Confidentiality in Arbitration & The Public Interest Exception
The question whether arbitral proceedings are, or ought to be confidential, has been the source of much academic debate and was recently reviewed by the ICC Commission on Arbitration.[2] In much of Europe the prevailing view is that arbitral proceedings are confidential. However, even if they are confidential, that confidentiality cannot be absolute. As noted by Paulsson and Rawding, this would result in a paradox.[3] If the parties to an arbitration ever sat down and thought about the issue of confidentiality, they would inevitably conclude that neither of them would want a rule that arbitrations were confidential without exception. The parties may need to show the award to insurers or to a parent company. The parties may also want to enforce the award if it is not honoured and the only way to do this is in the courts, which will often be a public forum. In a number of countries which adopt the position that arbitrations are confidential there will be a list of exceptions to the confidentiality obligation. Some countries consider that where the arbitration raises issues which have a public interest, then this should be an exception to the confidentiality obligation. This 'public interest exception' has been considered recently in three international arbitrations. On each occasion the argument that there ought to be a public interest exception was rejected. This article does not seek to re-visit the question of whether there is or ought to be a duty of confidentiality in arbitration.[4] Its focus is on one question; namely, should there be an exception to the duty of confidentiality where the arbitration raises issues of public interest?
Incorporation of Arbitration Clauses
The Arbitration Act 1996 (AA 1996) s.6(1) defines arbitration agreements and section 6(2) deals with incorporation of arbitration agreements by reference: (1) In this Part an ‘‘arbitration agreement’’ means an agreement to submit to arbitration present or future disputes (whether they are contractual or not). (2) The reference in an agreement to a written form of arbitration clause or to a document containing an arbitration clause constitutes an arbitration agreement if the reference is such as to make that clause part of the agreement. It would appear, at first sight, that referring to a written agreement containing an arbitration clause is sufficient for there to be an ‘‘arbitration agreement’’. However, the law is never that simple. Case law suggests that, in most circumstances, a general reference to a contract will not incorporate the arbitration provisions within that contract. If a party wishes to incorporate the arbitration provisions then it will need to refer expressly to those provisions.
Delay in Commencement – Delay in Commencing an Arbitration
Judge Martyn Zeidman recently commented: ‘‘As stated in Magna Carta, justice delayed is justice denied’’. The Limitation Acts are intended to prevent justice being delayed. They do this by preventing a claimant from proceeding with a case where the limitation period has expired. They do not, except in a few cases, extinguish the right of action, but bar a remedy. They are therefore, except in those few cases, procedural rather substantive defences. Issues of limitation should not be raised in a statement of case. It is for the respondent to raise any issue of limitation within the defence and for the issue to be dealt with by the claimant in a reply. The respondent must specifically plead a defence of limitation. The burden then shifts to the claimant to show that the cause of action arose within the relevant limitation period. The Limitation Acts were conceived out of the equitable doctrine of laches, which still has a role to play where a party seeks an equitable remedy. Equitable remedies include an order for specific performance, an injunction and rectification of a contract. The doctrine of laches states that ‘‘equity aids the vigilant, not the indolent’’ and that ‘‘delay defeats equity’’. Therefore, a claim for an equitable remedy will not be granted if the claimant has delayed in commencing a claim, even though the statutory limitation period has not expired. In addition to the Limitation Acts and the doctrine of laches, contractual limitation provisions may provide a defence. They may either bar a claimant’s right to bring a claim or may extinguish it. The distinction between contractual limitation and statutory limitation is important because the court has power to extend time limits for a failure to comply with contractual limitation periods. Only in limited circumstances can it extend statutory periods. Arbitration Act 1996 ss.12 to 14 deal with the commencement of arbitration proceedings and issues of limitation: section 12 with the court’s power to extend contractual time limits for beginning arbitral proceedings; section 13 states that the Limitation Acts apply to arbitral proceedings as they apply to legal proceedings; section 14 deals with the commencement of proceedings.
Scott v Avery Clauses: O’er Judges’ Fingers, Who Straight Dream on Fees
Read the full article here. Note: this published article is co-authored by Andrew Tweeddale and Karen Tweeddale.
Recent Cases on Serious irregularity
Recent case law shows that challenging an arbitrator's award because of serious irregularity is no easy option. There are limited grounds upon which a challenge can be made. Even if a case falls within one of them, a party will only succeed in its challenge if it can show that it has suffered a substantial injustice. A technical breach will not suffice. Cases which, under the Arbitration Act 1950, would have been remitted back to the arbitrator because of technical misconduct, will now not be remitted because they either do not fall within the limited grounds or because they have not caused substantial injustice. Over three years have elapsed since the Arbitration Act 1996 (AA 1996) came into force and there is still little case law on the subject of serious irregularity. Most cases in which it has been alleged have had it as an alternative to either a breach of substantive jurisdiction or an appeal on a point of law. If one of the aims of AA 1996 was to restrict the intervention of the courts in dealing with arbitration proceedings, this lack of case law illustrates an unqualified success. Challenges for serious irregularity must be made within 28 days of the date of the award. The lack of case law therefore can only be explained on the basis that parties do not believe they can overcome the hurdles involved with making a challenge.
Enforcing Arbitration Awards Contrary to Public Policy in England
A number of cases have recently come before the English courts dealing with applications to set aside orders for the enforcement of awards on the basis that the award is contrary to public policy because of illegality. There has not been a coherent policy adopted by the English courts but rather these issues have been dealt with on a case by case basis. This article sets out the English public policy rule. It then continues with an analysis of how challenges under the public policy rule are made in England on domestic arbitration awards. The severability of the arbitration agreement to the underlying contract is thereafter discussed and an analysis is given of the approach of the courts of England and Wales to the enforcement of foreign arbitration awards. In this regard the courts differentiate between domestic and foreign awards. They have developed a complicated test in deciding whether enforcement of a foreign award will be refused. The courts have stated that they will not permit an award to be enforced in England that is universally repugnant. However, there is some uncertainty as to the full extent of this principle. Where breach of public policy is alleged but does not appear on the face of the award then the courts have been inconsistent in deciding whether they should re-open and re-examine the facts of the case. Finally, where the award permits an act contrary to public policy to be undertaken in a foreign, friendly state then again the courts have been inconsistent as to whether such an award is permitted to be enforced in England. For the purposes of this article references to domestic arbitrations are references to arbitrations conducted in England, Wales or Northern Ireland. Foreign arbitrations are references to arbitrations conducted outside this jurisdiction. Similarly, foreign awards and domestic awards should be construed accordingly.
