Arbitration-specific Standard Court Orders (finance)
Court orders in support of arbitration
Here are the four orders for use in conjunction with arbitrations in the revised format promulgated by Standard Financial and Enforcement Orders: President’s Guidance (30 November 2017). They supersede those previously approved at para 31 et seq of the President’s Arbitration Practice Guidance issued on 23 November 2015.
Standard Order 6.4: Securing Attendance of Witnesses under the Arbitration Act 1996, s. 43
As stated in the 2017 Guidance:
‘These orders do not have the strict status of forms within Part 5 of the FPR 2010 and their use, although strongly to be encouraged, is not mandatory. Moreover, a standard order may be varied by the court or a party if the variation is required by the circumstances of a particular case. There will be many circumstances when a variation is required and departure from the standard form will not, of course, prevent an order being valid and binding. The standard orders should however represent the starting point, and, I would hope and expect, usually the finishing point, of the drafting exercise.’
Arbitration award recitals to be included in a draft financial remedy consent order
Standard Orders 2.1: Financial Remedy Order and 2.2: Order under the Children Act 1989, Schedule 1 (at paragraphs 19 and 18 respectively) include an Arbitration Award Recital embodying a list of the documents which should accompany an application for an order reflecting an arbitral award, and forms of words apt for the circumstances of the particular application.
Those paragraphs are in this form:
Arbitration award recital
19. (Or) 18.
a. The documents lodged in relation to this application include the parties’ arbitration agreement (Form ARB1FS), their Form[s] D81, a copy of the arbitrator’s award, and a draft of the order which the court is requested to make.
b. (Either)
[By their Form ARB1FS the parties agreed to refer to arbitration the issues described in it [which include some or all of the financial remedies for which applications are] (or) [which encompass the application under Schedule 1 to the Children Act 1989 now] pending in this court. The issues were referred to [arbitrator name] under the IFLA scheme, who made an arbitral award on [date]. The parties have invited the court to make an order in agreed terms which reflects the arbitrator’s award.]
(Or)
[Although by their Form ARB1FS the parties agreed to refer to arbitration the issues described in it [which include some or all of the financial remedies for which applications are] (or) [which encompass the application under Schedule 1 to the Children Act 1989 now] pending in this court. The issues were referred to [arbitrator name] under the IFLA scheme, who made an arbitral award on [date]. There has been no agreement between the parties as to the form of an order to give effect to the arbitrator’s award. The [applicant] / [respondent] has applied for the other party to show why an order should not be made in the terms of the draft proposed; and the court having considered the representations made by each party has directed that an order be made in the terms of this order.]
Recital – agreement to refer future disputes to arbitration
On 7 November 2018 a new para 25A was inserted into Standard Orders 2.1. It provides a suggested form of words where the parties agree that a future dispute be referred to arbitration:
Agreement to refer to arbitration
25A. The parties agree to refer to arbitration any future dispute between them [in relation to the implementation of [paragraph X of] this order] [in relation to the variation of paragraph Y of this order] [in relation to [other, e.g. chattels] [which [arises out of or is in connection with this order and] falls within the scope of the IFLA financial scheme].
The following provisions shall apply:
-
- The arbitration shall be conducted in accordance with and the parties shall be bound by the IFLA financial scheme rules (‘the rules’) in force at the date of the commencement of the arbitration;
- A party invoking this agreement shall serve on the other party written notice identifying the dispute to be arbitrated and requesting agreement to the appointment of an arbitrator;
- [The arbitrator to be appointed shall be [AB] if available];
- If by the date fourteen days after service of the notice referred to at sub-paragraph (b) above the parties have reached agreement on the appointment of an arbitrator, they shall complete, sign and lodge with IFLA a form ARB1FS (or the corresponding arbitration application form then in force) nominating the agreed arbitrator;
- If by the date fourteen days after service of the notice referred to at sub-paragraph (b) above the parties have failed to reach agreement on the appointment of an arbitrator, they shall complete, sign and lodge with IFLA a form ARB1FS (or the corresponding arbitration application form then in force) requesting IFLA to offer the appointment to an arbitrator selected by IFLA in accordance with article 4.3.3 of the rules (6th edition, 2018) (or the corresponding provision then in force);
- The seat of the arbitration shall be [e.g. London, England];
- This agreement is an arbitration agreement for the purpose of section 6 of the Arbitration Act 1996.
The up to date to versions of the Standard Orders (for both financial remedy and children cases, as at 29 July 2019) may be accessed here.