLOBAL PERCEPTION OF IRISH ECONOMY


FUTURE OF THE EUROZONE?

THE BRUSSELS REGULATION: AN INTRO

The Brussels Regulation 44/2001/EC

Article 1(2) provides:

"The Regulation shall not apply to:...(d) arbitration.”

Article 1(2)(d) is known as the "arbitration exclusion".


CHANGES AND CHALLENGES

European Commission has proposed to bring arbitration-related court proceedings within the scope of the Brussels Regulation

West Tankers decision and its consequences


EUROPEAN COMMISSION’S REPORT

The Commission presented its report and a green paper proposing reforms to the Regulation on the 21st of April 2009.

Subsequent to this review, Professors Hess, Pfeiffer and Schlosser were commissioned to prepare a study into the workings of the Brussels Regulation-the Heidelberg Report


WEST TANKERS DECISION

Coleman J in the HC agreed granting the injunction.

During the proceedings, Allianz SpA questioned whether it would be consistent with the Brussels Regulation for an English court to grant an injunction restraining proceedings in another Member State.

House of Lords suggested that an injunction would not be inconsistent with the Regulation. However they referred question to the ECJ for determination.


EFFECTS OF WEST TANKERS

This undermines the concept of party autonomy as regards choice of seat, denying some of the benefit of ‘arbitration-friendly’ jurisdictions where courts limit any pre-award review to a minimum.

It is also inconsistent with the concept of Kompetenz-kompetenz.


PROPOSED SOLUTIONS GOING FORWARD

Preservation the status quo.

Reversal of the effects of West Tankers.

Implementation of the green paper's approach on the basis of the Heidelberg report.

Implementation of a modified version of the green paper's approach.


CONCLUSION

Adoption of a modified form of the green paper proposals

Under EU law Regulations have Direct Effect on all member states

As a dualist system Ireland will have to enact legislation incorporating any new regulation into law


Documents

Arbitration In Ireland