Arbitration in England

Name: Arbitration in England | with chapters on Scotland and Ireland
Brand: Kluwer Law International
Price: 275.99 EUR
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with chapters on Scotland and Ireland

Julian D. M. Lew Gregory Fullelove(Editor)

Kluwer Law International (Publisher)

Published on 24. July 2013

794 pages

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978-90-411-7415-4 (ISBN)

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England is a leading centre for arbitration, both international and domestic, arising out of all manner of contractual disputes and industry sectors. This book comprises contributions from well-known arbitration practitioners and scholars who present, in a straightforward and readable fashion, the rich and varied nature of arbitration in England today. The early chapters describe the development of the arbitral system in England and its traditional leading institutions, the London Court of International Arbitration (LCIA) and the Chartered Institute of Arbitrators (CIArb). They also provide a unique focus on the specialist areas of commodity, maritime, construction and sports arbitration. The remainder of the book deals with the law and practice of arbitration in England and concludes with two additional overview chapters relating to arbitration in Scotland and the Republic of Ireland respectively. Insightful and practical guidance is given in relation to a number of key areas, including:

- appointing and challenging arbitrators;

- applicable law and the influence of EU law;

- the role of the court, including anti-suit and anti-arbitration injunctions and interim relief;

- arbitration procedure and practice in ad hoc and institutional arbitrations;

- factual and expert evidence, including privilege and electronic document production;

- challenges to, and appeals from, awards;

- recognition and enforcement of awards; and

- multilateral and bilateral investment treaty arbitration.

Anyone whose pursuits or responsibilities require knowledge of arbitration in England - including practitioners, in-house counsel, business persons, academics, and students around the world - will benefit enormously from this thorough study and analysis of contemporary arbitration practice in the jurisdiction.

