The Labour Relations Agency (Flexible Working) Arbitration Scheme Order (Northern Ireland) 2006

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Commencement of the Scheme
     2. The Scheme shall come into effect on 25th May 2006.

Application of Part I of the Arbitration Act 1996
     3. The provisions of Part I of the Arbitration Act 1996[5]referred to in paragraphs 43, 93, 111, 113 to 118, 122, 128 and 129 of the Schedule and shown in italics shall, as modified in those paragraphs, apply to arbitrations conducted in accordance with the Scheme.

     4. –

    (1) Section 46(1)(b) of the Arbitration Act 1996 shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modification.

    (2) For "such other considerations as are agreed by them or determined by the tribunal"in section 46(1)(b) substitute "the Terms of Reference in paragraph 13 of the arbitration scheme set out in the Schedule to the Labour Relations Agency (Flexible Working) Arbitration Scheme Order (Northern Ireland) 2006".



Sealed with the Official Seal of the Department for Employment and Learning on


2nd May 2006.

L.S.

D. S. S. McAuley
A senior officer of the Department for Employment and Learning

(i) any provision in the domestic legislation of Northern Ireland giving effect to rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the European Community Treaties; and

(ii) any such rights, powers, liabilities, obligations and restrictions which are not given effect by any such provision.

     11. The term "Flexible Working Claim"means a claim by the employee that his/her employer has failed to deal with an application made under Article 112F of the 1996 Order in accordance with Article 112G(1) of that Order or that a decision by his/her employer to reject the application was based on incorrect facts.

     12. With the exception of paragraph 21(i) below ("Requirements for entry into the Scheme"), references to anything being written or in writing include its being recorded by any means so as to be usable for subsequent reference.

(i) the agreement must be in writing;

(ii) the agreement must concern an existing dispute;

(iii) the agreement must not seek to alter or vary any provision of the Scheme;

(iv) the agreement must have been reached either:



(a) where the LRA has taken action under Article 20 of the Industrial Tribunals (Northern Ireland) Order 1996[10](a "Conciliated Settlement"); or

(b) through a compromise agreement, where the conditions regulating such agreements under the 1996 Order are satisfied (a "Compromise Agreement");



(v) the agreement must be accompanied by a completed Waiver Form for each party, in the form of Appendix A.

     22. Where an agreement fails to satisfy any one of these requirements, no valid reference to the Scheme will have been made, and the parties will have to settle their dispute by other means or have recourse to an industrial tribunal.

     23. Where:

(i) a dispute concerning a Flexible Working Claim as well as other claims has been referred to an industrial tribunal; and

(ii) the parties have agreed to settle the other claims and refer the Flexible Working Claim to arbitration under the Scheme,



a separate settlement must be reached referring the Flexible Working Claim to arbitration which satisfies all the requirements listed above (although it may form part of one overall settlement document).

Notification to the LRA of an Arbitration Agreement
     24. All Arbitration Agreements must be notified to the LRA within two weeks of their conclusion, by either of the parties or their independent advisers or representatives, or a LRA conciliator, sending a copy of the agreement and Waiver Forms, together with IT1 and IT3 forms if these have been completed, to the LRA.

     25. For the purposes of the previous paragraph, an Arbitration Agreement is treated as "concluded"on the date it is signed, or if signed by different people at different times, on the date of the last signature.

     26. Where an Arbitration Agreement is not notified to the LRA within two weeks, the LRA will not arrange for the appointment of an arbitrator under the Scheme, unless notification within that time was not reasonably practicable. Any party seeking to notify the LRA of an Arbitration Agreement outside this period must explain in writing to the LRA the reason for the delay. The LRA shall appoint an arbitrator, in accordance with the appointment provisions below, to consider the explanation, and that arbitrator may seek the views of the other party, and may call both parties to a hearing to establish the reasons for the delay. The arbitrator shall then rule in an award on whether or not the agreement can be accepted for hearing under the Scheme.

     27. Any such hearing and award will be governed by the provisions of this Scheme.

Consolidation of proceedings
     28. Where all parties so agree in writing, the LRA may consolidate, as appropriate, arbitral proceedings under the Scheme.

