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9967 Dispute Resolution > 01 Intro to Dispute Resolution > Flashcards

01 Intro to Dispute Resolution Flashcards

1
Q

What is the Latham Report?

A

1994 report on issues in the UK construction industry
(Sir Michael Latham)

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2
Q

What is ADR?

A

(Alternative Dispute Resolution) - all non-court dispute resolution solutions.

Traditional Dispute Resolution is essentially litigation = court

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3
Q

Consensual vs Adjudicative Dispute Resolution

A

Adjudicative: A decision is imposed on the parties in dispute

Consensual: The parties resolve the dispute by agreement

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4
Q

How many of the seven forms of Adjudicative Dispute Resolution can you name?

A

Litigation
Arbitration
Statutory Adjudication
Contractual Adjudication
Expert Determination
Binding Reference
Dispute Resolution Boards

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5
Q

Forms of Consensual Dispute Resolution

A

Negotiation
Mediation
Conciliation
On-site Neutral
Mini-trial

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6
Q

Typical objectives when a dispute arises

A

A fast resolution?
Maintaining relationships?
Setting a precedent (or not)?
Revenge?
Extract maximum payment?
Avoiding Pyrrhic victories?
Legalistic vs commercial approach

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7
Q

Eight factors in selecting a dispute resolution method

A

= Speed
= Cost (inc recovery of expense)
= Decision - quality, finality and privacy
= Practical expertise of the decision maker
= Preserving relationships
= Finding creative solutions
= right to appeal
= Points of law

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8
Q

Indicative speed of dispute resolution options

A

Sheriff court (Scotland) - 2 years?
Commercial court (England and Wales) - 9 months?
Arbitration - 6 months?
Adjudication - 28 days?
Expert decision - 1 week?
Mediation - 2 days?

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9
Q

What factors influence the importance of ‘Quality of decision’ in choosing a DR route?

A

Is legal correctness a priority?

Who will be the decision maker?

Speed vs understanding (speed of the process vs time needed to understand and consider the issues)

Is ‘rough justice’ sufficient?

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10
Q

Expertise of the decision maker in choosing a DR route

A

Legal knowledge vs practical experience

A JUDGE knows the law but probably no practical experience of the subject area. Will default to black and white of the law.

For a commercial person, commercial/common sense may prevail.

ARBITRATORS, ADJUDICATORS and EXPERT DETERMINERS will have subject matter knowledge but usually no legal training.

Arbitration is ‘going to a business person for a business decision’

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11
Q

Cost considerations in choosing a DR route

A

Cost of legal representation - is it compulsory?

Fees to the decision maker? i.e. Arbiter, clerk etc.

Cost of any claims consultants or expert witnesses.

Venue costs?

Recoverability of legal expenses?

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12
Q

‘Finality of decision’ considerations in choosing a DR route

A
  • Is the decision final and binding?
  • Is there a right of appeal? If so To whom? Sheriff? Inner house? Supreme court?
  • Range of circumstances in which the decision can be challenged?
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13
Q

Privacy considerations in choosing a DR route

A

confidentiality vs maximum exposure/publicity?
Using publicity (or threat of) as a dispute resolution tool?

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14
Q

In what circumstances might it be prudent to preserve commercial relationships, influencing a DR route?

A
  1. Commercial relationship ongoing
  2. Ongoing contract
  3. Potential for future contracts

People really don’t like being sued or dragged to court. It is antagonistic.

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15
Q

Creative outcomes in choosing a DR route

A

Win/lose = winner takes all, determines right and wrong

lose/lose = neither side is happy

Win/win = looking beyond the sum in dispute

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16
Q

Enforceability considerations in choosing a DR route

A

Automatic?

Enforcement by the courts?

International enforceability?

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17
Q

Litigation - benefits

A

= Adjudicative
= Long established (one of the longest)
= Decision is imposed strictly under the law
= Decision can be appealed

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18
Q

Litigation - negatives

A
  1. Slow (though depends on which court used)
  2. costly (legal and court fees). 40 - 70% of costs recoverable
  3. no creative solutions, decision under the law
  4. unlikely to preserve relationships
  5. Public decision
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19
Q

Why use consensual dispute resolution?

A
  • Preferences/psychology
  • Parties retain CONTROL (most court cases settle, rather than being determined)
  • CERTAINTY Parties get a certain outcome
20
Q

Speed of Scottish Sheriff Court?

