Do you have a dispute that’s going to arbitration? Here’s some information to help

Whilst many people have an understanding of the court process, arbitration is less well understood outside of certain sectors. Here’s an outline of some of the key facts.

What law applies to an arbitration?

The Arbitration Act 1996 applies to all arbitration that falls under the jurisdiction of England and Wales or Northern Ireland.

Are arbitration agreements enforceable?

If you have signed a contract specifying that any dispute between the contracting parties is to be resolved by way of arbitration, an English court is likely to uphold that agreement. This could therefore mean that any Court proceedings issued are stayed (put on hold) whilst the matter is referred to arbitration.

Can I challenge the appointment of an arbitrator?

Yes. Under section 24 of the Arbitration Act, it is possible to apply for the removal of an arbitrator on the following grounds:

• circumstances exist which indicate the arbitrator may be impartial;
• the arbitrator does not possess the qualifications required by the arbitration agreement;
• the arbitrator failed to conduct the proceedings appropriately;
• the arbitrator is physically or mentally incapable of conducting the proceedings;
• there are justifiable doubts as to his or her capacity.

In all of the above circumstances however there is a need to show that there will be “substantial injustice” caused as a result of the appointment.

The arbitrator will also be invited to comment on the objections. The Act permits the Court to make an order as to whether or not the fees of the arbitrator are paid in these circumstances or indeed if the arbitrator must repay any fees or expenses already received.

What obligations are placed upon arbitrators and what power do they have?

There are specific powers and also general duties imposed upon arbitrators.

As a general duty, the Tribunal must:

• act impartially and fairly between the parties and provide each side with an opportunity to present its case and deal with their opponents case;
• adopt appropriate procedures to ensure that they provide a fair means for resolving the issues between the parties thereby avoiding unnecessary delay or expense.

The actual powers of an arbitrator are often set out within the arbitration agreement itself. Those under the Act can therefore be amended by such an agreement but in general include the power to:-

• decide upon procedural and evidential matters
• appoint experts, legal advices and assesses
• order preservation of evidence
• rule on its own jurisdiction
• order security for costs

How do you start arbitration proceedings?

Often the arbitration agreement will set out what is required to start arbitration proceedings. In the absence of such an agreement, section 14 of the Arbitration Act 1996 says:

• if an arbitrator is named or designated by the parties in the arbitration agreement, proceedings are commenced when one party serves a notice in writing to the other party, requiring them to submit the matter to the person named.
• where an arbitrator is to be appointed by a nominated third party, proceedings are commenced when one party serves notice in writing to that third party requesting it to make an appointment.

Are there any limitation periods for the commencement of an arbitration?

Whilst there are no specific statutory limitation periods for the commencement of arbitration under the Arbitration Act, the agreement between the parties may set certain time-frames.

Normal limitation periods apply for commencing legal actions in the United Kingdom and therefore, for example, for contractual claims this will usually be 6 years from the date of the breach.

What evidence is presented to a tribunal?

A hearing before an arbitrator(s) is called a Tribunal. The evidence presented will depend upon what the parties have agreed. If the arbitration agreement between the parties is however silent on this point, the Tribunal has a discretion under sections 34, 43 and 44 of the Arbitration Act 1996. This will usually involve documentary evidence being attached to the pleadings, witness statements and expert’s reports. The Tribunal also has the ability to appoint its own legal or technical expert.

Is arbitration confidential?

There is an implied duty upon the parties and the Tribunal to maintain the confidentiality of the hearing and any associated documents as well as the final award. There are certain exceptions. The parties may also provide for confidentiality in their arbitration agreement.

Is the arbitration award decided by the Tribunal recognised?

Section 52(1) of the Arbitration Act 1996 specifies that the parties can decide upon their own form of award however if no agreement has been reached, the following are to be included:

• it must be in writing
• it must be signed by all arbitrators;
• it must contain the reasons for the decision reached
• it must state the seat of arbitration
• to must also state the date upon which it was made.

Is the arbitration outcome final?

An award is final and binding on both parties with the exception of circumstances in which the parties agree otherwise. This does not however affect the right of any party to challenge the award by a process of appeal or review.

What steps can be taken to enforce an award if a party fails to comply?

The award can be enforced by an application to the court to enter Judgment or for an order of the Court on the same terms as the award. This is in accordance with sections 66 or 101 of the Arbitration Act 1996. Following the order of the Court, this can then be enforced using all the means available to Court under English law.

For further advice and assistance please contact our Private Client Team on 01604 828282 / 01908 660966 or email info@franklins-sols.co.uk