A Claim or Application for Arbitration
A claim or an application made to the English court with the subject being or the outcome affecting an existing or proposed agreement to arbitrate or to challenge its award, is termed as an ‘application for arbitration’ or an ‘arbitration claim’. The Civil Procedure Rules which statutorily govern the rules and procedures to be adopted by the English Courts in all civil cases brought before it, in Part 62.2 define an ‘arbitration claim’ as an application or a claim before the English courts which seeks determination of the validity of; an arbitration agreement, the jurisdiction of arbitration tribunal, or the matters submitted before such tribunal during the course of arbitration proceedings or any matter related thereto.
Furthermore, an “arbitration claim” can relate to an arbitration that is not yet fully effective. For example, a claim for urgent interim relief brought before the arbitral tribunal has been fully constituted would fall within the scope of CPR 62.
If you are faced with a dispute that is subject to an arbitration clause, our team of alternative dispute solicitors and barristers have extensive experience in overseeing all manner of arbitration. We provide authoritative advice on single issue disputes to high value, complex cross-border disputes for individuals, SMEs and companies.
Arbitration in the UK
Arbitration is, at its essence, a mutually agreed, binding, and neutral process for alternate dispute resolution before a third party. Arbitration takes this character from its earliest appearance in English common law, and it has not changed substantially since. Similar to other principles of law in the United Kingdom, the rules and provisions which provide for the framework are found scattered over in different sources; these are the Arbitration Act 1966, the Civil Procedure Rules Part 62, Practice Direction 62; the relevant court guide (the Commercial Court Guide or the Technology and Construction Court Guide) and in precedents set by the court.
For arbitration claims in the Commercial Court, reference to CPR Part 58 needs to be made as it applies to such claims in the Commercial Court; for Technology and Construction Court, reference to CPR Part 60, which applies to arbitration claims in that court insofar as no specific provision is made by CPR Part 62. Notes for the Claimant and the Notes for the Defendant, which accompany the arbitration claim form (which is called “N8 Claim Form (arbitration)”) helpful guidance should be also be considered.
Who can apply to the court?
The rules and provisions under Arbitration Act 1996 specify three main categories of potential claimant in an arbitration claim. These are;
- Either of the parties to an arbitration agreement
AA 1996 permits any party to the arbitration agreement or arbitration proceedings to make a claim or application to court.
- The Arbitrator
Second, there are rules that permit only the arbitrator to apply to the court (for example, where an arbitrator resigns, he or she is entitled to apply for relief from any liability and to obtain an order for payment of his or her fees under section 25(3) of the AA 1996).
- The Parties and the Arbitrator
There are also rules under which both the parties and the arbitrator(s) are entitled to apply to the court, both the tribunal and the parties are entitled to apply for an order enforcing a tribunal’s peremptory order under section 42 of the AA 1996. Similarly, both the tribunal and the parties are entitled to apply for an extension of time for the making of an award under section 50 of the AA 1996.
In certain circumstances non-parties may be heard by the court under S 24 of the AA 1996 which entitles the arbitrator to be heard at an application made to remove him
Notice for application to arbitration
Some rules specify certain applications which need to be followed up by a notice to other party;
- S 12 empowers the court to extend contractual time limits for commencing arbitration, but such application, made by a party to the arbitration agreement, must be made “upon notice to the other parties.
- S 24 empowers the court to remove an arbitrator, but such an application, made by a party to the proceedings, must be made “upon notice to the other parties, to the arbitrator concerned and to any other arbitrator”.
- S 67 to 69 of the AA 1996 which sets rules for applications to challenge award by an arbitration tribunal also require a notice to the other party to the proceedings and the tribunal.
However, in an urgent case, S 44(3) explicitly permits a party to apply without notice for orders that are “necessary for the purpose of preserving evidence or assets”, this provision is most commonly invoked to obtain freezing injunctions from the court.
Where an application has to be made on notice to the parties to the arbitration under any of the above-mentioned rules, you must make them a defendant in the court proceedings (see CPR 62.6(3)). If an application is required to be made on notice to the tribunal, a notice must be given to each arbitrator or (if the tribunal is not yet fully constituted) to each arbitrator that has been appointed (see section 80(3), AA 1996). It is not sufficient simply to give notice to the chairman of the tribunal. The method for giving notice to an arbitrator is, in most cases, to send a copy of the claim form and the written evidence which supports it (CPR 62.6(2)(a)). It should be noted that in certain application made to the court, the tribunal is given “notice” by making each of them a defendant in the court proceedings for applications for removal of arbitrator, order adjusting arbitrator’s fees and expenses and order for delivery of award on payment of fees into court.
Other relevant Parts of CPR:
Some other provisions of particular relevance to arbitration claims and applications as found in the CPR are as follows:
- Part 6 (service of documents);
- Part 32 (evidence);
- Part 58 (Commercial Court);
- Part 59 (Circuit Commercial Court); and
- Part 60 (Technology and Construction Court claims).
