Ireland: Arbitration

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This country-specific Q&A provides an overview of the legal framework and key issues surrounding arbitration law in the Ireland.

This Q&A is part of the global guide to Arbitration.

For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/index.php/practice-areas/arbitration/

  1. What legislation applies to arbitration in your country? Are there any mandatory laws?

    The legislation which governs all arbitrations, both domestic and international, in Ireland is the Arbitration Act, 2010 which incorporates the UNCITRAL Model Law into Irish law.

  2. Is your country a signatory to the New York Convention? Are there any reservations to the general obligations of the Convention?

    Yes, Ireland is a signatory to the New York Convention.

    There are no reservations to the general obligations of the Convention.

  3. What other arbitration-related treaties and conventions is your country a party to?

    The Arbitration Act, 2010 adopts the Geneva Convention on the Execution of Foreign Arbitral Awards; the Protocol on Arbitration Clauses and the Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (the “Washington Convention”).

  4. Is the law governing international arbitration in your country based on the UNCITRAL Model Law? Are there significant differences between the two?

    Yes, the Arbitration Act, 2010 incorporates the UNCITRAL Model Law into Irish law for all arbitrations, both domestic and international.

    There are no significant differences.

  5. Are there any impending plans to reform the arbitration laws in your country?

    No. Ireland’s law on Arbitration is considered to be state of the art.

  6. What arbitral institutions (if any) exist in your country? Have there been any amendments to their rules or are there any being considered?

    There are no domestic arbitral institutions in Ireland. The Chartered Institute of Arbitrators has a very active Irish branch. There ara a number of sector-specific bodies (principally on the construction industry) which provide arbitral and other dispute resolution services. Parties are free to adopt the rules of any arbitral institutions they believe may be appropriate.

  7. What are the validity requirements for an arbitration agreement under the laws of your country?

    The Arbitration Act, 2010 adopts Option 1 of Article 7 of the UNCITRAL Model Law which requires that an arbitration agreement must be in writing (recorded in any form, including electronic communication). An arbitration agreement may be found in an arbitration clause in a contract or in a separate agreement. An agreement is in writing if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.

  8. Are arbitration clauses considered separable from the main contract?

    Yes. In accordance with Article 16 of the Model Law, an arbitral tribunal may rule on its own jurisdiction and an arbitration clause is treated as an agreement independent of the other terms of a contract.

  9. Is there anything particular to note in your jurisdiction with regard to multi-party or multi-contract arbitration?

    Under the Arbitration Act, 2010, where the parties agree, arbitral proceedings shall be consolidated with other arbitral proceedings, including arbitral proceedings involving a different party or parties with the agreement of that party or parties and concurrent hearings shall be held on such terms as may be agreed between the parties.

  10. How is the law applicable to the substance determined? Is there a specific set of choice of law rules in your country?

    In accordance with Article 28 of the Model Law, the applicable law is that decided by the parties and may be found in the choice of law provisions in the contract. In the absence of a choice of law by the parties, the arbitral tribunal shall apply such conflict of laws rules as it considers applicable.

  11. Are any types of dispute considered non-arbitrable? Has there been any evolution in this regard in recent years?

    The Arbitration Act 2010 states that it does not apply to an arbitration relating to terms and conditions of employment or remuneration of employees or to arbitrations under the Industrial relations Act, 1964 or to arbitrations under the Property Values (Arbitration and Appeals) Act, 1960. To all intents and purposes, the main restriction is that relating to employment contracts.

  12. In your country, are there any restrictions in the appointment of arbitrators?

    No, there are no restrictions. The parties are free to provide as to how an arbitrator is to be selected. Typically, this would involve an attempt to agree upon an arbitrator and in default of agreement, an office holder of a nominated body would be chosen to appoint the arbitrator. Under Article 11 of the Model Law, in the absence of a nomination process or the failure to have an arbitrator appointed, the High Court may nominate an arbitrator.

  13. Are there any default requirements as to the selection of a tribunal?

    There are no default requirements as regards selection. The parties are free to agree the procedure to be followed for the appointment of the arbitral tribunal. In this regard, Article 11 of the Model Law applies. Unless agreed, the default number of arbitrators is one [Section 13 of the Arbitration Act, 2010] .

  14. Can the local courts intervene in the selection of arbitrators? If so, how?

    Irish courts may intervene only to the extent provided for in sub-paragraphs (3) and (4) of Article 11 of the Model Law (see 12 above).

