In an unreported decision Healy and Anor v Whitepark Developments Limited and Anor*, Judge Peter Kelly held that an arbitration clause was invalid where the arbitrator was appointed by a body (the Construction Industry Federation), of which the Defendant was a member. In making his decision Judge Kelly held that the arbitration clause breached the European Communities (Unfair Terms in Consumer Contracts) Regulations (S.I. 27 of 1995). As such, the decision in this case may be limited to arbitration clauses in consumer contracts. It is advisable to amend any consumer contracts which contain such clauses as otherwise an agreement to go to arbitration may be rendered invalid, if challenged on the same basis as in the Healy decision.
This case is of particular interest because the President of the High Court has appointed Judge Kelly to hear all applications made under the Arbitration Act 2010 (the Act). The Act introduces the concept of a single arbitration judge to deal with all applications. It is anticipated that Judge Kelly will be the judge who will hear most, if not all applications, under the Act. The fact that there will be only one judge hearing applications under the Act should enhance a uniformity of decision-making and reinforce the Irish courts' long-standing support for the arbitral process.
There is no right of appeal from the High Court in respect of applications under the Act, as the High Court is appointed as the Court of Final Jurisdiction as well as the Court of First Instance in relation to arbitration applications. This means that Judge Kelly's decisions in applications under the Act will be final. These provisions should limit the time, costs and uncertainty normally associated with court intervention in arbitrations.
Judge Kelly has shown support for arbitration in previous decisions such as Brostrom Tankers AB v Factorias Vulcano SA  2 IR 19. In that case Judge Kelly expressed the view that strong public policy considerations favour the enforcement of arbitral awards.