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Content

Cover
Half Title Page
Title Page
Copyright Page
List of Editors and Contributors
Table of Contents
Preface
List of Abbreviations
CHAPTER 1 Development of the Arbitral System in England
§1.01 INTRODUCTION
§1.02 THE EARLY DEVELOPMENT OF ARBITRATION LAW
[A] Common Law Procedure Act 1854
[B] Review by Courts
§1.03 THE VARIOUS ARBITRATION ACTS
[A] Arbitration Act 1950
[B] Arbitration Act 1975
[C] Arbitration Act 1979
[D] Courts and Legal Services Act 1990
[E] The 1996 Act
[1] The DAC Reports
§1.04 THE ROLE OF ENGLISH COURTS IN INTERNATIONAL ARBITRATION
[A] Anti-suit Injunctions
[B] Anti-arbitration Injunctions
[C] The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards
[1] Enforcement of Awards
[2] Enforcement of Arbitration Agreements
§1.05 ARBITRAL INSTITUTIONS AND ORGANISATIONS
§1.06 CONCLUSION
CHAPTER 2 Relevant Aspects of the English Legal System
§2.01 INTRODUCTION
§2.02 THE ENGLISH LEGAL SYSTEM
[A] The Sources of English Law
[B] Highly Developed System of Procedural Rules
[C] Privilege
[D] Case Management Powers and Costs
[E] The High Court
[F] Appeal from the High Court
§2.03 THE LEGAL PROFESSION
CHAPTER 3 Arbitration in Context
§3.01 INTRODUCTION
§3.02 DOMESTIC AND INTERNATIONAL ARBITRATION
[A] Arbitration's Suitability to Resolving International Disputes
[B] The Legal (In)Significance of the Distinction between Domestic and International Arbitration
§3.03 VARIETIES OF DISPUTE RESOLUTION IN ENGLAND
[A] Tiered Dispute Resolution Clauses
[B] Non-binding Procedures
[C] Direct Negotiation between the Parties
[D] Mediation (Facilitative and Evaluative)
[E] The European Mediation Directive
[F] The Interplay between Arbitration and Mediation
[G] Med-Arb
[H] Early Neutral Evaluation ('ENE')
[I] Expert Determination
[J] Adjudication
[K] Dispute Boards
[L] Litigation and Arbitration
[M] Other Forms of ADR
[N] The Future of ADR in England
CHAPTER 4 The London Court of International Arbitration
§4.01 INTRODUCTION
§4.02 THE LCIA TODAY
[A] The Institutional Structure
[1] Legal Nature of the LCIA
[2] Operational Structure of the LCIA
[B] The Services Provided
[1] LCIA Arbitrations
[2] Implementation of the LCIA Rules
[3] Logistical or Administrative Assistance
[4] Costs
[5] Supporting Tribunals
[6] Non-LCIA Rules Cases
[7] Acting As Appointing Authority 'Only' in UNCITRAL and Other Ad Hoc Proceedings
[8] Administrative Services in UNCITRAL and Ad Hoc Proceedings
[C] Evolution of the LCIA in Recent Times
[1] The LCIA's Growth
[2] The LCIA's Internationalism
§4.03 THE LCIA RULES AND INTERNAL PROCEDURES: SOME KEY FEATURES
[A] Case Administration: The LCIA Approach
[1] A 'Lighter Touch'
[2] Costs
[3] Limiting Delay
[B] The Conduct of Arbitrations under the LCIA Rules
[1] From Request to Appointment
[2] The Claimant's Responsibility for Serving the Request on the Respondent
[3] The Appointment Process (Including the Expedited Formation of the Tribunal under Article 9)
[4] The Default Seat
[5] The Proceedings before the Tribunal
[6] The Rule on Joinder and the Practice on Consolidation
[7] Challenges to Arbitrators
[8] The Award
§4.04 WHERE NEXT FOR THE LCIA?
CHAPTER 5 The Chartered Institute of Arbitrators
§5.01 INTRODUCTION
§5.02 HISTORICAL BACKGROUND OF CIARB
[A] The Institute of Arbitrators (1915)
[B] Legal Character of the Institute (1925)
[C] CIArb's Royal Charter (1979)
[D] CIArb: Promoting Alternatives to Litigation Since 1915
§5.03 CIARB'S OBJECTIVE
[A] Object
[B] Learned Society
[C] Training Programmes
[D] Structure
§5.04 CIARB AS A MEMBERSHIP BODY
[A] Classes of Membership
[B] Chartered Status
[C] CIArb Pathways Programme
[D] CIArb Branches
§5.05 CIARB'S REGULATORY ROLE
[A] Regulatory Committees
[1] The PSC
[2] The PCC
[3] The PMG
[B] CIArb Arbitration Clause
[C] CIArb Arbitration Rules
[D] Regulatory Instruments: CIArb Guidelines and Protocols
§5.06 DISPUTE RESOLUTION SERVICES
[A] Presidential Panels
[B] City Disputes Panel
[C] Branch Panels
[D] Outlook and Challenges
CHAPTER 6 Ad Hoc Arbitrations
§6.01 INTRODUCTION
§6.02 ASPECTS OF AD HOC ARBITRATION
[A] Why Choose Ad Hoc Arbitration?
[1] Procedural Flexibility
[2] Costs
[3] Speed
[4] International Acceptance
[5] Cooperation of the Parties
[B] The UNCITRAL Rules
§6.03 AD HOC ARBITRATION: PROCEDURE AND PRACTICE
[A] Commencing an Ad Hoc Arbitration
[1] The Arbitration Agreement
[2] The 1996 Act and Ad Hoc Arbitrations
[3] Beginning an Ad Hoc Arbitration
[4] Choice of Arbitrators
[5] Appointment of Arbitrators under the 1996 Act
[B] Appointing Authorities
[1] Arbitral Institutions as Appointing Authorities
[2] Appointing Authorities under the UNCITRAL Rules
[3] Other Appointing Authorities
[4] The 'List' Procedure
[C] Procedure in Ad Hoc Arbitrations
[1] The Award
[2] Remedies
[3] Support of the Courts
[D] The Arrangements between the Parties
[1] Arbitrator Fees
[2] Administrative Secretary to the Tribunal
[3] 'The Shadow Arbitrator'
[4] Chairperson
[5] Trust Accounts