(i) upon the joint written request of the parties to the LRA, the arbitrator (if appointed) or the LRA (if no arbitrator has been appointed) shall terminate the arbitration proceedings;

(ii) if so requested by the parties, and where an arbitrator has been appointed, the arbitrator may record the settlement in the form of an agreed award (on a covering proforma). The LRA, on the request of the parties, will appoint an arbitrator to record the settlement in the form of an agreed award (on a covering proforma).

     33. An agreed award shall state that it is an award of the arbitrator by consent and shall have the same status and effect as any other award on the merits of the case.

     34. In rendering an agreed award, the arbitrator:

(i) may only record the parties' agreed wording;

(ii) may not approve, vary, transcribe, interpret or ratify a settlement in any way;

(iii) may not record any settlement beyond the scope of the Scheme, the Arbitration Agreement or the reference to the Scheme as initially accepted by the LRA.

(a) omit "If there is an arbitral or other institution or person vested by the parties with power to remove an arbitrator,"; and

(b) for "that institution or person"substitute "the Labour Relations Agency".

     44. The arbitrator may continue the proceedings and make an award while an application to the LRA (as well as the court) to remove him/her is pending.

Death of an arbitrator
     45. The authority of an arbitrator is personal and ceases on his/her death.

Replacement of an arbitrator
     46. Where an arbitrator ceases to hold an appointment for any reason, he/she shall be replaced by the LRA in accordance with the appointment provisions above.

     47. Once appointed, the replacement arbitrator shall determine whether and, if so, to what extent the previous proceedings should stand.

(i) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his/her case and dealing with that of the other party; and

(ii) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters to be determined.

     49. The arbitrator shall comply with the general duty (see paragraph 48 above) in conducting the arbitral proceedings, in his/her decisions on matters of procedure and evidence and in the exercise of all other powers conferred on him/her.

(i) adjourn any hearing, where it would be unfair on any party to proceed; and/or

(ii) draw such inferences from the act of non-compliance as the circumstances justify.

(i) any supporting documentation or other material to be relied upon at the hearing; and, where appropriate,

(ii) a list of the names and title/role of all those persons who will accompany each party to the hearing or be called as a witness.

     69. Written statements of case should briefly set out the main particulars of each party's case, which can then be expanded upon if necessary at the hearing itself. The statement should include an explanation of the events which led to the Flexible Working Claim being brought including an account of the outcome of any relevant meetings.

     70. Supporting documentation or other material may include (without limitation) copies of:

(i) the employee's application under Article 112F of the 1996 Order;

(ii) contracts of employment;

(iii) notes of meetings held between employee and employer to consider the employee's application under Article 112F of the 1996 Order;

(iv) letters of appointment;

(v) written statement of particulars of employment;

(vi) time sheets;

(vii) written reasons for refusing the employee's application under Article 112F of the 1996 Order, where these have been given;

(viii) company handbooks, rules and procedures;

(ix) any other written information which may assist the arbitrator in deciding the Flexible Working Claim;

(x) any information which will help the arbitrator to assess compensation, including (without limitation) pay slips, P60s or wage records;

(xi) signed statements of any witnesses or outlines of evidence to be given by witnesses at the hearing.

     71. The parties must also supply details of any relevant awards of compensation that may have been made by any other tribunal or court in connection with the subject matter of the claim.

     72. Legible copies of documents must be supplied to the LRA even if they have already been supplied to an LRA conciliator before the Arbitration Agreement was concluded.

     73. No information on the conciliation process, if any, in respect of the case to be heard by the arbitrator shall be disclosed by the LRA to the arbitrator.

Submissions, evidence and witnesses not previously notified
     74. Written statements of case and documentary or other material that have not been provided to the LRA prior to the hearing (in accordance with paragraph 68 above) may only be relied upon at the hearing with the arbitrator's permission.

     75. All representatives and witnesses who have been listed as accompanying a party at the hearing should be present at the start of the hearing. Witnesses who have not been included in a list submitted to the LRA prior to the hearing may only be called with the arbitrator's permission.

Requests for documents
     76. Any party may request the other party to include in their submission, or submit through the LRA or the arbitrator (as appropriate), copies of relevant documents that are not in the requesting party's possession, custody or control. Although the LRA and the arbitrator have no power to compel a party to comply, the arbitrator may draw an inference from a party's failure to comply with a reasonable request.

Requests for attendance of witnesses
     77. Although the arbitrator has no power to compel the attendance of any person at the hearing, the arbitrator may draw an inference if an employer who is a party to the arbitration fails or refuses to allow current employees or other workers (who have relevant evidence to give) time off from work to attend the hearing, should such an employer be so requested.

