Arbitration, a means of settling disputes, has been practised in Ireland and indeed worldwide for a number of years. Arbitration is defined as “a legal enforceable procedure to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay and experience”.
Up until 2010 the law on arbitration in Ireland was governed by the Arbitration Act, 1954 as amended by the Arbitration Acts of 1980 and 1998. The law has now, however, been consolidated and updated with the introduction of the current governing legislation, the Arbitration Act, 2010 (“the 2010 Act”).
The introduction of the 2010 Act hopes to ensure that the arbitration procedure in Ireland is fair, cost effective and promoting party to party autonomy. It endeavors to ensure a rapid and cost effective approach to the settlement of disputes within Ireland.
For the purposes of this article, we will focus on the purpose of the preliminary meeting (“PM”) and on the merits of holding a PM.
What are the purpose and advantages of the PM?
A PM is the first meeting the arbitrator will hold with the parties and/or their representatives. This meeting is normally held after the appointment of the arbitrator but before the substantive issues of the dispute are discussed and before any exchange of documents and evidence. The PM can be held at any location with the agreement of the arbitrator and the parties.
The primary purpose of a PM is to set out the procedure for the entire arbitration. The PM helps to introduce the parties to the arbitration process so that all parties understand what the process involves and a clear agenda can be established.
Whilst the PM is overall procedural in nature, it has the following aims and benefits:-
- The jurisdiction of the arbitrator can be confirmed.
- Any challenges to the jurisdiction of the arbitrator can be raised by the parties.
- The nature of the dispute is defined and where possible narrowed and clarified.
- The role of the arbitrator and the terms and the conditions of the arbitration are discussed and agreed.
- The timetable/agenda of the arbitration can be agreed.
- The procedure for evidence, submissions and disclosure, witnesses and expert reports are discussed and agreed.
- Consideration may also be given to the potential for an oral hearing (if agreed between the parties), the issue of arbitration costs and the ultimate award. The question of security of costs may also be considered and discussed.
- Finally, it is a useful forum for the arbitrator to outline the consequence of any failure to comply with the arbitror’s timetable and directions. The arbitrator can use this meeting to stress his authority to all parties.
We will now focus on some of these benefits in some more detail to highlight the advantages of holding a PM at an early stage.
Arbitration/Jurisdiction of the Arbitrator
One of the first issues to be considered at the PM is whether the arbitrator is validly appointed and indeed whether the arbitrator has the requisite jurisdiction to act. The arbitrator needs to examine the written agreement containing the arbitration clause to make sure that his appointment is valid and he has the jurisdiction. At this stage, the arbitrator will consider any limits of his appointment to defend his overall role as arbitrator.
Challenges to the Arbitrator
It is important at this early stage of arbitration that the parties raise any objection or challenges to the appointment of the arbitrator or his jurisdiction to hear the dispute. In this regard, it would be prudent for the parties to consider both Articles 4 and 12 of Schedule 1 of the 2010 Act. Article 4 refers to the “waiver of the right to object”. It essentially states if a party proceeds within arbitration knowing that there is a provision in law that he may wish to challenge and he fails to make this challenge within a reasonable time frame, he shall be deemed to have waived his right to object.
The grounds on which to challenge the appointment of an arbitrator are set out in Article 12 and essentially state that the arbitrator may be challenged if there are circumstances (which the arbitrator fails to disclose) which are likely to give rise to justifiable doubts as to his impartiality or independence or if it is thought that he does not possess the necessary qualifications agreed by the parties. The challenge procedure is also clearly set out in the Uncitral model text under Article 13.
Once the arbitrator is validly appointed and is satisfied that his jurisdiction is confirmed and no challenges arise, the remaining agenda of the PM can be discussed and agreed.
The Procedure, Role of Evidence and Agenda of the Arbitration
Another advantage of the PM is that it allows a forum to clearly identify the timetable of the arbitration so that each of the parties and their representatives fully understand the arbitration agenda.
The arbitrator will consider whether there should be an eventual oral hearing and the lineup of events preceding this oral hearing. The exact issues in dispute are defined and narrowed, the applicable substantive law may be discussed and the timetable for the initial submissions, any procedures for amendments of submissions, extensions of time, preparation and exchange of expert reports and the method of any future communication within the arbitration are considered and hopefully agreed. The timetable for any interlocutory meetings between the PM and final oral hearing may be considered and agreed. Consideration may be given to the method in which the witness/expert or their evidence/statements or submissions are to be prepared, the timing and method of exchange and whether a guillotine needs to be set for the duration of the meeting.
We have highlighted some of the items which can be expected to be discussed at the PM. It should be noted that this meeting is “preliminary” in nature only. On considering the complexity of any given case, there may be a need for additional interlocutory meetings in order to deal with matters as they arise requiring the arbitrator’s attention, after the PM but before the final hearing.
Arbitration law has been consolidated and updated with the introduction of the current governing legislation, the Arbitration Act, 2010.