4. Alternative Dispute Resolution: Adjudicative Options

Question 1

What is expert determination?

Answer 1

a process in which an expert is appointed to make a determination on the issues referred to him or her by the determinative process.

Question 2

When is expert determination usually used?

Answer 2

in a case that has a technical aspect where the parties will benefit from the determination of an appropriate expert.

Question 3

When can the parties decide to use expert determination?

Answer 3

the parties can contractually bind themselves ahead of a dispute arising or they may select this as the most appropriate form of ADR after a dispute has arisen

Question 4

How will the determination be governed?

Answer 4

through the terms of the contract by which the expert is appointed

Question 5

Is the determination final and binding?

Answer 5

Yes, this is normally stipulated in the contract.

Question 6

What does it mean that the determination is final?

Answer 6

it cannot be reviewed or appealed

Question 7

Can the parties agree that the determination is only temporarily binding?

Answer 7

Yes.

Question 8

Is expert determination subject to the supervision of the court?

Answer 8

No. But the court can become involved if a dispute arises as to the jurisdiction of the expert or if either of the parties wishes to challenge the determination.

Question 9

Can a court order be made to enforce compliance with the determination?

Answer 9

Yes.

Question 10

What is the role of the expert in expert determination?

Answer 10

they are the decision-maker not a witness.

Question 11

What cases are suitable for expert determination?

Answer 11

expert determination is a useful and cost-effective way of determining disputes of a highly technical nature.

Question 12

What is the contractual nature of expert determination?

Answer 12

expert determination is usually used where the parties have agreed in advance to use it to resolve a dispute arising out of a contract. A separate contract comes into existence between the parties and expert when the matter is referred to the appointed expert for determination.

Question 13

What is the usual procedure for expert determination?

Answer 13

the parties usually provide the expert with:

(1) written submissions setting out their case on each issue
(2) copies of all relevant documents
(3) the parties may agree for the parties to make submissions at a meeting.

Question 14

What is the nature of a decision in expert determination?

Answer 14

a decision is usually binding on all parties, so the court will usually uphold the decision unless there are grounds for setting it aside.

Question 15

What is the effect of a party refusing to uphold an expert determination?

Answer 15

this will be deemed to be a breach of contract, so the other party may be entitled to damages for this breach

Question 16

What is the court’s discretion when a party fails to use the contractually agreed method to resolve a dispute?

Answer 16

the court has a discretion to stay the court proceedings issued and determine the dispute.

Question 17

What will the court consider when exercising its discretion to enforce clauses by staying proceedings?

Answer 17

(1) whether the agreement creates an enforceable obligation
(2) the extent to which the parties have complied with the requirements in a pre-action protocol
(3) whether the dispute is suitable for determination
(4) whether the dispute could be resolved more quickly by court proceedings than by requiring parties to use the contractually agreed ADR method.
(5) whether a stay would comply with the overriding objective

Question 18

Who bears the burden to show that the proceedings should not be stayed so a party can invoke a contractually agreed method of ADR?

Answer 18

on the party seeking to litigate (this is from Jackson’s so the info is limited, but it seems to mean that there’s a presumption in favour if a stay)

Question 19

What will the court consider when deciding whether a determination can be challenged?

Answer 19

the court will consider what the terms of the contract are and whether or not the term in the contract contained reasons for the decision.

Question 20

What is the procedure for making a challenge to an expert determination?

Answer 20

this is usually made by issuing Part 8 proceedings. If the decision is set aside, the court may make the determination itself or it may direct a new expert to be instructed to determine the matter.

Question 21

How is a decision reached by expert determination enforced?

Answer 21

a failure by one side to honour the decision amounts to a breach of contract, so the other party can start proceedings and the court can enforce the decision like any other court order.

Question 22

What is an ‘arbitration claim’?

Answer 22

1. any application to the court under the Arbitration Act 1996
2. a claim to determine: (i) whether there is a valid arbitration agreement or (ii) whether an arbitration tribunal is properly constituted, or what matters have been submitted to arbitration in accordance with an arbitration agreement
3. a claim to declare that an award by an arbitral tribunal is not binding on a party; and
4. any other application affecting (i) the arbitration proceedings (whether started or not); or (iii) an arbitration agreement

Basically, this covers anything to do with arbitration (like staying proceedings in breach of an arbitration agreement or challenging arbitral awards), except for actually commencing arbitration. As arbitration is consensual and contractual it’s not commenced in a formalistic fashion like court proceedings (although often the procedure chosen by the parties will specify certain steps).

Question 23

How must an arbitration claim be started?

Answer 23

Unless the application is one to stay the proceedings, the claim must be started by issuing an arbitration claim form in accordance with the Part 8 procedure

Question 24

What must be included in the arbitration claim form?

Answer 24

1. a concise statement of the remedy claimed and any questions on which the claimant seeks the decision of the court.
2. give details of any arbitration award challenged by the claimant, identifying which part or parts of the award are challenged and specifying the grounds for the challenge
3. show that any statutory requirements have been met
4. specify under which section of the 1996 Act the claim is made
5. identify against which defendants a costs order is sought
6. specify either (i) the persons on whom the arbitration claim form is to be served, stating their role in the arbitration and whether they are defendants; or (ii) that the claim is made without notice bc it is urgent (i.e. under s. 44(3) of the Arbitration Act 1996) and the grounds relied on

Question 25

When must the arbitration claim form be served on the defendant?

Answer 25

within 1 month from the date of issue.

