Answer ... (a) Procedure, including evidence?
Under Section 14 of the 2010 Act, the arbitral tribunal can direct that a party to an arbitration agreement or a witness who gives evidence in proceedings before the arbitral tribunal be examined on oath or on affirmation.
Under Article 23(1) of the UNCITRAL Model Law, the parties decide on:
- the timeframe within which the claimant must state the facts supporting its claim, the points at issue and the relief or remedy sought; and
- the timeframe within which the respondent must state its defence.
An issue arises as to whether and when arbitrators have jurisdiction to order discovery in Ireland. Section 10(2) the 2010 Act provides limited jurisdiction to order discovery, stating that the High Court shall not make any order for discovery of documents unless otherwise agreed by the parties.
This limitation was noted in O’Leary T/A O’Leary Lissarda v Ryan [2015] IEHC 820, where the applicant had accepted that there was no explicit power set out in the legislation to order discovery under the Model Law. Dowling-Hussey, in his article “Alternative Dispute Resolution: A Road Wrongly Travelled? Irish Arbitrators and Discovery”, argues that this case demonstrates that it remains unclear whether Irish arbitrators have power under the 2010 Act to order discovery of their own volition; but it does seem that this is unlikely to be the case, and it would be more commonly accepted practice that an arbitrator may make an order for discovery. Often, provision is specifically made at the directions hearing to empower the arbitrator to make orders for discovery.
(b) Interim relief?
Interim measures awarded by the arbitrator will be recognised and enforced by the courts in Ireland. Article 9 of the UNICTRAL Model Law provides that it is not incompatible with an arbitration agreement for a party to request interim measures of protection from the High Court, before or during arbitral proceedings.
Under Article 17J of the Model Law, the High Court has the power to grant interim measures of protection and assistance, and this applies even where the seat of the arbitration is in another jurisdiction outside of Ireland.
The Irish courts, in considering applications for interim or interlocutory injunctive relief under Article 9 and Article 17J of the Model Law, will apply the principles set out by the Supreme Court in Campus Oil Ltd v Minister for Industry and Energy (No 2) [1983] IR 88.
Despite the increased power of arbitrators, the High Court still retains power in respect of ancillary duties, including:
- issuing witness subpoenas;
- ordering third-party discovery; and
- recognising and enforcing arbitral awards.
Under Article 27 of the Model Law, the High Court can grant assistance in the taking of evidence.
Further, under the International Chamber of Commerce Arbitration Rules, parties can seek urgent temporary relief, including the appointment of an emergency arbitrator.
(c) Parties which do not comply with its orders?
Under Article 25 of the UNCITRAL Model Law, where any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the award on the evidence before it. This power was recognised by the Supreme Court in Grangeford Structures Ltd (In Liquidation) v SH Ltd [1990] 2 IR 351 and more recently in Hoban v Coughlan & Anor [2017] IEHC 301.
(d) Issuing partial final awards?
There is no express restriction on issuing a partial final award in Ireland. However, under the 2010 Act, the definition of ‘award’ includes a partial award, meaning that the legislation envisions a final award being made in order to resolve the dispute in its totality.
(e) The remedies it can grant in a final award?
Arbitrators in Ireland may award remedies which are permitted by the law applicable to the dispute. Therefore, an arbitrator making an award under Irish law can award the full range of common law and equitable remedies, with the exception of an award of specific performance relating to a contract for the sale of land without the agreement of the parties.
(f) Interest?
Section 18(1) of the 2010 Act allows the parties to agree on the arbitral tribunal’s power to award interest. In the absence of agreement, the arbitral tribunal can, under Section 18(2), award simple or compound interest, on such terms as it “considers fair and reasonable”, on all or part of the award, or the amount claimed at the outset of the arbitration but paid before the award was made.
Under Section 18(3), the arbitral tribunal can award simple or compound interest from the date of the award or a later date, until payment, at rates it “considers fair and reasonable” on the outstanding amount of any award (including interest and/or costs).