[6] Right to Resign
§6.04 AD HOC ARBITRATION IN ENGLAND TODAY
CHAPTER 7 Commodity Arbitration
§7.01 INTRODUCTION
§7.02 COMMODITY ARBITRATION: DISTINGUISHING FEATURES
[A] Commercial Rather than Legal Tribunals
[B] Curtailed Time Limits for Initiating Arbitration
[C] Multi-tier Arbitrations Incorporating Appeal Procedures
[D] The Exclusion of Legal Practitioners from Oral Hearings
[E] String Arbitration / One Binding Award
[F] Defaulter Posting
§7.03 THE LONDON METAL EXCHANGE (LME)
[A] Jurisdiction
[B] Starting an Arbitration
[C] Appointment of the Tribunal
[D] String Arbitration
[E] Procedure and Evidence
[F] Award/Costs
[G] Appeal
[H] Defaulter Posting
§7.04 THE GRAIN AND FEED TRADE ASSOCIATION (GAFTA)
[A] Jurisdiction
[B] Starting an Arbitration
[C] Appointment of the Tribunal
[D] String Arbitration
[E] Procedure and Evidence
[F] Award/Costs
[G] Appeal
[H] Defaulter Posting
§7.05 THE COFFEE TRADE FEDERATION (CTF)
[A] Jurisdiction
[B] Starting an Arbitration
[C] Appointment of the Tribunal
[D] String Arbitration
[E] Procedure and Evidence
[F] Award/Costs
[G] Appeal
[H] Defaulter Posting
§7.06 THE FEDERATION OF OILS, SEEDS AND FATS ASSOCIATIONS LIMITED (FOSFA)
[A] Jurisdiction
[B] Starting Arbitration
[C] Appointment of the Tribunal
[D] String Arbitration
[E] Procedure and Evidence
[F] Award/Costs
[G] Appeal
[H] Defaulter Posting
§7.07 THE FEDERATION OF COCOA COMMERCE (FCC)
[A] Jurisdiction
[B] Starting Arbitration
[C] Appointment of the Tribunal
[D] String Arbitration
[E] Procedure and Evidence
[F] Award/Costs
[G] Appeal
[H] Defaulter Posting
§7.08 THE REFINED SUGAR ASSOCIATION (RSA) AND THE SUGAR ASSOCIATION OF LONDON (SAL)
[A] Jurisdiction
[B] Starting Arbitration
[C] Appointment of the Tribunal
[D] String Arbitration
[E] Procedure and Evidence
[F] Award/Costs
[G] Appeal
[H] Defaulter Posting
§7.09 INTERNATIONAL COTTON ASSOCIATION (ICA)
[A] Jurisdiction
[B] Starting Arbitration
[C] Appointment of the Tribunal
[D] String Arbitration
[E] Procedure and Evidence
[F] Award/Costs
[G] Appeal
[H] Defaulter Posting
§7.10 THE COMBINED EDIBLE NUT TRADE ASSOCIATION (CENTA)
[A] Jurisdiction
[B] Starting Arbitration
[C] Appointment of the Tribunal
[D] String Arbitration
[E] Procedure and Evidence
[F] Award/Costs
[G] Appeal
[H] Defaulter Posting
§7.11 CURRENT TRENDS IN COMMODITY ARBITRATION AND OUTLOOK
CHAPTER 8 Maritime Arbitration
§8.01 INTRODUCTION
§8.02 THE LONDON MARITIME ARBITRATORS ASSOCIATION
§8.03 LONDON MARITIME ARBITRATORS
§8.04 COMMENCEMENT OF ARBITRATION
§8.05 TYPES OF ARBITRATION
[A] Small Claims Procedure
[B] Fast and Low Cost Arbitration
[C] Intermediate Claims Procedure
[D] LMAA Terms
§8.06 DISPUTES AS TO JURISDICTION
§8.07 FORM OF WRITTEN SUBMISSIONS
§8.08 SECURITY FOR COSTS
§8.09 INTERIM FINAL AWARDS
§8.10 THE LMAA QUESTIONNAIRE
§8.11 PRELIMINARY MEETINGS
§8.12 PROCEDURAL ORDERS
§8.13 CONCURRENCY
§8.14 PRELIMINARY ISSUES
§8.15 ARBITRATIONS ON DOCUMENTS ALONE
§8.16 ORAL HEARINGS
§8.17 FORM OF AWARD
§8.18 COSTS
§8.19 TRIBUNAL'S FEES
§8.20 THE FUTURE OF LONDON MARITIME ARBITRATION
CHAPTER 9 Engineering and Construction Arbitration
§9.01 INTRODUCTION
§9.02 APPROACH TO CONTRACTING ON CONSTRUCTION PROJECTS
§9.03 TYPES OF DISPUTES ARISING OUT OF ENGINEERING AND CONSTRUCTION PROJECTS
[A] Quality Disputes
[B] Delay Disputes
[C] Cost/Price Disputes
[D] Interrelationship between Disputes
[E] Secondary Claims
[F] Multiplicity of Claims
§9.04 CAUSATION ISSUES IN ENGINEERING AND CONSTRUCTION ARBITRATION
[A] Difficulties in Proving Causation
[B] Multiplicity of Potentially Causative Events
[C] Global Claims
§9.05 MECHANISMS TO ENSURE PROPORTIONATE AND COST EFFECTIVE PROCEDURE
[A] Chronologies
[B] Lists of Issues
[C] Samples
[D] Scott Schedules
§9.06 POTENTIAL CONDITIONS PRECEDENT TO ADVANCING CLAIMS
[A] Contemporaneous Claim Notification, Particularisation and Substantiation
[B] Multi-tiered Dispute Resolution Procedures
[1] Is Each Step Enforceable?
[2] Is Each Step Mandatory?
[3] What Is the Status of a Decision of an Independent Third Party Prior to Arbitration?
[4] Discretionary Statutory Adjudication
[5] Non-compliance with a Multi-tiered Clause
§9.07 APPROACH TO PREPARATION, COLLECTION AND PRESENTATION OF EVIDENCE
[A] Documentary Evidence
[B] Witness Statements and Expert Reports
§9.08 INVOLVEMENT OF MULTIPLE PARTIES
§9.09 PERFORMANCE BONDS
§9.10 CONCLUSION
CHAPTER 10 Sports Arbitration
§10.01 INTRODUCTION
§10.02 MECHANISMS BY WHICH A SPORTS DISPUTE IS REFERRED TO ARBITRATION
§10.03 WHEN IS A BODY TO WHICH A SPORTS DISPUTE IS REFERRED AN ARBITRAL BODY?
§10.04 APPLICABILITY AND VALIDITY OF A SPORTS GOVERNING BODY'S RULE REQUIRING ARBITRATION
§10.05 INTERPRETATION OF A SPORTS GOVERNING BODY'S RULE REQUIRING ARBITRATION
§10.06 WHICH PARTIES ARE ENTITLED TO PARTICIPATE IN A SPORTS ARBITRATION?
§10.07 SPORTS DISPUTES, OR ELEMENTS OF THEM, THAT ARE NON-ARBITRABLE
§10.08 THE SIGNIFICANCE OF THE ARBITRATORS' EXPERIENCE AND THE 'LEX SPORTIVA'
§10.09 STAYS IN FAVOUR OF SPORTS ARBITRATION
