Adjudicative ADR Flashcards
What two types of adjudicative ADR are examined?
Arbitration and expert determination.
What aspects of arbitration are examined?
Anything within the 1996 Arbitration Act - a small amount of the whole practice.
What’s the most important part of the Arbitration Act 1996?
s.9: governs how and in what circumstances a party may bring an arbitration claim.
What is an ‘arbitration claim’?
Application to the court about matters surrounding the arbitration - NOT bringing a matter to arbitrate.
Why is arbitration frequently preferred to litigation?
Can choose decision maker; can take less time; awards are easier to enforce internationally than judgments.
What helps the enforceability of arbitration awards across borders?
New York Convention
What is expert determination?
An expert is appointed by the parties to determine a specific issue. Mostly used in technical cases.
What is the difference between concluding arbitration and expert determination?
Unlike in arbitration, experts do not make awards at the end. Just a decision on the issue/s presented. Then parties use that opinion to resolve the dispute.
What is the greatest pro of arbitration?
Its enforceability across the globe because of NY Convention. It’s a global initiative. Also - often quicker and cheaper.
What is the first thing to do in a contractual dispute?
Check the jurisdiction clause- this broadly states the court a dispute falls under or the choice of arbitrators
What is the main issue with arbitration?
There’s very limited rights of appeal - very much at the whim of the arbitrators.
How long does arbitration typically take?
Approximately a year. The enforcement awards tend to be the time consuming part - but this is after proceedings.
What is unique to the structure of arbitration?
It is probably the most flexible of ADR, there are no formal stipulations of conduct at all.
How do costs work in arbitration?
They are sometimes awarded, but when they are its not always to the winner.
How many steps are their to an arbitration procedure?
Usually 10
What are steps 1-3 of an arbitration procedure?
(1) agreement to arbitrate (2) a dispute arises (3) a potential stay of legal proceedings
What are steps 4-6 of an arbitration procedure?
(4) Notice to arbitrate sent (5) appointing tribunal members (6) preliminary meeting
What are steps 7-10 of an arbitration procedure?
(7) parties comply with any procedural directions (8) pre-hearing conference (9) the hearing (10) final award.
What 2 things do expert determination and arbitration have in common?
Parties can both contractually bind themselves to use the process before dispute arises OR choose to enter after dispute has arisen.
What is the difference between the court’s relationship with expert determination vs arbitration?
The court must stay proceedings where arbitration should be used; but has discretion to stay proceedings where expert determination should be used.
What is the outcome of expert determination?
The process results in a decision that can be applied by parties, but it’s not an award or order. It can’t be enforced.
How can arbitration awards be challenged?
Only by making an appeal on a point of law. A result can be enforced as if a court order.