21
Q

Lead time for trial in Commercial Court (England and Wales)

A

Depends on length of trial

> > 9 months (for trials <1 week)
18 months (for trials >1 week)

https://www.gov.uk/guidance/commercial-court-hearing-and-trial-dates

22
Q

Indicative duration of Arbitration

A

~Six months

23
Q

Indicative duration of Adjudication

24
Q

Indicative duration of Expert Decision

25
Q

Indicative duration of commercial mediation

A

~2 days (plus prep)

26
Q

What were the key recommendations of the Latham Report of 1994?

A
  1. Prescribing to ‘cut out the adversarial culture in construction and learn to collaborate - client, contractor, subcontractor, consultant - for the common good of the project.’
  2. Resulted in introduction of adjudication.
  3. Recommended use of NEC form of contract, designed to stop claims arising.

https://www.building.co.uk/focus/lathams-report-did-it-change-us/5069333.article

27
Q

For what forms of dispute resolution is legal representation compulsory?

A

None!

Litigation - No, but advisable. A limited company is NOT entitled to self represent.

Arbitration - No, but advisable

Adjudication was designed so that you don’t need lawyers.

28
Q

What is the meaning of ‘unjust enrichment’?

A
  1. When one person benefits financially at the expense of another in very particular circumstances.
  2. Part of English law (of obligations)
29
Q

When might an unjust enrichment claim arise?

A
  1. If the contract is clear, the parties will be bound by it.
  2. If there is room in an agreement for an alternative interpretation of the arrangement between the parties, then there might be room for an unjust enrichment claim.
30
Q

What is the sheriff court in Scotland?

A

The principal local civil and criminal court in Scotland.

31
Q

Over what cases does the sheriff court have jurisdiction?

A

Exclusive jurisdiction over all civil cases with a monetary value up to £100,000.

Jurisdiction to hear any criminal case except treason, murder, and rape which go to the High Court.

Concurrent jurisdiction with the High Court over armed robbery, drug trafficking, and sexual offences involving children, BUT the vast majority of these cases are heard by the High Court.

32
Q

What is the Scottish Court of Session?

A

The Court of Session is the supreme civil court of Scotland.

33
Q

Over what cases does the Court of Session have jurisdiction?

A

Concurrent jurisdiction with local sheriff courts for all cases with a monetary value in excess of £100,000.
(The plaintiff is given first choice of court.)

Majority of complex, important, or high value cases are brought in the Court of Session.

34
Q

What is the law of torts?

A
  1. legal framework that governs civil wrongs
  2. Deals with compensation for harm/damage to people’s rights to health and safety, a clean environment, property, their economic interests, or their reputation

(also known as the law of delict)

35
Q

What is contract law?

A

A body of law that
governs, enforces and interprets
agreements related to
exchange of
goods, services, property or money.

36
Q

What is a contract?

A

A legally binding promise (written or oral) by one party to

fulfil an obligation to another party

in return for consideration

37
Q

What is the law of obligations?

A

Refers to a person’s legal duty to do something

38
Q

What are the four elements of a basic binding contract?

A
  1. Offer
  2. Acceptance
  3. Consideration
  4. Intent to create legal relations
39
Q

What are the UK’s legal jurisdictions?

A
  1. England & Wales
  2. Scotland
  3. Northern Ireland
40
Q

In what areas is Scots Law most aligned with the law of England and Wales?

A

Commercial law
Consumer rights
Taxation
H&S regulations
Employment law

Generally, areas of UK-wide interest.

41
Q

In what areas are there important differences between Scots Law and the law of England and Wales?

[baked in a law-ful pie]

A

PI-FECT or

Don’t Trust a Criminal Family with Evidence of Property Inheiritance

Property
Inheritance
Family
Evidence
Criminal
Trust

42
Q

What is the remit of the English Commercial Court?

A

Specialises in commercial disputes.

75% of the work is international (having at least one overseas party)

25% of claims are arbitrations.

43
Q

What is the English Commercial Court?

A

An international centre for commercial litigation.

Supervisory court for arbitrations based in England and Wales

44
Q

What does ‘sist’ mean in relation to Scots Law

A

‘Sist’ is equivalent to an English ‘stay’, meaning a pause or suspension of proceedings.

Normally a motion to sist must specify the length of time sought.

Think DE-SIST

45
Q

Does Scots criminal law or English criminal law have the higher require for evidence?

A

Scots.

English law permits conviction from a single source of evidence.

Scots law requires corroboration from at least two different and independent evidence sources, even if there is a confession.

46
Q

Outline of legal advice note

A

Clear and concise!

Mark as ‘PRIVILEGED AND CONFIDENTIAL’

  1. Introduction
  2. Summary of client’s situation
  3. Advice with clear recommendations

9967 Dispute Resolution (9 decks)

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