Evaluation of Arbitration Review Standards: Full vs. Prima Facie

This essay provides a comprehensive evaluation of two key standards of review in arbitration: full judicial review and prima facie review. It begins by defining arbitration and its role as an alternative dispute resolution method, highlighting its legally binding nature. The essay then explores the core differences between full and prima facie review, focusing on how courts determine the validity of arbitration agreements. It examines relevant case law, particularly the Irish High Court's judgments in cases such as The Lisheen Mine v Mullock and Sons (Shipbrokers) Ltd and P Elliot & Co Ltd v FCC Elliot Construction Ltd, to illustrate the practical application of these standards. The analysis extends to the advantages and disadvantages of each approach, including considerations of efficiency, cost, and the availability of remedies. The essay also considers the implementation of these standards in different jurisdictions, such as Australia and Singapore, and discusses the Arbitration Act 2010 in Ireland. The conclusion synthesizes the key arguments, offering a balanced perspective on the ongoing debate surrounding the most effective approach to judicial review in arbitration proceedings.

Dispute Resolution and Arbitration

Arbitration is defined as a form of alternative dispute resolution (ADR) in which the parties
resolve their dispute without going to the court. In the case of arbitration, the dispute is
decided by one or more parties called the arbitrators who issue an arbitration award that is
legally binding on both side, and they can enforce it in the court. There are two standards
for review of arbitration which include full review and prima facie review. As per these
standards, the court decides whether arbitration is suitable in a particular scenario or not.
Different courts use different standards for determining whether the arbitration is valid in a
particular case or not. Although the provisions of the arbitration act are silent when it
comes to application of standard of judicial review, however, the two standards of review of
arbitration are collected from international case law which includes full judicial review and
prima facie judicial review. The objective of this essay is to evaluate two standards of review
of arbitration which include full review and prima facie review. This report will analyse
advantages and disadvantages of both review standards along with discussing any
alternative, hybrid standards of review which are promoted by commentators or used by
national courts.
The judgement given by the Irish High Court (Cregan J) in the case of The Lisheen Mine v
Mullock and Sons (Shipbrokers) Ltd1 is relevant in this matter. In this case, it was held by the
court at page 43 that the most appropriate approach for a court is to give full judicial
consideration to the issue regarding whether or not the parties have formed an arbitration
agreement or not.2 As per this judgement, the court has emphasised on the importance of
full judicial consideration while determining whether arbitration is valid in a particular case
or not. The full judicial consideration provides that it is up to the discretion of the court
regarding whether or not arbitration is suitable for the parties of the dispute or not. The
court evaluates the facts of the case and decides that the parties should or should not rely
on arbitration in order to resolve their dispute. An opposing view was given by the Irish High
Court (Mac Eochaidh J) in the judgement of P Elliot & Co Ltd v FCC Elliot Construction Ltd3
case. In this case, the court provided at page 21 that the test which was adopted by the
1 [2015] IEHC 5
2 Gary B Born, International Commercial Arbitration Volume I: International Arbitration Agreements (, 2nd edn,
Kluwer Law International 2014).
3 [2012] IEHC 361