Preliminary hearings and directions
     78. Where the arbitrator believes that there may be considerable differences between the parties over any issue, including the availability or exchange of documents, or the availability of witnesses, the arbitrator may call, through the LRA, the parties to a preliminary hearing to address such issues, or he/she may determine procedural directions.

     79. In the course of a preliminary hearing and/or through the LRA, the arbitrator may express views on the desirability of information and/or evidence being available at the hearing.

(i) continue the hearing in that party's absence or in the absence of that party's representative, and in such a case shall take into account any written submissions and documents that have already been submitted by that party; or

(ii) adjourn the hearing.

     87. In the case of the non-attendance of the employee, if the arbitrator decides to adjourn the hearing, he/she may request, in writing, through the LRA that the employee provides an explanation for the non-attendance. If the arbitrator decides that the employee has not demonstrated sufficient cause for the non-attendance, he/she may rule in an award that the claim be treated as dismissed.

Post-hearing written materials
     88. No further submissions or evidence will be accepted after the end of the substantive hearing without the arbitrator's permission, which will only be granted in exceptional circumstances. Where permission is granted, any material is to be sent to the LRA, to be forwarded to the arbitrator and all other parties.

(a) for "Unless otherwise agreed by the parties, the court"substitute "The High Court or the Belfast Recorder's Court";

(b) for "any question of law"substitute "any question (a) of EC law, or (b) concerning the application of the Human Rights Act 1998"; and

(c) omit "An agreement to dispense with reasons for the tribunal's award shall be considered an agreement to exclude the court's jurisdiction under this section.".

    (3) In subsection (2)(b) omit sub-paragraph (i).

    (4) Omit subsection (4).

    (5) After subsection (6), insert–

    " (7) In this section "EC law" means–


(a) any provision in the domestic legislation of Northern Ireland giving effect to rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the European Community Treaties; and

(b) any such rights, powers, liabilities, obligations and restrictions which are not given effect by any such provision."

(i) state the decision(s) of the arbitrator;

(ii) contain the main considerations which were taken into account in reaching the decision(s);

(iii) state the remedy awarded, together with an explanation;

(iv) state the date when it was made.

Remedies
     96. In the event that the arbitrator upholds the employee's Flexible Working Claim, the arbitrator may make an award ordering:

(i) the reconsideration of the application made under Article 112F of the 1996 Order; and

(ii) compensation (subject to the limits provided for below) to be paid by the employer to the employee.

(i) correct the award so as to remove any clerical or computational mistake, or error arising from an accidental slip or omission, or to clarify or remove any ambiguity in the award; or

(ii) make an additional award in respect of any part of the claim which was presented to the arbitrator but was not dealt with in the award.

     104. In so far as any such correction or additional award involves a new issue that was not previously before the parties, this power shall not be exercised without first affording the parties a reasonable opportunity to make written representations to the arbitrator.

     105. Any application by a party for the exercise of this power must be made via the LRA within 28 days of the date the award was despatched to the applying party by the LRA.

     106. Any correction of the award shall be made within 28 days of the date the application was received by the arbitrator or, where the correction is made by the arbitrator on his/her own initiative, within 28 days of the date of the award.

     107. Any additional award shall be made within 56 days of the date of the original award.

     108. Any correction of the award shall form part of the award.

    " (5) In this section–


"the court" means the High Court or the Belfast Recorder's Court; and
"the Scheme" means the arbitration scheme set out in the Schedule to the Labour Relations Agency (Flexible Working) Arbitration Scheme Order (Northern Ireland) 2006.".

Interest
     112. Awards of compensation that are not paid within 42 days of the date on which the award was despatched by the LRA to the employer will attract interest on the same basis as for industrial tribunal awards.

(a) for "(upon notice to the other parties and to the tribunal) apply to the court"substitute "(upon notice to the other party, to the arbitrator and to the Labour Relations Agency) apply to the High Court or the Belfast Recorder's Court";

(b) for "(see section 73)"substitute "(see section XXIII of the Scheme)";

(c) after "section 70(2) and (3)"insert "as modified for the purposes of the Scheme".

