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    (3) This Order extends to Great Britain.

    (4) Paragraphs in the Schedule marked "EW" apply only to English/Welsh arbitrations.

    (5) Paragraphs in the Schedule marked "S" apply only to Scottish arbitrations.

    (6) Paragraphs in the Schedule not marked "EW" or "S" apply to both English/Welsh arbitrations and Scottish arbitrations.

Commencement of the Scheme
     2. The Scheme shall come into effect on 1^st October 2004.

Revocation
     3. Subject to article 6, the ACAS (Flexible Working) Arbitration Scheme (England and Wales) Order 2003[3] is revoked.

Application of Part I of the Arbitration Act 1996
     4. The provisions of Part I of the Arbitration Act 1996[4] referred to in paragraphs 52EW, 108EW, 135EW, 138EW, 145EW, 151EW, 156EW, 160EW, 163EW, 174EW and 175EW of the Schedule and shown in italics shall, as modified in those paragraphs, apply to English/Welsh arbitrations conducted in accordance with the Scheme.

     5.  - (1) Section 46(1)(b) of the Arbitration Act 1996 shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modification.

    (2) For "such other considerations as are agreed by them or determined by the tribunal" in section 46(1)(b) substitute "the Terms of Reference in paragraph 18 of the arbitration scheme set out in the Schedule to the ACAS (Flexible Working) Arbitration Scheme (Great Britain) Order 2004".

Transitional provision
     6.  - (1) The Scheme has effect in any case where the appropriate date falls on or after 1^st October 2004.

    (2) In a case where the appropriate date falls before 1^st October 2004, the arbitration scheme set out in the Schedule to the ACAS (Flexible Working) Arbitration Scheme (England and Wales) Order 2003 continues to apply.

    (3) In this article - the

"appropriate date" means the date of signature of the Arbitration Agreement. Where the parties sign the Arbitration Agreement on different dates, the appropriate date is the date of the first signature.

"Arbitration Agreement" means an agreement to submit the dispute to arbitration, as defined in paragraph 26 of the Scheme.

Gerry Sutcliffe,
Minister for Employment Relations, Competition and Consumers, Department of Trade and Industry

6th September 2004

(i) any enactment in the domestic legislation of England and Wales or of Scotland giving effect to rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Community Treaties, and

(ii) any such rights, powers, liabilities, obligations and restrictions which are not given effect by any such enactment.

     13. The term "English/Welsh arbitration" means an arbitration under this Scheme which the parties have agreed shall be an English/Welsh arbitration.

     14. The term "Flexible Working Claim" means a claim by the Employee that his Employer has failed to deal with an application made under section 80F of the 1996 Act in accordance with section 80G(1) of that Act or that a decision by his Employer to reject the application was based on incorrect facts.

     15. The term "Scottish arbitration" means an arbitration under this Scheme which parties have agreed shall be a Scottish arbitration.

     16. With the exception of paragraphs 26 ("Requirements for entry into the Scheme") 111EW ("Form of the award: English/Welsh arbitrations") and 114S ("Form of the award: Scottish arbitrations"), references to anything being written or in writing include its being recorded by any means so as to be usable for subsequent reference.

(i) the agreement of each party (which may be expressed in the same or in separate documents) must be in writing;

(ii) the agreement must concern an existing dispute;

(iii) the agreement must not seek to alter or vary any provision of the Scheme;

(iv) the agreement must have been reached either:


(a) where a conciliation officer has taken action under section 18 of the Employment Tribunals Act 1996[12] or

(b) through a compromise agreement, where the conditions regulating such agreements under the 1996 Act are satisfied;



(v) the agreement must be accompanied by a completed Waiver Form for each party. Parties applying for English/Welsh arbitrations should complete Appendix A; parties applying for Scottish arbitrations should complete Appendix B.

     27. Where an agreement fails to satisfy any one of these requirements or where the parties are unable to agree whether the arbitration should be an English/Welsh arbitration or a Scottish arbitration, no valid reference to the Scheme will have been made, and the parties will have to settle their dispute by other means or have recourse to the employment tribunal.

     28. Where:

(i) a dispute concerning a Flexible Working Claim as well as other claims has been referred to the employment tribunal, and

(ii) the parties have agreed to settle the other claims and refer the Flexible Working Claim to arbitration under the Scheme,



a separate settlement must be reached referring the Flexible Working Claim to arbitration which satisfies all the requirements listed above (although it may form part of one overall settlement document).

Notification to ACAS of an Arbitration Agreement
     29. All Arbitration Agreements must be notified to ACAS within two weeks of their conclusion, by either of the parties or their independent advisers or representatives, or an ACAS conciliator, sending a copy of the agreement and Waiver Forms, together with IT1 and IT3 forms if these have been completed, to the ACAS Arbitration Section.

     30. For the purposes of the previous paragraph, an Arbitration Agreement is treated as "concluded" on the date it is signed, or if signed by different people at different times, on the date of the last signature.

