Arbitration Act 1996. S. 15 The arbitral tribunal

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Business Law (Stephen Judge)

Definitions

tribunal (trI- byoo -nəl). (15c) 1. A court or other adjudicatorybody. 2. The seat, bench, or place where a judge sits.

 

umpire. (15c) An impartialperson appointed to make an award or a final decision, usu. when a matter has been submitted to arbitrators who have failed to agree. ● An arbitral submissionmay provide for the appointment of an umpire. — Also termed (in Scots law) oversman.

 

chair. Parliamentary law. 1. A deliberative assembly's presiding officer<the chair calls for order>. See PRESIDE. 2. The presiding officer's seat<take the chair>. 3. The officer who heads an organization<the treasurerreportsdirectly to the chair>. — Also termed chairman (of a male chair, in senses 1 & 3); chairwoman (of a female chair, in senses 1 & 3); chairperson (in senses 1 & 3); moderator (in sense 1); president (in senses 1 & 3); presiding officer (in sense 1); speaker (in sense 1). — chair, vb.

 

make, vb. (bef. 12c) 1. To cause (something) to exist <to make a record>. 2. To enact (something) <to make law>. 3. To acquire (something) <to make money on execution>. 4. To legally perform, as by executing, signing, or delivering (a document) <to make a contract>.

 

decision, n. (16c) 1. A judicial or agencydetermination after consideration of the facts and the law; esp., a ruling, order, or judgment pronounced by a court when considering or disposing of a case. See JUDGMENT (1); OPINION (1). — decisional, adj. 2. Parliamentary law. VOTE (4). 3. Parliamentary law. The chair's ruling on a point of order. See appeal from the decision of the chair under APPEAL.

 

arbitrator, n. (15c) A neutralperson who resolves disputes between parties, esp. by means of formalarbitration. — Also termed impartial chair; (in Latin) compromissarius. Cf. MEDIATOR; ARBITER.

 

arbitration, n. (15c) A method of dispute resolution involving one or more neutral third parties who are usu. agreed to by the disputing parties and whose decision is binding. — Also termed (redundantly) binding arbitration.

 

order, n. (16c) 1. A command, direction, or instruction. See MANDATE (1). 2. A written direction or command delivered by a court or judge. ● The word generally embraces final decrees as well as interlocutory directions or commands. — Also termed court order; judicial order.

 

award, n. (14c) A final judgment or decision, esp. one by an arbitrator or by a jury assessing damages. — Also termed arbitrament.

 

party. (13c) 1. One who takes part in a transaction<a party to the contract>. 2. One by or against whom a lawsuit is brought <a party to the lawsuit>. ● For purposes of res judicata, a party to a lawsuit is a person who has been named as a party and has a right to control the lawsuit either personally, or, if not fully competent, through someone appointed to protect the person's interests.

 

serve, vb. (15c) 1. To make legaldelivery of (a notice or process) <a copy of the pleading was served on all interested parties>. 2. To present (a person) with a notice or process as required by law<the defendant was served with process>.

 

default (di- fawlt also dee -fawlt), n. (13c) The omission or failure to perform a legal or contractual duty; esp., the failure to pay a debt when due

 

arbiter (ahr -bə-tər). (14c) One with the power to decide disputes, such as a judge<the Supreme Court is the final arbiter of legal disputes in the United States>. Cf. ARBITRATOR.

 

apply, vb. (14c) 1. To make a formalrequest or motion<apply for a loan><apply for injunctiverelief>. 2. To employ for a limited purpose<apply payments to a reduction in interest>. 3. To put to use with a particular subject matter<apply the law to the facts><apply the law only to transactions in interstate commerce>.

 

set aside, vb. (18c) (Of a court) to annul or vacate (a judgment, order, etc.) <the judge refused to set aside the default judgment>.

 

set-aside, n. (1943) Something (such as a percentage of funds) that is reserved or put aside for a specificpurpose.

 

agreement. (15c) 1. A mutualunderstanding between two or more persons about their relative rights and duties regarding past or future performances; a manifestation of mutual assent by two or more persons. [Cases: Contracts 1.] 2. The parties' actualbargain as found in their language or by implication from other circumstances, including course of dealing, usage of trade, and course of performance.

