MODULE 2 – Domestic Arbitration
The Law of Arbitration
Overall aim
To provide participants with a detailed knowledge and understanding of the law of arbitration applying to their relevant jurisdiction so that they can recognise or contribute to a legally satisfactory domestic arbitration.
Key learning objectives
On successful completion of this module participants will be able to:
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a) |
Describe and explain the principles and specific legal requirements in local domestic arbitration, including:
- the ranges and limitations of matters that may legally be arbitrated;
- the significance, rights and responsibilities of the different performers in an arbitration;
- the peculiar contractual nature of an arbitral appointment;
- the range and limitations of an arbitrator’s powers and jurisdiction
- the methods of initiating and processing an arbitration;
- the relevance of the Court regarding all stages in an arbitration; and
- the requirements of an enforceable award.
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b) |
Appreciate, apply and balance the principles and legal requirements set out in the syllabus below in the context of a domestic arbitration |
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c) |
Show a confident ability to refer to, use and express legal procedural principles, rules and arguments relevant to the conduct of a domestic arbitration.
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Syllabus
Arbitration in the context of the range of methods for resolving disputes |
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Appropriateness of other methods for some disputes
Arbitration as a final means for resolution |
| Fundamental Principles of the arbitration process |
The relevant arbitration code(s) |
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General concepts
Mandatory and non-mandatory sections
Optional and default provisions
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| The Arbitration Agreement |
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Nature of the agreement
Types of agreement (pre- and post-dispute)
Arbitrability / Public policy |
Initiation of an arbitration |
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Pre-conditions
Notice |
Appointment of an arbitrator
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Nomination and appointment
Obtaining an arbitrator
Qualifications and conflict of interest
The Court’s assistance |
The parties’ contract with the arbitrator |
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Fees and expenses
Security for payment |
Arbitrator’s jurisdiction |
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Objections to and rulings on substantive jurisdiction
The rôle of the Court |
Arbitrator’s powers |
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Default and optional powers
Issue of orders |
Deciding and Setting the Procedure
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Methods
Matters to be decided |
Pre-Hearing Procedures |
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Pleadings and amendment of pleadings
Disclosure of documents
Provisions governing evidence of witnesses of fact and experts |
The Hearing |
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Representation
Rules concerning evidence and speeches
Non-appearance of a party or witness |
Costs |
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Classification
Basic rules
Security for costs
Offers to settle |
Interest claims |
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Substantive and procedural provisions
Commercial consideration |
Awards |
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Types of Awards
Legal and formal requirements for enforceability
Correcting an award |
Rôle of the Court |
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Assisting an arbitrator
Assisting a party
Grounds for appeal to the Court |
Assessment
Assessment of this module is by a combination of one written coursework assignment and a final 3-hour written open-book examination, contributing 20% and 80% to overall marks respectively.
The final examination is to contain a range of compulsory short questions (40% of this examination) to check understanding across all elements in the syllabus above, together with two (30% each) out of three longer ‘problem' questions aiming to test participants’ ability to apply their knowledge.
The pass mark for this Module is 55% which must be achieved in both the written examination and overall.
Delivery and completion of the module
This Course is suitable for completion over a period of six months.
It is best delivered by a combination of guided reading and a number of face-to-face tutorials (important to help participants become comfortable with applying legal concepts, cases and principles). At least three tutorials at regular intervals are recommended.
Study Time
Typically, the total recommended study time for this Module is 53 hours excluding time taken in answering Assignments. This is scheduled into studying individual sections of the Workbook [25 hours], followed by practice Assignments, with periods of revision [10 hours] before each of the three 6-hour Tutorials. Each holding of this Module has its own Programme schedule showing the dates for each part and with these recommended times detailed.
Entry qualifications
This course is intended for individuals who wish to acquire a full and detailed understanding of domestic arbitration law, having previously studied obligations and evidence law at at least first year university level and worked in a legal environment for several years OR recently successfully completed CIArb's Module: 1 Laws of Obligations and Evidence.
The module details the law of civil and commercial arbitration. It is therefore valuable for anyone wishing to understand the arbitral process, whether as a party, advocate, witness, judge or potential arbitrator.
Membership
Before commencing this Course, participants are expected to be registered with the Institute as Associate members.
Successful completion of this module contributes towards eligibility in arbitration towards Member status.
See separate information for further details about routes to membership.
Essential Reading
The relevant arbitration code(s), Act(s) and other legislative provisions, major case decisions (where applicable) &c.
Additional Reading
Participants are also recommended to refer to the recognised standard basic commentaries and/or text book(s) in their respective jurisdiction where these are available.
FOR EXAMPLE: |
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England & Wales: |
the CIArb Workbook – The Law of Arbitration
The Arbitration Act 1996 – Harris, Planterose, Tecks |
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France : |
L’arbitrage – Gavalda, de Leyssac |
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Ireland : |
Arbitration, Commentary and Sources – Ercus Stewart SC |
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Italy : |
Codice dell’arbitrato – Deodato, Migliorisi |
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Malaysia : |
The Arbitration Act 2005 – Rajoo, Davidson |
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Scotland : |
The Law of Arbitration in Scotland - Hunter |
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Spain: |
El Arbitraje de Derecho Privado – Cordón Moreno |
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UNCITRAL): |
International Commercial Arbitration and Conciliation in UNCITRAL Model law Jurisdictions (2005) - Binder |
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