     31. Where an Arbitration Agreement is not notified to ACAS within two weeks, ACAS will not arrange for the appointment of an arbitrator under the Scheme, unless notification within that time was not reasonably practicable. Any party seeking to notify ACAS of an Arbitration Agreement outside this period must explain in writing to the ACAS Arbitration Section the reason for the delay. ACAS shall appoint an arbitrator, in accordance with the appointment provisions below, to consider the explanation, and that arbitrator may seek the views of the other party, and may call both parties to a hearing to establish the reasons for the delay. The arbitrator shall then rule in an award on whether or not the agreement can be accepted for hearing under the Scheme.

     32. Any such hearing and award will be governed by the provisions of this Scheme.

Consolidation of proceedings
     33. Where all parties so agree in writing, ACAS may consolidate different arbitral proceedings under the Scheme.

(i) In subsection (1) for "(upon notice to the other parties, to the arbitrator concerned and to any other arbitrator) apply to the court" substitute "(upon notice to the other party, to the arbitrator concerned and to the Advisory, Conciliation and Arbitration Service ("ACAS")) apply to the High Court or Central London County Court".

(ii) In subsection (2) - 


(a) omit "If there is an arbitral or other institution or person vested by the parties with power to remove an arbitrator,";

(b) for "that institution or person" substitute "ACAS".

     53EW. The arbitrator may continue the proceedings and make an award while an application to ACAS (as well as the court) to remove him or her is pending.

Removal of arbitrators: Scottish arbitrations
     54S. An arbitrator in a Scottish arbitration may be removed by ACAS under the provisions in paragraphs 55S-58S below.

     55S. An application under the Scheme to remove an arbitrator shall be made to ACAS (addressed to the ACAS Arbitration Section). At the same time as the application is sent to ACAS a copy of the application shall be sent to the other party to the arbitration and to the arbitrator.

     56S. ACAS shall, following receipt of an application under paragraph 55S, give the other party to the arbitration and the arbitrator such opportunity as ACAS in its sole discretion may consider appropriate to comment on the application.

     57S. ACAS may, after such procedure as ACAS in its sole discretion may consider appropriate, remove the arbitrator if it is satisfied:

(i) that both parties to the arbitration agree that the arbitrator should be removed; or

(ii) that circumstances exist that give rise to justifiable doubts as to the impartiality of the arbitration; or

(iii) that the arbitrator is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to his or her capacity to do so.

     58S. A decision of ACAS made under paragraph 57S shall be final.

     59S. The arbitrator may continue the proceedings and make an award while an application to ACAS to remove him or her is pending.

Death of an arbitrator
     60. The authority of an arbitrator is personal and ceases on his or her death.

Replacement of arbitrators
     61. Where an arbitrator ceases to hold office for any reason, he or she shall be replaced by ACAS in accordance with the appointment provisions above.

     62. Once appointed, the replacement arbitrator shall determine whether and, if so, to what extent the previous proceedings should stand.

(i) continue the hearing in that party's absence, and in such a case shall take into account any written submissions and documents that have already been submitted by that party; or

(ii) adjourn the hearing.

     102. In the case of the non-attendance of the Employee, if the arbitrator decides to adjourn the hearing, he or she may write to the Employee to request an explanation for the non-attendance. If the arbitrator decides that the Employee has not demonstrated sufficient cause for the non-attendance, he or she may rule in an award that the claim be treated as dismissed.

Post-hearing written materials
     103. No further submissions or evidence will be accepted after the end of the substantive hearing without the arbitrator's permission, which will only be granted in exceptional circumstances. Where permission is granted, any material is to be sent to the ACAS Arbitration Section, to be forwarded to the arbitrator and all other parties.

(i) In subsection (1) - 


(a) for "Unless otherwise agreed by the parties, the court" substitute "The High Court or Central London County Court";

(b) for "any question of law" substitute "any question (a) of EC law, or (b) concerning the application of the Human Rights Act 1998", or (c) any devolution issue;

(c) omit "An agreement to dispense with reasons for the tribunal's award shall be considered an agreement to exclude the court's jurisdiction under this section.".



(ii) Omit sub-paragraph (i) from subsection (2)(b);

(iii) Omit subsection (4); and

(iv) After subsection (6), insert - 

    " (7) In this section "EC law" means -


(a) any enactment in the domestic legislation of England and Wales giving effect to rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Community Treaties, and

(b) any such rights, powers, liabilities, obligations and restrictions which are not given effect by any such enactment.



    (8) In this section "devolution issue" means a devolution issue as defined in paragraph 1 of Schedule 6 of the Scotland Act 1998 or devolution issue as defined in paragraph 1 of Schedule 8 to the Government of Wales Act 1998."

Court determination of preliminary points: Scottish arbitrations
     109S. The arbitrator may make a reference to the Court of Session for determination as a preliminary point - 

(i) of any question of EC law,

(ii) of any question concerning the application of the Human Rights Act 1998, or

(iii) of any devolution issue,



which substantially affects the rights of one or more of the parties to the arbitration.