 

appointment, n. (15c) 1. The designation of a person, such as a nonelected public official, for a job or duty; esp., the naming of someone to a nonelected public office<Article II of the U.S. Constitution grants the President the power of appointment for principalfederal officials, subject to senatorial consent>. 2. An office occupied by someone who has been appointed <a high appointment in the federal government>. 3. Parliamentary law. The naming of an officer, the members of a committee, or the holder of any other title in an organization by means other than the organization's election. 4. The act of disposing of property, in exercise of a power granted for that purpose<the tenant's appointment of lands>. See POWER OF APPOINTMENT. [Cases: Powers 1.] — appoint, vb. — appointer (for senses 1-3), n. — appointor (for sense 4), n.

consideration, n. (16c) 1. Something (such as an act, a forbearance, or a returnpromise) bargained for and received by a promisor from a promisee; that which motivates a person to do something, esp. to engage in a legal act. ● Consideration, or a substitute such as promissory estoppel, is necessary for an agreement to be enforceable. 2. Loosely, valuable consideration; consideration that is adequate to support the bargained-for exchange between the parties <his agreement to pay the offering price was good consideration for the sale>. 2. Parliamentary law. The process by which a deliberative assembly disposes of a motion; DELIBERATION. ● Consideration begins with a member making a motion and the chair stating the question on the motion; it ends with the chair putting the question on the motion (or on a subsidiary motion that disposes of the first motion). It also includes debate and may also include (among other things) amendment and referral to a committee.

 

resignation, n. (14c) 1. The act or an instance of surrendering or relinquishing an office, right, or claim. [Cases: Officers and Public Employees 62.] 2. A formalnotification of relinquishing an office or position. 3. Hist. The surrender to the lord of the vassal's interest in land. — resign, vb.

entitlement. (19c) An absolute right to a (usu. monetary) benefit, such as social security, granted immediately upon meeting a legal requirement. [Cases: Social Security and Public Welfare 4.10. ]

 

fee. (14c) 1. A charge for labor or services, esp. professional services. 2. A heritableinterest in land; esp., a fee simple absolute. — Also termed fee estate; feod; feodum; feud; feudum; fief.

 

expense, n. (14c) An expenditure of money, time, labor, or resources to accomplish a result; esp., a business expenditure chargeable against revenue for a specific period. Cf. COST (1). — expense, vb.

 

liability, n. (18c) 1. The quality or state of being legally obligated or accountable; legalresponsibility to another or to society, enforceable by civil remedy or criminalpunishment<liability for injuries caused by negligence>. — Also termed legal liability; subjection. Cf. FAULT. 2. (often pl.) A financial or pecuniaryobligation; DEBT<tax liability><assets and liabilities>.

 

incur, vb. (15c) To suffer or bring on oneself (a liability or expense). — incurrence, n. — incurrable, adj.

 

fail, vb. (13c) 1. To be deficient or unsuccessful; to fall short<they failed to settle the dispute>. 2. To become insolvent or bankrupt<two banks failed lastweek>. 3. To lapse<the bequest failed as a result of ademption>.

 

relief. (14c) 1. A payment made by an heir of a feudaltenant to the feudal lord for the privilege of succeeding to the ancestor's tenancy.

"A mesne lord could, upon the death of his tenant, accept the tenant's heir as tenant; but he was not required to do so. When he did accept his deceased tenant's heir as tenant, it was typically because the heir had paid the mesne lord a substantial sum (known as a relief) for the re-grant of the tenancy." Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 8 (2d ed. 1984).

2. Aid or assistance given to those in need, esp., financial aid provided by the state. [Cases: Social Security and Public Welfare 4. ] 3. The redress or benefit, esp. equitable in nature (such as an injunction or specific performance), that a party asks of a court. — Also termed remedy. Cf. REMEDY.

breach of contract. (17c) Violation of a contractual obligation by failing to perform one's ownpromise, by repudiating it, or by interfering with another party's performance.

 

appointee. (18c) 1. One who is appointed. 2. One who receives the benefit of a power of appointment.

