Unit 6 – Consolidation CDR AA = arbitration act

Always check in exam to see if any non-mandatory provisions of the AA96 have been excluded

SECTION	SUBJECT	MANDATORY?
s 1	Guiding principles	N/A
s 5	Agreements to be in writing – widely defined	N/A

s 9	Staying legal proceedings	Yes

s 12	Power of court to grant extensions of time for the	Yes
	commencement of arbitration proceedings

s 13	Limitation Act applies to arbitration proceedings	Yes

s 14	Commencement of arbitration proceedings – written notice	No

ss 15 and 16	Appointment of arbitrators	No

s 24	Power of court to remove arbitrator	Yes

s 33	Arbitrators’ duties	Yes

s 34	Power of arbitrators over procedural and evidential matters	No

s 38	General powers of arbitrators including power to award	No
	security for costs

s 40	General duty of parties	Yes

s 41	Powers of arbitrators where party in default – power to make	No
	peremptory orders

s 42	Enforcement of peremptory orders through the courts	No

s 45	Power of arbitrators to make different awards on different	No
	issues at different times

s 47	Ability of arbitrators to make different awards on different	No
	issues at different times

s 56	Ability of arbitrators to withhold award in the event of non-	Yes
	payment

s 60	Prohibition on agreement to pay costs in any event	Yes

s 61	Arbitrators’ ability to award costs	No

s 66	Enforcement of the award	Yes

ss 67 and 68	Right to challenge the award – substantive jurisdiction and	Yes
	serious irregularity

s 69	Appeal on question of law	No

s 79	Power of court to extend time limits relating to arbitration	No
	proceedings

