Want To Arbitrate? Be Proactive

Perhaps the most attractive feature of arbitration is its flexibility. Efficient and cost-effective arbitration is possible if the right questions are addressed up front. For example: Do we need discovery? Do we need to oblige the parties to seek to mediate before moving to arbitration? Do we need a reasoned award? The Irish Courts have repeatedly demonstrated a willingness to uphold arbitration clauses. Recent case law indicates that parties wishing to arbitrate must: (1) ensure that all relevant contracts clearly provide for arbitration, (2) avoid delay and (3) avail of the opportunity to engage fully in the process.

Guidance from case law under the Arbitration Act 2010 includes:

Do not delay: The extent to which a party may be prevented by its own conduct, from invoking an arbitration clause, has been considered by the Irish courts1. In this case, it was held that, as the sixth defendant waited until 21 months after the service of proceedings to even raise the arbitration clause, with no explanation for this delay, it could not then seek to invoke an arbitration clause. The relevant contracts must provide for arbitration: The Irish High Court recently considered an application in which one of the parties sought a stay on court proceedings to pursue arbitration2. This was a multi-party dispute involving a series of related contracts. The Court recognised that, while one of the contracts the subject of the dispute did provide for arbitration, the contract upon which the defendant sued the...