     110S. The arbitrator shall not make a reference under paragraph 109S unless - 

(i) both parties have applied for or have agreed to the making of the reference; or

(ii) if an application for the reference has been made by one party and opposed by the other party, the arbitrator is satisfied that the application has been made without delay.

(i) In subsection (1) for "tribunal pursuant to an arbitration agreement" substitute "arbitrator pursuant to the Scheme".

(ii) In subsection (3) for "(see section 73)" substitute "(see Part XXIV of the Scheme").

(iii) After subsection (4) insert - 

    " (5) In this section - 


"the court" means the High Court or a county court; and
"the Scheme" means the arbitration scheme set out in the Schedule to the ACAS (Flexible Working) Arbitration Scheme (Great Britain) Order 2004."

     136S. In a Scottish arbitration any award (including any additional award, any correction of an award or any variation to an award) requiring the payment of money may be registered for execution.

Interest
     137. Awards of compensation that are not paid within 42 days of the date on which the award was despatched by ACAS to the Employer will attract interest on the same basis as for employment tribunal awards.

(i) In subsection (1) - 


(a) for "(upon notice to the other parties and to the tribunal) apply to the court" substitute "(upon notice to the other party, to the arbitrator and to ACAS) apply to the High Court or the Central London County Court";

(b) for "(see section 73)" substitute "(see Part XXIV of the Scheme)"; and

(c) after "section 70(2) and (3)" insert "as modified for the purposes of the Scheme".



(ii) After subsection (1) insert - 

    " (1A) In this section - 


"Arbitration Agreement" means an agreement to refer a dispute to arbitration in accordance with, and satisfying the requirements of, the Scheme;
"the Scheme" means the arbitration scheme set out in the Schedule to the ACAS (Flexible Working) Arbitration Scheme (Great Britain) Order 2004; and
"substantive jurisdiction" means any issue as to - 
(a) the validity of the Arbitration Agreement and the application of the Scheme to the dispute or difference in question;

(b) the constitution of the arbitral tribunal; or

(c) the matters which have been submitted to arbitration in accordance with the Arbitration Agreement."

Challenges on grounds of substantive jurisdiction: Scottish arbitrations
     139S. A party to a Scottish arbitration may appeal to the Court of Session - 

(i) challenging any award of the arbitrator as to his or her substantive jurisdiction; or

(ii) on the ground that an award made by the arbitrator on the merits is of no effect, in whole or in part, because the arbitrator did not have substantive jurisdiction.

     140S. A party may lose the right to appeal under paragraph 139S in accordance with Part XXIV below.

     141S. Appeals under paragraph 139S are subject to the provisions of paragraphs 157S, 158S and 159S below.

     142S. For the purposes of paragraph 139S, "substantive jurisdiction" means any issue as to - 

(i) the validity of the arbitration agreement and the application of the Scheme to the dispute or difference in question;

(ii) the constitution of the arbitral tribunal; or

(iii) the matters which have been submitted to arbitration in accordance with the Arbitration Agreement.

     143S. The arbitrator may continue the arbitral proceedings and make a further award while an appeal to the Court under paragraph 139S is pending in relation to an award of the arbitrator as to his substantive jurisdiction.

     144S. On the appeal under paragraph 139S the Court may (without prejudice to any other power which it may exercise or remedy which it may grant) - 

(i) confirm the award:

(ii) vary the award;

(iii) declare the award to be of no effect in whole or in part; or

(iv) reduce the award in whole or in part.

Challenges for serious irregularity: English/Welsh arbitrations
     145EW. Section 68 of the Arbitration Act 1996[19] shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modifications.

(i) In subsection (1) -


(a) for "(upon notice to the other parties and to the tribunal) apply to the court" substitute "(upon notice to the other party, to the arbitrator and to ACAS) apply to the High Court or Central London County Court";

(b) for "(see section 73)" substitute "(see Part XXIV of the Scheme)";

(c) after "section 70(2) and (3)" insert "as modified for the purposes of the Scheme".



(ii) In subsection (2) - 



(a) in paragraph (a) for "section 33 (general duty of tribunal)" substitute "Part X of the Scheme (General Duty of the Arbitrator)";

(b) in paragraph (b) after "see section 67" insert "as modified for the purposes of the Scheme"; and

(c) in paragraph (c) for "agreed by the parties" substitute "as set out in the Scheme";

(d) in paragraph (e) for "any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award" substitute "ACAS";

(e) omit paragraph (h);

(f) in paragraph (i) for "any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award" substitute "ACAS".



(iii) In subsection (3) - 



(a) in paragraph (b) insert "vary the award or" before "set the award aside";

(b) omit "The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.".



(iv) After subsection (4) insert - 

    " (5) In this section, "the Scheme" means the arbitration scheme set out in the Schedule to the ACAS (Flexible Working) Arbitration Scheme (Great Britain) Order 2004."