 

vacancy, n. 1. The state or fact of a lack of occupancy in an office, post, or piece of property. [Cases: Officers and Public Employees 55.] 2. The time during which an office, post, or piece of property is not occupied. 3. An unoccupied office, post, or piece of property; an empty place. ● Although the term sometimes refers to an office or post that is temporarily filled, the more usualreference is to an office or post that is unfilled even temporarily. An officer's misconduct does not create a vacancy even if a suspension occurs; a vacancy, properly speaking, does not occur until the officer is officially removed.

 

extent. Hist. 1. A seizure of property in execution of a writ. 2. A writ issued by the Exchequer to recover a debt owed to the Crown, under which the debtor's lands, goods, or body could all be seized to secure payment. — Also termed writ of extent; extent in chief. 3. A writ giving a creditortemporarypossession of the debtor's property (esp. land). — Also termed extendi facias.

 

proceeding. (16c) 1. The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment. 2. Any procedural means for seeking redress from a tribunal or agency. 3. An act or step that is part of a larger action. 4. The business conducted by a court or other officialbody; a hearing. 5. Bankruptcy. A particular dispute or matter arising within a pendingcase — as opposed to the case as a whole.

 

loss. (bef. 12c) 1. An undesirable outcome of a risk; the disappearance or diminution of value, usu. in an unexpected or relatively unpredictable way. ● When the loss is a decrease in value, the usualmethod of calculating the loss is to ascertain the amount by which a thing's original cost exceeds its later selling price. 2. Tax. The excess of a property's adjusted value over the amount realized from its sale or other disposition. IRC (26 USCA) § 1001. — Also termed realized loss. [Cases: Internal Revenue 3178.] 3. Insurance. The amount of financial detriment caused by an insured person's death or an insured property's damage, for which the insurer becomes liable. 4. The failure to maintainpossession of a thing.

 

office. (13c) 1. A position of duty, trust, or authority, esp. one conferred by a governmental authority for a public purpose<the office of attorney general>. [Cases: Officers and Public Employees 1.] 2. (often cap.) A division of the U.S. government ranking immediately below a department<the Patent and Trademark Office>. [Cases: United States 29.] 3. A place where business is conducted or services are performed <a law office>.

 

serve, vb. (15c) 1. To make legaldelivery of (a notice or process) <a copy of the pleading was served on all interested parties>. 2. To present (a person) with a notice or process as required by law<the defendant was served with process>.

 

notice, n. (16c) 1. Legalnotification required by law or agreement, or imparted by operation of law as a result of some fact (such as the recording of an instrument); definite legal cognizance, actual or constructive, of an existing right or title<under the lease, the tenant must give the landlord written notice 30 days before vacating the premises>. ● A person has notice of a fact or condition if that person (1) has actual knowledge of it; (2) has received information about it; (3) has reason to know about it; (4) knows about a related fact; or (5) is considered as having been able to ascertain it by checking an officialfiling or recording. [Cases: Constitutional Law 251.6, 309; Notice 1.] 2. The condition of being so notified, whether or not actual awareness exists <all prospective buyers were on notice of the judgment lien>. Cf. KNOWLEDGE. [Cases: Sales 235; Vendor and Purchaser 225.] 3. A written or printed announcement <the notice of sale was posted on the courthouse bulletin board>. 4. Intellectual property. A formalsign attached to items that embody or reproduce an intellectual property right. ● Notice of patent is made by placing the word "patent" (or its abbreviation, "pat.") and the item's patent number on an item made by a patentee or licensee. There are three statutory notice forms for U.S. trademark and servicemarkregistration. The most common is the symbol with the letter R (®) but "Reg. U.S. Pat. &Tm. Off." or "Registered in U.S. Patent and Trademark Office" affords the same legalprotection. A copyright notice also takes several forms. The first part may be the symbol with the letter C in a circle (©), or the word "Copr." or "Copyright." It must be followed by the copyright owner's name and the year that the work was first published. Informal signs, such as "Brand,""TM,""Trademark,""SM," and "ServiceMark,"adjacent to words or other symbols considered to be protectable marks are not legal notices of exclusive rights. [Cases: Patents 222; Trademarks 1250.] 5. Parliamentary law. A meeting's published call. See call of a meeting under CALL (1). 6. Parliamentary law. A formal statement that certain business may come before a meeting, usu. made at an earlier meeting or published with the call of the meeting that will consider the business, and made as a prerequisite to the business's consideration. See call of a meeting under CALL (1). — Also termed previous notice.

