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THE ADMIRALTY & COMMERCIAL COURTS GUIDE 2006

 

O  Arbitration
O1   Arbitration claims
O1.1  
(a)   Applications to the court under the Arbitration Acts 1950 ­ 1996 and other applications relating to arbitrations are known as "arbitration claims".
(b)   The procedure applicable to arbitration claims is to be found in Part 62 and its associated practice direction. Separate provision is made
  (i)   by Section I for claims relating to arbitrations to which the
Arbitration Act 1996Acts applies;
  (ii)   by Section II for claims relating to arbitrations to which the
Arbitration Acts 1950 ­ 1979 ("the old law") apply; and
  (iii)   by Section III for enforcement proceedings.
(c)   For a full definition of the expression "arbitration claim" see rule 62.2(1) (claims under the 1996 Act) and rule 62.11(2) (claims under the old law).
(d)   Part 58 applies to arbitration claims in the Commercial Court insofar as no specific provision is made by Part 62: rule 62.1(3).
   Claims under the Arbitration Act 1996Acts
O2   Starting an arbitration claim
O2.1   Subject to section O2.3 an arbitration claim must be started by the issue of an arbitration claim form in accordance with the Part 8 procedure: rule 62.3(1).
O2.2   The claim form must be substantially in the form set out in Appendix A to practice direction 62: PD 62 Paragraph 2.2.
O2.3   An application to stay proceedings under section 9 of the Arbitration Act 1996 must be made by application notice in the proceedings: rule 62.3(2).
O2.4   Where a question arises as to whether an arbitration agreement is null and void, inoperative or incapable of being performed the court may deal with it in the same way as provided by rule 62.8(3) which applies where a question arises as to whether an arbitration agreement has been concluded or the dispute which is the subject matter of the proceedings falls within the terms of such an agreement.
O3   The arbitration claim form
O3.1   The arbitration claim form must contain, among other things, a concise statement of the remedy claimed and, if an award is challenged, the grounds for that challenge: rule 62.4(1).
O3.2   Reference in the arbitration claim form to a witness statement or affidavit filed in support of the claim is not sufficient to comply with the requirements of rule 62.4(1).
O4   Service of the arbitration claim form
O4.1   An arbitration claim form issued in the Admiralty & Commercial Registry must be served by the claimant.
O4.2  
(a)   The rules governing service of the claim form are set out in Part 6 of the Civil Procedure Rules.
(b)   Unless the court orders otherwise an arbitration claim form must be served on the defendant within 1 month from the date of issue: rule 62.4(2).
O4.3  
(a)   An arbitration claim form may be served out of the jurisdiction with the permission of the court: rule 62.5(1).
(b)   Rules 6.24 ­ 6.29 apply to the service of an arbitration claim form out of the jurisdiction: rule 62.5(3).
O4.4   The court may exercise its powers under rule 6.8 to permit service of an arbitration claim form on a party at the address of the solicitor or other representative acting for him in the arbitration: PD 62 Paragraph 3.1.
O4.5   The claimant must file a certificate of service within 7 days of serving the arbitration claim form: PD 62 Paragraph 3.2.
O5   Acknowledgment of service
O5.1  
(a)   A defendant must file an acknowledgment of service of the arbitration claim form in every case: rule 58.6(1).
(b)   An adapted version of practice form N210 (acknowledgment of service of a Part 8 claim form) has been approved for use in the Commercial Court. A copy of this practice form (Form N210(CC)) is included at the end of the Guide, together with adapted versions of the notes for claimants and defendants on completing and replying to an arbitration claim form.
O5.2   The time for filing an acknowledgment of service is calculated from the service of the arbitration claim form.
O6   Standard directions
O6.1   The directions set out in PD 62 Paragraph 6.2-6.7 apply unless the court orders otherwise.
O6.2   The claimant should apply for a hearing date as soon as possible after issuing an arbitration claim form or (in the case of an appeal) obtaining permission to appeal.
O6.3   A defendant who wishes to rely on evidence in opposition to the claim must file and serve his evidence within 21 days after the date by which he was required to acknowledge service: PD 62 Paragraph 6.2.
O6.4   A claimant who wishes to rely on evidence in response to evidence served by the defendant must file and serve his evidence within 7 days after the service of the defendant's evidence: PD 62 Paragraph 6.3.
O6.5   An application for directions in a pending arbitration claim should be made by application notice under Part 23. Where an arbitration application involves recognition and/or enforcement of an agreement to arbitrate and that application is challenged on the grounds that the parties to the application were not bound by an agreement to arbitrate, it will usually be necessary for the court to resolve that issue in order to determine the application. For this purpose it may be necessary for there to be disclosure of documents and/or factual and/or expert evidence. In that event, it is the responsibility of those advising the applicant to liaise with the other party and to arrange with the Listing Office for a case management conference to be listed as early as possible to enable the court to give directions as to the steps to be taken before the hearing of the application.
O7   Interim remedies
O7.1   An application for an interim remedy under section 44 of the Arbitration Act 1996 must be made in an arbitration claim form: PD 62 Paragraph 8.1.
O8   Challenging the award
   Challenge by way of appeal
O8.1   A party wishing to appeal against the award of an arbitrator or umpire must set out in the arbitration claim form
 