Sch 1	Mandatory provisions of Part 1	N/A

	OUTCOME 1 – Interpret AA98 and advise client on rights/obligations and powers of arbitral tribunal, how to remove arbitrator and powers of court in relation to arbitration	OUTCOME 2- Advise a client on the circumstances in which the parties may seek the assistance of the court in relation to arbitration
The original contract is invalid	s.7 – unless otherwise agreed, an arbitration agreement which was intended to form part of an agreement shall not be regarded as invalid just because that other agreement is invalid
How to incorporate the AA96	s.5 – AA96 applies only to agreements recorded by any means (e.g. tape recording) and includes: a) exchanges of letters/other communications b) agreements evidenced in writing (by party or TP acting with authority) c) oral agreements to written terms d) transcript of a video tape meeting where parties shake hands and agree [one party says there is a non-written arbitration agreement and other doesn’t deny it then those submissions create arbitration agreement to which AA96 can apply] s.6(2) It is possible to incorporate an A clause from another doc (doesn’t need to be a valid contract s.7) by referring to the clause in such a way to make it part of the agreement
Appointing the arbitrator Chairman – member of arbitration from outset and has casting vote if a tie in decision Umpire –appointed when arbitrators cant agree, if this doesn’t happen then before final hearing s.16(6) s.21 – parties agree on his function but if not then takes over as if sole arbitrator when the others cant agree	s.15(1) – parties free to agree number of arbitrators and whether chairman/umpire s.15(3) – if no agreement then tribunal shall consist of sole arbitrator s.16(1) – parties can agree own appointment procedure s.16(3) – if no agreed then one party can make a written request to the other to make joint apt within 28 day s.16(5) – if agreed to have 3 arbitrators, parties free to agree procedure for apt but if cant then each appoint one within 14 days and the two arbitrators will appoint the third s.17 – if one party failed to appoint in above scenario then other party can give written notice and he then has 7 more days to appoint and if he doesn’t then he sole arbitrator can be confirmed s.15(2) - Any agreement saying 2 arbitrators is understood as requiring apt of a 3^rd as chairman (parties can expressly say no chairman though) s.17 – applies again if one party doesn’t apt an arbitrator when there should be two s.22 – arbitrator decisions by majority vote	s.18(3) - If procedure for apt doesn’t work then either party can apply to the court. Court usually appoints an arbitrator but may simply give directions s.18 – party who failed to appoint an arbitrator in accordance with s.16(5) only remedy is to apply to court and ask them to revoke the other partied appointment (will need a good reason for not appoint their own) s.18 – if two arbitrators cant agree on third the can ask court to solve s.18 – court can make app for directions is split vote of arbitrators
Time limits	s.13 – mandatory provision - the limitation acts apply but usually parties agree to shorter periods, once period expired the aggrieved party is without remedy as the arbitration agreement prevents dispute being taken to court	s.12 – mandatory provision – high court can grant extension of time for referring dispute to arbitration if parties have fist exhausted provisions of their agreement s.12(3) the circumstances must be outside reasonable contemplation of parties when they agreed time limit/conduct of one party makes it unjust to hold other to time limit s.79 – non-mandatory - court can extend other time limits (serving docs etc) if substantial injunction would otherwise be done
Objecting to the arbitrators jurisdiction	s.31 party who wishes to object to arbitrators jurisdiction should do so no later than the first step he takes in dealing with merits of the application after the arbitrator has been appointed If any party during arbitration considers arbitrator is exceeding his powers he should object immediately or may be taken to have waived his right to do so s.73 party who continues to take part after should have known there were grounds for objecting to jurisdiction cannot subsequently apply to the court (s.32) [parties cannot contract out of this]	s.32 party may apply to court to challenge A’s jurisdiction, must have consent of other parties or consent of arbitrator (if the later the court will consider app only if): a) decision will save substantial costs b) there has been no delay in making the app c) there is good reason for matter to be considered
Ruling on preliminary points of law		s.45 party (on notice to others) may with consent of others or arbitrator apply to court for a ruling on question of law which arises which substantially affects the rights of one or more of the parties. If app made only with consent of arbitrator court will only rule if likely to save costs and no delay in making the app s.45(1) an agreement that arbitrator need not give reasons for his decisions is deemed to exclude courts jurisdiction under s.45
One party fails to disclose documents in the arbitration process	s.33 – mandatory provision – equivalent of overriding objective in CPR “tribunal to act fairly and impartially” s.34(1)(2)(d) – tribunal to decide which documents should be disclosed s.38(4) unless agreed to contrary arbitrator can give directions regarding inspection, photography, preservation, samples, custody or detention of property s.40(1) – mandatory provision - parties shall do all things necessary for the proper and expeditious conduct of the arbitral proceedings (2)(a) complying without delay with any determination of the tribunal as to evidential matters s.41(5) – non-mandatory provision BUT not varied in this instance [peremptory order] – arbitrator gives specified time to comply (unless order) s.41(7) – if order not complied with: prevent defaulting party from relying on material covered by order draw adverse inferences proceed to make award on existing evidence cost penalties	s.42 – non-mandatory - high court order for disclosure. Advantage of applying to court is that it will attach a penal notice so that non-compliance is contempt of court s.44 – non-mandatory - court has power to make orders relating to: a) taking evidence from W b) preserving evidence c) Inspection, photography, preservation, samples, custody or detention of property. Can authorise any person to enter premises of any party d) selling goods which are involved in proceedings e) interim injunctions f) appointing a receiver - requires consent of arbitrator or other parties s.44(3) if urgent then party can apply to court for order to preserve evidence/assets without arbitrators consent
One party is not co-operating	s.43(1) non-mandatory - If C is not co-operating then arbitrator can dismiss the case for want of prosecution s.41(4) non-mandatory - If D isn’t co-operating: a) not being present at a hearing of which he was notified b) fails to provide written evidence or submission after being given proper notice and hasn’t provided good explanation then arbitrator can deal with matter on basis of only C evidence
Security for costs	s.38 – non-mandatory – arbitrator may require C to provide security for D’s costs. Unless otherwise agreed this cannot be solely because C is based outside the UK If C fails to do so then peremptory order can be made and if he still fails under s.41(6) unless agreed to the contrary arbitrator can dismiss the claim
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#10468 - Unit 6 – Arbitration - Commercial Dispute Resolution

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