Practice Direction 57AC sets out requirements relating to the use of trial witness statements in the Business and Property Courts. These requirements have direct application to arbitration claims and should be considered before witness evidence is taken or witness statements are prepared.
Commencing an application for arbitration
The basic rule is that arbitration claims must be issued in the High Court Practice Direction 62.2.3 states that court in which the claimant must issue the arbitration claim form. This could be the following specialist divisions of the Business and Property Courts of England and Wales or the Business and Property Courts of Birmingham, Bristol, Cardiff, Leeds or Manchester.
An arbitration claim under the 1996 Act (other than under section 9) must be started in accordance with the High Court and County Courts (Allocation of Arbitration Proceedings) Order 1996 by the issue of an arbitration claim form. Form N8 – the Arbitration Claim form (or an application substantially in the form set out in Appendix A to practice direction 62), may be used to start proceedings and to make an application in ongoing proceedings. Where proceedings have already commenced, the requirement for acknowledgement of service form ceases to apply and any references to an acknowledgement of service form may be deleted.
If you are applying for a stay of proceedings under S 9 of the AA 1996, then your application is being made in an existing court proceedings. You must issue an application notice in those proceedings, using Form N244, and see CPR 62.3(2). In the Commercial Court, use the slightly modified application notice N244 (CC).
Evidence in support of your claim/application to arbitration
You are entitled to rely on the facts set out in your claim form as evidence if they are verified by a statement of truth (see CPR 8.5(7)). However, it is generally more convenient to set out the evidence you wish to rely on in an accompanying witness statement (for example, evidence that you have complied with statutory requirements). If possible, the claim form should be issued and any necessary evidence in support of the application should be provided before the judge hears your application. However, in very urgent cases time available might not allow for this, in which case the judge will usually require you to issue your claim form immediately after the hearing. Your evidence in support of your application should state your intention to issue proceedings.
Practice Direction 62 sets out the case management directions which apply to arbitration claims unless the court orders otherwise, see CPR 62.7. There is no allocation questionnaire, and all arbitration claims are allocated to the multi-track (CPR 62.7(1)-(2)).
Applications to the court
The court acts with discretion to extend or vary any automatic directions and as such, any applications for time extensions should be made post haste, by issuing an application notice supported by evidence. On the other hand, in case of an arbitration claim or application made to the Commercial Court, you are entitled to make minor procedural applications concerned with case management by way of correspondence, rather than incurring the expense of issuing an application notice.
You should (as a Claimant) apply for a hearing date as soon as possible after issuing the claim form or, in the case of an appeal against an award, obtaining permission to appeal, see paragraph O6.3 of the Commercial Court Guide. In some cases, the court may decide issues without a hearing, for instance decisions on whether the requirements of S 32(2)(b) or S 45(2)(b) of the AA 1996 are satisfied are often taken without a hearing (see PD 62.7). Applications for permission to appeal against an arbitration award are also decided without a hearing. The court will generally deal with applications for time-extension S 70(3) of the AA 1996 without a hearing. If an extension is granted, the defendant must file his or her written evidence within 21 days of the order extending time, see PD 62.7, paragraph 10.2.
As general principle in relation to the publication of judgments following a private hearing of an arbitration claim:
- The starting point in relation to a hearing is not determinative, and there is a clear distinction to be maintained between considerations governing a hearing and those governing the resulting judgment;
- The judgment should be given in public;
- The desirability of a public judgment is particularly present where a judgment involves points of law or practice which may offer future guidance to lawyers or where the judgment concerns a claim under S 68 of the Arbitration Act 1996 (AA 1996) largely because of the public interest engaged in such cases of maintaining appropriate standards of fairness in the conduct of arbitrations.
In practice, orders are generally drawn up by the parties and not the court under the rules given in the Civil Procedure Rules and relevant Practice Directions (CPR 58.15(1), CPR 59.12, CPR 60.7 and PD 59.11.1)
The usual rule which also applies to legal proceedings brought before the UK courts, applies to arbitration claims when assessing costs as well; at the conclusion of a claim the unsuccessful party is ordered to pay the successful party’s costs (CPR 44.2(2)(a)). The court may make a different order (CPR 44.2(2)(b)), but only where the needs of justice and the circumstances of the case require it. Where the hearing lasts for less than one day, the court may assess costs summarily. Ensure that you have prepared a schedule of costs and are prepared to deal with this. For further guidance, you can contact our London Alternative Dispute Resolution (ADR) Solicitors and Barristers who provide bespoke ADR and litigation advice. We invite you to reach out to us so a member of our legal team can assess your dispute. We can subsequently provide urgent help, advice or representation from our expert team of leading ADR lawyers. Call or email us to start the process of instructing us; our ADR team are waiting to help.
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Our London Alternative Dispute Resolution (ADR) Solicitors and Barristers provide bespoke ADR and litigation advice. We invite you to contact us so one of our legal team can assess your dispute. We can subsequently provide urgent help, advice or representation from our expert team of leading ADR lawyers. Call or email us to start the process of instructing us; our ADR team are waiting to help.
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