 

adjust, vb. 1. To determine the amount that an insurerwill pay an insured to cover a loss. [Cases: Insurance 3234.] 2. To arrive at a newagreement with a creditor for the payment of a debt.

 

cost, n. (13c) 1. The amount paid or charged for something; price or expenditure. 2. (pl.) The charges or fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees. — Also termed court costs. 3. (pl.) The expenses of litigation, prosecution, or other legaltransaction, esp. those allowed in favor of one party against the other. ● Some but not all states allow parties to claimattorney's fees as a litigation cost. — Also termed (in sense 3) litigation costs.

 

omission, n. (14c) 1. A failure to do something; esp., a neglect of duty<the complaintalleged that the driver had committed various negligent acts and omissions>. 2. The act of leaving something out <the contractor's omission of the sales price rendered the contractvoid>. 3. The state of having been left out or of not having been done <his omission from the roster caused no harm>. 4. Something that is left out, left undone, or otherwise neglected <the many omissions from the list were unintentional>. — Formerly also termed omittance. — omit, vb. — omissive, omissible, adj.

 

discharge (dis -chahrj), n. (15c) 1. Any method by which a legal duty is extinguished; esp., the payment of a debt or satisfaction of some other obligation. 2. Bankruptcy. The release of a debtor from monetary obligations upon adjudication of bankruptcy; DISCHARGE IN BANKRUPTCY. Cf. RELEASE (1). [Cases: Bankruptcy 3251.] 3. The dismissal of a case. 4. The canceling or vacating of a court order. 5. The release of a prisoner from confinement. 6. The relieving of a witness, juror, or jury from further responsibilities in a case. 7. The firing of an employee. 8. The dismissal of a member of the armed services from militaryservice<the sergeant was honorably discharged>. 9. Parliamentary law. A motion by which a deliberative assembly, having referred a matter to a committee, takes the matter's further consideration out of the committee and back into its own hands. — Also termed discharge a committee; withdrawal. — discharge (dis- chahrj), vb.

 

bad faith, n. (17c) 1. Dishonesty of belief or purpose<the lawyer filed the pleading in bad faith>. — Also termed mala fides (mal-ə- fI -deez). 2. Insurance. An insurance company's unreasonable and unfounded (though not necessarily fraudulent) refusal to provide coverage in violation of the duties of good faith and fair dealing owed to an insured. ● Bad faith often involves an insurer's failure to pay the insured's claim or a claim brought by a third party. 3. Insurance. An insured's claim against an insurance company for an unreasonable and unfounded refusal to provide coverage. Cf. GOOD FAITH. [Cases: Insurance 3335, 3336.] — bad-faith, adj.

 

immunity. (14c) 1. Any exemption from a duty, liability, or service of process; esp., such an exemption granted to a public official or governmental unit. 2. Torts. A doctrine providing a complete defense to a tortaction. ● Unlike a privilege, immunity does not negate the tort, and it must be raised affirmatively or it will be waived. 3. Criminal law. Freedom from prosecution granted by the government in exchange for the person's testimony. ● By granting immunity, the government can compel testimony — despite the Fifth Amendmentright against self-incrimination — because that testimony can no longer incriminate the witness. 4. Freedom of a person against having a given legal relation altered by someone else's act or omission.

 

institution. (14c) 1. The commencement of something, such as a civil or criminal action. 2. An elementary rule, principle, or practice. 3. An established organization, esp. one of a public character, such as a facility for the treatment of mentally disabled persons. — Also termed public institution. [Cases: Mental Health 31–37.] 4. Civil law. A testator's appointment of an heir; the designation of an institute. See INSTITUTE (5). 5. Eccles. law. The investiture of a cleric with a benefice, by which the cleric becomes responsible for the spiritual needs of the members of a parish. Cf. PRESENTATION (2); ADVOWSON.

 

responsibility, n. (18c) 1. LIABILITY (1). 2. Criminal law. A person's mental fitness to answer in court for his or her actions. See COMPETENCY. [Cases: Mental Health 432.] 3. Criminal law. Guilt. — Also termed (in senses 2 & 3) criminal responsibility. — responsible, adj.

