Alternative Dispute Resolution: Adjudicative options

Question 1

What are the features of adjudicative options?

Answer 1

involve independent 3rd party reaching impartial decision.
process provides flexibility and more privacy than lit.
parties control choice of process.
if agreed process isn’t followed/ decision by 3rd party tainted == can be subject to court oversight.
not quick or cheap
but private and confidential conducted.

Question 2

What are the adjudicative forms of ADR

Answer 2

Expert Determination and Arbitration

Question 3

What are the differences that Adjudicative ADR has to Non-Adjudicative ADR?

Answer 3

It’s binding and therefore will make a person unable to court once a binding decision has been imposed.

Question 4

What is arbitration?

Answer 4

a form of ADR in which a 3rd party (aka arbitrator) makes decision on dispute to resolve it.
Deemed a mechanism for resolving disputes.

Question 5

What is arbitration commonly used for?

Answer 5

commercial cases and where parties want a binding decision.

Question 6

Which legislation is Arbitration regulated by?

Answer 6

Arbitration Act 1996

Question 7

What are the advantages of arbitration?

Answer 7

Parties can select an arbitrator with appropriate expertise and experience.
it’s private
it can be tailored to the needs of specific dispute
each party selects what material is submitted
process is relatively structured
simple and cost effective if dispute is decided on basis of written submissions rather than a hearing.

Question 8

What are the disadvantages of arbitration?

Answer 8

not cost saving if similar form of trial is used.
Parties will be bound by a 3rd party decision- there is no control.
arbitration process cannot deal easily with a party who fails to co-operate as arbitrator won’t have wide powers of a judge on matters such as disclosure.
the arbitrator needs to be selected with care as regards expertise and experience to ensure that parties will have confidence in award made.

Question 9

What is the nature of the procedure in the process of arbitration?

Answer 9

gives binding decision based on judicial intervention.

Question 10

What is the procedure of arbitration?

Answer 10

Client raises issue.
issue is disputed/ not accepted.
notice of arbitration- has to be in writing and must complied w/ the requirements for appointing the arbitral tribunal which can be met by a reasonable letter.
Appointment of arbitral tribunal.
statements of case.
preliminary meetings.
interim measures.
exchange of evidence.
hearing.
closing of proceedings.

Question 11

How do you make the process of arbitration happen?

Answer 11

send a letter to other party - ‘notice of arbitration’
parties are free to agree on procedure for appointing the arbitrator(s) including procedure for appointing any chairman or umpire.

Question 12

Name three ways where arbitrators can be chosen.

Answer 12

because they are known professionally or recommended to the appointing parties or may be nominated by an arbitral institution.
nominated by president of a professional body.

Question 13

true or false:
before being appointed, each arbitrator is under a duty to disclose to the parties potential conflicts of interest that may give rise to justifiable doubts over their independence or impartiality. Parties are given a shirt period to raise any objections

Answer 13

True.

Question 14

How will the outcome to arbitration be enforced if domestic?

Answer 14

a domestic arbitral award will be enforced by bringing an ordinary civil claim on the award in high court or through using summary procedure under s66 (1) Arbitration Act 1996.

Question 15

under s66 Arbitration Act 1996, what does this allow the court to do?

Answer 15

enforce an award of an arbitral tribunal in same manner as a judgment or order of the court.

Question 16

When will the New York Convention of 1958 come into play?

Answer 16

if there is a cross-border enforcement of arbitral awards.

Question 17

When deciding that the 1958 convention applies, will an award is treated as made at the seat of arbitration regardless of where it was signed, despatched or delivered to any of the parties?

Answer 17

Yes.

Question 18

What is expert determination?

Answer 18

a process where an expert is appointed to make a determination on the issues referred to him by the appointing parties. The parties appoint expert to decide on the issues referred to them within the boundaries set by the parties.

Question 19

What is the procedure for expert determination?

Answer 19

each party sends expert written submissions setting out their case on each of issues, relevant documents are copied, expert may make their own enquiries as agreed by parties.
parties are under an implied duty to co-operate with each other and with the expert in relation to the determination.

Question 20

True or false:
where an expert’s proposed terms of engagement are reasonable and are consistent with the rights and obligations in the agreement between the parties, the implied term to co-operate is likely to require the parties to accept the expert’s appointment on those terms.

Answer 20

true.

Question 21

True or false:
a breach by one party of the implied duty to co-operate does entitle the other party to leave proceedings?

Answer 21

false.
it doesn’t entitle the other party to leave proceedings.

Question 22

true or false:
there is no implied term that if one party has failed to cooperate to resolve a dispute, the other was entitled to bypass the expert determination procedure.

Answer 22

true.

Question 23

What are the advantages of the expert determination procedure?

Answer 23

Quick and cheap- will be significant advantage in relation to these two elements, especially as to agreeing to use an appropriate expert to make a binding decision on some or all the issues in dispute.
Informal
private
flexible- but important that process and matters to be considered are clearly agreed in writing at the start of the process to avoid possible difficulties in relation to the outcome.
parties can retain a degree of control over the process and the appointed expert will usually seek to agree any appropriate procedural directions with the parties.
high beneficial in issues of technical nature.

Question 24

What are the disadvantages of the expert determination procedure?

Answer 24

no right of appeal.
limited intervention and supervision by the courts.
the possible cost of the process as the court will often uphold a determination as binding even if it is flawed unless the parties have specifically agreed grounds on which the determination may be challenged, seeing the agreement by the parties that the determination be final as the core principle.

Question 25

How do you make the process happen in an expert determination procedure?

Answer 25

selection of an expert:
may enlist the help of a professional body or an ADR provider that offers an expert determination service.
in the event of a deadlock between the parties or defects in the appointing machinery, the court may be able to intervene to resolve the deadlock.

Question 26

How will the outcome be enforced in an expert determination?

Answer 26

it will be enforced through summary judgment or specific performance or summary judgment through specific performance.

Question 27

if a company or a partnership has refused to pay a monetary sum awarded by an expert determination, what type of proceedings can be brought?

Answer 27

winding up or bankruptcy proceedings.