The Gazette 1991

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.

Anthony P. Quinn

by Anthony P. Quinn* Barrister; FCI.Arb; Dip. Arb.Law; Dip. Intrnti. Arb. Law; MA; B.Comm; Dip. Publ.Adm; FIIS

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 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) Deviations from the norm of commercial arbitration

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