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Incorporation of Arbitration Clauses

The Arbitration Act 1996 (AA 1996) s.6(1) defines arbitration agreements and section 6(2) deals with incorporation of arbitration agreements by reference: (1) In this Part an ‘‘arbitration agreement’’ means an agreement to submit to arbitration present or future disputes (whether they are contractual or not). (2) The reference in an agreement to a written form of arbitration clause or to a document containing an arbitration clause constitutes an arbitration agreement if the reference is such as to make that clause part of the agreement. It would appear, at first sight, that referring to a written agreement containing an arbitration clause is sufficient for there to be an ‘‘arbitration agreement’’. However, the law is never that simple. Case law suggests that, in most circumstances, a general reference to a contract will not incorporate the arbitration provisions within that contract. If a party wishes to incorporate the arbitration provisions then it will need to refer expressly to those provisions.

By |January 1st, 2002|Arbitration, Knowledge Hub|Comments Off on Incorporation of Arbitration Clauses

Delay in Commencement – Delay in Commencing an Arbitration

Judge Martyn Zeidman recently commented: ‘‘As stated in Magna Carta, justice delayed is justice denied’’. The Limitation Acts are intended to prevent justice being delayed. They do this by preventing a claimant from proceeding with a case where the limitation period has expired. They do not, except in a few cases, extinguish the right of action, but bar a remedy. They are therefore, except in those few cases, procedural rather substantive defences. Issues of limitation should not be raised in a statement of case. It is for the respondent to raise any issue of limitation within the defence and for the issue to be dealt with by the claimant in a reply. The respondent must specifically plead a defence of limitation. The burden then shifts to the claimant to show that the cause of action arose within the relevant limitation period. The Limitation Acts were conceived out of the equitable doctrine of laches, which still has a role to play where a party seeks an equitable remedy. Equitable remedies include an order for specific performance, an injunction and rectification of a contract. The doctrine of laches states that ‘‘equity aids the vigilant, not the indolent’’ and that ‘‘delay defeats equity’’. Therefore, a claim for an equitable remedy will not be granted if the claimant has delayed in commencing a claim, even though the statutory limitation period has not expired. In addition to the Limitation Acts and the doctrine of laches, contractual limitation provisions may provide a defence. They may either bar a claimant’s right to bring a claim or may extinguish it. The distinction between contractual limitation and statutory limitation is important because the court has power to extend time limits for a failure to comply with contractual limitation periods. Only in limited circumstances can it extend statutory periods. Arbitration Act 1996 ss.12 to 14 deal with the commencement of arbitration proceedings and issues of limitation: section 12 with the court’s power to extend contractual time limits for beginning arbitral proceedings; section 13 states that the Limitation Acts apply to arbitral proceedings as they apply to legal proceedings; section 14 deals with the commencement of proceedings.

By |January 1st, 2002|Arbitration, Knowledge Hub|Comments Off on Delay in Commencement – Delay in Commencing an Arbitration
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