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ADR > 06 - Arbitration > Flashcards

06 - Arbitration Flashcards

1
Q

Arbitration

WHAT and HOW

A

Adjudicative Process

Contract Clause

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2
Q

Arbitration

General Principals

A

Objective
Parties Free Agreement Resolve
Court NOT Intervene

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3
Q

General Principals

Objective

A

Fair AND Impartial

Unnecessary Delay OR Expense

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4
Q

General Principals

Parties Free Agreement Resolve

A

Contractual Right

Free = MUST Consent

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5
Q

General Principals

Court NOT Intervene

A

Unless = Uphold Contract; Correct Injustice

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6
Q

Arbitration

Requirements

A 
Dispute OR Difference
Dispute MUST Arbitrable
Agreement to Arbitrate
Dispute in Agreement
Capacity
Pre-conditions
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7
Q

Requirements

Dispute WHAT

A

Legal Cause of Action

Dispute Liability

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8
Q

Requirements

Difference WHAT

A

NO Cause of Action

AND = Disagree or Failure to Agree

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9
Q

Requirements

Dispute Arbitrable NOT

A

NOT Legal Status = Marriage

NOT Public Law = Bankruptcy; Crime; Patent

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10
Q

Requirements
Agreement to Arbitrate
Requirements

A

Writing
Consent
Rules = Statute; Institution

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11
Q

Agreement to Arbitrate

Repudiation WHEN

A

Breach Contract
Litigation Stayed
Result = MAY Damages

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12
Q

Agreement to Arbitrate

Third Parties Enforcement

A

Right to Enforce
Express Term
Confers = Benefit AND Intention (to Enforce)

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13
Q

Requirements

Dispute in Agreement WHEN

A

General Clause

Jurisdiction

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14
Q

Dispute in Agreement

General Clause

A

Dispute ARISE from Contract

Construction Contract = Intention; Commercial Effect

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15
Q

Dispute in Agreement

Jurisdiction

A

Disputed Matter IS Contract Clause

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16
Q

Fili Shipping v Premium Nafta

A

Rescind Contract for Bribery
Arbitration Clause ‘Any Dispute’
MUST Arbitrate

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17
Q

Requirements

Capacity

A

Children < 18 years

Mental Capacity

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18
Q

Requirements

Pre-conditions

A

MUST Comply

Reason = Protect Right to Arbitrate

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19
Q

Pre-conditions

Scott v Avery Clause

A

NO Court Proceedings

Unless Arbitration Award

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20
Q

Arbitration Procedure

STEPS

A 
Agreement
Dispute
Notice of Arbitration
Tribunal Appointment
Preliminary Hearing
Statement of Case
Exchange
Terms of Reference
Hearing
Decision
Award
Enforcement
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21
Q

Notice of Arbitration

WHAT

A 
Written
Background
Issues
Remedies
Reasons
Tribunal Appointment
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22
Q

Tribunal Appointment

People

A

Number Panel
Chairman
Umpire

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23
Q

Tribunal Appointment

Chairman WHY

A

Prevent Deadlock

Split Decision = Chair

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24
Q

Tribunal Appointment

Umpire WHEN

A

Tribunal Disagrees

Power = Decision; Award

25
Q

Tribunal Appointment

Umpire Method

A

Notice ALL Parties

26
Q

Preliminary Hearing

Contents

A

Details = Timetable; Venue
Issues = Summary; Jurisdiction
Disclosure = SoC; Exchange
Basis of Decision = Substantive Law; Arbitrator SKE

27
Q

Timetable

Contents

A

Disclosure = SoC; Exchange

Date of Hearing

28
Q

Statement of Case

Claimant

A 
WHAT = Points of Claim
Background
Issues
Remedies
Reasons
29
Q

Statement of Case

Defendant

A

WHAT = Points of Defence
Defence
Counterclaim

30
Q

Exchange

WHAT

A

Information
Evidence
Witness Statements
Expert Reports

31
Q

Terms of Reference

WHAT

A

Summary = Claim; Defence
Jurisdiction = Matters
Basis of Decision

32
Q

Decision

Basis WHAT

A

Substantive Law

Arbitrator SKE = IF Parties Reasonably Expect

33
Q

Time Limit

Application WHERE

A

Agreement
Institutional Rule
Limitation Act 1980

34
Q

Limitation Act 1980

WHAT

A

Period = 6 years

Start Date = Cause of Action

35
Q

Arbitration

Contract TYPES

A

Substantive
Arbitration
Institution
Arbitrators

36
Q

Arbitration Contract

Terms

A 
Agreement
Confidentiality
Rules = Statute; Institution
Tribunal = Number; Institution
Powers
Jurisdiction = Referred Matters
Procedure
Decision = Basis
Award
37
Q

Arbitration Contract

Confidential

A

Obligation NOT Disclose

38
Q

Arbitration Contract

Privacy WHAT

A

NO Public Access

39
Q

Impartial WHAT

A

Neutral
NO Conflict of Interest
Bias TEST = Informed Observer Would Conclude Real Possibility

40
Q

Arbitrators

Contract Contents

A 
Terms
Powers
Jurisdiction = Referred Matters
Procedure
Decision
Award
41
Q

Arbitrators

Contract Terms

A 
Timetable
Confidential
Resignation
Removal
Fees
42
Q

Arbitration Awards

TYPES

A

Main Awards

Interim Awards

43
Q

Arbitration Awards

Main Awards WHAT

A

Final Decision = Whole Dispute

44
Q

Arbitration Awards

Interim Awards WHAT

A

Final Decision = ANY Issue; Part Dispute

45
Q

Arbitration Awards

Interim Awards WHY

A

MAY Settle Whole Dispute

Cost Savings

46
Q

Judicial Review

TYPES

A

Determine Point of Law
Challenge = Award Jurisdiction; Serious Irregularity
Appeal = Point of Law

47
Q

International Arbitration

Convention

A

New York Convention 1958

48
Q

International Arbitration

Application TYPES

A

‘Enforce’ Award (as High Court Judgement)

‘Enter’ Award (as High Court Judgement)

49
Q

‘Enter’ Award

WHAT

A

Judgement Order

Interest 8%

50
Q

International Arbitration

Application Requirements

A

Arbitration Agreement
Award (OR Copy)
Translation IF Foreign

51
Q

International Arbitration

Defence

A 
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
52
Q

International Arbitration

Laws

A

Substantive Contract
Arbitration Contract
Arbitration Procedure
Enforcement

53
Q

Substantive Contract

Authority

A 
Contract = Express; Implied
Tribunal = Equity Clause (Just OR Good Faith)
54
Q

Arbitration Procedure

WHAT

A

Law Govern Arbitration = The ‘Seat’

55
Q

Arbitration Procedure

Authority to Determine

A

Contract = Express; Implied
Tribunal IF Authorised
Court Construction

56
Q

Arbitration Procedure

Court Construction

A

Parties Intention
Regard ALL Circumstances
Place of Contract

57
Q

Arbitration Procedure

England AND Wales

A

Arbitration Act 1996

58
Q

Arbitration Claims Procedure

Forms

A 
Challenge OR Appeal
N8 Form (Arbitration Claim)
Stay Proceedings
Form N9 = Acknowledge Proceedings
Form N244 = Application to Stay; Witness Statement
59
Q

Arbitration Claims Procedure

CPR Procedure

A 
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

ADR (7 decks)

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