GAR Know How Construction Arbitration

LEGAL SYSTEM

1 Is your jurisdiction primarily a common law, civil law, customary law or theocratic law jurisdiction? Are the laws substantially derived from the laws of another jurisdiction and, if so, which? What instruments have legal force and effect? Who are the lawmaking bodies? How and where are new laws published? Can laws be passed with retrospective effect?

Ireland is a common law jurisdiction deriving its laws substantially from laws of other common law jurisdictions, principally England and Wales. The Constitution, Acts of Parliament, Statutory Instruments, regulations, European Union legislation all have legal force and effect. The Oireachtas (the Irish parliament comprising two houses - the Dail and the Seanad) is the lawmaking body. New laws are published by the Oireachtas on the Irish Statute Book (irishstatutebook.ie) and are signed into law by the President. Laws can be passed with retrospective effect, provided they do not seek to render as an infringement, an act that was innocent at the time of its commission (article 15.5.1 of the Constitution) as upheld by the Irish Supreme Court in McKee v Culligan.

Typically, construction contracts in Ireland provide for alternative forms of dispute resolution procedures such as mediation/conciliation/arbitration, etc, rather than referral of disputes under a construction contract to the courts. As such, there is a limited pool of decisions relating to constructions disputes emanating from the Irish courts. Practitioners therefore tend to look to court decisions coming from the United Kingdom for guidance.

CONTRACT FORMATION

2 What are the requirements for a construction contract to be formed? When is a "letter of intent" from an employer to a contractor given contractual effect?

The essential requirements of a construction contract are: agreement, consideration, certainty, intention to create legal relations and capacity.

If a letter of intent is to be given contractual effect, this should be clear from its terms. The letter of intent should: record the agreement of both the parties, provide for consideration and be clear on its face that the parties intend to enter into a contractually binding arrangement (an intention to create legal relations) and that the terms of that arrangement are clear.

CHOICE OF LAWS, SEAT, ARBITRATOR AND LANGUAGE

3 Are parties free to choose: (a) the governing law of their contract; (b) the law of the arbitration agreement; (c) the seat of the arbitration; (d) any arbitral rules; (e) anyone to act as arbitrator; and (f) the language of the contract and the arbitration? If not, what are the limitations on choice and what happens if the parties act contrary to them?

Under the Arbitration Act 2010 (the 2010 Act), parties are free to choose the governing law of their contract, the law of the arbitration agreement, the seat of the arbitration, the arbitral rules, the choice of...