British Columbia Court of Appeal in the judgement of Gulf Canada Resources Ltd v Arochen
International Ltd4 case is suitable for standard review of arbitration.5
This test is referred to prima facie review in which it was held that a court should refer a
dispute to arbitration in case two elements are fulfilled. The first element provides that
whether or not it is it is arguable that the subject of the dispute falls within the terms of the
arbitration agreement. The second element provided that whether it is arguable that the
party in the legal proceedings is a party to the arbitration agreement. As per this test, the
court should evaluate both of these elements to justify whether the case should be settled
through arbitration or not.6 Different courts have implemented different approaches when it
comes to implement the two standards for review of arbitration. For example, in the case of
Australia, the judgement given by the Full Court of the Federal Court of Australia guardedly
adopted the ‘prima facie’ approach as the main standard of review for applications which
are made in the court for the stay of court proceeding which are brought in the face of an
arbitration agreement.7 This leading judgement was given in the case of Hancock
Prospecting Pty Ltd v Rinehart.8 This case brings Australian jurisprudence in line with that of
Hong Kong and Singapore. Other of these nations have also implemented the prima facie
approach as the key approach for reviewing the applications which are made to put a stay
on the proceedings of the court in a particular case based on arbitration agreement. In the
case of Singapore, the Singapore Court of Appeal established that the ‘prima facie’ is the key
threshold of review which is used by the court to put a stay on their proceedings in favour of
arbitration. This leading judgement was given in the case of Tomolugen Holdings Ltd and
another v Silica Investors Ltd and other appeals.9
In the case of Ireland, the Arbitration Act 201010 is the key legislation which provides
provisions that govern the operations of arbitrations in the country. Although this act has
successfully consolidated and clarified the law of arbitration which applies throughout the
4 [1992] BCJ 500
5 Barry Mansfield, ‘The Assignment of Arbitration Agreements in Ireland following the Decision in Stewart v
McKenna & Kapada Ltd’ (2015) 2 Irish Bus. L. Rev. 1.
6 S. C. Reichert, ‘Commentary on the (Relatively) New Irish Arbitration Law: The Uncitral Model Law in (Almost)
Pure Form’ (2012) 18 Colum. J. Eur. L. Online Supplement 82.
7 Albert Monichino and Luke Nottage, ‘Australian Country Updata’ (2018) 20 (3) Asian Dispute Review 131, 140.
8 [2017] FCAFC 170
9 [2015] SGCA 57
10 Arbitration Act 2010

court, however, it has not yet achieved the ancillary goal of promoting the country in the
field of international arbitration. The provisions of this act provide that an arbitration
tribunal and a court both have the right to rule on the existence of an arbitration
agreement.11 The standard of review provisions provided that before a court could refer a
matter relating to arbitration, a valid arbitration agreement must exist between the parties
of the dispute. In case the parties did not enter into an arbitration agreement, then the
parties are entitled to resolve their dispute among them by commencing civil proceedings.
The concept of standard of review did not apply when the case is straightforward, and the
application of arbitration is simply based on the terms included in a valid arbitration
agreement exists. The key issue regarding the application of the standard of review exists
when a question arises before the court regarding whether a purported arbitration
agreement exists between the parties should be entertained by the court or whether
arbitration tribunal should be constituted to make that decision. The High Court of Ireland
declined to set out a definitive standard for the review of arbitration in the judgement of
Barnmore Demolition and Civil Engineering Ltd v Alandale Logistics Ltd12 case. The court
provided that both full judicial and prima facie judicial review has failed to determine
whether a valid arbitration agreement exists between parties. However, the court favours
the full judicial review by providing that there appears to be a strong case of arguments
which provides that full judicial review assists in determining whether the case should be
settled through arbitration or litigation. 13
Based on these evaluations, there are various advantages and disadvantages which parties
receive while applying the full judicial review and prima facie judicial review of arbitration.
The key advantage of full judicial review is efficiency of the operations. When the court
applies the full judicial review, it assists in resolving the dispute faster than compared to
prima facie judicial review. The court did not have to apply two steps like prima facie judicial
review which save time. The court is able to immediately come to a conclusion regarding
whether or not a valid arbitration clause exists between parties and whether the dispute of
the parties comes within the scope of arbitration agreement. In the case of prima facie
11 Louise Reilly, ‘Recent Developments in International Arbitration in Ireland and the United Kingdom’ (2016)
33 (5) Journal of International Arbitration 549, 562.
12 [2013] 1 IR 690
13 Michael Kotrly and Barry Mansfield, ‘Recent Developments in International Arbitration in England and
Ireland’ (2018) 35 (4) Journal of International Arbitration 481, 496.