§10.10 INTERIM RELIEF WHERE A SPORTS DISPUTE HAS BEEN REFERRED TO ARBITRATION
CHAPTER 11 The English Statutory Framework
§11.01 BACKGROUND TO THE 1996 ACT
§11.02 OVERVIEW OF THE 1996 ACT
§11.03 APPLICABLE LAW
§11.04 GENERAL LAYOUT OF THE 1996 ACT
§11.05 GENERAL PRINCIPLES UNDERLYING THE 1996 ACT
[A] Separability
[B] Jurisdiction
§11.06 ROLE AND POWERS OF THE TRIBUNAL
[A] Conduct of the Proceedings
[B] Ruling on Substantive Jurisdiction (Section 31)
[C] Evidential and Procedural Matters
[D] Appointing Legal Advisers/Experts (Section 37)
[E] Ordering Security for Costs (Section 38)
[F] Making Provisional or Interim Awards (Sections 39 and 47)
[G] Preservation of Property (Section 38(4))
[H] Orders against a Party in Default (Section 41)
[I] Determination of Applicable Law (Section 46)
[J] Injunctive or Declaratory Relief, Specific Performance, or Rectification of Deeds or Documents (Section 48)
[K] Interest and Costs (Sections 49 and 61-65)
§11.07 ROLE AND POWERS OF THE COURT
[A] Stay Court Proceedings (Section 9)
[B] Extending Time Limits to Commence Arbitral Proceedings (Section 12)
[C] Default Appointment Powers (Sections 15-18)
[D] Termination of Appointment (Sections 23-26)
[E] Determination of Fees (Sections 28, 56 and 64)
[F] To Make Ruling on Jurisdiction (Section 32)
[G] Enforce Peremptory Orders (Section 42)
[H] Secure Attendance of Witnesses (Section 43)
[I] Interim Injunctive Relief (Section 44)
[J] Determination of Preliminary Points of Law (Section 45)
[K] Extending Time for Making Award (Section 50)
[L] Challenges and Appeals from Awards (Sections 67-73)
[M] Extending Time Limits Relating to Arbitral Proceedings (Section 79)
[N] Enforcement of Awards (Sections 66, 99-104)
[O] Conclusion
CHAPTER 12 Applicable Substantive Law
§12.01 INTRODUCTION
§12.02 SECTION 46 OF THE 1996 ACT
§12.03 CHOICE OR AGREEMENT OF THE PARTIES
[A] Express Choice of National Law
[B] Express Choice of Non-national Law
[1] CISG
[2] UNIDROIT Principles
[3] Lex Mercatoria
[4] Industry Norms
[5] Religious and Community Norms
[6] Principles of Fairness / Amiable Compositeur / Ex Aequo et Bono
[C] Implied Choice
§12.04 CHOICE OF LAW BY THE TRIBUNAL
§12.05 ARBITRATION AGREEMENT
§12.06 MANDATORY LAWS AND PUBLIC POLICY
[A] Mandatory Laws Implied Choice
[1] Overriding Statutes
[2] EU Law
[3] International Obligations
[B] Public Policy
§12.07 FOREIGN LAW AS A QUESTION OF FACT
§12.08 CONCLUSION
CHAPTER 13 The Application of EU Law to Arbitration in England
§13.01 INTRODUCTION
§13.02 APPLICATION OF EU LAW BY TRIBUNALS IN ENGLAND
[A] The Legal Basis for the Application of EU Law by Tribunals in England
[1] Base Requirements: Arbitrability, Scope and Separability of the Underlying Arbitration Clause
[2] The Main Six Legal Bases for the Application of EU Law by Arbitral Tribunals in England
[a] The Law of the Contract
[b] The Direct Effectiveness of EU Law
[c] The Supremacy of EU Law
[d] The Mandatory Character of EU Law
[e] The Enforceability of the Resultant Award
[f] The Tribunal's Power to Determine the Law on the Merits
[B] Direct and Indirect Preliminary References to the ECJ from Tribunals in England
[C] The Potential Consequences of the Non-application of EU Law by Tribunals in England
[1] Non-enforceability or Annulment of the Resultant Award
[2] English Courts' Potential Liability for Non-compliance with EU Law
§13.03 EU COMPETITION LAW AND ARBITRATION IN ENGLAND
[A] The Legal Basis for the Application of EU Competition Law by Tribunals in England
[B] The Application of EU Competition Law by Tribunals in England
[C] The Relationship between the European Commission and/or the Competent National Authorities and the Tribunal in EU Competition Arbitration in England
[1] Status of Previous EU Commission or OFT Decisions in EU Competition Arbitrations in England
[2] Parallel Proceedings between the EU Commission, the OFT/CAT or the Domestic Courts and the Tribunal in EU Competition Arbitrations in England
[3] Co-operation between the Tribunal and the EU Commission or OFT in EU Competition Arbitrations in England
[4] Indirect Preliminary References
[D] The Potential Consequences of the Non-application of EU Competition Law by Tribunals in England
[1] Challenge under Section 67 of the 1996 Act
[2] Annulment under Section 68 or 69 of the 1996 Act
[3] Refusal to Enforce under Section 66 of the 1996 Act
§13.04 THE ROLE OF THE BRUSSELS REGULATION IN ARBITRATION IN ENGLAND
[A] The Brussels Regulation and Proposed Amendments
[1] The Current Regime of the Brussels Regulation
[2] The Proposed Regime of the Brussels Regulation
[3] The Arbitration Exception under the Current and the Proposed Regimes
[B] The ECJ's Interpretation of the Arbitration Exception
[1] The ECJ's Jurisprudence Pre-West Tankers
[2] The ECJ's Ruling in West Tankers
[C] The Effect on Arbitration in England
[1] Availability of Anti-suit Injunctions and Other Measures Supportive of Arbitration in England
[2] Recognition and Enforcement of Foreign Court Judgments in Breach of an English Arbitration Clause
