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Results: 4 Answers
International Arbitration
9.
The role of the court during an arbitration
9.1
Will the court in your jurisdiction stay proceedings and refer parties to arbitration if there is an arbitration agreement?
 
UK
Yes, if legal proceedings are initiated against a party to an arbitration agreement, such party can apply to the court for a stay of proceedings. The court shall grant the stay once it is satisfied that the arbitration agreement is not null and void, inoperative or incapable of being performed (Section 9).

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills
9.2
Does the court in your jurisdiction have any powers in relation to an arbitration seated in your jurisdiction and/or seated outside your jurisdiction? What are these powers? Under what conditions are these powers exercised?
 
UK
Yes, the England and Wales legal framework provides a ‘pro-arbitration’ environment, with the court being afforded a range of powers to assist and support the arbitral tribunal. The courts have the following powers in relation to an arbitration seated in England and Wales:

  • Stay court proceedings in the face of a valid arbitration clause (Section 9);
  • Rule on the tribunal’s jurisdiction as a preliminary issues upon application by one party, either with the tribunal's permission or with the agreement of all parties to the arbitral proceedings (Section 9(4) or Section 32);
  • Extend the time for commencing an arbitration, provided that the parties have first exhausted any available remedies before the tribunal (Section 12);
  • Make directions as to the making of any necessary appointments or make any appointments itself in circumstances where there is no provision in the arbitration agreement regarding appointment and no agreed appointment between the parties (Section 18);
  • Terminate the arbitrator’s appointment in limited circumstances, including where there is a joint revocation of the tribunal’s authority (Section 23), dismissal for bias or misconduct (Section 24), resignation or death (Sections 25 and 26);
  • Determine the arbitrators’ fees where these have not been agreed by the parties prior to an award being made, where the court has removed an arbitrator under Section 24, after the award is made but before it is delivered (Section 56), and after it is published (Section 64);
  • Enforce tribunal peremptory orders, with the tribunal’s permission (Section 42);
  • Secure attendance of witnesses, with the tribunal’s permission (Section 43);
  • Order interim injunctive relief either in cases of urgency or with tribunal permission on the following matters (Section 44):
    • the taking of evidence of witnesses;
    • the preservation of evidence;
    • orders relating to property which is subject to the arbitral proceedings, concerning:
      • inspection, photographing, preservation, custody or detention; and
      • the taking of samples from the property, or experiments to be conducted upon it;
    • the sale of goods that are the subject of the arbitral proceedings; and
    • the granting of an interim injunction or the appointment of a receiver;
  • Determine preliminary points of law with all parties’ agreement or the tribunal’s permission (Section 45);
  • Extend the time for making an arbitral award upon application by the tribunal or any party to the arbitral proceedings, provided that any available arbitral process for obtaining an extension of time has been exhausted (Section 50);
  • Determine the recoverable costs of the arbitration in the absence of a tribunal determination upon application by any party to the arbitral proceedings (Section 63);
  • Enforce the tribunal award in the same manner as a judgment or order of the court (Section 66);
  • Determine challenges to awards on jurisdictional grounds (Section 67) or on the grounds of serious irregularity (Section 68), and appeals from awards on questions of (English) law (Section 69), provided that any available arbitral process of appeal or review has been exhausted;
  • Order the tribunal to state the reasons for its award in sufficient detail (Section 70); and
  • Extend the time limits relating to arbitral proceedings, provided that the parties have first exhausted any available remedies before the tribunal (Section 79).

Sections 9 to 11 (stay of legal proceedings) and Section 66 (enforcement of arbitral awards) apply even if the seat of the arbitration is outside England and Wales or Northern Ireland, or where no seat has been designated or determined.

The powers conferred by Section 43 (securing the attendance of witnesses) and Section 44 (court powers exercisable in support of arbitral proceedings) apply even if the seat of the arbitration is outside England and Wales or Northern Ireland, or if no seat has been designated or determined. However, the court may refuse to exercise any such power if, in its opinion, the fact that the seat of the arbitration is outside England and Wales or Northern Ireland - or that, when designated or determined, the seat is likely to be outside England and Wales or Northern Ireland - makes it inappropriate to do so.

The court may exercise a power conferred by the Arbitration Act for the purpose of supporting the arbitral process where no seat of the arbitration has been designated or determined, and by reason of a connection with England and Wales or Northern Ireland, the court is satisfied that it is appropriate to do so.

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills
9.3
Can the parties exclude the court's powers by agreement?
 
UK
The parties may exclude the powers set out:

  • under Section 42 to enforce peremptory orders of a tribunal;
  • under Section 44 to make orders support of arbitral proceedings;
  • under Section 45 to determine preliminary points of law; and
  • under Section 69 to challenge arbitral awards on a question of law.

The right to challenge an arbitral award on jurisdictional grounds (Section 67) or serious irregularity (Section 68) cannot be excluded.

For more information about this answer please contact: Craig Tevendale from Herbert Smith Freehills