Challenges for serious irregularity: Scottish arbitrations
     146S. A party to a Scottish arbitration may appeal to the Court of Session against an award in the proceedings on the ground of serious irregularity affecting the arbitrator, the proceedings or the award.

     147S. A party may lose the right to appeal under paragraph 146S above in accordance with section XXIV below.

     148S. Appeals under paragraph 146S are subject to the provisions of paragraphs 157S, 158S and 159S below.

     149S. For the purpose of paragraphs 146S "serious irregularity" means an irregularity of one or more of the following kinds which the Court considers has caused or will cause substantial injustice to the appellant - 

(i) failure by the arbitrator to comply with Part X above (General Duty of Arbitrator);

(ii) the arbitrator exceeding his or her powers (otherwise than by exceeding his or her substantive jurisdiction as defined in paragraph 142S above);

(iii) failure by the arbitrator to conduct the proceedings in accordance with the procedure set out in the Scheme;

(iv) failure by the arbitrator to deal with all the issues put to him or her;

(v) ACAS exceeding its powers;

(vi) uncertainty or ambiguity as to the effect of the award;

(vii) the award having been obtained by fraud or the way in which it was procured being contrary to public policy; or

(viii) any irregularity in the conduct of the proceedings or in the award which is admitted by the arbitrator or ACAS.

     150S. If there is shown to be serious irregularity affecting the arbitrator, the proceedings or the award, the Court may (without prejudice to any other power which it may exercise or remedy which it may grant) - 

(i) remit the award to the arbitrator, in whole or in part, for reconsideration;

(ii) vary the award;

(iii) declare the award to be of no effect in whole or in part; or

(iv) reduce the award in whole or in part.

Appeals on questions of EC law, the Human Rights Act 1998 and devolution issues: English/Welsh arbitrations
     151EW. Section 69 of the Arbitration Act 1996[20] shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modifications.

(i) In subsection (1) - 


(a) omit "Unless otherwise agreed by the parties";

(b) for "(upon notice to the other parties and to the tribunal) appeal to the court" substitute "(upon notice to the other party, to the arbitrator and to ACAS) appeal to the High Court or Central London County Court";

(c) for "a question of law" substitute "a question (a) of EC law, or (b) concerning the application of the Human Rights Act 1998, or (c) any devolution issue";

(d) omit "An agreement to dispense with reasons for the tribunal's award shall be considered an agreement to exclude the court's jurisdiction under this section".



(ii) In subsection (2) after "section 70(2) and (3)" insert "as modified for the purposes of the Scheme".

(iii) In subsection (3) - 



(a) omit paragraph (b);

(b) in paragraph (c) after the words "on the basis of the findings of fact in the award" insert ", in so far as the question for appeal raises a point of EC law, the point is capable of serious argument, and in so far as the question for appeal does not raise a point of EC law".



(iv) In subsection (7) omit "The court shall not exercise its power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration".

(v) After subsection (8) insert - 

    " (9) In this section - 


"EC law" means -
(a) any enactment in the domestic legislation of England and Wales giving effect to rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Community Treaties, and

(b) any such rights, powers, liabilities, obligations and restrictions which are not given effect by any such enactment; and


"devolution issue" means a devolution issue as defined in paragraph 1 of Schedule 6 of the Scotland Act 1998 or a devolution issue as defined in paragraph 1 of Schedule 8 of the Government of Wales Act 1998; and
"the Scheme" means the arbitration scheme set out in the Schedule to the ACAS (Flexible Working) Arbitration Scheme (Great Britain) Order 2004."

Appeals on questions of EC law, the Human Rights Act 1998 and devolution issues: Scottish arbitrations
     152S. A party to a Scottish arbitration may appeal to the Court of Session - 

(i) on a question of EC law,

(ii) on a question concerning the application of the Human Rights Act 1998, or

(iii) on a devolution issue



arising out of an award made in the arbitration .

     153S. An appeal shall not be brought under paragraph 152S except - 

(i) with the agreement of all the other parties to the proceedings; or

(ii) with the leave of the Court.

     154S. Leave to appeal shall be given only if the Court is satisfied - 

(i) that the determination of the question will substantially affect the rights of one or more of the parties;

(ii) that on the basis of the findings of fact in the Note issued with the award, insofar as the question for appeal raises a point of EC law, the point is capable of serious argument, and insofar as the question for appeal does not raise a point of EC law - 

(iii) the decision of the arbitrator on the question is obviously wrong, or

(iv) the question is one of general public importance and the decision of the arbitrator is at least open to serious doubt, and

(v) that, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all circumstances for the Court to determine the question.

     155S. On an appeal under paragraph 152S the Court may (without prejudice to any other power which it may exercise or remedy which it may grant) - 

(i) confirm the award;

(ii) vary the award;

(iii) remit the award to the arbitrator, in whole or in part, for reconsideration in light of the Court's determination;

(iv) declare the award to be of no effect in whole or in part;

(v) reduce the award in whole or in part; or

(v) recall the award in whole or in part.