judicial review, the court has to determine whether the arbitration clause is valid or not and
after the judgement, the court is required to get the permission of the arbitration tribunal
which resulted in increasing the time of the dispute.14 Moreover, the same parties face the
risk if one party is not in agreement regarding resolving the dispute through arbitration
method which resulted in increasing the time of resolution of the dispute. Therefore, full
judicial review has an advantage over prima facie judicial review in terms of the time taken
in resolution of the dispute.
Another key advantage of full judicial review is the cost which is incurred by the parties
while resolving their dispute. Generally, the parties did not have to incur substantial cost
when it comes to applying through full judicial review since they only have to pay the court
fees. On the other hand, the parties have to pay the court fees along with the fees of the
arbitrational tribunal. The parties have to pay separate cost of arbitration if the prima facie
judicial review process is adopted by the court since they have to pay in three decision
process. Another key advantage of full judicial review is the ease of availability of remedies
for the parties. The court system is controlled by rules of evidence and law which constrain
the judgement into a wide range of precedent cases and statute laws which makes it easier
for the court to decide the remedies available for the parties of the dispute.15 In the case of
prima facie judicial review, the arbitrator has to decide the case based on the factors of
equity, fairness and natural justice due to which the parties risk the accord the exact remedy
measures than compared to full judicial review.
Similarly, in the case of full judicial review, the parties are allowed to disclose various
documents in the court which help in the determining of their case which is not the case of
prima facie judicial review. The disclosure of documents is limited in the arbitration tribunal
where the parties have to refer to the arbitrator before disclosing any documents.
Furthermore, full judicial review allows parties to rely on measures such as interlocutory,
whereas, it is not the case of full judicial review. In case the parties are not satisfied with the
judgement of the court which is given based on full judicial review, then they are allowed to
make an appeal to higher courts. However, in the case of prima facie judicial review, the
14 Dan Tan and Sharon Lee, ‘Arbitration. Applicable Standard to Determine the Validity of an International
Arbitration Agreement for the Purpose of a Stay’ (2014) 11 (44) Revista Brasileira de Arbitragem 125, 143.
15 Stewart Shackleton, ‘Annual Review of English Judicial Decisions on Arbitration 2011’ (2011) Arbitration law
reports and review.

court is only required to make a decision regarding whether or not an arbitration agreement
exists between parties or not.16 The parties of a full judicial review process are able to
recover their legal costs which are incurred in the proceedings of the court; however, it is
not the case in prima facie judicial review where the judge asks a party to cater to the cost
of the suit.
Along with various advantages, there are a number of disadvantages of application of full
judicial review as well which creates challenges for the parties. One of the key issues is the
cost of an attorney which each party has to pay in order to represent their case in the court.
In the case of prima facie judicial review, parties are able to represent themselves in front of
an arbitrator which saves their costs of paying an attorney. In the case of full judicial review,
the case of parties might be handled by different judges that lead to increasing the time of
settlement. It slows the process of the trial and many times the parties are not able to afford
the remedy required to the parties.17 This is not the case of prima facie judicial review since
the arbitrator did not change during the arbitration process. It is also argued that the full
judicial review process relies on highly characterised statutory and procedural rules which
require the parties to prepare and submit a large number of documents. It resulted in
slowing down the process and increasing challenges for the parties.
On the other hand, the adaption of prima facie judicial review provides various advantages
to parties. One of the key advantages of prima facie judicial review is that if the parties have
not formed an arbitration agreement, then they can decide to settle their dispute through
other review processes which are not the case in full judicial review where parties did not
have an option other than settling their dispute through the court. It resulted in increasing
the costs which is incurred while settling a dispute between parties. The prima facie judicial
process protects the parties from undergoing into an arbitration trial just to find out that
their dispute cannot be settled through arbitration. The parties also have the option to
select arbitration in the prima facie judicial review that has expertise in the disputed area.
However, this is not the case with full judicial review in which the parties are not authorised
to select the judge who entertains their case. Selection of an arbitrator or a team of
16 Giacomo Marchisio, ‘Jurisdictional Matters in International Arbitration: Why Arbitrators Stand on an Equal
Footing with State Courts’ (2014) 31 (4) Journal of International Arbitration 455, 474.
17 Matthew Cobb, ‘Domestic Courts’ Obligation to Refer Parties to Arbitration’ (2014) 17 (3) Arbitration
International 313, 326.

