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GAZETTE
NOVEMBER 1991
Arbitration - The Superior Courts' Attitude
"The courts have no desire unnecessarily or impetuously to intervene
in arbitration . . . The enforcement of the result of an arbitration requires
the enforcement agencies of the State which the courts, and only the
courts, can in such matters invoke . . . Arbitrators, whether learned in
law or not, are entitled to avail by the mechanism of case stated to the
finality and certainty of court decisions on questions of law.
1
"
Chief Justice T. Finlay expressed those views at an Arbitration Workshop
at Blackhall Place, organised in November, 1990 by the International
Chamber of Commerce - Ireland, in co-operation with the Bar Council,
The Law Society and the Chartered Institute of Arbitrators (ClArb) -
Irish Branch. Other members of the Irish judiciary, including Mr. Justice
Hamilton, President of the High Court, and Mr. Justice Robert Barr have
also spoken publicly of the Irish courts' positive attitude to, and support
for, arbitration as an appropriate alternative dispute resolution (ADR)
system especially in technical cases. Such support makes certain basic
assumptions including the observance by arbitrators of relevant law, fair
procedures and natural justice. This article illustrates the courts' attitude
to the arbitral process by reference to case law within the framework
of legislation and the common law.
Legislative background
An outline of relevant legislation is
necessary to understanding case
law. There was an arbitral element
in the Brehon Laws but the first
Irish Arbitration Act was passed in
King Billy's reign, 1698.
2
The
Arbitration Acts, 1950 and 1980
built on the common law
tradition.
3
The court, defined in
s.2, 1954 Act as the High Court,
has various powers such as making
orders for costs, discovery, etc.,
under s.22. arbitrators may, and
shall if directed by the court, state
a case for the court's decision on
any point of law arising in the
reference (to arbitration) and any
award (decision of arbitrator) may
be referred to the court as a special
case - s.35. Other court powers
include: remission of award to
arbitrator - s.36; removal of
arbitrator for misconduct - s.37;
setting award aside for misconduct
- s.38; granting relief where
arbitrator is not impartial or the
dispute involves fraud - s.39. The
court also has power to extend time
limits. Awards may be enforced in
the same manner as judgments -
s.41 and Order 56,
Rules of
Superior Courts.
The 1980 Act, which implements
the New York Convention providing
for worldwide enforcement of arbi-
tral awards through the courts, is
mainly of interest to international
arbitrations. S.5, 1980 Act, how-
ever, applies also to Irish domestic
arbitrations: courts at all levels
must,
on request, make an order
staying court proceedings where a
valid arbitration agreement covers
a dispute, where no step in the
proceedings has been taken and
there is no question of fraud.
The s.5 provision underpins the
courts' practical support for
arbitration.
4
Deviations from the norm of
commercial arbitration
Court support for the arbitral
process must be understood in the
context of equality of bargaining
power in commercial contracts
which include properly drafted
arbitration clauses and submission
procedures. Consumer contracts,
e.g. in travel and tourism, would
require more detailed examination
as courts protect consumers under
the Sale of Goods & Supply of
Services Act, 1980
(McCarthy &
Ors -v- Joe Walsh Tours Ltd.).
5
Difficulties about arbitration of
disputes between customers and
travel agents may be resolved by a
new scheme available through the
Chartered Institute of Arbitrators -
Irish Branch (ClArb - Irish Branch)
Anthony P. Quinn
by
Anthony P. Quinn*
Barrister; FCI.Arb; Dip. Arb.Law;
Dip. Intrnti. Arb. Law; MA;
B.Comm; Dip. Publ.Adm; FIIS
in conjunction with the Irish Travel
Agents Association.
6
Employment and industrial relat-
ions law is another area which
deviates from the norm of com-
mercial arbitration. Employment
contracts may contain arbitration
clauses and there are special
schemes for the public servica S.5
of the 1954 Act excludes employ-
ment and industrial relations from
the Arbitration Acts. Although
agreements to refer to arbitration
would be binding, the courts'
supervisory role and support would
not be available. Neither the
mandatory staying of court
proceedings under s.5, 1980 Act,
nor Order 56
Rules of the Superior
Courts
apply in employment
contracts. Statutory provisions of
employment protection legislation,
however, may affect the validity of
clauses in employment agree-
ments. The Arbitration Acts of
England & Wales, although
comparable in many ways to the
Irish Acts, do not specifically
exclude employment contracts.
Supreme court's strong
support for srbitrel process
In
Keenan -v- Shield insurance
1
,
the unanimous judgment of five
judges of the Supreme Court in
361