Application of the Arbitration Act 2010 in practice Jarlath Fitzsimons, senior counsel

Introduction Stay applications Set-aside applications Deciding on jurisdiction Enforcement of arbitral awards

Stay Applications – Overview legislative history UNICTRAL Model Law, Article 8(1) Arbitration Act 2010, section 11 support for the arbitral process: BAM case ramifications of staying proceedings to arbitration particular difficulties with multi-party actions

Stay Applications – Issues in Practice Article 8(1) claims asserted by the defendant against a third party in a main action only some of the parties to the action are bound by the arbitration agreement only one defendant seeks a referral order on the basis of article 8 no appeal against stay order granted by High Court - Grassland Fertilisers Ltd.

Stay Applications – Foregoing the Fruits? all parties agree that the dispute(s)should be litigated example in practice - employer institutes one set of proceedings against the architect, designer and sub-contractor and another set of proceedings against the main contractor advantages for all parties Creedon Construction Ltd.

Stay Applications by Non-Parties non-party seeks to stay proceedings P. Elliot & Co. Ltd. v. FCC Elliot Construction Ltd. non-party is in a position to claim the benefit of an arbitration clause “through or under” another party more than a bare commercial or legal connection between the two entities.

Stay Applications – Certain Arbitral Issues some but not all of the issues fall within the scope of an arbitration agreement Kelly v. Lennon, Moohan v. S&R Motors (Donegal) Ltd. and Creedon Construction Ltd. v. Kenny enter judgment in respect of the sum which does not fall within the arbitration agreement place a stay on execution pending reference to arbitration.

Stay Applications & Liability Issues Between Co-Defendants issue in practice – contribution/indemnity where one only has the benefit of a stay on proceedings O’Connor v. Duffy in principle, a defendant can seek indemnity/contribution where a stay of proceedings/reference has been granted 

Set-Aside Applications - Jurisdiction Article 34 of the Model Law: incapacity or invalid agreement; proper notice not given or party unable to present case; award deals with a dispute not within the reference composition of tribunal or procedure not in accordance with the agreement subject matter of the dispute was not capable of settlement by arbitration or award in conflict with public policy

Set-Aside Applications in the Courts Court support for the arbitral process O’Cathain v. O’Cathain Snoddy v. Mavroudis Delargy v. Hickey Des Hennessy Building Contractors Ltd. v. O’Beirne O’Leary v. Ryan FBD Insurance plc v Samwari Ltd.

Set-Aside Applications - Conclusion High Court (McGovern J.) in O’Leary v. Ryan: “The courts in this jurisdiction are supportive of the arbitral process and the Model Law is now part of our domestic law and applies both in domestic and international arbitration. The right to challenge an arbitral award is extremely limited and this is to be found in Article 34.”

Issue in Practice - Deciding on Jurisdiction Can an arbitrator determine whether he/she has jurisdiction? Article 16 of the Model Law John G Burns Ltd. v. Grange Construction Mayo C.C. v. Joe Reilly Plant Hire Ltd. Court endorsement of the power of the arbitral tribunal to rule on its own jurisdiction

Issue in Practice - Enforcement Avobone NV v. Aurelian Oil and Gas an arbitral award could only be challenged on very limited ground set out in Article 36 of the Model Law no valid challenge had been raised to enforcement of the award

Conclusions Irish courts are supportive of the arbitral process staying multi-party construction litigation is extremely complicated right to challenge an arbitral award is limited Arbitrators may rule on their own jurisdiction in the absence of a valid challenge under Article 36, an arbitral award will be enforced by the courts