    (3) After subsection (1) insert–

    " (1A) In this section–


"Arbitration Agreement"means an agreement to refer a dispute to arbitration in accordance with, and satisfying the requirements of, the Scheme;
"the Scheme"means the arbitration scheme set out in the Schedule to the Labour Relations Agency (Flexible Working) Arbitration Scheme Order (Northern Ireland) 2006; and
"substantive jurisdiction"means any issue as to–
(a) the validity of the Arbitration Agreement and the application of the Scheme to the dispute or difference in question;

(b) the constitution of the arbitral tribunal; or

(c) the matters which have been submitted to arbitration in accordance with the Arbitration Agreement.".

Challenges for serious irregularity
     114. –

    (1) Section 68 of the Arbitration Act 1996[16] shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

    (2) In subsection (1)–

(a) for "(upon notice to the other parties and to the tribunal) apply to the court"substitute "(upon notice to the other party, to the arbitrator and to the Labour Relations Agency) apply to the High Court or Belfast Recorder's Court";

(b) for "(see section 73)"substitute "(see Part XXIII of the Scheme)";

(c) after "section 70(2) and (3)"insert "as modified for the purposes of the Scheme".

    (3) In subsection (2)–

(a) in paragraph (a) for "section 33 (general duty of tribunal)"substitute "Part IX of the Scheme (General Duty of the Arbitrator)";

(b) in paragraph (b) after "see section 67"insert "as modified for the purposes of the Scheme";

(c) in paragraph (c) for "agreed by the parties"substitute "as set out in the Scheme";

(d) in paragraph (e) for "any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award"substitute "the Labour Relations Agency";

(e) in paragraph (g) after ";"insert "or";

(f) omit paragraph (h);

(g) in paragraph (i) for "any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award"substitute "the Labour Relations Agency".

    (4) In subsection (3)–

(a) in paragraph (b) insert "vary the award or"before "set the award aside";

(b) omit "The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.".

    (5) After subsection (4) insert–

    " (5) In this section, "the Scheme"means the arbitration scheme set out in the Schedule to the Labour Relations Agency (Flexible Working) Arbitration Scheme Order (Northern Ireland) 2006.".

Appeals on questions of EC law and the Human Rights Act 1998
     115. –

    (1) Section 69 of the Arbitration Act 1996[17] shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

    (2) In subsection (1)–

(a) omit "Unless otherwise agreed by the parties,";

(b) for "(upon notice to the other parties and to the tribunal) appeal to the court"substitute "(upon notice to the other party, to the arbitrator and to the Labour Relations Agency) appeal to the High Court or the Belfast Recorder's Court";

(c) for "a question of law"substitute "a question (a) of EC law, or (b) concerning the application of the Human Rights Act 1998";

(d) omit "An agreement to dispense with reasons for the tribunal's award shall be considered an agreement to exclude the court's jurisdiction under this section.".

    (3) In subsection (2) after "section 70(2) and (3)"insert "as modified for the purposes of the Scheme".

    (4) In subsection (3)–

(a) omit paragraph (b);

(b) in paragraph (c) after the words "on the basis of the findings of fact in the award"insert ", in so far as the question for appeal raises a point of EC law, the point is capable of serious argument, and in so far as the question for appeal does not raise a point of EC law".

    (5) In subsection (7) omit "The court shall not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.".

    (6) After subsection (8) insert–

    " (9) In this section–


"EC law"means–
(a) any provision in the domestic legislation of Northern Ireland giving effect to rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the European Community Treaties; and

(b) any such rights, powers, liabilities, obligations and restrictions which are not given effect by any such provision; and


"the Scheme" means the arbitration scheme set out in the Schedule to the Labour Relations Agency (Flexible Working) Arbitration Scheme Order (Northern Ireland) 2006.".

Time limits and other procedural restrictions on challenges to awards
     116. –

    (1) Section 70 of the Arbitration Act 1996[18] shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

    (2) In subsection (1) after "section 67, 68 or 69"insert "(as modified for the purposes of the Scheme)".

    (3) In subsection (2)–

(a) omit paragraph (a);

(b) in paragraph (b) for "section 57 (correction of award or additional award)"substitute "section XX of the Scheme (Correction of Awards)".

    (4) In subsection (3) for "of the award or, if there has been any arbitral process of appeal or review, of the date when the applicant or appellant was notified of the result of that process"substitute "the award was despatched to the applicant or appellant by the Labour Relations Agency".

    (5) Omit subsection (5).