 

nomination. (15c) 1. The act of proposing a person for election or appointment. [Cases: Elections 122–140.] 2. The act of naming or designating a person for an office, membership, award, or like title or status. ● Under parliamentary law, each nomination is effectively a proposal for filling the blank in the question, "Resolved, That ——— is elected." See BLANK (2). See CLOSE NOMINATIONS; OPEN NOMINATIONS.

 

evidential, adj. Of, relating to, relying on, or constituting evidence; EVIDENTIARY (1).

 

lawyer, n. (14c) One who is licensed to practicelaw. Cf. ATTORNEY. [Cases: Attorney and Client 9.] — lawyerly, lawyerlike, adj. — lawyerdom, n.

 

privilege. (bef. 12c) 1. A speciallegal right, exemption, or immunity granted to a person or class of persons; an exception to a duty. ● A privilege grants someone the legalfreedom to do or not to do a given act. It immunizes conduct that, under ordinary circumstances, would subject the actor to liability. 2. An affirmative defense by which a defendant acknowledges at least part of the conduct complained of but asserts that the defendant's conduct was authorized or sanctioned by law; esp., in tort law, a circumstance justifying or excusing an intentional tort. See JUSTIFICATION (2). Cf. IMMUNITY (2). [Cases: Torts 121.] 3. An evidentiaryrule that gives a witness the option to not disclose the fact asked for, even though it might be relevant; the right to preventdisclosure of certain information in court, esp. when the information was originally communicated in a professional or confidential relationship. ● Assertion of an evidentiary privilege can be overcome by proof that an otherwise privileged communication was made in the presence of a third party to whom the privilege would not apply. 4. Civil law. A creditor's right, arising from the nature of the debt, to priority over the debtor's other creditors. 5. Parliamentary law. The status of a motion as outranking other business because of its relationship to the meeting's or a member's rights. — Also termed parliamentary privilege. See question of privilege under QUESTION (3).

Arbitration Act 1996. An Act of Parliament which regulates arbitration proceedings within the jurisdiction of England and Wales and Northern Ireland.

The 1996 Act only applies to parts of the United Kingdom. In Scotland the rules governing arbitrations are found in schedule 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 and are based upon the UNCITRAL Model Law.

The Act mandates that the general duty of the arbitral tribunal is to:

-act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and

-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 falling to be determined.

The various subsequent provisions relating to the conduct of arbitrations are largely pinned upon this overriding duty. The legislation specifies that "The tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it."

Subject to that overriding duty, the tribunal has broad discretion in relation to matters of procedure and evidence. The legislation provides that "It shall be for the tribunal to decide all procedural and evidential matters, subject to the right of the parties to agree any matter."

 

Procedural and evidential matters include:

 

-when and where any part of the proceedings is to be held;

-the language or languages to be used in the proceedings and whether translations of any relevant documents are to be supplied;

-whether any and if so what form of written statements of claim and defence are to be used, when these should be supplied and the extent to which such statements can be later amended;

-whether any and if so which documents or classes of documents should be disclosed between and produced by the parties and at what stage;

-whether any and if so what questions should be put to and answered by the respective parties and when and in what form this should be done;

-whether to apply strict rules of evidence (or any other rules) as to the admissibility, relevance or weight of any material (oral, written or other) sought to be tendered on any matters of fact or opinion, and the time, manner and form in which such material should be exchanged and presented;

-whether and to what extent the tribunal should itself take the initiative in ascertaining the facts and the law; and

-whether and to what extent there should be oral or written evidence or submissions.

The Act also imposes a duty on the parties to "do all things necessary for the proper and expeditious conduct of the arbitral proceedings.»

 

Arbitration Act 1996. S. 15 The arbitral tribunal

(1) The parties are free to agree on the number of arbitrators to form the tribunal and whether there is to be a chairman or umpire.

(2) Unless otherwise agreed by the parties, an agreement that the number of arbitrators shall be two or any other even number shall be understood as requiring the appointment of an additional arbitrator as chairman of the tribunal.

(3) If there is no agreement as to the number of arbitrators, the tribunal shall consist of a sole arbitrator.