If an arbitrator is in doubt about the law, he is empowered under Section 35 of the Arbitration Act 1954 to refer the issue of law in the form of a special case for the decision of the High Court. This power does not apply to an arbitrator in an international commercial arbitration, which is governed by the provisions of the Arbitration (International Commercial) Act 1998.
The question must be one of law and not of fact. In Re Mizen Hotel Company (1980) 511 SS the Mizen Hotel Company Limited employed John Sisk & Son Limited to complete the building of a hotel at Kinsale Road, Ballycurreen, County Cork. The construction of the hotel had been commenced by another contractor that had failed to complete it, and Sisks was asked to finish the construction. A dispute arose between Mizen Hotel and Sisks as to whether the work had been properly carried out. The dispute was referred to arbitration and the arbitrator found generally in favour of Sisks. A subsequent dispute arose as to the adequacy of the arbitrator's award and this was the subject of the second arbitration. The arbitrator in the second arbitration was unable to decide whether certain claims had been taken into consideration by the arbitrator in the first arbitration, and referred the matter by way of special case to the High Court. The High Court held that the issues raised by the arbitrator in the second arbitration were exclusively questions of fact and such questions were not referable to the High Court under Section 35. Questions of fact must be decided by the arbitrator. Accordingly the High Court referred the questions back to the arbitrator for her further consideration.
In addition to the power which an arbitrator has under Section 35 of his own volition to refer any question of law to the High Court for its decision, an arbitrator is also obliged, in the absence of good reason, to state a case to the High Court on a point of law if one of the parties in the course of the proceedings, but before the award has been published, requests the arbitrator to do so. What may or may not be good reason for an arbitrator to state a case was considered by the High Court in the cases of Stillorgan Orchard Limited v McLoughlin & Harvey (1978) ILRM 128 and Corporation of Dublin v MacGinley (1985) 763 SP.
In the case of Stillorgan Orchard Limited v McLoughlin & Harvey the plaintiff was the owner of a property known as the Stillorgan Orchard, Stillorgan, County Dublin, and entered into a contract with the defendant for certain alterations and renovations to be carried out to it. Upon completion of the works a dispute arose as to the amount due by the plaintiff to the defendant and the dispute was referred to arbitration. Having considered all of the submissions, the arbitrator made his award. The plaintiff contested the award on the grounds that the arbitrator had failed to state a case on a question of law for the decision of the High Court. The High Court held that:
- no formal request appeared to have been made by the plaintiff to the arbitrator for a special case to be stated;
- there was no suggestion that the arbitrator attempted to preclude the plaintiff from stating a case;
- the failure of the arbitrator to state any question of law in the form of a special case for the decision of the High Court it is not of itself misconduct, because Section 35 is permissive and not mandatory; and
- the arbitrator was not guilty of misconduct.
The court accordingly refused to set aside the arbitrator's award.
In the case of Corporation of Dublin v MacGinley the first named defendant, who was the owner of a property in Finglas, County Dublin, made application for outline planning permission for the construction of an apartment complex on his property. While permission was ultimately granted by An Bord Pleanala (The Planning Appeals Board), the permission was subject to two conditions, as a result of which a claim for compensation was filed on behalf of the first named defendant under Sections 29 and 55 of the Local Government (Planning and Development) Act 1963, it being argued that the conditions imposed were tantamount to a refusal of permission. The second named defendant was appointed to arbitrate between the corporation and the first named defendant as to the compensation. The corporation invited the arbitrator to state a case for the decision of the High Court on a point of law. The arbitrator took the view that the point of law had been amply dealt with in a number of recent High Court decisions and accordingly refused to state a case. The corporation applied to the High Court for an order compelling the arbitrator to state a case on the lines requested. The High Court held that the arbitrator was correct in taking the view that he did not require the further guidance of the courts and accordingly the plaintiff's claim failed.
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