[3] Compatibility with the New York Convention
§13.05 CONCLUSIONS
CHAPTER 14 Multilateral and Bilateral Investment Treaties and the United Kingdom
§14.01 INTRODUCTION
§14.02 EARLY DEVELOPMENT OF BITS IN THE UNITED KINGDOM: DIPLOMATIC PROTECTION AND TREATIES FOR THE PROTECTION OF COMMERCE
[A] Diplomatic Protection
[B] Friendship, Commerce and Navigation Treaties
[C] Enforcement
§14.03 THE POST WORLD WAR II ERA AND THE DEFENCE OF A MINIMUM STANDARD OF TREATMENT
§14.04 THE UNITED KINGDOM'S ENTRY INTO INVESTMENT PROMOTION AND PROTECTION AGREEMENTS
§14.05 TYPICAL CHARACTERISTICS OF THE MODEL UNITED KINGDOM IPPA
[A] Objective
[B] Fair and Equitable Treatment
[C] 'Umbrella Clause'
[D] Definition of Investment
[E] Expropriation
[F] National Treatment and Most-Favoured Nation
[G] Dispute Resolution
§14.06 MULTILATERAL TREATIES: THE ECT
§14.07 INVESTMENT TREATY CASES INVOLVING UNITED KINGDOM INVESTMENT TREATIES
[A] UK Companies Seeking Relief
[1] AAPL v. Sri Lanka
[2] Booker Plc v. Guyana
[3] Arbitrations against Argentina
[4] Biwater Gauff (Tanzania) Ltd v. United Republic of Tanzania
[5] Arbitrations against Egypt
[B] Investors Seeking Relief against the United Kingdom
§14.08 EPILOGUE: THE LISBON TREATY
§14.09 CONCLUSION
CHAPTER 15 Duties of Arbitrators
§15.01 INTRODUCTION
§15.02 RULES OF THE SEAT RELATING TO ARBITRATORS' DUTIES
[A] Duties Imposed by the 1996 Act
[1] Duty to Act Fairly
[a] Treating the Parties Equally
[b] Giving Each Party a Reasonable Opportunity to Put Its Case and to Deal with the Opponent's Case
[2] Duty to Act Impartially
[a] Disclosures Should Be Made at the Earliest Possible Opportunity
[b] The Level of Appropriate Disclosure Depends Largely on the Stage that the Matter has Reached
[3] Duty to Adopt Suitable Procedures and Avoid Delay
[4] Other Duties Imposed by the 1996 Act
[B] Other Statutory Duties
[1] Duty to Consider EU Law
[2] Duties under Criminal Law
[3] Money Laundering
[4] Bribery
§15.03 DUTIES IMPOSED BY THE PARTIES
[A] Duties Imposed by Contract
[1] Contract between Parties and Arbitrators?
[2] Contract between Institution and Arbitrators?
[B] Duties Imposed by Institutional Rules
[1] Duty to Be Impartial and Independent
[2] Duty to Ensure Proceedings Are Run in an Expeditious and Cost-Effective Manner
[3] Duty of Confidentiality
[C] Qualifications of the Arbitrators
[1] Qualifications Required in the Arbitration Agreement
[2] Qualifications Required by Institutional Rules
[3] Jivraj v. Hashwani: Specifying Criteria Does Not Give Rise to Problems under EU Law
§15.04 ETHICAL 'DUTIES' FOR ARBITRATORS
§15.05 CONCLUSION
CHAPTER 16 Challenge to and Replacement of Arbitrators
§16.01 INTRODUCTION
§16.02 POWER OF THE COURT TO REMOVE AN ARBITRATOR UNDER SECTION 24 OF THE 1996 ACT
§16.03 JUSTIFIABLE DOUBTS AS TO IMPARTIALITY
[A] Actual Bias
[B] Judge in Own Cause
[C] Real Possibility of Bias
§16.04 ILLUSTRATIVE CASES INVOLVING ALLEGATIONS OF APPARENT BIAS
[A] Relationship between Arbitrator and One of the Parties
[B] 'Counsel Conflict'
[C] Relationship or Contact between an Arbitrator and a Witness
[D] 'Issue Conflict'
[E] 'Contamination'
[F] Barrister Conflict
§16.05 LACK OF QUALIFICATIONS AND PHYSICAL OR MENTAL INCAPACITY: SECTION 24(1)(B) AND (C)
§16.06 FAILURE IN THE CONDUCT OF PROCEEDINGS OR TO USE ALL REASONABLE DESPATCH: SECTION 24(1)(D)
§16.07 INSTITUTIONAL RULES PROVIDING A MECHANISM FOR CHALLENGE
§16.08 OTHER GROUNDS FOR REMOVAL UNDER THE 1996 ACT
§16.09 PROCEDURE FOR MAKING AN APPLICATION TO REMOVE AN ARBITRATOR
§16.10 CONCLUDING REMARKS
CHAPTER 17 Rights and Duties of the Parties and Counsel
§17.01 INTRODUCTION
§17.02 PARTIES' RIGHTS
[A] Categorisation of Rights
[B] Party Autonomy
[1] Party Autonomy as to Substance
[2] Party Autonomy as to Procedure
[3] Powers of the Arbitrator(s) which Can Be Agreed by the Parties
[4] Mandatory Provisions Limiting the Parties' Autonomy
[5] Consequences of the Parties' Choice of Arbitral Rules
[6] Limits to Party Autonomy Based on Safeguards of the Public Interest
[C] The Right to Procedural Fairness
[1] The Right to Prior Adequate Notice
[2] The Right to be Heard
[3] The Rule of Evidence
[4] The Right to Be Represented in Proceedings by a Lawyer or Other Person
[5] Limits to the Right to Procedural Fairness
[6] Loss of the Right to Object
[7] The Impact of the ECHR
[D] The Right to an Impartial Tribunal
[E] The Right to the Court's Support
[1] Commencement of Arbitration
[2] Support during the Proceedings
[3] Challenge, Appeal and Enforcement
§17.03 PARTIES' DUTIES
[A] The Duty to Arbitrate
[B] The General Duty of Co-operation
[C] The Duty of Confidentiality
[1] Privacy and Confidentiality
[2] Common Law Confidentiality
[D] The Duty to Honour the Arbitrators' Fees and Expenses
§17.04 RIGHTS AND DUTIES OF COUNSEL
[A] Lawyers and Non-Lawyers
[B] Indirect and Contractual Rights of Counsel
[C] English Rules of Professional Conduct for Lawyers
[D] European Rules