  15. Can the appointment of an arbitrator be challenged? What are the grounds for such challenge? What is the procedure for such challenge? Has there been an increase in number of challenges in your jurisdiction?

    The grounds and procedures in respect of challenges to the appointment of arbitrators are as set out in Article 12 and 13 of the Model Law to the effect that the arbitrator may not be impartial or independent or if he does not possess qualifications agreed to by the parties. The procedure is that prescribed by Article 13 of the Model Law. If the parties’ own procedure cannot resolve the challenge there is an option of applying to the high Court. The arbitration may proceed during any challenge process.

  16. What happens in the case of a truncated tribunal? Is the tribunal able to continue with the proceedings?

    The provisions of Articles 14 and 15 of the Model Law apply in cases of failure or impossibility to act and the appointment of a substitute arbitrator, respectively.

  17. Are arbitrators immune from liability?

    Yes. Section 22 of the Arbitration Act, 2010 provides that arbitrators shall not be liable for anything done or omitted in the discharge or purported discharge of their functions. This immunity extends to any employee, agent or advisor of an arbitrator and to an expert appointed by an arbitrator under the Arbitration Act, 2010 and it also extends to cover arbitral or other institutions by whom an arbitrator is appointed and their employees and agents.

  18. Is the principle of competence-competence recognised in your country?

    Yes. Article 16 of the Model Law deals with the competence of an arbitral tribunal to rule on its jurisdiction. In circumstances where the existence of an arbitration clause is not in dispute, the Irish courts will be very slow to interfere with the arbitrator's ruling on his own jurisdiction having regard to the competence-competence principle

  19. What is the approach of local courts towards a party commencing litigation in apparent breach of an arbitration agreement?

    The Irish courts take a very supportive approach to arbitration and will stay court proceedings in favour of arbitration unless they find that the arbitration agreement is null and void, inoperative or incapable of being performed. Section 32 of the Arbitration Act, 2010 permits a court to adjourn proceedings to enable the parties to consider whether any or all of the matters in dispute might be determined by arbitration. The High Court is the designated court for arbitration matters. There is a dedicated arbitration judge which results in consistency of approach and there is no appeal from a decision of the High Court. These features serve to make Ireland a very attractive seat for international arbitration.

  20. How are arbitral proceedings commenced in your country? Are there any key provisions under the arbitration laws relating to limitation periods or time bars of which the parties should be aware?

    Arbitral proceedings are deemed to have commenced on the date on which the parties to an arbitration agreement so provide or, in default of agreement, on the date on which a written communication containing a request for the dispute to be referred to arbitration is received by the respondent. Apart from the provision in relation to commencement, there are no arbitration-specific limitation periods or time bars. Limitation periods in respect of various causes of action are as set out in the Statute of Limitations, 1957, as amended.

  21. What happens when a respondent fails to participate in the arbitration? Can the local courts compel parties to arbitrate?

    Pursuant to Article 18 of the Model Law, the parties must be treated equally and must be given a full opportunity to present their respective cases. Pursuant to Article 25 of the Model Law, where a party is in default and fails to show sufficient cause, or fails to appear at a hearing, the arbitral tribunal may continue the proceedings and determine the matter. Under Article 27 of the Model Law an arbitral tribunal may seek assistance from the courts in taking evidence. The courts do not have power to compel parties to arbitrate, in the sense of having to actively engage in the arbitration.

  22. In what circumstances is it possible for a state or state entity to invoke state immunity in connection with the commencement of arbitration proceedings?

    The Arbitration Act, 2010 applies to arbitration agreements to which the Irish state is a party [ section 28 of the Arbitration Act, 2010].

  23. In what instances can third parties or non-signatories be bound by an arbitration agreement or award? Can local courts order third parties to participate in arbitration proceedings in your country?

    Third parties cannot be forced to participate in arbitral proceedings in any circumstances.

  24. What interim measures are available? Will local courts issue interim measures pending the constitution of the tribunal?

    Interim measures are available in accordance with and subject to the provisions of Chapter IV of the Model Law. In particular, Article 17 (unless the parties have agreed otherwise) grants power to an arbitrator to grant such interim measures as are set out in Article 17(2) (a) to (d): preserving the status quo, avoiding harm to the arbitral process itself, preservation of assets or evidence. Under section 10 of the Arbitration Act, 2010, the High Court can grant interim measures, either before or during arbitral proceedings, if requested to by a party pursuant to Article 9 of the Model Law.

  25. Are there particular rules governing evidentiary matters in arbitration? Will the local courts in your jurisdiction play any role in the obtaining of evidence?