    (6) After subsection (8) insert–

    " (9) In this section, "the Scheme"means the arbitration scheme set out in the Schedule to the Labour Relations Agency (Flexible Working) Arbitration Scheme Order (Northern Ireland) 2006.".

Common law challenges and saving
     117. Sections 81(1)(c) and 81(2) of the Arbitration Act 1996[19] shall apply to arbitrations conducted in accordance with the Scheme.

Challenge or appeal: effect of order of the court
     118. –

    (1) Section 71 of the Arbitration Act 1996[20] shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

    (2) In subsection (1) after "section 67, 68 and 69"insert "(as modified for the purposes of the Scheme)".

    (3) After subsection (3) insert–

    " (3A) In this section, "the Scheme"means the arbitration scheme set out in the Schedule to the Labour Relations Agency (Flexible Working) Arbitration Scheme Order (Northern Ireland) 2006.".

    (4) Omit subsection (4).

(i) that the arbitrator lacks substantive jurisdiction (as defined in paragraph 113 above);

(ii) that the proceedings have been improperly conducted;

(iii) that there has been a failure to comply with the Arbitration Agreement or any provision of this Scheme; or

(iv) that there has been any other irregularity affecting the arbitrator or the proceedings,



he/she may not raise that objection later, before the arbitrator or the court, unless he/she shows that, at the time he/she took part or continued to take part in the proceedings, he/she did not know and could not with reasonable diligence have discovered the grounds for the objection.

The Arbitration Secretary

Labour Relations Agency

2-8 Gordon Street

Belfast

BT1 2LG

or transmitted by facsimile, addressed to the Arbitration Secretary, at the number stipulated in the LRA Guide to the Scheme,

or by electronic mail, at the address stipulated in the LRA Guide to the Scheme.

     124. Paragraph 123 (above) does not apply to the service of documents on the LRA for the purposes of legal proceedings.

Service of documents or notices on any other person or entity (other than the LRA)
     125. Any notice or other document required or authorised to be given or served on any person or entity (other than the LRA) for the purposes of the arbitral proceedings may be served by any effective means.

     126. If such a notice or other document is addressed, pre-paid and delivered by post:

(i) to the addressee's last known principal residence or, if he/she is or has been carrying on a trade, profession or business, his/her last known principal business address; or

(ii) where the address is a body corporate, to the body's registered or principal office,



it shall be treated as effectively served.

     127. Paragraphs 125 and 126 (above) do not apply to the service of documents for the purposes of legal proceedings, for which provision is made by rules of court.

Powers of court in relation to service of documents
     128. –

    (1) Section 77 of the Arbitration Act 1996[22] shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications.

    (2) In subsection (1) omit "in the manner agreed by the parties, or in accordance with provisions of section 76 having effect in default of agreement,".

    (3) In subsection (2) for "Unless otherwise agreed by the parties, the court"substitute "The High Court or the Belfast Recorder's Court".

    (4) In subsection (3) for "Any party to the arbitration agreement may apply"substitute "The Labour Relations Agency or any party to the Arbitration Agreement may apply".

Reckoning periods of time
     129. –

    (1) Sections 78(2), (3), (4) and (5) of the Arbitration Act 1996[23] shall apply to arbitrations conducted in accordance with the Scheme, subject to the following modifications:

    (2) In subsection (2)–

(a) omit "If or to the extent that there is no such agreement,";

(b) after "periods of time"insert "provided for in any provision of this Part".

Signature: . . . . . . . . . . . . . . . . . . . .

Full Name: . . . . . . . . . . . . . . . . . . . .

Position: . . . . . . . . . . . . . . . . . . . .

Address: . . . . . . . . . . . . . . . . . . . .