[E] International Standards of Ethics
CHAPTER 18 International Arbitration in England: A Procedural Overview
§18.01 INTRODUCTION
§18.02 COMMENCING PROCEEDINGS: INITIAL STEPS AND EXCHANGES
[A] The Arbitration Agreement and 'Tiered' Clauses
[B] Preliminary Written Exchanges
[1] The Commencement of the Arbitration
[2] The 'Answer' or 'Response'
[C] The Appointment of the Arbitral Tribunal
[1] Sole Arbitrator or Three-Member Arbitral Tribunal?
[2] Arbitrator Profiles and 'Due Diligence'
[3] Interviewing Prospective Arbitrators
[4] Selecting the Presiding Arbitrator
[5] Terms of Appointment
[6] Administrative Secretary to the Arbitral Tribunal
§18.03 EARLY INVOLVEMENT OF THE ARBITRAL TRIBUNAL
[A] Procedural Flexibility
[B] The Procedural Hearing
[C] Expedited Proceedings
[D] Summary Procedures?
§18.04 COMMON PRE-HEARING PROCEDURAL ISSUES
[A] Conservatory or Interim Relief
[B] Security for Costs
[C] Determination of a Preliminary Point of Law by the Courts
§18.05 STATEMENTS OF CASE
[A] Form of Statements of Case
[B] Sequence of Statements of Case
§18.06 DOCUMENT PRODUCTION
§18.07 WRITTEN EVIDENCE
[A] Witness Statements
[B] Expert Reports
[C] Sequential or Simultaneous Filing?
§18.08 PARTIES IN DEFAULT
§18.09 THE PRE-HEARING CONFERENCE
§18.10 THE EVIDENTIAL HEARING
[A] Fixing the Dates and Venue for the Hearing
[B] Administrative Arrangements for the Hearing
[C] Representation of the Parties at the Hearing
[D] The Hearing Bundle
[E] Skeleton Arguments
[F] The Hearing Room
[G] The Hearing Itself
[1] Opening Statements
[2] Oaths or Affirmations by Witnesses
[3] Direct and Re-direct Examination
[4] Cross-Examination
[5] Presence of Witnesses at the Hearing When Not Giving Evidence
[6] Rules Governing the Admissibility of Evidence
[7] Oral Closing Submissions and Post-hearing Briefs
[8] Transcript Errata
§18.11 THE AWARD
[A] Form of the Award
[B] Types of Award
[C] Available Remedies
[1] Monetary Remedies
[2] Non-monetary Remedies
[D] Costs
[E] Functus Officio
[F] Challenge to the Award
[G] Settlement
§18.12 ENFORCEMENT
CHAPTER 19 Arbitrability
§19.01 INTRODUCTION
§19.02 DETERMINING ARBITRABILITY
§19.03 APPLICABLE LAW
[A] Prior to an Award or in an Application to Set Aside the Award
[B] Proceedings to Enforce the Award
§19.04 CLASSES OF DISPUTE WHERE ISSUES OF ARBITRABILITY MAY ARISE
[A] Criminal Matters
[B] Family Matters
[C] Disputes under Contracts Involving Bribery, Corruption or Fraud
[D] Competition Law
[E] Intellectual Property Rights
[F] Employment Disputes
[G] Consumer Contracts
[H] Shareholder Disputes
[I] Insolvency Proceedings
§19.05 SUMMARY
CHAPTER 20 Support and Supervision by the Courts
§20.01 INTRODUCTION
§20.02 ARBITRATION CLAIMS
§20.03 STAYING OF COURT PROCEEDINGS: OVERVIEW
§20.04 STAYS UNDER SECTION 9 OF THE 1996 ACT
[A] Procedural Requirements for an Application under Section 9
[B] Section 9(3): What Constitutes a 'Step' in the Proceedings?
[C] Section 9(1) and 9(4): Existence and Scope of Arbitration Agreement
[D] The Section 9(4) Grounds
[E] What Is the Effect of a Section 9 Stay?
§20.05 STAYS UNDER THE COURT'S INHERENT JURISDICTION
§20.06 ANTI-SUIT INJUNCTIONS: OVERVIEW
§20.07 ANTI-SUIT INJUNCTIONS UNDER SECTION 44 OF THE 1996 ACT
[A] Urgency
[B] Section 44(5)
§20.08 ANTI-SUIT INJUNCTIONS UNDER SECTION 37 OF THE SENIOR COURTS ACT
§20.09 ANTI-ARBITRATION INJUNCTIONS
§20.10 OTHER RELIEF UNDER SECTION 44 OF THE 1996 ACT
[A] Interim Freezing Injunctions
[B] Search Orders
[C] Other kinds of Interim Injunction
§20.11 PROCEDURAL CONSIDERATIONS IN APPLICATIONS FOR INTERIM INJUNCTIVE RELIEF
§20.12 OTHER POWERS OF THE COURT IN RELATION TO ARBITRAL PROCEEDINGS
[A] Section 42: Enforcement of a Tribunal's Peremptory Order
[B] Section 43: Witness Summons
[C] Section 45: Preliminary Point of Law
CHAPTER 21 Confidentiality in Arbitrations in England
§21.01 INTRODUCTION
§21.02 LEGAL FRAMEWORK
[A] Institutional Rules
[B] Contractual Agreement
[C] Applicable Case Law
[1] Use of Documents in Further Proceedings
[2] Implied Obligation of Confidentiality under English Law
[3] When Will Disclosure Be Permissible?
[D] Decision on Confidentiality
§21.03 EXTENT OF THE OBLIGATION OF CONFIDENTIALITY
§21.04 EXCEPTIONS TO THE OBLIGATION OF CONFIDENTIALITY
§21.05 REMEDIES FOR BREACH OF CONFIDENTIALITY
§21.06 ARBITRATORS AND CONFIDENTIALITY
CHAPTER 22 Multi-Party and Multi-Contract Arbitration
§22.01 INTRODUCTION
§22.02 MULTI-PARTY ARBITRATION ARISING OUT OF A SINGLE CONTRACT
[A] Disputes Involving More than Two Parties: Practical Issues
[1] 'Dutco' Issues under English Law
[2] Institutional Approaches to 'Dutco' Issues
[3] Appointing Authorities in Multi-Party Arbitrations
[4] Further Considerations in Multi-Party Arbitrations
[B] Consent
[1] Group of Companies
[2] Novation and Assignment
[3] Guarantors
[4] Unincorporated Joint Ventures
[5] Subrogation
§22.03 MULTI-PARTY ARBITRATIONS ARISING OUT OF SEPARATE OR A SERIES OF CONTRACTS
[A] Joinder and Intervention of Third Parties
[1] Approaches to Joinder and Intervention under the Leading Rules