    In accordance with Article 27 of the Model Law, the Irish courts will assist an arbitral tribunal with regard to taking evidence. This includes arbitrations being held outside Ireland. The High Court has the same powers as it has in any action of matter before it. Unless otherwise agreed by the parties, the High Court will cannot make an order for discovery.

  26. What ethical codes and other professional standards, if any, apply to counsel and arbitrators conducting proceedings in your country?

    Article 12 of the Model Law requires an arbitrator both at the outset of an arbitration and throughout its conduct, to disclose any circumstances likely to give rise to a justifiable doubt as to his impartiality or independence. The Model Law principles of ‘ex aequo et bono’ and ‘amiable compositeur’ apply to arbitrations in Ireland. There are no specific statutory ethical codes but the ethical rules of any relevant Institution agreed to by the parties would apply.

  27. How are the costs of arbitration proceedings estimated and allocated?

    The Arbitration Act 2010 permits the parties to make such provision for the costs of the arbitration as they see fit and the nomination of an arbitral institution would be deemed to be an agreement to abide by whatever rules on costs may be contained in that institution’s rules. In the absence of agreement on costs then the arbitral tribunal shall determine, by award, those costs as it sees fit. The tribunal must set out the grounds on which it makes any award of costs and must specify the items of recoverable costs, fees or expenses and the amount of each and by and to whom they shall be paid. In this context ‘costs’ includes costs as between the parties and the fees and expenses of the arbitral tribunal.

  28. Can pre- and post-award interest be included on the principal claim and costs incurred?

    Under the Arbitration Act 2010, the parties may agree on the arbitral tribunal’s powers regarding the award of interest and unless otherwise agreed, an arbitral tribunal may award simple or compound interest from the dates and at the rates and with rests that it considers fair and reasonable on any outstanding amount of any award including the award of interest and any award of costs.

  29. What legal requirements are there in your country for the recognition of an award?

    An arbitral award shall be recognized as binding in Ireland and shall be enforced unless set aside on one of the limited grounds set out in Article 31 of the Model Law. Any application to set aside must be made within three months of the applicant receiving the award. The general rule is that an arbitral award, irrespective of the country in which it was made, must be recognized and enforced in Ireland unless one of the grounds set out in Article 36 of the Model Law exists. In the event of a claim that an award offends Ireland’s public policy, the application must be brought within 56 days of the applicant becoming aware of the circumstances giving rise to that claim. Any application to court to recognize or enforce an arbitral award is made to the High Court from whose decision there is no appeal.

  30. What is the estimated timeframe for the recognition and enforcement of an award? May a party bring a motion for the recognition and enforcement of an award on an ex parte basis?

    The timeframe for the recognition and enforcement of an award would depend on the circumstances and complexity of the case and the extent to which objection is made. It is impossible to give a precise estimate but approximately six to twelve months may be a good guide. A party may not apply for recognition and enforcement of an award on an ex parte basis.

  31. Does the arbitration law of your country provide a different standard of review for recognition and enforcement of a foreign award compared with a domestic award?

    No. The same provisions apply whether the award is domestic or foreign.

  32. Does the law impose limits on the available remedies? Are some remedies not enforceable by the local courts?

    The only limits are those contained in the Model Law (see 29 above).

  33. Can arbitration proceedings and awards be appealed or challenged in local courts? What are the grounds and procedure?

    Arbitral awards cannot be appealed, as such. The only recourse against an award is to apply to the High Court to have it set aside on one of the grounds set out on Article 34 of the Model Law. Application to set aside may be made in a summary manner. Any application must be made within three months of the applicant seeking set aside having received the award. There is no appeal from the decision of the High Court.

  34. Can the parties waive any rights of appeal or challenge to an award by agreement before the dispute arises (such as in the arbitration clause)?

    The Irish courts will recognize and vindicate the parties’ right to reach such agreement as they see fit to be contained in their arbitration agreement, including the right to waive any rights of appeal or challenge to an award.

  35. To what extent might a state or state entity successfully raise a defence of state or sovereign immunity at the enforcement stage?

    The Arbitration Act, 2010 applies to arbitration agreements to which the Irish state is a party [ section 28 of the Arbitration Act, 2010].

  36. To what extent might a third party challenge the recognition of an award?

    Where recognition or enforcement is sought the Irish courts may, if considered proper, order the requesting party to provide appropriate security if the arbitral tribunal has not already made a determination with respect to security or where such a decision is necessary to protect the rights of third parties.

