Abstract
The New York Convention has largely evaded rigorous judicial scrutiny in Ireland, with merely a handful of cases addressing its text or principles in any detail. This rarity of case law on the Convention might be considered an indicator of its successful implementation in Ireland. Both the Irish courts and legislators have adopted a pro-enforcement approach to arbitral awards, with the aim of providing certainty to commercial parties. Indeed, Ireland does not acknowledge additional bases for declining to enforce arbitral awards other than absence of jurisdiction or prescription. The underlying governmental policy is to increase Ireland’s attractiveness as a venue for international commercial arbitration and this policy has been fully supported by the judicial branch. To that end, Ireland introduced a radical overhaul of its arbitration legislative framework in 2010 with the aim of promoting the country as a nation with one of the most progressive and arbitration-friendly legal regimes globally. This chapter addresses cases discussing complex questions of interpretation, while showing the prevalence of strong public policy considerations in favour of enforcing awards in Ireland.
Sandeep Gopalan is the Dean of the Newcastle Law School, University of Newcastle. Previously, he served for four years as the Head of the Department of Law at the National University of Ireland Maynooth. Ruth Fagan is a qualified barrister in Ireland and admitted to practice in New York, and a 2014 LL.M. graduate of Columbia Law School.
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Notes
- 1.
Section 3 provides that the 2010 Act applies to an arbitration commenced on or after the date on which it came into operation, June 8, 2010. This is the case even where the arbitration agreement has been entered into prior to that date. However, the 2010 Act does not apply where the arbitration itself has commenced before such date.
- 2.
With minor additions, the Arbitration Act 2010 applies the 2006 version of the UNCITRAL Model Law to all domestic and international arbitrations. Section 6 of the Act states: Subject to this Act, the Model Law shall have the force of law in the State and shall apply to arbitrations under arbitration agreements concerning – (a) international commercial arbitrations, or (b) arbitrations which are not international commercial arbitrations.
- 3.
Section 11 of the Act provides that the determination of the High Court pursuant, inter alia, to Article II(3) of the Convention and in relation to an application under the Convention to recognize or enforce an arbitral award.
- 4.
Section 2: “In this Act ‘New York Convention’ means the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, done at New York on 10 June 1958, the text of which is set out in Schedule 2.”
- 5.
Arbitration Act, 2010, Schedule 2, article 1.
- 6.
Article 31(1) of the Model Law.
- 7.
Article 31(2) of the Model Law.
- 8.
Article 31(3) of the Model Law.
- 9.
Section 23(1) 2010 Act provides in relevant part that an award “made by an arbitral tribunal under an arbitration agreement shall be enforceable in the State either by action or, by leave of the High Court.”
- 10.
Franmer Developments Ltd. v L&M Keating & Ors. [2014] IEHC 295 (4 June 2014) per Ryan J at para. 19
- 11.
Id at para 21.
- 12.
O’Mahony v Lysaght [1988] IR 29.
- 13.
The relevant section of the 1980 Act provided: “If any party to an arbitration agreement, or any person claiming through or under him, commences any proceedings in any court against any other party to such agreement, or any person claiming through or under him, in respect of any matter agreed to be referred to arbitration, any party to the proceedings may at any time after an appearance has been entered, and before delivering any pleadings or taking any other steps in the proceedings, apply to the court to stay the proceedings, and the court, unless it is satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed, or that there is not in fact any dispute between the parties with regard to the matter agreed to be referred, shall make an order staying the proceedings.”
- 14.
In re Via Net Works Ireland, Ltd [2002] IESC 24; [2002] 2 IR 47 at para. 35
- 15.
Mount Juliet Properties, Ltd. v Melcarne Developments Ltd.[2013] IEHC 286.
- 16.
See para. 51; for a similar analysis, see also, P. Elliott & Co. Ltd v FCC Elliot Construction Ltd [2012] IEHC 361 at para. 56 (“Article 8 of the Model Law does not create a discretion to refer or not to refer matters to arbitration but directs a court to grant or not to grant a stay, depending on the threshold issue of whether the parties to the proceedings are parties to an arbitration agreement. If they are, and the dispute is within the scope of the arbitration agreement and there is no finding that the agreement is null and void, inoperative or incapable of being performed, then the stay must be granted.”)
- 17.
[1993] A.C. 334 at 353
- 18.