arbitrators who have the knowledge of the particular field of dispute resulted in reducing
the time incurred in the whole process, and it saves the cost of the parties as well.
Additionally, the 1958 New York Convention has made it easier for parties to enforce the
arbitration award in other states which assist parties in receiving justice through
arbitration.18 Therefore, many countries such as Australia, Hong Kong, and Singapore have
selected the ‘prima facie’ judicial review as the main standard for review of arbitration in
their country. It assists in double checking of evidence and reduces the burden from the
courts since it allows the parties to rely on arbitration to settle their dispute even if they
have not formed an arbitration agreement.
However, there are many negative aspects of prima facie judicial review standard as well
which creates challenges for the parties. High cost is a major challenge relating to prima
facie judicial review which makes it difficult to set it as the standard for many others nations
because parties avoid paying substantial costs in the court as well as to the arbitrator.
Generally, it takes more time to settle dispute between parties through this method which
makes it challenging to achieve justice through this process.19 Many parties unfairly took
advantage of this aspect of prima facie judicial review in order to pressure minorities to
make an agreement with them to avoid legal consequences. Furthermore, the parties are
unable to make an appeal against the award given by the arbitrator which is binding on the
parties. It creates challenges for parties, and they prefer to select full judicial review
standard to ensure that they are able to make an appeal against the order if they are not
satisfied with the same.
Along with full judicial review and prima facie judicial review, there are many other
alternative judicial review procedures which are used by national courts and promoted by
commentators. A good example is the judgement of Dell Computers Corp. v Union des
consommateurs20 case. In this case, the court provided the provision of neutrality of
arbitration which is considered as one of the key characteristics of this alternative dispute
resolution mechanism. As per this characteristic, the arbitration which is formed between
the parties is without a forum and without a geographic basis. Based on this statement, the
18 Sandeep Gopalan and Ruth Fagan, ‘Interpretation and Application of the New York Convention in Ireland’
(2017) Recognition and Enforcement of Foregin Arbitral Award 503, 522.
19 Hannes Lenk, ‘Investment arbitration under EU investment agreements: is there a role for an autonomous
EU legal order?’ (2017) 28 (2) European Business Law Review 135, 162.
20 [2007] 2 SCR 801

court established a standard of judicial review which is considered as a “hybrid model” of
judicial review which provided that the court remains involved in the class action-related
aspect of the arbitration in order to ensure due process protection of absent class members
is provided.21 As per this hybrid model, the arbitration case is not completely handled
through full judicial review neither it is entertained through prima facie judicial review. This
process assists in ensuring that protection is available for parties of arbitration without a
geographic basis to protect their right. The advantage of this model is that it provides the
benefit of both full and prima facie judicial review standards to ensure that arbitration is
managed through supervision of the court. However, its disadvantages are interference by
the court in the process and lack of application in many countries.
Another standard which is considered as a hybrid review is reasonableness review which is
applied by the parties in case when there is any agency action which raised a legal or not a
factual issue which is necessary to be evaluated by the parties through a reasonable
standard. In this standard, the court implements an objective approach to consider whether
the decision made by the agency is within the sound exercise of the agency’s power. In this
process, the parties have to find factors and inquire in the approach in order to come up
with impartial findings of disputed facts by involving a third party.22 Although this process
provides the benefit of thorough analysis in the dispute based on fact-checking, however, its
disadvantage is that some question arises regarding the authenticity of the experts who
comprise a panel that conducts the investigation. Another approach is the early neutral
evaluation approach in which one or both parties seek advice from an experienced person
such as a lawyer in order to inquire regarding whether or not they have a strong case or not.
After this process, the parties decide whether they wanted to rely on options such as
mediation and binding adjudication or any other form of dispute resolution. These are
considered as hybrid review standards which are used by courts based on the facts of the
case. Each of these standards provides different advantages and disadvantages to parties
based on which the court applies them to different scenarios.
21 S.I. Strong, ‘Resolving Mass Legal Disputes through Class Arbitration: The United States and Canada
Compared’ (2012) 37 (4) North Carolina Journal of International Law and Commercial Regulation 960.
22 Caroline Henckels, ‘Indirect expropriation and the right to regulate: revisiting proportionality analysis and the
standard of review in investor-state arbitration’ (2012) 15 (1) Journal of International Economic Law 223, 255.

