New Arbitration Rules for use with the Public Works Contracts – What’s in store for users?

02-04-2014

Author: Karen Killoran and Philippa Mangan



A new and overhauled version of the Arbitration Rules for use with Public Works contracts was published on the Construction Procurement Reform website on 13 January 2014. The new rules must be used with all applicable contracts awarded subsequent to a tender deadline of 24 January 2014. The synopsis of the changes to the rules published on the construction procurement reform website does not summarise the full extent of the changes made. This update provides an overview of some of the key changes introduced.

The overarching aim behind the updated rules is “to facilitate fair and efficient resolution of disputes avoiding delay and unnecessary or disproportionate expense“. This is embodied in the revised rules with the introduction of strict procedural timelines.

One of the most significant changes is the provision for a three-person arbitral panel for disputes of a certain nature. However, further procedural changes have also been implemented, including:

  • scaled-back cost provisions;
  • a fast-track 100-day arbitration procedure;
  • a case management procedure;
  • strict timelines for the formation of an arbitral panel once a notice of arbitration is served; and
  • the requirement for notice to be given by the arbitral panel to the Department of Public Expenditure and Reform once it is appointed.

Notice of arbitration

The notice of arbitration as prescribed by the new rules is prescriptive and replaces the former notice to refer in both name and required content. In addition to including particulars of the dispute, relief sought and the relevant parties, the rules now require:

  • a notice of arbitration to detail the relevant contract (including the text of the arbitration agreement invoked);
  • the proposed number of arbitrators; and
  • whether the proceedings are on the fast track.

In addition, a notice of arbitration must confirm that any conditions precedent to arbitration under the contract have been satisfied.

The new rules introduce a strict timeframe and require the respondent to submit a response to a notice of arbitration within 21 days of receipt. Previously, the respondent had 30 days after receipt of the notice to refer, or 14 days after the appointment of the arbitrator, whichever was the later. The new rules now allow the respondent to challenge the jurisdiction of the arbitral tribunal in the response.

Arbitral tribunal

Unless the parties agree otherwise, the new rules prescribe that if the relief sought is less than €10 million or relates to an extension of time, or both, then the arbitral tribunal will be composed of one arbitrator. In all other cases there will be a panel of three arbitrators. This is a significant departure from the previous rules and from the Arbitration Act 2010, where the default position is a single arbitrator.

In the case of a panel of three arbitrators, unless otherwise provided in the rules or agreed by the parties, one arbitrator is chosen by the claimant, another by the respondent, and the third arbitrator – who will preside over the arbitration proceedings – is chosen by the already appointed arbitrators.

If the arbitral tribunal is not formed within 42 days of service of the notice of arbitration, any party may apply to the body named in the contract requesting it to appoint in respect of any unfilled vacancies within 14 days. The previous time limit under the old rules was 28 days after the notice to refer was issued.

In another new departure, the Department of Public Expenditure and Reform must be notified of the formation of the arbitral tribunal within 14 days of its formation. The date of formation of the arbitral tribunal will be the date on which the appointment of all arbitrators has been completed.

Delivery of pleadings

Both the statement of case and statement of defence must include, among other things, signed witness statements (a new requirement). Copies of both statements must be delivered to the arbitral tribunal at the same time as they are disseminated to the parties and electronic bundles must now be submitted, where practicable.

Disclosure of documents

The new rules impose strict procedures and requirements in respect of the parties’ disclosure obligations. Cooperation between parties is demanded regarding identification of discovery documents and narrowing categories, including search parameters. Estimates of the volume and costs of discovery are required as part of the case management consultation. Discovery is limited to documents in a party’s control.

‘Document’ has a wide definition in the new rules, meaning anything in which information of any description is recorded by any means – including writings, communications, pictures, drawings, programmes and data of any kind, whether recorded or maintained on paper or by electronic, audio, visual or any other means. The new rules provide that a party will be deemed to have control of a document if:

  • it is or was in their physical possession; or
  • the party has or had a right to possession or inspection, or to take copies of the document.

