06 - Arbitration Flashcards
Arbitration
WHAT and HOW
Adjudicative Process
Contract Clause
Arbitration
General Principals
Objective
Parties Free Agreement Resolve
Court NOT Intervene
General Principals
Objective
Fair AND Impartial
Unnecessary Delay OR Expense
General Principals
Parties Free Agreement Resolve
Contractual Right
Free = MUST Consent
General Principals
Court NOT Intervene
Unless = Uphold Contract; Correct Injustice
Arbitration
Requirements
Dispute OR Difference Dispute MUST Arbitrable Agreement to Arbitrate Dispute in Agreement Capacity Pre-conditions
Requirements
Dispute WHAT
Legal Cause of Action
Dispute Liability
Requirements
Difference WHAT
NO Cause of Action
AND = Disagree or Failure to Agree
Requirements
Dispute Arbitrable NOT
NOT Legal Status = Marriage
NOT Public Law = Bankruptcy; Crime; Patent
Requirements
Agreement to Arbitrate
Requirements
Writing
Consent
Rules = Statute; Institution
Agreement to Arbitrate
Repudiation WHEN
Breach Contract
Litigation Stayed
Result = MAY Damages
Agreement to Arbitrate
Third Parties Enforcement
Right to Enforce
Express Term
Confers = Benefit AND Intention (to Enforce)
Requirements
Dispute in Agreement WHEN
General Clause
Jurisdiction
Dispute in Agreement
General Clause
Dispute ARISE from Contract
Construction Contract = Intention; Commercial Effect
Dispute in Agreement
Jurisdiction
Disputed Matter IS Contract Clause
Fili Shipping v Premium Nafta
Rescind Contract for Bribery
Arbitration Clause ‘Any Dispute’
MUST Arbitrate
Requirements
Capacity
Children < 18 years
Mental Capacity
Requirements
Pre-conditions
MUST Comply
Reason = Protect Right to Arbitrate
Pre-conditions
Scott v Avery Clause
NO Court Proceedings
Unless Arbitration Award
Arbitration Procedure
STEPS
Agreement Dispute Notice of Arbitration Tribunal Appointment Preliminary Hearing Statement of Case Exchange Terms of Reference Hearing Decision Award Enforcement
Notice of Arbitration
WHAT
Written Background Issues Remedies Reasons Tribunal Appointment
Tribunal Appointment
People
Number Panel
Chairman
Umpire
Tribunal Appointment
Chairman WHY
Prevent Deadlock
Split Decision = Chair
Tribunal Appointment
Umpire WHEN
Tribunal Disagrees
Power = Decision; Award
Tribunal Appointment
Umpire Method
Notice ALL Parties
Preliminary Hearing
Contents
Details = Timetable; Venue
Issues = Summary; Jurisdiction
Disclosure = SoC; Exchange
Basis of Decision = Substantive Law; Arbitrator SKE
Timetable
Contents
Disclosure = SoC; Exchange
Date of Hearing
Statement of Case
Claimant
WHAT = Points of Claim Background Issues Remedies Reasons
Statement of Case
Defendant
WHAT = Points of Defence
Defence
Counterclaim
Exchange
WHAT
Information
Evidence
Witness Statements
Expert Reports
Terms of Reference
WHAT
Summary = Claim; Defence
Jurisdiction = Matters
Basis of Decision
Decision
Basis WHAT
Substantive Law
Arbitrator SKE = IF Parties Reasonably Expect
Time Limit
Application WHERE
Agreement
Institutional Rule
Limitation Act 1980
Limitation Act 1980
WHAT
Period = 6 years
Start Date = Cause of Action
Arbitration
Contract TYPES
Substantive
Arbitration
Institution
Arbitrators
Arbitration Contract
Terms
Agreement Confidentiality Rules = Statute; Institution Tribunal = Number; Institution Powers Jurisdiction = Referred Matters Procedure Decision = Basis Award
Arbitration Contract
Confidential
Obligation NOT Disclose
Arbitration Contract
Privacy WHAT
NO Public Access
Impartial WHAT
Neutral
NO Conflict of Interest
Bias TEST = Informed Observer Would Conclude Real Possibility
Arbitrators
Contract Contents
Terms Powers Jurisdiction = Referred Matters Procedure Decision Award
Arbitrators
Contract Terms
Timetable Confidential Resignation Removal Fees
Arbitration Awards
TYPES
Main Awards
Interim Awards
Arbitration Awards
Main Awards WHAT
Final Decision = Whole Dispute
Arbitration Awards
Interim Awards WHAT
Final Decision = ANY Issue; Part Dispute
Arbitration Awards
Interim Awards WHY
MAY Settle Whole Dispute
Cost Savings
Judicial Review
TYPES
Determine Point of Law
Challenge = Award Jurisdiction; Serious Irregularity
Appeal = Point of Law
International Arbitration
Convention
New York Convention 1958
International Arbitration
Application TYPES
‘Enforce’ Award (as High Court Judgement)
‘Enter’ Award (as High Court Judgement)
‘Enter’ Award
WHAT
Judgement Order
Interest 8%
International Arbitration
Application Requirements
Arbitration Agreement
Award (OR Copy)
Translation IF Foreign
International Arbitration
Defence
NO Capacity NO Agreement Agreement Void Arbitration < > Agreement = NO Jurisdiction Arbitration Unfair = NO Notice; Case NOT Presented Tribunal = Wrong Number; Impartial Award = NON Binding; Set Aside Contrary to Public Policy
International Arbitration
Laws
Substantive Contract
Arbitration Contract
Arbitration Procedure
Enforcement
Substantive Contract
Authority
Contract = Express; Implied Tribunal = Equity Clause (Just OR Good Faith)
Arbitration Procedure
WHAT
Law Govern Arbitration = The ‘Seat’
Arbitration Procedure
Authority to Determine
Contract = Express; Implied
Tribunal IF Authorised
Court Construction
Arbitration Procedure
Court Construction
Parties Intention
Regard ALL Circumstances
Place of Contract
Arbitration Procedure
England AND Wales
Arbitration Act 1996
Arbitration Claims Procedure
Forms
Challenge OR Appeal N8 Form (Arbitration Claim) Stay Proceedings Form N9 = Acknowledge Proceedings Form N244 = Application to Stay; Witness Statement
Arbitration Claims Procedure
CPR Procedure
CPR Part 62 Procedure = Part 8 Claim Form = N8 Form (Arbitration Claim) Track = Multi-track File Claim = Court Service = 1 month of Issue Acknowledge = 14 days of Service