Time limits and other procedural restrictions on challenges to awards: English/Welsh arbitrations
     156EW. Section 70 of the Arbitration Act 1996[21] shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modifications - 

(i) In subsection (1) after "section 67, 68 or 69" insert "(as modified for the purposes of the Scheme)".

(ii) In subsection (2) - 


(a) omit paragraph (a);

(b) in paragraph (b) for "section 57 (correction of award or additional award)" substitute "Part XXI of the Scheme (Correction of Awards)".



(iii) In subsection (3) for "of the award or, if there has been any arbitral process of appeal or review, of the date when the applicant or appellant was notified of the result of that process" substitute "the award was despatched to the applicant or appellant by ACAS or, if an application for a correction or additional award under paragraph 124 has been made and declined, the date on which the arbitrator's decision was despatched to the applicant or appellant by ACAS";

(iv) Omit subsection (5).

(v) After subsection (8) insert - 

    " (9) In this section, "the Scheme" means the arbitration scheme set out in the Schedule to the ACAS (Flexible Working) Arbitration Scheme (Great Britain) Order 2004."

Time limits and other procedural restrictions on challenges to awards: Scottish Arbitrations
     157S. An appeal under paragraphs 139S, 146S or 152S may not be brought if the appellant has not first exhausted any available recourse under Part XXI of the Scheme (Correction of Awards).

     158S. An appeal under paragraphs 139S, 146S or (where parties have agreed under paragraph 153S(i)) 152S or an application for leave to appeal under paragraph 153S(ii) shall be lodged within 28 days of whichever is the later of - 

(i) the date on which the award was despatched to the appellant by ACAS;

(ii) where a correction or additional award has been made in accordance with Part XXI above, the date on which a memorandum of correction or additional award under Part XXI above was despatched to the appellant by ACAS; and

(iii) where a party has applied for a correction or additional award under paragraph 124 above but the arbitrator has declined to make any correction or additional award, the date on which intimation of the arbitrator's decision was despatched to the appellant by ACAS.

     159S. If on an appeal under paragraph 139S, 146S or 152S it appears to the Court that the award and the arbitrator's Note

(i) do not contain the arbitrator's reasons, or

(ii) do not set out the arbitrator's reasons in sufficient detail to enable the court to properly consider the application or appeal,



the Court may order the arbitrator to state the reasons for his or her award in sufficient detail for that purpose.

Common law challenges and saving
     160EW. Sections 81(1)(c) and 81(2) of the Arbitration Act 1996[22] shall apply to English/Welsh arbitrations conducted in accordance with the Scheme.

     161S. Nothing in this Part of the Scheme shall be construed as excluding the operation of any rule of law as to the refusal of recognition or enforcement of an arbitral award in a Scottish arbitration on grounds of public policy.

Exclusion of stated case procedure
     162S. Section 3 of the Administration of Justice (Scotland) Act 1972[23] shall not apply to an arbitration under the scheme.

Challenge or appeal: effect of order of the court
     163EW. Section 71 of the Arbitration Act 1996[24] shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modifications - 

(i) In subsection (1) after "section 67, 68 and 69" insert "(as modified for the purposes of the Scheme)";

(ii) After subsection (3) insert - 

    " (3A) In this section, "the Scheme" means the arbitration scheme set out in the Schedule to the ACAS (Flexible Working) Arbitration Scheme (Great Britain) Order 2004"

(iii) Omit subsection (4).

     164S. The following provisions have effect where the Court makes an order under paragraph 144S, 150S or 155S of the Scheme with respect to an award - 

(i) Where the award is varied, the variation has effect as part of the arbitrator's award;

(ii) Where the award is remitted to the arbitrator in whole or in part for reconsideration the arbitrator shall make a fresh award in respect of the matters remitted within three months of the date of the order for remission or such longer or shorter period as the Court may direct.

In subsection (1) for "to the other parties to the arbitral proceedings, or to the tribunal" substitute "to the other party to the arbitral proceedings, or to the arbitrator, or to ACAS".

Service of documents and notices on ACAS or the ACAS Arbitration Section
     169. Any notice or other document required or authorised to be given or served on ACAS or the ACAS Arbitration Section for the purposes of the arbitral proceedings shall be sent by pre-paid post to the address stipulated in the ACAS Guide to the Scheme.

or transmitted by facsimile, addressed to the ACAS Arbitration Section, at the number stipulated in the ACAS Guide to the Scheme,

or by electronic mail, at the address stipulated in the ACAS Guide to the Scheme.

     170. Paragraph 169 does not apply to the service of documents on the ACAS Arbitration Section for the purposes of legal proceedings.

Service of documents or notices on any other person or entity (other than ACAS or the ACAS Arbitration Section)
     171. Any notice or other document required or authorised to be given or served on any person or entity (other than ACAS or the ACAS Arbitration Section) for the purposes of the arbitral proceedings may be served by any effective means.

