This document discusses arbitration in Ireland. It notes that arbitration is becoming increasingly important as recommended by government reports and the Chief Justice. It then summarizes what arbitration is according to legal precedent, distinguishing it from expert determination. The document outlines matters that can and cannot be arbitrated, how arbitration agreements work, the role of arbitrators, and procedures under the Arbitration Acts of 1954 and 1980 such as appointing arbitrators and staying court proceedings in favor of arbitration.

1. ArbitrationArran Dowling Hussey Dip. Arb. Law, Dip. Int. Com. Arb., F.C.I.Arb, Barrister-at-Law ADHussey@Lawlibrary.Ie; www.arrandowlinghussey.comCo-author with Derek Dunne B.L; DerekDunne01@Yahoo.Co.ukOf Arbitration (Thomson Roundhall, 2008)

2. Arbitration- Increasingly Important?The McCarthy Report, otherwise known as An Bord Snip Nua, was published in July 2009- recommended state bodies use ADR. Chief Justice John. L. Murray: “ Arbitration will be increasingly important in the years to come.” 30th November 2007Growth in Arbitration/ ADR in Ireland:Adjudication and Mediation used by Private Residential Tenancies Board.GAA has set up Dispute Resolution Authority; Just Sport Ireland launched in 2007.Bar Council Small Claims Arbitration Scheme. Mediation of Pat Kenny (RTE) dispute in April, 2008.Recent Dispute Resolution conference in Dublin; launched by Ian Paisley: November, 2007.Larger conference followed in 2008.

3. Arbitration- What is it?As Dunne and Dowling-Hussey note in Irish Law Times, Volume 25, Number 9 at 138:“ In Arenson v Arenson, the House of Lords summarised the essential indica of arbitration in the following terms: (a) there is a dispute or difference between the parties which has been formulated in some way or another; (b) the dispute or difference has been remitted by the parties to the person to resolve in such a manner that he is called upon to exercise a judicial function; (c) Where appropriate, the parties must have been provided with an opportunity to present evidence and/or submissions in support of their respective claims in the dispute; and the parties have agreed to accept his decision.” [1977] AC 405. “ It is possible that a clause purporting to create an obligation upon the parties to refer a dispute between them to arbitration, is not in fact an arbitration procedure……Whether a procedure provided for by a contract for the resolution of disputes is arbitration or another form of dispute resolution (such as e.g conciliation mediation, negotiation or expert determination) will, in the first instance depend on the objective meaning of the clause and the intentions of the parties. The express terminology will not be decisive; as in all areas of contract law, the substance and not the form of the agreement will prevail.”

4. Arbitration- What is it/ A Dispute?A distinction needs to be made between arbitration and expert determination; which are different forms of dispute resolution.As Forde notes: “ the test of whether a person selected to make a valuation is an arbitrator or simply a valuer, it would seem, is whether under the contract, he is automatically part of a process for completing the substantive agreement…[or whether ]he only becomes involved where the parties are in dispute about the proper valuation, he is an arbitrator.” See Sutcliffe v Thackrah 1974 A.C The word ‘dispute’ should be given its ordinary meaning and encompasses any claim of one party to the agreement which the other party will not admit.In addition the subject matter of the dispute must fall within the scope of the arbitration clause; andThe subject matter of the dispute must be capable of being the subject of arbitration.It would appear that the question of whether a dispute has in fact arisen within the meaning of the arbitration agreement is a matter for the Arbitrator to decide.The courts do not have jurisdiction to grant an injunction in respect of a controversy as to whether a dispute has arisen: see inter alia Bremer Vulken Schiffbau v South India Shipping Corp [1982] A.C 909.

5. Why you might use arbitrationGuarantee of expertise.

6. Speed

7. Privacy

8. Expense.

9. As enforceable as a court award.

10. Above are best case examples like any process arbitration can and does go wrong.Matters capable of being arbitrated Non exhaustive list of matters capable of being arbitrated:Insurance contracts and policies; Maritime contracts;Contracts for the sale of goods and the supply of services; Holiday contracts;Building/ engineering contracts; Partnership agreements .Matters incapable of being arbitrated.Disputes involving questions of fraud- s.39(2) of the Arbitration Acts allows courts to intervene to hold that a dispute involving fraud is more appropriately dealt with by them than an Arbitrator.See: See inter alia Greyridge Developments Ltd v McGuigan trading as McGuigan Construction[2006] IEHC 441; wherein Mr Justice Gilligan declined to set aside an arbitration agreement even though he had no doubt that a contractor involved in the dispute had forged invoices that they sought to rely on in the course of the dipsute. The court stated ‘ It may well be that the defendant did not conduct his business in an orthodox manner, that he was prepared to rely on forged invoices, that other invoices produced by him.. are open to serious question and that he purchased goods for cash. But these, in my view, are all matters which the arbitrator will be well able to deal with.’

11. Matters incapable of being arbitrated Crime- for constitutional reasons.

12. Divorce.

13. Bankruptcy/ Winding up of companies.

14. Disputes within the jurisdiction of the following:

15. Personal Injuries Assessment Board.

16. Residential Tenancies Act 2004.

17. Where award would seem to give effect to an illegal contract/ contract contrary to public policy.Arbitration agreements falling outside the 1954-1998 ActsSection (2) (1) of the Acts requires that an arbitration agreement falling under the auspices of the Acts must be in writing.An unwritten agreement to arbitrate may still be valid it will just fall outside the scope of the Acts. Section 5(a) not not invalidate arbitration agreements ‘ relating to the terms or conditions of employment or the remuneration of any employees’ it simply acts to disapply the statutes. Section 5(b) of the 1954 Act excludes the application of the Arbitration Acts to Trade Dispute Arbitration under Section 70 of the Industrial Relations Act 1946. There are a myriad of Acts in force which provide for arbitration, or a form of arbitration, and the Arbitration Acts will normally apply save that the Credit Union Act 1997 or whatever the case may be may exclude the application of the Acts.

18. The ArbitratorAnyone can describe themselves as an arbitrator.

19. There is no manual available listing arbitrators working in the Republic of Ireland.

20. An arbitrator is nearly always someone who practices in another profession or trade.

21. Biographical details of the arbitrator will be available in any directory published by whichever other professional or trade body they belong to.