[2] S.I. 1996/1919 (N.I. 16); Articles 112G and 112H were inserted by Article 15 of the Employment (Northern Ireland) Order 2002 (S.I. 2002/2836 (N.I. 2))back

[3] Formerly the Department of Higher and Further Education, Training and Employment; see 2001 c. 15 (N.I.)back

[4] See S.R. 1999 No. 481 Departments (Transfer and Assignment of Functions) Order (Northern Ireland) 1999back

[5] 1996 c. 23back

[6] S.I. 1992/807 (N.I. 5); Article 84A was inserted by Article 8 of the Employment Rights (Dispute Resolution) (Northern Ireland) Order 1998 (S.I. 1998/1265 (N.I. 8)) and amended by paragraph 3 of Schedule 2 to the Employment (Northern Ireland) Order 2002 (S.I. 2002/2836 (N.I. 2))back

[7] S.I. 1996/1919 (N.I. 16); Article 112F was inserted by Article 15 of the Employment (Northern Ireland) Order 2002 (S.I. 2002/2836 (N.I. 2))back

[8] S.I. 1996/1919 (N.I. 16); Articles 112G and 112H were inserted by Article 15 of the Employment (Northern Ireland) Order 2002 (S.I. 2002/2836 (N.I. 2))back

[9] S.R. 2003 No. 173back

[10] S.I. 1996/1921 (N.I. 18); Article 20 was amended by paragraph 5 of Schedule 2 to the Employment (Northern Ireland) Order 2002 (S.I. 2002/2836 (N.I. 2))back

[11] 1996 c. 23;

Sections 24(1)(a) and (c), (2), (3), (5) and (6) of the Arbitration Act 1996 provide as follows:;

24.–(1) A party to arbitral proceedings may (upon notice to the other parties, to the arbitrator concerned and to any other arbitrator) apply to the court to remove an arbitrator on any of the following grounds–;

(a) that circumstances exist that give rise to justifiable doubts as to his impartiality;;

. . .

(c) that he is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to his capacity to do so;;

. . .

(2) If there is an arbitral or other institution or person vested by the parties with power to remove an arbitrator, the court shall not exercise its power of removal unless satisfied that the applicant has first exhausted any available recourse to that institution or person.;

(3) The arbitral tribunal may continue the arbitral proceedings and make an award while an application to the court under this section is pending.;

. . .

(5) The arbitrator concerned is entitled to appear and be heard by the court before it makes any order under this section.;

(6) The leave of the court is required for any appeal from a decision of the court under this section."back

[12] 1996 c. 23;;

Section 45 of the Arbitration Act 1996 provides as follows:;

"45.–(1) Unless otherwise agreed by the parties, the court may on the application of a party to arbitral proceedings (upon notice to the other parties) determine any question of law arising in the course of the proceedings which the court is satisfied substantially affects the rights of one or more of the parties.;

An agreement to dispense with reasons for the tribunal's award shall be considered an agreement to exclude the court's jurisdiction under this section.;

(2) An application under this section shall not be considered unless–;


(a) it is made with the agreement of all the other parties to the proceedings, or;

(b) it is made with the permission of the tribunal and the court is satisfied–;


(i) that the determination of the question is likely to produce substantial savings in costs, and;

(ii) that the application was made without delay.{d2}{n2}(3){t2}The application shall identify the question of law to be determined and, unless made with the agreement of all the other parties to the proceedings, shall state the grounds on which it is said that the question should be decided by the court.;

(4) Unless otherwise agreed by the parties the arbitral tribunal may continue the arbitral proceedings and make an award while an application to the court under this section is pending.;

(5) Unless the court gives leave, no appeal lies from a decision of the court whether the conditions specified in subsection (2) are met.;

(6) The decision of the court on the question of law shall be treated as a judgment of the court for the purposes of an appeal.

But no appeal lies without the leave of the court which shall not be given unless the court considers that the question is one of general importance, or is one which for some other special reason should be considered by the Court of Appeal."back

[13] S.R. 2003 No. 173back

[14] 1996 c. 23;

Section 66 of the Arbitration Act 1996 provides as follows:

"66.–(1) An award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect.

(2) Where leave is so given, judgment may be enforced in terms of the award.

(3) Leave to enforce an award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the tribunal lacked substantive jurisdiction to make the award.

The right to raise such an objection may have been lost (see section 73).

(4) Nothing in this section affects the recognition or enforcement of an award under any other enactment or rule of law, in particular under Part II of the Arbitration Act 1950 (enforcement of awards under Geneva Convention) or the provisions of Part III of this Act relating to the recognition and enforcement of awards under the New York Convention or by an action on the award."back

[15] 1996 c. 23;

Section 67 of the Arbitration Act 1996 provides as follows:

"67.–(1) A party to the arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court–


(a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or

(b) for an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because the tribunal did not have substantive jurisdiction.

A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3).

(2) The arbitral tribunal may continue the arbitral proceedings and make a further award while an application to the court under this section is pending in relation to an award as to jurisdiction.

