Arbitration Act 1996: Drafting and Award Writing

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  • Topic: Arbitration, Expert witness, March 2004
  • Pages : 14 (4579 words )
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  • Published : March 21, 2012
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Assignment 4Emphasis included for ease of reference.

QUESTION 1

1. a.

The Power for the arbitrator to issue such an order stems from s41(5) of the Arbitration Act 1996 (The Act).

Given the time between the dispute arising and the commencement of Arbitration proceedings, I would be most attentive to determining whether any limitation period applicable to the claim had been satisfied. S13(1) of the Act applies the Limitation Acts to arbitral proceedings as they apply to legal proceedings. However I assume that this issue would have addressed earlier at the Preliminary Meeting.

A Peremptory Order should be :
1. issued in accordance with s41(5), (6) and (7) of the Act. 2. a ‘reinforcing order’. “A Peremptory Order is a ‘reinforcing’ order made where a party has ignored a previous order to the same effect”. See Page 233, volume 1 of Bernstein’s Handbook of Arbitration and Dispute Resolution Practice. 3. to the same effect, i.e. should seek to enforce an identical (in terms of the issues addressed and requirements made) previously ignored order. 4. issued ‘prescribing such a time with compliance with it as the tribunal considers appropriate’ as this triggers the arbitrators rights under s41(6) and (7).

The reasons for making such an order are :
1. Generally, by reducing to writing (evidencing) a key issue, the arbitrator shows that he has acted fairly and impartially, providing each reasonable opportunity to present their case and deal with that of the other. While also adopting a procedure suitable to the particular circumstances of the case that avoids unnecessary delay and/or expense. This shows his compliance with his obligations under s33 of the Act. 2. that to effect the arbitrators powers under section 41(6) & (7) of the Act he must first issue the PO under s41(5). After all, what is the point of issuing an order under 41(5) if the arbitrator does not have the power to apply additional powers and instead must rely on s42 of the Act and have the court enforce it. While this is of course always an option, it does rather go against the general principle laid out in s1(c) of the Act that wherever possible ‘the court should not intervene’. 3. this is the mechanism in the Act which allows the arbitrator to make the preliminary step demanding performance of the requirement or direction, it also formalizes the direction and provides a further opportunity for compliance by the party so directed and therefore the arbitrators compliance with s33, providing each party a reasonable opportunity to present his case.

Matters that ought to be considered by the arbitrator prior to making the PO are: 1. Given that s41(1) allows the parties freedom to agree on the powers of the tribunal ‘in case of a party’s failure to do something necessary for the proper and expeditious conduct of the arbitration’ then the arbitrator should check and make sure he is aware of any such agreement. 2. As the application of s42 ‘Enforcement of peremptory orders of tribunal’ is not mandatory, then the arbitrator needs to check if the parties have agreed to avoid this mechanism. S42 is significant in that it remains an option (subject to parties agreement to cancel the option) under s41(7) should the parties have agreed that the arbitrator does not posses the power to enforce his PO. So the arbitrator needs to be aware of whether he has the option to exercise any powers under s41(7) in light of failure of the party to comply or must he resort to applying to the court to enforce his PO. 3. the Claimant has not showed ‘sufficient cause’ as to why he has failed to comply with the original order in spite of my reminder letter after the original 14 days are up. If he had, then the issuance of a PO would of course not be justified. S41(5) of the Act. 4. under s41(5) of the Act the tribunal (arbitrator) prescribes an appropriate timeframe within which the order must be obeyed, so though the Respondent...
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