In conclusion, the High Court provided in the judgement of The Lisheen Mine v Mullock and
Sons (Shipbrokers) Ltd case that full judicial review is a more appropriate approach to
determine a standard of review for arbitration agreement. However, a separate view was
given by the High Court in the case of P Elliot & Co Ltd v FCC Elliot Construction Ltd in which
the court upheld the test given in Gulf Canada Resources Ltd v Arochen International Ltd
case by providing that prima facie judicial review is a more effective approach for the
standard review of arbitration. Many counties such as Australia, Singapore, and Hong Kong
have selected prima facie as the main standard for review of arbitration agreement,
however, it is not the case in Ireland. It is recommended that the government of Ireland
should also implement prima facie judicial review as the main standard for reviewing
arbitration agreement based on its advantages. Although the full judicial review is a cheaper
and efficient option for parties, however, the prima facie judicial review assist in ensuring
that a thorough analysis is conducted by the court and arbitration tribunal which leads to a
correct judgement.

Bibliography
Articles/Books/Reports
Born GB, International Commercial Arbitration Volume I: International Arbitration
Agreements (2nd edn, Kluwer Law International 2014)
Cobb M, ‘Domestic Courts’ Obligation to Refer Parties to Arbitration’ (2014) 17 (3) AI 313,
326
Gopalan S and Fagan R, ‘Interpretation and Application of the New York Convention in
Ireland’ (2017) REFAA 503, 522
Henckels C, ‘Indirect expropriation and the right to regulate: revisiting proportionality
analysis and the standard of review in investor-state arbitration’ (2012) 15 (1) JIEL 223, 255
Kotrly M and Mansfield B, ‘Recent Developments in International Arbitration in England and
Ireland’ (2018) 35 (4) JIA 481, 496
Lenk H, ‘Investment arbitration under EU investment agreements: is there a role for an
autonomous EU legal order?’ (2017) 28 (2) EBLR 135, 162
Mansfield B, ‘The Assignment of Arbitration Agreements in Ireland following the Decision in
Stewart v McKenna & Kapada Ltd’ (2015) 2 IBLR 1
Marchisio G, ‘Jurisdictional Matters in International Arbitration: Why Arbitrators Stand on an
Equal Footing with State Courts’ (2014) 31 (4) JIA 455, 474
Monichino A and Nottage L, ‘Australian Country Updata’ (2018) 20 (3) ADR 131, 140
Reichert SC, ‘Commentary on the (Relatively) New Irish Arbitration Law: The Uncitral Model
Law in (Almost) Pure Form’ (2012) 18 CJELOS 82
Reilly L, ‘Recent Developments in International Arbitration in Ireland and the United
Kingdom’ (2016) 33 (5) JIA 549, 562
Shackleton S, ‘Annual Review of English Judicial Decisions on Arbitration 2011’ (2011) ALRR

Strong SI, ‘Resolving Mass Legal Disputes through Class Arbitration: The United States and
Canada Compared’ (2012) 37 (4) NCJILCR 960
Tan D and Lee S, ‘Arbitration. Applicable Standard to Determine the Validity of an
International Arbitration Agreement for the Purpose of a Stay’ (2014) 11 (44) RBDA 125, 143
Cases
Barnmore Demolition and Civil Engineering Ltd v Alandale Logistics Ltd [2013] 1 IR 690
Dell Computers Corp. v Union des consommateurs [2007] 2 SCR 801
Gulf Canada Resources Ltd v Arochen International Ltd [1992] BCJ 500
Hancock Prospecting Pty Ltd v Rinehart [2017] FCAFC 170
P Elliot & Co Ltd v FCC Elliot Construction Ltd [2012] IEHC 361
The Lisheen Mine v Mullock and Sons (Shipbrokers) Ltd [2015] IEHC 5
Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals [2015] SGCA 57
Legislation
Arbitration Act 2010