I move amendment No. 6:
In page 7, before section 7, to insert the following new section:
7.—(1) For the purposes of this Act and for the purposes of section 496 of the Merchant Shipping Act 1894 (as amended by section 28) arbitral proceedings shall be deemed to be commenced on—
(a) the date on which the parties to an arbitration agreement so provide as being the commencement date for the purposes of the commencement of arbitral proceedings under the agreement, or
(b) where no provision has been made by the parties as to commencement of proceedings as referred to in paragraph (a), the date on which a written communication containing a request for the dispute to be referred to arbitration is received by the respondent.
(2) The Statute of Limitations 1957 is amended by substituting the following section for section 74:
"74.—(1) For the purposes of this Act and for the purposes of any other limitation enactment, arbitral proceedings shall be deemed to be commenced on—
(a) the date on which the parties to an arbitration agreement so provide as being the commencement date for the purposes of the commencement of arbitral proceedings under the agreement, or
(b) where no provision has been made by the parties as to commencement as referred to in paragraph (a), the date on which a written communication containing a request for the dispute to be referred to arbitration is received by the respondent.
(2) For the purposes of subsection (1)(b), unless the parties otherwise agree, a written communication is deemed to have been received if it is served or given to the respondent in one or more of the following ways:
(a) by delivering it to the respondent personally;
(b) by delivering it to the respondent’s place of business, habitual residence or postal address;
(c) where none of the addresses referred to in paragraph (b) can be found after making reasonable inquiry, by sending it by pre-paid registered post or by any other form of recorded delivery service addressed to the respondent at his or her last known place of business, habitual residence or postal address.
(3) Unless the parties otherwise agree, where a written communication under this section has been delivered to a respondent in accordance with subsection (2), the communication is deemed to have been received on the day it was so delivered.
(4) For the purposes of subsection (2), a company registered under the Companies Acts shall be deemed to be habitually resident at its registered office in the State and every other body corporate (wherever it is incorporated) and every unincorporated body (wherever it carries out its activities) shall be deemed to be habitually resident at its principal office or place of business.".
This amendment to section 7, while lengthy, is straightforward. It provides a mechanism for determining when arbitral decisions are deemed to be commenced. This is important in the context of the Statute of Limitations where, for the purpose of the various limitations on proceedings, the commencing of arbitral proceedings is equivalent to bringing a court action. Obviously, there needs to be a measure of certainty regarding this matter. Following further analysis, it became apparent that the section in the Bill, as published, was deficient in terms of the legal certainty that it offered. These matters are currently governed by section 3 of the Arbitration Act 1954 and section 74 of the Statute of Limitations 1957, which largely replicates the provisions of section 3.
The changes introduced by the new section are not substantive. Essentially, the parties to an arbitration agreement can agree on the commencement date for the proceedings. Where there is no such agreement, the arbitral proceedings are deemed to be commenced on the date on which a written communication containing a request for the dispute to be referred to arbitration is received by the respondent. This reflects the language in Article 21 of the Model Law, with the additional stipulation that the request be in writing.
The amendment to the Statute of Limitations aligns the text of the existing section 74 with that of this new section. The material contained in the new section 74(2) is not necessary in section 7 of the new Arbitration Bill because equivalent provisions are contained in Article 3 of the Model Law, which specifies when a written communication is deemed to have been received.
The proposed amendment to section 19, substituting the word "habitually" for "ordinarily", is designed to ensure that the same terminology is used throughout the Bill. The Model Law uses the term "habitual residence" in Article 3, which is also carried through in the new section 74 of the Statute of Limitations.