(i)   the question of law on which the appeal is based; and
 
(ii)   a succinct statement of the grounds of appeal, identifying the relevant part(s) of the award and reasons.
O8.2   If the appeal is brought with the agreement of the other parties to the proceedings, a copy of their agreement in writing must be filed with the arbitration claim form.
O8.3   A party seeking permission to appeal must
 
(i)   state in his arbitration claim form the grounds on which he contends that permission to appeal should be given PD 62 Paragraph 12.1; and
 
(ii)   file and serve with the arbitration claim form any written evidence on which he wishes to rely for the purposes of satisfying the court of the matters referred to in section 69(3) of the 1996 Act: PD 62 Paragraph 12.2.
O8.4  
(a)   If the defendant wishes to oppose the claimant's application for permission to appeal he must file a witness statement setting out
  (i)   the grounds on which he opposes the grant of permission;
and
  (ii)   any evidence on which he relies in relation to the matters
mentioned in section 69(3) of the 1996 Act: PD 62 Paragraphs 12.3(1) & (2).
(b)   If the defendant wishes to contend that that the award should be upheld for reasons other than those expressed in the award, he must set out those reasons in his witness statement: PD 62 Paragraph 12.3(3).
O8.5   The court will normally determine applications for permission to appeal without an oral hearing. If the court considers that an oral hearing is required, it will give further directions as appropriate.
   Challenging an award for serious irregularity
O8.6  
(a)   An arbitration claim challenging an award on the ground of serious irregularity under section 68 of the 1996 Act is appropriate only in cases where there are grounds for thinking
  (i)   that an irregularity has occurred which
 
