Vol. 147 No. 5
I move amendments Nos. 1 and 2:—
In sub-section (1), page 4, line 20, to substitute "on" for "for".
In sub-section (1), page 4, line 34, to substitute "within" for "at".
I propose with the permission of the House to take amendments Nos. 1 and 2 together. These are merely textual amendments. The Convention of 1927 is the Convention on the Execution of Foreign Arbitration Awards. Statutes of limitation limit the time within which, not at which, proceedings may be commenced.
I move:—
In page 5, line 29, to delete "and" and to insert "and Part III" at the end of the line.
This is a drafting amendment designed to make quite clear that State authorities will be bound by the legislation where they are parties to statutory arbitration. Part III of the Bill deals with these arbitrations and State authorities are often parties to them.
I move amendment No. 4:—
In page 5, line 33, to substitute "does" for "shall".
This is a drafting amendment designed to allow parties to disputes in regard to conditions of employment or remuneration to invoke the provisions of the new Act, if they so wish. Arbitrations concerned with disputes between employer and employee are not arbitrations strictly so-called at all, as the parties do not intend that the arbitrator should make a final, enforceable award. In any case where they do so intend, they may by reason of this amendment apply the new Act or any provision of it to the arbitration if they so wish.
I move amendment No. 5:—
In page 5, line 34, to insert "the reference to or", after "for".
This is also a drafting amendment. In most instances employers and employees agree to "refer" to arbitration, instead of agreeing to have the dispute "settled" by arbitration.
I move amendment No. 6:—
In sub-section (1), page 6, line 2, to substitute "arbitrations" for "arbitration".
This is a textual amendment. The word should be "arbitrations", not "arbitration".
I move amendment No. 7:—
In sub-section (1), page 7, line 4, to substitute "not" for "no".
This is also a textual amendment.
There are one or two matters I should like to raise on this section. First of all, I should like to know is the Minister satisfied with the drafting of Section 29, as to whether or not it carries out the intention behind the Bill of giving the arbitrator full discretion in relation to costs. There might be some doubt in view of the opening sentence of Section 29 as to whether or not that section could be negatived by importing into the reference to arbitration some words which might become standardised and might be recognised as importing a contrary intention within the meaning of the section. I gather that the whole idea of this section is to see to it that an arbitrator will have the same discretion with regard to costs as a judge of the High Court or the Circuit Court would have in cases coming before him.
There is one other smaller and more technical matter to which I should like to refer. It is generally accepted in the legal profession that there are two sets of costs which might be awarded, either party and party costs or solicitor and client costs. It has been judicially mentioned from the bench, however, that in relation to solicitor and client costs, a situation may arise where even though the judge intends giving a complete indemnity to one party for costs as against the other, and allows the most generous scale under either party and party or solicitor and client costs, there might still be an outstanding balance in respect of which no indemnity is given.
In order to give complete indemnity to one party as against another, it has been decided that the correct order to make is an award of solicitor and own-client costs. Now, the only point I want to make in connection with that in relation to Section 29 is that, while the intention of the Bill certainly appears to be to give the arbitrator the greatest possible discretion in awarding costs, as at present worded and having regard to the decision to which I have referred, it would appear that there might be a loophole there and that a situation could arise wherein an arbitrator desirous of giving complete indemnity to one party is not, having regard to the terms of Section 29, permitted to do so because he cannot make an order for solicitor and own-client costs but merely an order for solicitor and client costs.
I recognise that there may very well be arguments against the viewpoint that this absolute discretion should be given to the arbitrator, and I recognise the validity of such arguments. It is one thing when one is dealing with a judge of the High Court or Supreme Court, a man who is well versed in law and knows perfectly the full consequences of any order he may make, and it is another thing when one is dealing with an arbitrator, who need not necessarily be a professional man at all and who may not recognise to the same extent the consequences of an order made by him in relation to the costs of an arbitration. I merely raise the point because the section seems to show a desire to allow the widest possible discretion and it may be that, on its present wording, absolute discretion with regard to costs is not in fact being given.
In answer to the Deputy's statement in relation to the first point raised by him, if he takes Section 30 in conjunction with Section 29 he will find that that will clear up any doubts in his mind. In connection with the other point, this type of costs is very rarely given, as the Deputy is aware, even by judges. Our provision is the same as that in the British Arbitration Act and the Northern Ireland Arbitration Act.
I move amendment No. 8:—
In page 18, to delete lines 15, 16 and 17.
The opening words of the Protocol are not necessary and should be omitted.
I move amendment No. 9:—
In Article 4, page 18, line 54, to substitute "becomes" for "become".
This is a purely textual amendment.
I move amendment No. 10:—
In Article 6, page 19, line 3, to substitute "will" for "shall".
This is also a purely textual amendment.
I move amendment No. 11:—
In Article 7, page 19, line 12, to substitute "date on" for "date of".
This, too, is merely a textual amendment.
I move amendment No. 12:—
In page 19, at the end of the Schedule, to insert: "A certified copy of the present Protocol will be transmitted by the Secretary-General to all the contracting States."
This amendment is designed to insert in the Schedule words which form part of the actual Protocol.
I move amendment No. 13:—
In Article 1, page 19, line 39, to substitute "24th" for "24".
This is, of course, a textual amendment merely.
I move amendment No. 14:—
In Article 2, page 20, line 14, to substitute "recognition" for "the recognition".
This also is a textual amendment.