     172. If such a notice or other document is addressed, pre-paid and delivered by post - 

(i) to the addressee's last known principal residence or, if he or she is or has been carrying on a trade, profession or business, his or her last known principal business address, or

(ii) where the address is a body corporate, to the body's registered or principal office,



it shall be treated as effectively served.

     173. Paragraphs 171 and 172 (above) do not apply to the service of documents for the purposes of legal proceedings, for which provision is made by rules of court.

Powers of court in relation to service of documents: English/Welsh arbitrations
     174EW. Section 77 of the Arbitration Act 1996[26] shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modifications.

(i) In subsection (1) omit "in the manner agreed by the parties, or in accordance with provisions of section 76 having effect in default of agreement,";

(ii) In subsection (2) for "Unless otherwise agreed by the parties, the court" substitute "The High Court or Central London County Court".

(iii) In subsection (3) for "Any party to the arbitration agreement may apply" substitute "ACAS or any party to the Arbitration Agreement may apply".

Reckoning periods of time
     175EW. Sections 78(2), (3), (4) and (5) of the Arbitration Act 1996[27] shall apply to English/Welsh arbitrations conducted in accordance with the Scheme, subject to the following modifications to subsection 2 of that section - 

(i) omit "If or to the extent that there is no such agreement,";

(ii) after "periods of time" insert "provided for in any provision of this Part".

     176S. Except as otherwise specified in the Scheme, periods of time shall in Scottish arbitrations be reckoned in accordance with the following provisions - 

(i) Where the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date.

(ii) Where an act is required to be done a specified number of clear days after a specified date, at least that number of days must intervene between the day on which the act is done and that date.

(iii) Where the period is a period of seven days or less which would include a Saturday, Sunday or public holiday in the place where anything which has to be done within the period falls to be done, that day shall be excluded.

(iv) In relation to Scotland a "public holiday" means a day which under the Banking and Financial Dealings Act 1971[28] is to be a bank holiday in Scotland and in relation to England and Wales or Northern Ireland a "public holiday" means Christmas Day, Good Friday or a day under which the Banking and Financial Dealings Act 1971 is to be a bank holiday in England and Wales or Northern Ireland as the case may be.

[2] 1996 c. 18. Sections 80G and 80H were inserted by section 47 of the Employment Act 2002.back

[3] S.I. 2003/694.back

[4] 1996 c. 23back

[5] 1992 c. 52.back

[6] 1996 c. 18. Section 80F was inserted by section 47 of the Employment Act 2002.back

[7] 1998 c. 42.back

[8] 1996 c. 18. Section 80G and section 80H were inserted by section 47 of the Employment Act 2002 (c. 22).back

[9] 1998 c. 46.back

[10] 1998 c. 38.back

[11] S.I. 2002/3207.back

[12] 1996 c. 17 Section 18 was amended by paragraph 23 of Schedule 7 to the Employment Act 2002.back

[13] 1996 c. 23. Sections 24(1)(a) and (c), (2), (3), (5) and (6) of the Arbitration Act 1996 provide as follows:
" 24.  -(1) A party to arbitral proceedings may (upon notice to the other parties, to the arbitrator concerned and to any other arbitrator) apply to the court to remove an arbitrator on any of the following grounds -

(a) that circumstances exist that give rise to justifiable doubts as to his impartiality;

…

(c) that he is physically or mentally incapable of conducting the proceedings or there are justifiable doubts as to his capacity to do so;

…

(2) If there is an arbitral or other institution or person vested by the parties with power to remove an arbitrator, the court shall not exercise its power of removal unless satisfied that the applicant has first exhausted any available recourse to that institution or person.
(3) The arbitral tribunal may continue the arbitral proceedings and make an award while an application to the court under this section is pending.

…

(5) The arbitrator concerned is entitled to appear and be heard by the court before it makes any order under this section.
(6) The leave of the court is required for any appeal from a decision of the court under this section."back

[14] 1993 c. 38.back

[15] 1996 c. 23. Section 45 of the Arbitration Act 1996 provides as follows:
"45.  -(1) Unless otherwise agreed by the parties, the court may on the application of a party to arbitral proceedings (upon notice to the other parties) determine any question of law arising in the course of the proceedings which the court is satisfied substantially affects the rights of one or more of the parties.
An agreement to dispense with reasons for the tribunal's award shall be considered an agreement to exclude the court's jurisdiction under this section.
(2) An application under this section shall not be considered unless -

(a) it is made with the agreement of all the other parties to the proceedings, or
(b) it is made with the permission of the tribunal and the court is satisfied -

(i) that the determination of the question is likely to produce substantial savings in costs, and
(ii) that the application was made without delay.