Question 26

Who must an application notice seeking to stay legal proceedings under s. 9 of the Arbitration Act be served on?

Answer 26

all of the parties to those proceedings

Question 27

Who can apply to stay legal proceedings under s.9 Arbitration Act?

Answer 27

a party to an arbitration agreement against whom “legal proceedings are brought… in respect of a matter which under the agreement is to be referred to arbitration”

I.e. non-parties to the arbitration agreement can’t apply for a stay of arbitration proceedings. BUT the application of this rule can get complicated where third parties have rights under the Contracts (Rights of Third Parties) Act 1999. See commentary at 2E-107 in Vol 2 of the White Book

Question 28

If an action against a company is stayed, does this mean that an action against the company’s parent should also be stayed?

Answer 28

No, if there was no guarantee that a dispute between the company’s parent would be solved by arbitration then this would not matter.

Question 29

What must the defendant serve before a stay can be imposed?

Answer 29

an acknowledgement of service.

Question 30

Can the defendant get the proceedings stayed if they have served a defence?

Answer 30

No

Question 31

When must the application to stay proceedings be made?

Answer 31

After the defendant has acknowledged service but before he has taken any step in the proceedings to answer the substantive claim.

Question 32

Who bears the burden to show that the claim should proceed?

Answer 32

the claimant

Question 33

What is arbitration?

Answer 33

an impartial arbitrator or tribunal considering both sides of a dispute and making a decision on the issues related

Question 34

When are arbitration agreements usually made?

Answer 34

they are made when the parties enter into a contract and are used as a method for dealing with a dispute

Question 35

What is the difference between mandatory and non-mandatory provisions in the Arbitration Act 1996?

Answer 35

the mandatory provisions cover matters that are essential for the effective resolution of disputes, everything else is covered by non-mandatory provisions.

Question 36

What are the three general principles of arbitrations?

Answer 36

(1) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense
(2) the parties should be free to agree how their disputes are resolved, subject to safeguards that are necessary in the public interest; and
(3) the court should not intervene except as provided by the Arbitration Act 1996.

Question 37

What are the key aspects of a decision to use arbitration?

Answer 37

(1) the parties choose the tribunal
(2) the arbitration takes place in a neutral location
(3) confidential
(4) fast and efficient
(5) light but efficient supervision by the court.

Question 38

What requirements must be met for arbitration?

Answer 38

(1) dispute
(2) dispute must be arbitrable
(3) agreement must be in writing
(4) the nature of the dispute must come within the terms of the arbitration agreement.
(5) the parties must have legal capacity to enter into the agreement.

Question 39

What types of disputes can be referred to arbitration?

Answer 39

Almost any dispute but arbitration is most commonly used when resolving disputes arising out of a contract

Question 40

Will a tribunal always have the jurisdiction for the arbitration?

Answer 40

Not always, it depends on the terms of the reference to arbitration in the agreement.

Question 41

How can a party prevent the breach of an agreement to arbitrate?

Answer 41

By using s.9 Arbitration Act, and applying to stay the court proceedings.

Question 42

What is the main question under s.9 1996 Act?

Answer 42

whether the dispute raised is a matter “which under the agreement is to be referred to arbitration”

Question 43

How are arbitrations commenced?

Answer 43

• By sending a notice of arbitration and appointing the members of the arbitral tribunal.
• The question of ‘commencement’ seems to be predominantly relevant for limitation purposes

Question 44

What are the requirements for the notice of arbitration?

Answer 44

• it must be in writing and it must comply with the requirements for appointing the arbitral tribunal
• but q a simple letter will generally work fine

Question 45

How is the arbitrator appointed?

Answer 45

the parties are free to agree on the procedure for appointing the arbitrator or arbitrators.

Question 46

What occurs in the preliminary meeting?

Answer 46

usually convened shortly after the tribunal is appointed. the purpose is a forum for the tribunal to discuss jurisdictional matters and to make procedural directions for the preparation of the evidence needed.

Question 47

What are the time limits for directions?

Answer 47

it is up to the tribunal to fix these and extend the time limits if need be.

Question 48

What do the bundles for arbitrations include?

Answer 48

the statements of case, procedural orders and directions. Contemporaneous documentation, witness statements of both factual and expert witnesses.

Question 49

Is there a right to an oral hearing for arbitration?

Answer 49

No, the tribunal can decide whether written or oral evidence will be more appropriate.

Question 50

What style is the hearing?

Answer 50

it can be either adversarial or inquisitorial

Question 51

Is arbitration confidential?

Answer 51

Yes

Question 52

What are the different awards and orders available to arbitrators?

Answer 52

(1) procedural orders
(2) interim awards
(3) final awards
(4) costs awards

Question 53

Are orders and awards binding in arbitration?

Answer 53

Yes

Question 54

How can you enforce an arbitration order or award?

Answer 54

by bringing a civil claim in the High Court, or by using the summary procedure under s.66 AA 1996.

Question 55

Is permission needed to enforce an award of an arbitral tribunal?

Answer 55

Yes, permission is sought by issuing an arbitration claim form in the High Court.

Question 56

Can you get cross-border arbitration agreements enforced?

Answer 56

Yes, most often through the New York Convention 1958.

Question 57

Can you appeal an arbitration decision?

Answer 57

there are only limited grounds for seeking judicial review:

1) under s.68 for serious irregularity (unless parties exclude this right
(2) s.69 appeal on a point of law.