  37. Have there been any significant developments with regard to third party funding in your jurisdiction recently?

    Third party funding of civil litigation has been under the spotlight in Ireland for the past few years, and there have been a number of relevant court decisions. In 2015 the Court of Appeal concluded that after the event insurance could be taken into account when considering whether to grant security for costs against a plaintiff, which was the first indication by the courts that such a policy was permissible. More recently, in a case arising from the State’s award of a mobile phone licence, the plaintiff – which was funded by a professional third party funder – sought court approval of the funding arrangement. In 2017, the Supreme Court held that the funding arrangement fell foul of the rules against maintenance and champerty, which are still part of Irish law, and that legislation would be required to abolish those rules before third party funding of litigation could be permitted. As yet, no such legislation has been enacted. The issue of third party funding in arbitration (whether domestic or international) has not been considered by Irish courts to date.

  38. Is emergency arbitrator relief available in your country? Is this frequently used?

    Emergency arbitrator relief is not a feature of Irish arbitration law, to the extent that it is not provided for in the Arbitration Act, 2010. However, where the parties have agreed to arbitrate under institutional rules which provide for the appointment of an emergency arbitrator, then that would be permissible under Irish law.

  39. Are there arbitral laws or arbitration institutional rules in your country providing for simplified or expedited procedures for claims under a certain value? Are they often used?

    There are no specifically Irish statutory expedited processes. However, where the rules of an institution which has been agreed on by the parties provides for such a procedure, then that would be permissible in Ireland.

  40. Have there been any mass (arbitration) claims in your jurisdiction?

    Ireland does not permit class actions in civil litigation and we are not aware of any mass arbitration claims.

  41. Have measures been taken by arbitral institutions in your country to promote transparency in arbitration?

    Given the absence of arbitral institutions in Ireland, this issue does not arise here.

  42. Is diversity in the choice of arbitrators and counsel (e.g. gender, age, origin) actively promoted in your country? If so, how?

    No. Diversity is not something which is actively promoted in Ireland. However, given the openness of the legal profession in Ireland, diversity or the lack of it, is not an issue in the legal and arbitral communities in Ireland.

  43. Have there been any developments regarding mediation in your jurisdiction?

    A very significant development is that Ireland now has the Mediation Act, 2017 which, for the first time, makes statutory provision for mediation. It is now mandatory for solicitors to advise clients, before issuing proceedings on their behalf, about mediation. Certain disputes (including arbitrations, workplace disputes, Revenue disputes and judicial review) are excluded from the provisions of the Mediation Act and its provisions do not replace a contractual dispute resolution provision. Settlements achieved through mediation are enforceable as contracts. The Mediation Act,2017 permits a court on its own motion or on the application of a party, to invite the parties to consider mediation as a means of resolving a dispute. If one party resists mediation then the courts will only exercise their discretion to adjourn proceedings if they consider it appropriate to do so having weighed up all of the considerations such as the potential for mediation to bring about a resolution of the dispute, the timing of the application, the moving party’s conduct of the litigation to date and its bona fides and motivations in seeking mediation. Mediation has gradually become vaey mainstream in the context of commercial litigation and the passing of the Mediation Act is expected to increase awareness and use of mediation.

  44. Have there been any recent court decisions in your country considering the setting aside of an award that has been enforced in another jurisdiction or vice versa?

    In 2014, the Irish High Court was asked to assume jurisdiction to hear proceedings for the enforcement of an arbitral award made by the International Court of Arbitration of the ICC in New York. The applicant was a Luxembourg company which had loaned monies to the respondent, a Russian company jointly owned by Rosneft and Gazprom. Attempts by the applicant to have the arbitral award enforced in Russia and France had failed, and were ongoing in Singapore. The court refused to assume jurisdiction, and it set aside previous orders permitting service of the proceedings outside Ireland, on the basis that the respondent was in Russia, had no assets in Ireland, and the situation was unlikely to change. The court could not see any practical benefit to the arbitral award being enforced in Ireland. It was also held that it would be unjust to require the respondent to defend a fourth attempt to enforce the award. (Yukos Capital S.A.R.L. v Oao Tomskneft Vnk [2014] IEHC 115)

  45. Is corruption an issue that is regularly raised in your jurisdiction? What standard do local courts apply for proving of corruption?

    Corruption is not an issue which has, to our knowledge, ever arisen in civil proceedings in Ireland. Corruption, as opposed to misfeasance, is more likely to potentially arise in the form of a criminal offence in which case the burden of proof would be ‘beyond reasonable doubt’ and not the civil standard of ‘the balance of probabilities’.