In re Via Net Works Ireland, Ltd [2002] IESC 24; [2002] 2 IR 47 at para. 39.
- 19.
Noel Hogan v St Kevin’s Company, [1986] I.R. 80 at pp. 88-89
- 20.
Barnmore Demolition and Civil Engineering Limited v Alandale Logistics Limited & Ors [2010] IEHC 544 (11 November 2010).
- 21.
Id. at para. 3
- 22.
Id. at para. 6
- 23.
Section 23(2) of the Arbitration Act 2010.
- 24.
Art IV of the Convention, adopted in Schedule 2 of the 2010 Arbitration Act.
- 25.
Kastrup Trae- Aluvinduet A/S v Aluwood Concepts, Ltd [2009] IEHC 577, per MacMenanmin J. at para. 20
- 26.
Id. at para. 21.
- 27.
Yukos Capital S.A.R.L. v OAO Tomskenft VNK [2014] IEHC 115, per Kelly J. at para. 52.
- 28.
[2014] IEHC 115 at para. 128
- 29.
[2011] IEHC 369
- 30.
id. at para 44.
- 31.
Id at para. 47.
- 32.
O’Meara v Commissioner of Public Works in Ireland & Ors, [2012] IEHC 317 per Charleton J. at para 14.
- 33.
Kastrup v Aluwood Concepts [2009] IEHC 577.
- 34.
Id. at para. 23.
- 35.
Id at para 28.
- 36.
Id.
- 37.
O’Cathain v O’Cathain [2012] IEHC 223.
- 38.
Id. at para. 6.5
- 39.
Snoddy v Mavroudis [2013] IEHC 285.
- 40.
Lesotho Highlands Development v Impregilo SpA [2006] 1 AC 221
- 41.
Snoddy v Mavroudis [2013] IEHC 285 per Laffoy J. at para. 24
- 42.
id at para. 25
- 43.
Id. at para. 27
- 44.
Id. at para. 34
- 45.
Id.
- 46.
Peter Cremer Gmbh and Co. v Co-operative Molasses Traders Limited, (High Court, Costello J. 25 February 1985) upheld on appeal to Supreme Court, [1985] WJSC-SC 1478
- 47.
[2011] IEHC 369 at para. 46
- 48.
See, e.g., Yukos Oil, f Polish, and Kastrup, all referred to above, each lists Article V(2)(a) as a ground to refuse enforcement.
- 49.
Brostrom Tankers AB v Factorias Vulcano SA [2004] IEHC 198; [2004] 2 I.R. 191.
- 50.
[2011] IEHC 369 at para. 13
- 51.
Yukos Capital S.A.R.L. v OAO Tomskenft VNK [2014] IEHC 115 (“Yukos Oil”) at para. 69
- 52.
International Commercial Bank Plc v. Insurance Corporation of Ireland [1989] I.R. 453, per Costello J.
- 53.
Id.
- 54.
Yukos Capital S.A.R.L. v OAO Tomskenft VNK [2014] IEHC 115 (“Yukos Oil”) at para. 62
- 55.
id. at para. 69
- 56.
Id.
- 57.
Id. at para 73
- 58.
Order 11, rule 1 (l) of the Rules of the Superior Courts.
- 59.
Id. at para 80
- 60.
Order 11, rule 2 (5) of the Rules of the Superior Courts.
- 61.
Analog Devices BV v. Zurich Insurance Company [2002] 1 I.R. 272 per Fennelly J., at p.287
- 62.
Section 12 of the Arbitration Act, 2010.
- 63.
[2014] IEHC 115, para. 63.
- 64.
Id., at para. 74
- 65.
Id.
- 66.
Albaniabeg Ambiemt SHPK v Enel Spa & Anor [2016] IEHC 139
REFERENCES
A Dowling-Hussey and D Dunne, Arbitration Law (Dublin, Thomson Round Hall, 2014)
B Mansfield, Arbitration Act 2010 and Model Law: A Commentary (Dublin, Clarus Press Ltd., 2012)
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Gopalan, S., Fagan, R. (2017). Interpretation and Application of the New York Convention in Ireland. In: Bermann, G. (eds) Recognition and Enforcement of Foreign Arbitral Awards. Ius Comparatum - Global Studies in Comparative Law, vol 23. Springer, Cham. https://doi.org/10.1007/978-3-319-50915-0_19
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