[16] S.I. 2002/3207.back

[17] 1996 c. 23. Section 66 of the Arbitration Act 1996 provides as follows:
"66.  -(1) An award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect.
(2) Where leave is so given, judgment may be enforced in terms of the award.
(3) Leave to enforce an award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the tribunal lacked substantive jurisdiction to make the award.
The right to raise such an objection may have been lost (see section 73).
(4) Nothing in this section affects the recognition or enforcement of an award under any other enactment or rule of law, in particular under Part II of the Arbitration Act 1950 (enforcement of awards under Geneva Convention) or the provisions of Part III of this Act relating to the recognition and enforcement of awards under the New York Convention or by an action on the award."back

[18] 1996 c. 23. Section 67 of the Arbitration Act 1996 provides as follows:
"67.  -(1) A party to the arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court -

(a) challenging any award of the arbitral tribunal as to its substantive jurisdiction; or
(b) for an order declaring an award made by the tribunal on the merits to be of no effect, in whole or in part, because the tribunal did not have substantive jurisdiction.

A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3).
(2) The arbitral tribunal may continue the arbitral proceedings and make a further award while an application to the court under this section is pending in relation to an award as to jurisdiction.
(3) On an application under this section challenging an award of the arbitral tribunal as to its substantive jurisdiction, the court may by order - 

(a) confirm the award,
(b) vary the award, or
(c) set aside the award in whole or in part.

(4) The leave of the court is required for any appeal from a decision of the court under this section."back

[19] 1996 c. 23. Section 68 of the Arbitration Act provides as follows:
"68.  -(1) A party to arbitral proceedings may (upon notice to the other parties and to the tribunal) apply to the court challenging an award in the proceedings on the ground of serious irregularity affecting the tribunal, the proceedings or the award.
A party may lose the right to object (see section 73) and the right to apply is subject to the restrictions in section 70(2) and (3).
(2) Serious irregularity means an irregularity of one or more of the following kinds which the court considers has caused or will cause substantial injustice to the applicant - 

(a) failure by the tribunal to comply with section 33 (general duty of tribunal);
(b) the tribunal exceeding its powers (otherwise than by exceeding its substantive jurisdiction: see section 67);
(c) failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties;
(d) failure by the tribunal to deal with all the issues that were put to it;
(e) any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award exceeding its powers;
(f) uncertainty or ambiguity as to the effect of the award;
(g) the award being obtained by fraud or the award or the way in which it was procured being contrary to public policy;
(h) failure to comply with the requirements as to the form of the award; or
(i) any irregularity in the conduct of the proceedings or in the award which is admitted by the tribunal or by any arbitral or other institution or person vested by the parties with powers in relation to the proceedings or the award.

(3) If there is shown to be serious irregularity affecting the tribunal, the proceedings or the award, the court may - 

(a) remit the award to the tribunal, in whole or in part, for reconsideration;
(b) set the award aside in whole or in part; or
(c) declare the award to be of no effect, in whole or in part.

The court shall not exercise its power to set aside or to declare an award to be of no effect, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.
(4) The leave of the court is required for any appeal from a decision of the court under this section."back

[20] 1996 c. 23. Section 69 of the Arbitration Act 1996 provides as follows:
"69.  -(1) Unless otherwise agreed by the parties, a party to arbitral proceedings may (upon notice to the other parties and to the tribunal) appeal to the court on a question of law arising out of an award made in the proceedings.
An agreement to dispense with reasons for the tribunal's award shall be considered an agreement to exclude the court's jurisdiction under this section.
(2) An appeal shall not be brought under this section except - 

(a) with the agreement of all the other parties to the proceedings, or
(b) with the leave of the court.The right to appeal is also subject to the restrictions in section 70(2) and (3).

(3) Leave to appeal shall be given only if the court is satisfied - 

(a) that the determination of the question will substantially affect the rights of one or more of the parties,
(b) that the question is one which the tribunal was asked to determine,
(c) that, on the basis of the findings of fact in the award - 

(i) the decision of the tribunal on the question is obviously wrong, or
(ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt, and

The court shall not exercise it power to set aside an award, in whole or in part, unless it is satisfied that it would be inappropriate to remit the matters in question to the tribunal for reconsideration.
(8) The decision of the court on an appeal under this section shall be treated as a judgment of the court for the purposes of a further appeal.
But no such appeal lies without the leave of the court which shall not be given unless the court considers that the question is one of general importance or is one which for some other special reason should be considered by the Court of Appeal."back

[21] 1996 c. 23. Section 70 of the Arbitration Act 1996 provides as follows - 
"70.  -(1) The following provisions apply to an application or appeal under section 67, 68 or 69.
(2) An application or appeal may not be brought if the applicant or appellant has not first exhausted - 

(a) any available arbitral process of appeal or review, and
(b) any available recourse under section 57 (correction of award or additional award).

(3) Any application or appeal must be brought within 28 days of the date of the award or, if there has been any arbitral process of appeal or review, of the date when the applicant or appellant was notified of the result of that process.
(4) If on an application or appeal it appears to the court that the award - 

(a) does not contain the tribunal's reasons, or
(b) does not set out the tribunal's reasons in sufficient detail to enable the court properly to consider the application or appeal, the court may order the tribunal to state the reasons for its award in sufficient detail for that purpose.

