Dermot Ahern (Louth, Fianna Fail)

I move amendment No. 12:

In page 16, to delete lines 27 to 46 and in page 17, to delete lines 1 to 16 and substitute the following:

"REFERENCE TO ARBITRATION WHERE PROCEEDINGS PENDING BEFORE COURT

32.—(1) Without prejudice to any provision of any other enactment or rule of law, the High Court or the Circuit Court may at any time whether before or during the trial of any civil proceedings before it—

(a) if it thinks it appropriate to do so, and

(b) the parties to the proceedings so consent,

by order adjourn the proceedings to enable the parties to consider whether any or all of the matters in dispute might be determined by arbitration.

(2) Where a court makes an order under subsection (1), the adjournment shall be for such period as the court thinks fit.

(3) The parties to the proceedings shall, on or before the expiry of the period referred to in subsection (2), inform the court hearing the civil proceedings concerned whether or not agreement has been reached between the parties that any or all of the matters in dispute should be dealt with by arbitration.

(4) Where such agreement has been reached, the agreement shall be treated as an arbitration agreement for the purposes of this Act.

(5) The court, in respect of an agreement referred to in subsection (4)—

(a) where the agreement relates to all of the matters in dispute, shall by order provide for the discontinuance of the proceedings and may make such order as to the costs of the proceedings as it thinks fit, or

(b) where the agreement relates to part but not all of the matters in dispute, may make such order as to the discontinuance of the proceedings as it thinks fit.

(6) Where no agreement has been reached the court may make such order as it thinks fit in relation to the continuance of the proceedings.

(7) This section is in addition to and not in substitution for any power of a court to adjourn civil proceedings before it.".

I propose to take amendments Nos. 12 to 14, inclusive, together. During our Committee Stage deliberations, I indicated that I was willing to consider either the refurbishment of section 32 or its deletion. This was against a background where there was a general consensus among practitioners that the section, which duplicated provisions in the 1954 Arbitration Act, added nothing to the Bill and could well be deleted. In addition, it was not possible to point to any evidence that suggested recourse had been had to the section in the past.

Having considered the matter, I propose that the section be deleted in its entirety and replaced by a more general provision, which will enable both the High Court and the Circuit Court to adjourn proceedings where it appears that the matter in dispute might appropriately be determined by arbitration. The proposed new section will apply solely to civil proceedings and any adjournment by the court will require the consent of the parties to the action. This is in keeping with the consensual nature of the arbitration process.

Deputy Rabbitte's amendments also emphasise the civil nature of the proceedings and the need for the consent of the parties. While my amendment is more far reaching, it reflects the genuine concerns adverted to on Committee Stage and I hope the Deputy will acknowledge that the new provision improves significantly on what it replaces. Provision is made for the parties to agree that all the matters in dispute should be determined by arbitration. In an appropriate case, it will also be possible for them to agree that part only of the matters in dispute should be so determined. Where there is agreement that any or all of the matters should go to arbitration, that agreement will be treated as an arbitration agreement for the purposes of the legislation. The effect of this will be that the court will no longer have any remit regarding the agreed matters. Where there is no agreement, the court proceedings will continue as normal.

The new section also deals with certain procedural matters relating to the continuance or discontinuance of proceedings and to costs. I hope this new section will encourage the perception that Ireland offers an environment which is generally supportive of arbitration. It reminds parties that arbitration is an option to be considered as an alternative to court proceedings. However, it is not in any way coercive and the wishes of the parties as to how best to deal with their dispute will always be paramount.

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