[2] Consolidation of Arbitrations
[3] Approach under the 1996 Act
[4] Institutional Arbitration Rules and Consolidation
[5] Same or Different Parties
[6] Consolidation Where There Are Different Arbitration Agreements
[B] Other Solutions
[1] Agreement in Advance to Consolidate
[2] Umbrella Arbitration Agreement
[3] Appointing the Same Tribunal
[4] String Arbitrations
[5] Sole Option or Unilateral Clauses
[6] Class Action Arbitrations
[C] Further Issues and Guidelines
[1] CIArb's Guidelines for Arbitrators
[2] The Devolvé Report
[3] The IBA Guidelines for Drafting International Arbitration Clauses
§22.04 PROBLEMS OF ENFORCING AWARDS IN MULTI-PARTY ARBITRATIONS
CHAPTER 23 Factual Evidence
§23.01 INTRODUCTION
§23.02 EVIDENCE: THE LEGISLATIVE FRAMEWORK UNDER THE 1996 ACT
[A] The Powers of the Tribunal
[B] The Powers of the English Courts
[C] Peremptory Orders
§23.03 PRODUCTION OF DOCUMENTS
[A] The General Approach to Document Production in England
[B] The IBA Rules on Evidence
[C] Redfern Schedules
[D] Failure/Late Production of Requested Documents
[E] Electronic Document Production
[F] Privilege
[1] The Relevance of the IBA Rules on Evidence to Privilege
§23.04 WITNESS STATEMENTS AND ORAL TESTIMONY
[A] Identifying Fact Witnesses
[B] Securing the Attendance of a Witness within the Jurisdiction
[C] Securing the Attendance of a Witness Outside of the Jurisdiction
[D] The Preparation of Witness Statements
[E] Preparation of the Witness for the Hearing
[F] Witness Testimony at the Final Hearing
§23.05 ETHICAL CONSIDERATIONS RELATING TO FACTUAL EVIDENCE
CHAPTER 24 Expert Evidence
§24.01 INTRODUCTION
§24.02 APPLICABLE PRINCIPLES
[A] The 1996 Act
[B] Applicable Rules
[1] UNCITRAL Rules
[2] LCIA Rules
[3] ICC Rules
[C] IBA Rules on Evidence
[D] Chartered Institute of Arbitrators Protocols and Guidelines
[E] English Procedure
§24.03 NEW APPROACHES TO TESTING EXPERT EVIDENCE
[A] Hot-Tubbing/Witness Conferencing
[B] Sachs Protocol
§24.04 IDENTIFYING AND INSTRUCTING EXPERTS
§24.05 DUTIES OF EXPERT WITNESSES
[A] General Principles
[B] Relevant English Case Law
[C] Relevant Codes of Conduct
§24.06 DRAFTING THE REPORT
§24.07 WEIGHING EXPERT EVIDENCE
[A] General Principles
[B] Dealing with Conflicting Expert Evidence
§24.08 CHALLENGES BASED ON THE TRIBUNAL'S HANDLING OF EXPERT EVIDENCE
[A] Refusal to Allow Parties to Adduce Expert Evidence
[B] Challenge Based on Lack of Independence of the Expert, and Quality of His Evidence
[C] Unreasonable Delegation of Powers to the Expert
[D] Inadequate Opportunity to Comment on Expert Opinion
§24.09 EXPERT EVIDENCE AND EVIDENCE OF FOREIGN LAW
§24.10 CONCLUSION
CHAPTER 25 Challenges to Arbitration Awards
§25.01 INTRODUCTION
§25.02 CHALLENGING THE AWARD: SUBSTANTIVE JURISDICTION
[A] Requirement for an Award Addressing Substantive Jurisdiction
[B] Loss of Right to Object
[C] Substantive Jurisdiction
[1] Validity and Scope of the Arbitration Agreement
[2] The Constitution of the Tribunal
[3] Matters Submitted to Arbitration in Accordance with the Arbitration Agreement
[D] Nature of Proceeding under Section 67 of the 1996 Act
[E] Orders Available on a Section 67 Challenge
[F] Appeal to the Court of Appeal
§25.03 CHALLENGING THE AWARD: SERIOUS IRREGULARITY
[A] Introduction
[B] Categories of Irregularity
[1] Failure to Comply with Section 33 of the 1996 Act: The Tribunal's General Duty to Act Fairly
[2] Tribunal Exceeding Its Powers
[3] Failure to Conduct the Arbitration in Accordance with the Agreed Procedure
[4] Failure to Deal with All the Issues before the Tribunal
[5] Excess of Power by an Arbitral or Other Institution
[6] Uncertain or Ambiguous Award
[7] Award Obtained by Fraud or Contrary to Public Policy
[8] Failure to Comply with Formal Requirements
[9] Irregularity Admitted by the Tribunal
[C] 'Serious Irregularity' and 'Substantial Injustice'
[D] Orders Available on a Section 68 Challenge
§25.04 APPEALS ON A POINT OF LAW
[A] The Policy behind Section 69 of the 1996 Act
[B] Exclusion of the Right to Appeal under Section 69 of the 1996 Act
[C] A Question of Law Arising Out of the Award
[1] No Appeal on a Question of Foreign Law
[2] Identifying a Question of Law
[3] No Appeal on Finding of Fact
[4] Attacking a Finding of Fact on the Basis of Lack of Evidence
[5] Questions of Fact and Law
[D] Requirements for Permission to Appeal
[1] Parties' Agreement to an Appeal under Section 69 of the 1996 Act
[2] A Question Substantially Affecting the Rights of One or More Party
[3] A Question that the Tribunal Was Asked to Determine
[4] Obviously Wrong
[5] Question of General Public Importance
[6] Open to Serious Doubt
[7] Just and Proper in All the Circumstances
[8] Reasons for Refusal of Permission to Appeal
[E] Orders Available on a Section 69 Challenge
[F] Appeal of a Decision to the Court of Appeal
§25.05 SECTIONS 67-69 OF THE 1996 ACT: GENERAL PRINCIPLES
[A] Orders Pursuant to Applications under Sections 67, 68 and 69
[1] Remission of the Award