(5) Where the court makes an order under subsection (4), it may make such further order as it thinks fit with respect to any additional costs of the arbitration resulting from its order.
(6) The court may order the applicant or appellant to provide security for the costs of the application or appeal, and may direct that the application or appeal be dismissed if the order is not complied with.
The power to order security for costs shall not be exercised on the ground that the applicant or appellant is -

(a) an individual ordinarily resident outside the United Kingdom, or
(b) a corporation or association incorporated or formed under the law of a country outside the United Kingdom, or whose central management and control is exercised outside the United Kingdom.

(7) The court may order that any money payable under the award shall be brought into court or otherwise secured pending the determination of the application or appeal, and may direct that the application or appeal be dismissed if the order is not complied with.
(8) The court may grant leave to appeal subject to conditions to the same or similar effect as an order under subsection (6) or (7).
This does not affect the general discretion of the court to grant leave subject to conditions."back

[22] 1996 c. 23. Sections 81(1)(c) and 81(2) of the Arbitration Act 1996 provide as follows - 
81.  -(1) Nothing in this Part shall be construed as excluding the operation of any rule of law consistent with the provisions of this Part, in particular, any rule of law as to -
…

(c) the refusal of recognition or enforcement of an arbitral award on grounds of public policy.

(2) Nothing in this Act shall be construed as reviving any jurisdiction of the court to set aside or remit an award on the ground of errors of fact or law on the face of the award."back

[23] 1972 c. 59.back

[24] 1996 c. 23. Section 71 of the Arbitration Act 1996 provides as follows - 
"71.  -(1) The following provisions have effect where the court makes an order under section 67, 68 or 69 with respect to an award.
(2) Where the award is varied, the variation has effect as part of the tribunal's award.
(3) Where the award is remitted to the tribunal, in whole or in part, for reconsideration, the tribunal shall make a fresh award in respect of the matters remitted within three months of the date of the order for remission or such longer or shorter period as the court may direct.
(4) Where the award is set aside or declared to be of no effect, in whole or in part, the court may also order that any provision that an award is a condition precedent to the bringing of legal proceedings in respect of a matter to which the arbitration agreement applies, is of no effect as regards the subject matter of the award or, as the case may be, the relevant part of the award."back

[25] 1996 c. 23. Sections 80(1), (2), (4), (5), (6) and (7) of the Arbitration Act 1996 provide as follows:
"80.  -(1) References in this Part to an application, appeal or other step in relation to legal proceedings being taken "upon notice" to the other parties to the arbitral proceedings, or to the tribunal, are to such notice of the originating process as is required by rules of court and do not impose any separate requirement.
(2) Rules of court shall be made - 

(a) requiring such notice to be given as indicated by any provision of this Part, and
(b) as to the manner, form and content of any such notice.
…

(4) References in this Part to making an application or appeal to the court within a specified period are to the issue within that period of the appropriate originating process in accordance with rules of court.
(5) Where any provision of this Part requires an application or appeal to be made to the court within a specified time, the rules of court relating to the reckoning of periods, the extending or abridging of periods, and the consequences of not taking a step within the period prescribed by the rules, apply in relation to that requirement.
(6) Provision may be made by rules of court amending the provisions of this Part -

(a) with respect to the time within which any application or appeal to the court must be made,
(b) so as to keep any provision made by this Part in relation to arbitral proceedings in step with the corresponding provision of rules of court applying in relation to proceedings in the court, or
(c) so as to keep any provision made by this Part in relation to legal proceedings in step with the corresponding provision of rules of court applying generally in relation to proceedings in the court.

(7) Nothing in this section affects the generality of the power to make rules of court."back

[26] 1996 c. 23. Section 77 of the Arbitration Act 1996 provides as follows:
"77.  -(1) This section applies where service of a document on a person in the manner agreed by the parties, or in accordance with provisions of section 76 having effect in default of agreement, is not reasonably practicable.
(2) Unless otherwise agreed by the parties, the court may make such order as it thinks fit - 

(a) for service in such manner as the court may direct, or
(b) dispensing with service of the document.

(3) Any party to the arbitration agreement may apply for an order, but only after exhausting any available arbitral process for resolving the matter.
(4) The leave of the court is required for any appeal from a decision of the court under this section."back

[27] 1996 c. 23. Sections 78(2), (3), (4) and (5) of the Arbitration Act 1996 provide as follows:
"78.  -(2) If or to the extent there is no such agreement, periods of time shall be reckoned in accordance with the following provisions.
(3) Where the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date.
(4) Where the act is required to be done a specified number of clear days after a specified date, at least that number of days must intervene between the day on which the act is done and that date.
(5) Where the period is a period of seven days or less which would include a Saturday, Sunday or a public holiday in the place where anything which has to be done within the period falls to be done, that day shall be excluded.
In relation to England and Wales or Northern Ireland, a "public holiday" means Christmas Day, Good Friday or a day which under the Banking and Financial Dealings Act 1971 is a bank holiday."back

[28] 1971 c. 80.back

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