ADR: Adjudicative options

Question 1

Give an example of form of adjudicative ADR

Answer 1

• Arbitration, because a decision will always be imposed on the parties

A concilator “may” impse a decision if the parties cannot reach one and this may be non-binding

Question 2

Expert Determination which is correct:

[A] The parties can agree between them the identity of the expert they wish to appoint. This allows a greater degree of party participation

[B] It is particularly unsuitable for dealing with disputes of a technical nature.

[C] The process can be kept confidential and private. This is usually in the parties’ interests.

[D] It is a non-adjudicative form of ADR which enables each side to consider the strengths and weaknesses of their case

Answer 2

A and D

Rmbr that parties can agree to identity of the expert they wish to appoint, allows greater party participation

The process is kept confidential

IT is also an adujicative form of ADR that enable each side to see STRENGTH AND WEAKNESS OF THEIR CASE

IT is also good for dealing with disputes that technical in nature

Question 3

S.69 Arbriation act for appeal what are the correct steps?

Answer 3

• APPEAL MUST BE BROUGHT WIL LEAVE TO COURT
• Appela brought either with leave of court or with agm of all other parties
• Appeal cant be brought if appellant has not first exhausted any arbitral process of appeal

-Process only applies to q of law

Question 4

If there is arbitration clause that refer party to go to arbitration what must def do to stop the C bypassing the agm to arbitrate

Answer 4

• The D need to ensure they file AOS and then they need to apply for staty of proceedings, they don’t need to take any steps to answer the claim ( this is so they can get the benefit of the S.9 of the Arbitration Act 1996 (WB vol 2-pg 971

Question 5

If the party is worried about the arbitral award awarded by arbitrator, what advise can you give to appeal the award?

Answer 5

The party is worried and are seeking to appeal, they must do so within 28 days of the award, or if there has been internal review/process, within 28 days of being notified of the outcome of that process

S.69AA cross references to S.70 AA 1996- with reference to 28 days time limit

Question 6

Rmbr the following for an arbitral award, in relation to enforcing it

Answer 6

• The arbitral award is not a judgment that need to enforce it

-The party seeking to enforce must make an application to HC for permission

• An application is made without notice to the other side

Question 7

For enforcing an arbitral award, will the court always grant permission to enforce the award provided if done in timely manner

Answer 7

-No. The court will grant permission to enforce unless its shown that the tribunal lacked substantive jurisdiction make the award (CPR 62.18-pg 951)

Question 8

what are the req for a valid arbitration agm

Answer 8

S.5 (Vol 2 WB pg 968)

• The agm must be in writing which is to say

a) ITs made in writing whether or not signed

b) made by exchange of communication in writing or in writing

Question 9

How is arbitration started, who does what?

Answer 9

Jackson 25.10
- It’s started or commenced when ONE PARTY SERVES A WRITTNE NOTICE OF COMMENCEMENT on the other party or parties

S.14 AA (WB vol2 978)- where in circumstance the parties have not reached any other agm in relation to when arbitratl proceedings shld be commenced.