International Arbitration Comparative Guide

• Published date: 14 September 2021
• Subject Matter: Litigation, Mediation & Arbitration, Disclosure & Electronic Discovery & Privilege, Arbitration & Dispute Resolution, Court Procedure, Sovereign Immunity: Public Sector Government, Class Actions, Trials & Appeals & Compensation, Civil Law
• Law Firm: Eversheds Sutherland Ireland
• Author: Mr Dermot McEvoy and Aidan Kirrane

1 Legal framework

1.1 What is the relevant legislation on arbitration in your jurisdiction? Are there any significant limitations on the scope of the statutory regime - for example, does it govern oral arbitration agreements?

The Arbitration Act 2010 (the "2010 Act") applies to arbitrations in Ireland. It applies to both international commercial arbitrations and domestic arbitrations. The 2010 Act came into force on 8 June 2010 and repealed the existing Arbitration Acts 1954-1998. The Act consolidated the law and adopted the UNCITRAL Model Law on International Commercial Arbitration in its entirety into Irish law.

1.2 Does this legislation differentiate between domestic arbitration and international arbitration? If so, how is each defined?

No, the same rules apply to domestic and to international arbitration.

1.3 Is the arbitration legislation in your jurisdiction based on the UNCITRAL Model Law on International Commercial Arbitration?

Yes, the 2010 Act consolidated the law and adopted the UNCITRAL Model Law in its entirety into Irish law.

1.4 Are all provisions of the legislation in your jurisdiction mandatory?

Article 19 of the Model Law guarantees freedom to parties to agree on the arbitration procedure to be followed by the appointed arbitral tribunal. However, there are still some mandatory provisions which apply on procedure, including that the arbitrator/tribunal be independent and impartial.

1.5 Are there any current plans to amend the arbitration legislation in your jurisdiction?

There are currently no plans to amend the 2010 Act in Ireland. That said, it is envisaged that there is scope to amend the existing legislation to provide certainty on the rules that may apply to third-party funding (see question 11 for further detail).

1.6 Is your jurisdiction a signatory to the New York Convention? If so, have any reservations been made?

Yes, Ireland is a signatory to the New York Convention and joined in 1981. The Preamble to the 2010 Act gives the force of law in Ireland to the New York Convention.

Ireland has made a reciprocity reservation, allowing it to apply the convention only to awards made in the territory of another contracting state.

1.7 Is your jurisdiction a signatory to any other treaties relevant to arbitration?

No, Ireland is not a signatory to any other treaties relevant to arbitration and is not a signatory to any bilateral investment treaties.

2 Arbitrability and restrictions on arbitration

2.1 How is it determined whether a dispute is arbitrable in your jurisdiction?

The 2010 Act contains no express provisions on arbitrability, but excludes:

• employment and consumer disputes; and
• disputes arising where the parties contracted under standard terms and the contract is valued under '5,000

2.2 Are there any restrictions on the choice of seat of arbitration for certain disputes?

There are no restrictions under Irish law prohibiting the parties from choosing a particular seat of arbitration.

3 Arbitration agreement

3.1 What are the validity requirements for an arbitration agreement in your jurisdiction?

The validity requirements for arbitration conducted in Ireland are set out in the 2010 Act. Under the act, Option 1 of Article 7 of the UNCITRAL Model Law sets out the requirements of an arbitration agreement, and specifically stipulates that the arbitration agreement must be "in writing". The Model Law defines "in writing" in broad terms, such that it will include an agreement recorded in any form, whether solely in writing, concluded orally, by conduct or by other means.

3.2 Are there any provisions of legislation or any other legal sources in your jurisdiction concerning the separability of arbitration agreements?

The concept of separability is set out in Article 16(1) of the UNCITRAL Model Law. The concept of separability of arbitration agreements is recognised by the Irish courts - see Doyle v National Irish Insurance Co Plc [1998] 1 IR 89. The doctrine was also acknowledged more recently in Narooma Ltd v Health Service Executive [2020] IEHC 315, where the court expressly noted that by virtue of the doctrine of separability, "an arbitration agreement has a separate and independent existence from the underlying or main contract".

3.3 Are there provisions on the seat and/or language of the arbitration if there is no agreement between the parties?

Under Article 22 of the 2010 Act, where there is no specific agreement between the parties, the arbitral tribunal shall determine the language or languages to be used in the proceedings.

In addition, where there is no agreement between the parties, but the arbitration agreement refers to institutional rules, those institutional rules will apply to the matter.

4 Objections to jurisdiction

4.1 When must a party raise an objection to the jurisdiction of the tribunal and how can this objection be raised?

Under Article 16(3) of the UNCITRAL Model Law, a challenge under any procedure agreed upon by the parties or a challenge to the jurisdiction of the arbitral tribunal shall be made within 30 days of receipt of the notice of the decision rejecting the challenge.

4.2 Can a tribunal rule on its own jurisdiction?

Under Article 16(1) of the UNCITRAL Model Law, an arbitrator/arbitral tribunal in Ireland can rule on their own jurisdiction. The well-established Kompetenz-Kompetenz principle applies to international and domestic arbitrations in Ireland with the introduction of the Model Law, and empowers arbitrators to rule on their own jurisdiction, including any objections in respect of the presence of a valid arbitration agreement. Kompetenz-Kompetenz was acknowledged in the Irish case of Barnmore Demolition and Civil Engineering Ltd v Alandale Logistics (unreported, 11 November 2010).

4.3 Can a party apply to the courts of the seat for a ruling on the jurisdiction of the tribunal? In what circumstances?

Article 16(1) of the UNCITRAL Model Law permits an arbitral tribunal to decide upon challenges to its own jurisdiction. Under Article 16(3) of the Model Law, there is a right of appeal to the High Court for parties that dispute the arbitrator's determination of jurisdiction; such challenges must be made within 30 days of the arbitrator's ruling.

Case law provides guidance on the court's approach to an application in relation to a ruling on the jurisdiction of the tribunal. In Mayo County Council v Joe Reilly Plant Hire Limited [2015] IEHC 544 there was a challenge to the arbitrator's jurisdiction to adjudicate a claim, but the court dismissed the challenge. The court held that where the existence of an arbitration clause is not in dispute, the courts will be very slow to interfere with the arbitrator's ruling on his or her own jurisdiction, having regard to the Kompetenz-Kompetenz principle.

Equally, in Achill Sheltered Housing Association CLG v Dooniver Plant Hire Limited [2018] IEHC 6, the court had to determine whether the dispute referred to arbitration fell within the terms of the arbitration agreement. The respondent argued that the application was premature. The court held that Article 16(3) permitted the court to review a preliminary ruling by an arbitral tribunal that it had jurisdiction, and that the preliminary ruling by the arbitrator that he had been validly...