(3) On an application under this section challenging an award of the arbitral tribunal as to its substantive jurisdiction, the court may by order–



(a) confirm the award,

(b) vary the award, or

(c) set aside the award in whole or in part.

(4) The leave of the court is required for any appeal from a decision of the court under this section.".back

[16] 1996 c. 23;

Section 68 of the Arbitration Act provides as follows:

"68.– (1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award.

A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3).

(2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant–


(a) failure by the tribunal to comply with section 33 (general duty of tribunal);

(b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction: see section 67);

(c) failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties;

(d) failure by the tribunal to deal with all the issues that were put to it;

(e) any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award exceeding its powers;

(f) uncertainty or ambiguity as to the effect of the award;

(g) the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy;

(h) failure to comply with the requirement as to the form of the award; or

(i) any irregularity in the conduct of the proceedings or in the award which is admitted by the tribunal or by any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award.

(3) If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award, the court may–

(a) remit the award to the tribunal, in whole or in part, for reconsideration,

(b) set the award aside in whole or in part, or

(c) declare the award to be of no effect, in whole or in part.

The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.

(4) The leave of the court is required for any appeal from a decision of the court under this section."back

[17] 1996 c. 23;

Section 69 of the Arbitration Act 1996 provides as follows:

"69.–(1)Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings.

An agreement to dispense with reasons for the tribunal's award shall be considered an agreement to exclude the court's jurisdiction under this section.

(2) An appeal shall not be brought under this section except–

(a) with the agreement of all the other parties to the proceedings, or

(b) with the leave of the court.

The right to appeal is also subject to the restrictions in section 70(2) and (3).

(3) Leave to appeal shall be given only if the court is satisfied–

(a) that the determination of the question will substantially affect the rights of one or more of the parties,

(b) that the question is one which the tribunal was asked to determine,{d3}{n3}(c){t3}that, on the basis of the findings of fact in the award–

(i){t3}the decision of the tribunal on the question is obviously wrong, or

(ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and

(d) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question.

(4) An application for leave to appeal under this section shall identify the question of law to be determined and state the grounds on which it is alleged that leave to appeal should be granted.

(5) The court shall determine an application for leave to appeal under this section without a hearing unless it appears to the court that a hearing is required.

(6) The leave of the court is required for any appeal from a decision of the court under this section to grant or refuse leave to appeal.

(7) On an appeal under this section the court may by order–

(a) confirm the award,

(b) vary the award,

(c) remit the award to the tribunal, in whole or in part, for reconsideration in the light of the court's determination, or

(d) set aside the award in whole or in part.

The court shall not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.

(8) The decision of the court on an appeal under this section shall be treated as a judgment of the court for the purposes of a further appeal.

But no such appeal lies without the leave of the court which shall not be given unless the court considers that the question is one of general importance or is one which for some other special reason should be considered by the Court of Appeal."back

[18] 1996 c. 23;

Section 70 of the Arbitration Act 1996 provides as follows:

"70.–(1) The following provisions apply to an application or appeal under section 67, 68 or 69.

(2) }An application or appeal may not be brought if the applicant or appellant has not first exhausted–

(a) any available arbitral process of appeal or review, and

(b) any available recourse under section 57 (correction of award or additional award).

(3) Any application or appeal must be brought within 28 days of the date of the award or, if there has been any arbitral process of appeal or review, of the date when the applicant or appellant was notified of the result of that process.

(4) If on an application or appeal it appears to the court that the award–

(a) does not contain the tribunal's reasons, or

(b) does not set out the tribunal's reasons in sufficient detail to enable the court properly to consider the application or appeal,

the court may order the tribunal to state the reasons for its award in sufficient detail for that purpose.

(5) Where the court makes an order under subsection (4), it may make such further order as it thinks fit with respect to any additional costs of the arbitration resulting from its order.

(6) The court may order the applicant or appellant to provide security for the costs of the application or appeal, and may direct that the application or appeal be dismissed if the order is not complied with.

The power to order security for costs shall not be exercised on the ground that the applicant or appellant is–

(a) an individual ordinarily resident outside the United Kingdom, or

(b) a corporation or association incorporated or formed under the law of a country outside the United Kingdom, or whose central management and control is exercised outside the United Kingdom.