[2] Setting Aside the Award and Declaration that Award is of No Effect
[3] Varying the Award
[B] Challenges and Appeals: Supplementary Matters
[1] Exhaustion of Remedies
[2] Time Limits
[3] Security for Costs
[4] Payment into Court
[C] Appeals to the Court of Appeal
§25.06 CONCLUSION
CHAPTER 26 Enforcement of Awards
§26.01 INTRODUCTION
§26.02 DOMESTIC AND FOREIGN AWARDS
§26.03 ENFORCEMENT OF DOMESTIC AWARDS
[A] Grounds Set Out in the 1996 Act for Refusal of Enforcement
[B] Other Grounds upon which Enforcement May be Refused
§26.04 RECOGNITION AND ENFORCEMENT OF FOREIGN AWARDS
§26.05 CONVENTION AWARDS
[A] Definition
[B] Recognition and Enforcement under the 1996 Act
§26.06 REFUSAL OF RECOGNITION AND ENFORCEMENT OF CONVENTION AWARDS
[A] The Court's Discretion
[B] The Grounds for Refusal
[C] Public Policy
[D] Adjournment and Security
[E] Partial Enforcement
§26.07 RECOGNITION AND ENFORCEMENT OF OTHER FOREIGN AWARDS
[A] Enforcement of Awards under the Geneva Convention
[B] Enforcement of Awards under the ICSID Convention
[C] Enforcement of Awards under the Common Law
[D] Enforcement of Awards as a Judgment
[E] Enforcement of Intra-UK Awards
§26.08 STATE IMMUNITY
[A] Adjudicative Immunity
[B] Immunity from Execution
§26.09 ENFORCEMENT PROCEDURE
CHAPTER 27 Arbitration in Scotland
§27.01 INTRODUCTION
§27.02 THE SCOTTISH LEGAL SYSTEM
§27.03 INTRODUCTION TO ARBITRATION UNDER THE 2010 ACT
[A] The 2010 Act Incorporating the Scottish Arbitration Rules
[B] The 2010 Act: Key Features
[1] Law Governing the Arbitration Agreement
[2] Mandatory and Default Rules
[3] Restriction of the Role of the Court
[4] Persons Who Take No Part in the Arbitral Proceedings
[5] Anonymity of Parties to Civil Proceedings Relating to an Arbitration
[6] Enforcement of Domestic Awards
[7] Enforcement of New York Convention Awards
[8] Arbitral Appointments Referees
[9] Modification of the 2010 Act or SAR
[10] Transitional Provisions
§27.04 THE SCOTTISH ARBITRATION RULES
[A] Commencement and Constitution of the Tribunal (SAR Part I, Rules 1-18)
[1] Commencement of an Arbitration and Appointment of the Tribunal
[2] Failure to Appoint the Arbitrator(s)
[3] The Arbitrator's Duty of Disclosure
[4] Objections to the Appointment of an Arbitrator
[5] Resignation of an Arbitrator
[B] Jurisdiction of the Tribunal (SAR Part II, Rules 19-23)
[C] General Duties (SAR Part III, Rules 24-27)
[1] The Tribunal's General Duties
[2] The Parties' General Duties
[3] Confidentiality
[D] Arbitral Proceedings (SAR Part IV, Rules 28-40)
[1] The Tribunal as 'Master' of the Procedure
[2] Failure to Comply with the Tribunal's Directions
[3] Appointment of Assistants to the Tribunal
[4] Representation of the Parties
[5] Tribunal's Power to Request an Expert Opinion
[6] Other Procedural Matters Covered in Part IV of the SAR
[E] Powers of the Court in Relation to Arbitral Proceedings (SAR Part V, Rules 41-46)
[1] The Outer House's Determination of a Point of Law
[2] Variation of Time Limits by the Court
[3] The Court's Powers to Make Interim Orders
[F] Arbitral Awards (SAR Part VI, Rules 47-58)
[1] Applicable Law
[2] Available Remedies
[3] Formalities of an Award
[4] Provisional Awards
[5] Correction of Awards
[6] 'Lien' over an Award Where the Tribunal's Fees Are Not Paid
[G] Arbitration Expenses (SAR Part VII, Rules 59-66)
[H] Challenging Awards (SAR Part VIII, Rules 67-72)
[1] Jurisdictional Appeals
[2] Serious Irregularity Appeals
[3] Legal Error Appeals
[4] Bringing a Challenge to an Award
[I] Miscellaneous Matters Relating to Arbitration in Scotland (SAR Part IX, Rules 73-84)
[1] Immunity of the Tribunal
[2] Loss of the Right to Make Objections
[3] Justifiable Doubts as to an Arbitrator's Independence
§27.05 CONCLUSIONS
CHAPTER 28 Arbitration in Ireland
§28.01 INTRODUCTION
§28.02 THE CONSTITUTIONAL AND LEGAL FRAMEWORK IN IRELAND
[A] The Constitutional Framework
[B] The Court Structure
[C] The Sources of Irish Law
[D] An Overview of Court Litigation Procedure in Ireland
§28.03 THE ARBITRATION ACT 2010
§28.04 KEY ASPECTS OF IRISH ARBITRATION LAW AND PRACTICE
[A] The Definition of an Arbitration Agreement and the Doctrine of Separability
[B] Obtaining a Stay Where a Party Commences Litigation Proceedings in Breach of an Arbitration Agreement
[C] The High Court's Power to Assist in the Constitution of the Tribunal
[D] The Impartiality and Independence of Arbitrators
[E] Challenges to the Tribunal's Substantive Jurisdiction or the Scope of Its Authority
[F] 'Standard' Arbitration Procedure under the Model Law
[G] Interim Remedies from the Tribunal and the High Court
[H] The Manner in which the Tribunal Must Reach Its Determination
[I] The Form and Contents of the Award
[J] The Grounds upon which an Award Rendered in Ireland May Be Set Aside
[K] The Grounds for Resisting Enforcement of an Overseas Award in the High Court
§28.05 CONCLUSIONS
APPENDIX Arbitration Act 1996
Table of Cases
Index
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