(ii)   has caused or will cause substantial injustice to the party making the challenge.
(b)   An application challenging an award on the ground of serious irregularity should therefore not be regarded as an alternative to, or a means of supporting, an application for permission to appeal.
O8.7   The challenge to the award must be supported by evidence of the circumstances on which the claimant relies as giving rise to the irregularity complained of and the nature of the injustice which has been or will be caused to him.
O8.8   If the nature of the challenge itself or the evidence filed in support of it leads the court to consider that the claim has no real prospect of success, the court may exercise its powers under rule 3.3(4) to dismiss the application summarily. In such cases the applicant will have the right to apply to the court to set aside the order and to seek directions for the hearing of the application.
   Multiple claims
O8.9   If the arbitration claim form includes both a challenge to an award by way of appeal and a challenge on the ground of serious irregularity, the applications should be set out in separate sections of the arbitration claim form and the grounds on which they are made separately identified.
O8.10   In such cases the papers will be placed before a judge to consider how the applications may most appropriately be disposed of. It is usually more appropriate to dispose of the application to set aside or remit the award before considering the application for permission to appeal.
O9   Time limits
O9.1   An application to challenge an awardunder sections 67 or 68 of the 1996 Act or to appeal under section 69 of the Act must be brought within 28 days of the date of the award: see section 70(3).
O9.2   The court has power to vary the period of 28 days fixed by section 70(3) of the 1996 Act: rule 62.9(1). However, it is important that any challenge to an award be pursued without delay and the court will require cogent reasons for extending time.
O9.3   An application to extend time made before the expiry of the period of 28 days must be made in a Part 23 application notice, but the application notice need not be served on any other party: rule 62.9(2) andPD 62 Paragraph 11.1(1).
O9.4   An application to extend time made after the expiry of the period of 28 days must be made in the arbitration claim form in which the applicant is seeking substantive relief: rule 62.9(3)(a).
O9.5   An application to vary the period of 28 days will normally be determined without a hearing and prior to the consideration of the substantive application: PD 62 Paragraph 10.2.
   Claims under the Arbitration Acts 1950 -- 1979
O10   Starting an arbitration claim
O10.1   Subject to section O10.2 an arbitration claim must be started by the issue of an arbitration claim form in accordance with the Part 8 procedure: rule 62.13(1).
O10.2   The claim form must be substantially in the form set out in Appendix A to PD 62 Paragraph 2.2.
O10.3   An application to stay proceedings on the grounds of an arbitration agreement must be made by application notice in the proceedings: rule 62.13(2).
O11   The arbitration claim form
O11.1   An arbitration claim form must state the grounds of the claim or appeal: rule 62.15(5)(a).
O11.2   Reference in the arbitration claim form to the witness statement or affidavit filed in support of the claim is not sufficient to comply with the requirements of rule 62.15(5)(a).
O12   Service of the arbitration claim form
O12.1   An arbitration claim form issued in the Admiralty & Commercial Registry must be served by the claimant.
O12.2   The rules governing service of the claim form are set out in Part 6 of the Civil Procedure Rules.
O12.3  
(a)   An arbitration claim form may be served out of the jurisdiction with the permission of the court: rule 62.16(1).
(b)   Rules 6.24 ­ 6.29 apply to the service of an arbitration claim form out of the jurisdiction: rule 62.16(4).
O12.4   Although not expressly covered by PD 62, the court may in an appropriate case exercise its powers under rule 6.8 to permit service of an arbitration claim form on a party at the address of the solicitor or other representative acting for him in the arbitration.
O12.5   The claimant must file a certificate of service within 7 days of serving the claim form.
O13   Acknowledgment of service
O13.1  
(a)   A defendant must file an acknowledgment of service in every case: rule 58.6(1).
(b)   An adapted version of practice form N210 (acknowledgment of service of a Part 8 claim form) has been approved for use in the Commercial Court. A copy of this practice form (Form N210(CC)) is included at the end of the Guide, together with adapted versions of the notes for claimants and defendants on completing and replying to an arbitration claim form.
O13.2   The time for filing an acknowledgment of service is calculated from the service of the arbitration claim form.
O14   Standard directions
O14.1   Where the claim or appeal is based on written evidence, a copy of that evidence must be served with the arbitration claim form: rule 62.15(5)(b).
O14.2   Where the claim or appeal is made with the consent of the arbitrator or umpire or other parties, a copy of every written consent must be served with the arbitration claim form: rule 62.15(5)(c).
O14.3   An application for directions in a pending arbitration claim should be made by application notice under Part 23.
O15   Interim remedies