(7) The court may order that any money payable under the award shall be brought into court or otherwise secured pending the determination of the application or appeal, and may direct that the application or appeal be dismissed if the order is not complied with.

(8) The court may grant leave to appeal subject to conditions to the same or similar effect as an order under subsection (6) or (7).

This does not affect the general discretion of the court to grant leave subject to conditions."back

[19] 1996 c. 23;

Sections 81(1)(c) and 81(2) of the Arbitration Act 1996 provide as follows:

"81.–(1) Nothing in this Part shall be construed as excluding the operation of any rule of law consistent with the provisions of this Part, in particular, any rule of law as to–

. . .

(c) the refusal of recognition or enforcement of an arbitral award on grounds of public policy.

(2) Nothing in this Act shall be construed as reviving any jurisdiction of the court to set aside or remit an award on the ground of errors of fact or law on the face of the award."back

[20] 1996 c. 23;

Section 71 of the Arbitration Act 1996 provides as follows:

"71.–(1) The following provisions have effect where the court makes an order under section 67, 68 or 69 with respect to an award.

(2) Where the award is varied, the variation has effect as part of the tribunal's award.

(3) Where the award is remitted to the tribunal, in whole or in part, for reconsideration, the tribunal shall make a fresh award in respect of the matters remitted within three months of the date of the order for remission or such longer or shorter period as the court may direct.

(4) Where the award is set aside or declared to be of no effect, in whole or in part, the court may also order that any provision that an award is a condition precedent to the bringing of legal proceedings in respect of a matter to which the arbitration agreement applies, is of no effect as regards the subject matter of the award or, as the case may be, the relevant part of the award."back

[21] 1996 c. 23;{d1}{t1}Sections 80(1), (2), (4), (5), (6) and (7) of the Arbitration Act 1996 provide as follows:

"80. –(1) References in this Part to an application, appeal or other step in relation to legal proceedings being taken "upon notice"to the other parties to the arbitral proceedings, or to the tribunal, are to such notice of the originating process as is required by rules of court and do not impose any separate requirement.

(2) Rules of court shall be made–

(a) requiring such notice to be given as indicated by any provision of this Part, and

(b) as to the manner, form and content of any such notice.

. . .

(4) References in this Part to making an application or appeal to the court within a specified period are to the issue within that period of the appropriate originating process in accordance with rules of court.

(5) Where any provision of this Part requires an application or appeal to be made to the court within a specified time, the rules of court relating to the reckoning of periods, the extending or abridging of periods, and the consequences of not taking a step within the period prescribed by the rules, apply in relation to that requirement.

(6) Provision may be made by rules of court amending the provisions of this Part–

(a) with respect to the time within which any application or appeal to the court must be made,

(b) so as to keep any provision made by this Part in relation to arbitral proceedings in step with the corresponding provision of rules of court applying in relation to proceedings in the court, or

(c) so as to keep any provision made by this Part in relation to legal proceedings in step with the corresponding provision of rules of court applying generally in relation to proceedings in the court.

(7) Nothing in this section affects the generality of the power to make rules of court."back

[22] 1996 c. 23;

Section 77 of the Arbitration Act 1996 provides as follows:

"77.–(1) This section applies where service of a document on a person in the manner agreed by the parties, or in accordance with provisions of section 76 having effect in default of agreement, is not reasonably practicable.

(2) Unless otherwise agreed by the parties, the court may make such order as it thinks fit–

(a) for service in such manner as the court may direct, or

(b) dispensing with service of the document.

(3) Any party to the arbitration agreement may apply for an order, but only after exhausting any available arbitral process for resolving the matter.

(4) The leave of the court is required for any appeal from a decision of the court under this section."back

[23] 1996 c. 23;

Sections 78(2), (3), (4) and (5) of the Arbitration Act 1996 provide as follows:

"78.–(2) If or to the extent there is no such agreement, periods of time shall be reckoned in accordance with the following provisions.

(3) Where the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date.

(4) Where the act is required to be done a specified number of clear days after a specified date, at least that number of days must intervene between the day on which the act is done and that date.

(5) Where the period is a period of seven days or less which would include a Saturday, Sunday or a public holiday in the place where anything which has to be done within the period falls to be done, that day shall be excluded.

In relation to England and Wales or Northern Ireland, a "public holiday" means Christmas Day, Good Friday or a day which under the Banking and Financial Dealings Act 1971 is a bank holiday."back