The disclosure process is more prescriptive than the old rules. Any agreement reached by the parties in respect of disclosure must be set out in writing and sent to the arbitral tribunal. In addition, a party which discloses documents must provide a signed statement describing what the party has done to search for the documents in order to demonstrate compliance. If any issues regarding privilege arise, such issues must be brought before the arbitral tribunal so that it may issue directions. This embodies the principle enshrined in the Arbitration Act 2010 which provides the arbitral tribunal with significantly greater power regarding orders for discovery and the making of interim measures.

Adjudication

The new rules pay regard to the adjudication process to be introduced by the Construction Contracts Act 2013 (yet to commence) and provide that if the relief sought includes the return of moneys paid pursuant to an adjudicator’s decision, the party making the claim bears the burden of proof.

Fast-track procedure

In order to ensure that proceedings are conducted fairly, efficiently and without delay, the new rules introduce a fast-track procedure whereby it is envisaged that arbitral proceedings will be conducted expeditiously. In this regard, it is unsurprising that the rules impose a strict timetable for the fast-track procedure – a 100-day procedure, similar to the Engineers Ireland procedure.

Arbitral proceedings will be automatically conducted on the fast track unless the parties agree otherwise, the arbitral tribunal considers the issues too complex to be dealt with in the short timeframe and/or the arbitral proceedings meet the requirements for the appointment of a three-person panel. Once it is confirmed that proceedings will be fast tracked, the claimant must issue a statement of case immediately. Within 10 days of the appointment, the parties must complete initial case management consultations and the arbitral tribunal must issue a timetable for the proceedings.

An award on all matters except costs should be issued within 100 days of the formation of the arbitral panel or 100 days after the proceedings were directed to be fast tracked, whichever is the later.

Publication

The rules prescribe that, as well as notifying the Department of Public Expenditure and Reform of its appointment, the arbitral tribunal must send a copy of each award to the department. The new rules provide that the parties or the minister for public expenditure is free to make the award public. The new rules do not refer to a requirement for the minister to have the consent of the parties before making the award public; neither do the new rules include any provision which would withhold the details of the award in the interests of commercial sensitivity. This would appear contrary to the provisions of utmost confidentiality enshrined as one of the pillars of arbitration.

Interest and cost provisions

There have been significant changes in relation to interest and cost provisions. The new rules introduce a mechanism to allow parties to apply for the taxation of costs. The only apparent surviving provision as to costs and interest in the new rules remains that the arbitral tribunal may award interests or costs only after all matters have been dealt with by a separate award. In all other respects the cost provisions have been scaled back.

The previous rules were much more prescriptive regarding costs. Previously, the old rules stated that while in principle the costs followed the event, the arbitrator had flexibility to decide:

  • how to allocate the costs between parties;
  • the basis on which the costs were determined;
  • the amount of recoverable costs; and
  • the order of the payment of costs in relation to an interim award.

Further, the old rules provided categories of fees and expenses which could be included in a costs award. The arbitrator could also impose security for costs. In contrast, the new rules are silent on these points, but the arbitrator retains significant powers in relation to these matters under the Arbitration Act 2010, unless the parties agree otherwise.

Jurisdiction applications to court

The provisions regarding applications to court for relief have been deleted. Previously, the parties could apply for relief in respect of the arbitration proceedings or an award, or in respect of the removal of an arbitrator. However, this facility will still be open to the parties under the Arbitration Act 2010.

Any controversy in respect of the notice of arbitration or any response to it (including issues regarding jurisdiction) will be resolved by the arbitral tribunal – there is no mechanism in the new rules to allow an application to court to determine the same. This is a departure from the old rules, whereby parties could make an application to court to determine issues, including:

  • jurisdiction;
  • validity of the arbitration agreement;
  • whether the arbitrator complied with the rules; and
  • whether the arbitrator was properly appointed.

Comment

The rules are welcome in their approach to certain issues, including fast-track arbitrations, stricter procedural timelines and an element of case management. However, certain other features of the rules are more questionable, particularly concerning the publication of awards and the possibility of offending confidentiality – one of the fundamental cornerstones underpinning arbitration. The provision allowing for a three-person arbitral tribunal (for disputes in excess of €10 million) should improve the quality of arbitral awards. However, the cost implication of a three-person panel will be significant for the parties footing the bill and would seem contrary to one of the overarching aims of the new rules – avoiding unnecessary or disproportionate expense.