O15.1   An application for an interim remedy under section 12(6) of the 1950 Act must be made in accordance with Part 25.
O15.2   The application must be made by arbitration claim form.
O15.3   A claim under section 12(4) of the 1950 Act for an order for the issue of a witness summons to compel the attendance of a witness before an arbitrator or umpire where the attendance of the witness is required within the district of a District Registry may be started in that Registry: rule 62.14.
O16   Challenging the award
   Challenge by way of appeal
O16.1   A party wishing to appeal against the award of an arbitrator or umpire must file and serve with the arbitration claim form a statement of the grounds for the appeal, specifying the relevant part(s) of the award and reasons: rule 62.15(6).
O16.2   A party seeking permission to appeal must also file and serve with the arbitration claim form any written evidence in support of the contention that the question of law concerns a term of the contract or an event which is not "one off": rule 62.15(6).
O16.3   Any written evidence in reply must be filed and served not less than 2 days before the hearing of the application for permission to appeal: rule 62.15(7).
O16.4   A party who wishes to contend that the award should be upheld for reasons other than those set out in the award and reasons must file and serve on the claimant a notice specifying the grounds of his contention not less than 2 days before the hearing of the application for permission to appeal: rule 62.15(8).
O16.5   Applications for permission to appeal will be heard orally, but will not normally be listed for longer than half an hour. Skeleton arguments should be lodged.
   Claims to set aside or remit the award
O16.6   A claim to set aside or remit an award on the grounds of misconduct should not be regarded as an alternative to, or a means of supporting, an application for permission to appeal.
O16.7   The directions set out in PD 62 Paragraphs 6.2-6.7 should be followed unless the court orders otherwise.
   Multiple claims
O16.8   If the arbitration claim form includes both an appeal and an application to set aside or remit the award, the applications should be set out in separate sections of the arbitration claim form and the grounds on which they are made separately identified.
O16.9   The court may direct that one application be heard before the other or may direct that they be heard together, as may be appropriate. It is usually more appropriate to dispose of the application to set aside or remit the award before considering the application for permission to appeal.
O17   Time limits
O17.1  
(a)   Time limits governing claims under the 1950 and 1979 Acts are set out in rule 62.15.
(b)   Different time limits apply to different claims.It is important to
   consult rule 62.15 to ensure that applications are made within
   the time prescribed.
(c)   The court has power under rule 3.1(2) to vary the time limits prescribed by rule 62.15, but will require cogent reasons for doing so.
   Provisions applicable to all arbitrations
   Enforcement of awards
O18.1 All applications for permission to enforce awards are governed by Section III of Part 62: rule 62.17. O18.2 An application for permission to enforce an award in the same manner as a judgment may be made without notice, but the court may direct that the arbitration claim form be served, in which case the application will continue as an arbitration claim in accordance with the procedure set out in Section I: rule 62.18(1) ­ (3). O18.3 An application for permission to enforce an award in the same manner as a judgment must be supported written evidence in accordance with rule 62.18(6). O18.4 (a) Two copies of the draft order must accompany the application. (b) If the claimant wishes to enter judgment, the form of the judgment must correspond to the terms of the award. (c) The defendant has the right to apply to the court to set aside an order made without notice giving permission to enforce the award and the order itself must state in terms (i) that the defendant may apply to set it aside within 14 days after service of the order or, if the order is to be served out of the jurisdiction, within such other period as the court may set; and (ii) that it may not be enforced until after the end of that period or any application by the defendant to set it aside has been finally disposed of: rule 62.18(9) & (10).
   Matters of general application
O19   Transfer of arbitration claims
O19.1   An arbitration claim which raises no significant point of arbitration law or practice will normally be transferred Comment [MB1]: I think it preferable to reflect the rule more fully if possible.
 
(i)   if a rent-review arbitration, to the Chancery Division;
 
(ii)   if a construction or engineering arbitration, to the Technology and Construction Court;
 
(iii)   if an employment arbitration, to the Central London County Court Mercantile List.
O19.2   Salvage arbitrations will normally be transferred to the Admiralty Court.
O20   Appointment of a Commercial Judge as sole arbitrator or umpire
O20.1   Section 93 of the Arbitration Act 1996Acts provides for the appointment of a Commercial Judge as sole arbitrator or umpire. The Act limits the circumstances in which a Judge may accept such an appointment.
O20.2   Enquiries should be directed to the Judge in charge of the Commercial List or the Clerk to the Commercial Court.