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 an arbitration claim?

Answer 4

an application to the court under the 1996 act and a claim to determine:
whether there’s a valid arbitration agreement
whether an arbitration tribunal is properly constituted or what matters have been submitted to arbitration in accordance with an arbitration agreement
a claim to declare that an award by an arbitral tribunal is not binding on a party and
any other application affecting:
arbitration proceedings (whether stated or not); or
an arbitration agreement

Question 5

how must an arbitration claim be started

Answer 5

by issue of an arbitration claim form in accordance with the part 8 procedure

Question 6

how must an application under s9 of the arbitration act 1996 to stay legal proceedings be started

Answer 6

they must be made by an application notice to the court dealing with those proceedings

Question 7

what must an arbitration form include?

Answer 7

a concise statement of the remedy claimed and any questions on which the claimant seek the decision of the court, give details of any arbitration award challenged by C, identifying which part or parts of the award are challenged and specifying the grounds for the challenge, show that any statutory requirements have been met, specify under which section of the 1996 act the claim is made
identify against which (if any) defendants a costs order is sought; and
specify either-
the persons on whom the arbitration claim is to be served stating their role in the arbitration and whether they are defendants; or
that the claim is made without notice under s44(3) of the 1996 act and grounds relied on.

Question 8

true or false:
unless court orders otherwise, an arbitration claim must be served on the defendant within 1 month from the date of issue and rules 7.5 and 7.6 are modified accordingly

Answer 8

true

Question 9

true or false:
where C applies for an order under s12 of the 1996 act(extension of time for beginning arbitral proceedings or other dispute resolution procedures), they may include in their arbitration claim form an alternative application for a declaration that such an order isn’t needed

Answer 9

true

Question 10

who must an application notice seeking a stay of legal proceedings under s9 of the 1996 act be served on

Answer 10

on all parties to those proceedings who have given an address for service

Question 11

true or false:
A copy of an application notice under para 1 must be served on any other party to the legal proceedings (whether or not he is within the jurisdiction) who hasn’t given an address for service at-
his last known address; or
a place where it’s likely to come to his attention

Answer 11

true

Question 12

where a question arises as to whether an arbitration agreement has been concluded; or the dispute which is the subject matter of the proceedings falls within the terms of such an agreement, what may the court decide to do

Answer 12

the court may decide that questions or give directions to enable it to be decided and may order the proceedings to be stayed pending its decision.

Question 13

true or false:
a party to an arbitration agreement who legal proceedings are brought may apply under s9(1) for a stay of such legal proceedings

Answer 13

true

Question 14

true or false:
S9 can’t apply if the parties to the court proceedings aren’t the parties to the arbitration agreement as it would be wholly inconsistent with the purpose and structure of the 1996 act and of s9 if a stay could be obtained against a claimant who wasn’t a party to the agreement

Answer 14

true

Question 15

what did the case of
City of London v Sancheti [2008] EWCA Civ 1283

Answer 15

a mere legal or commercial relationship between the application for a stay and claimant wasn’t sufficient.

Question 16

true or false:
fortress value recovery fund 1 LLC v Blue Skye Special opportunities fund LP [2013]: it was possible for the court to impose a stay in favour of a third party on basis of an intention to rely on a contractual defence which was subject to a term providing for the submission of disputes to arbitration

Answer 16

true

Question 17

true or false:
difficulties can arise where the provision in one agreement give jurisdictions to the court and in another refer disputes to arbitration

Answer 17

true

Question 18

what happened in deutsche Bank AG v Tongkah Harbour Public Co Ltd

Answer 18

An action against a company was stayed under the arbitration act 1996, s9 where the same matter had been referred to arbitration, an action against the company’s parent on a guarantee which contained no arbitration agreement shouldn’t be stayed; the claimant bank was entitled to enforce the guarantee, if it could make good its claim, regardless of the claim against the principal debtor and the secondary nature of the claim against the guarantor.

Question 19

true or false:
the application must be made before taking any step to answer the substantive claim.

Answer 19

true

Question 20

true or false:
an application for costs was held to bar the defendant from obtaining a stay hereunder

Answer 20

true

Question 21

true or false:
after defendant has obtained time to plead and agreed to take short notice of trial

Answer 21

true

Question 22

true or false:
Opposition to an application for final judgment may constitute a step in the action but no ‘step’ is taken by a defendant opposing an application who not merely raises the matter of the arbitration clause in their affidavit but also at the same time takes out an application to stay the claim.

Answer 22

true

Question 23

true or false:
a defendant’s application for extension of time to serve its defence doesn’t necessarily amount to a ‘step in the proceedings’ to answer the substantive claim under s9(3) thereby barring it from making an application to stay the proceedings

Answer 23

true

Question 24

what was held in the case of fairpark estates ltd v heals property developments ltd [2022]

Answer 24

The seeking of a second extension of time, in circumstances where the possibility of a stay to arbitration had previously been canvassed, was held to constitute a step in the proceedings because the party in question had demonstrated an election to abandon its contractual right to a stay.

Question 25

true or false:
if D resists summary judgment proceedings by serving an affidavit or witness statement in opposition by omits to issue an application which is merely adjourned for a further or fuller hearing, they will be deemed to have taken a step in the claim.

Answer 25

true

Question 26

true or false:
a party who initiates an application for a stay pending an arbitration doesn’t take a step in the proceedings within the meaning of s9(3) of the 1996 act if they, either simultaneously or subsequently invoke or accept the court’s jurisdiction provided they do so only conditionally on their stay application failing

Answer 26

true

Question 27

which party does the onus of showing that the claim should proceed rest on

Answer 27

rests on C to show that the dispute ought not to be referred to arbitration

Question 28

true or false:
2 jurisdictional thresholds which are to be decided by the court before a stay could be granted:
1. is there a concluded agreement?
is the issue in the proceedings a matter which under the arbitration agreement is to be referred to arbitration?

Answer 28

true

Question 29

what is the standard of proof in relation to the onus of showing that claim should proceed

Answer 29

the standard of proof is the balance of probabilities.

Question 30

What is arbitration?

Answer 30

a form of ADR in which a 3rd party (aka arbitrator) who is impartial considers both sides of a dispute and making a decision on the issues raised by parties.

Question 31

true or false:
It’s common for parties to a particular arbitration to agree to the replacement of all or most of the non-mandatory sections of the arbitration act 1996 by agreeing to be bound by the rules of a named arbitration institution which will typically make alternative provision for the non-mandatory areas.

Answer 31

true

Question 32

What is arbitration commonly used for?

Answer 32

commercial cases and where parties want a binding decision.

Question 33

Which legislation is Arbitration regulated by?

Answer 33

Arbitration Act 1996

Question 34

what are the 3 principles governed by arbitration

Answer 34

Object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense
The parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest.
The court shouldn’t intervene except as provided by the arbitration act 1996.

Question 35

where the parties have agreed to refer their dispute to arbitration that implies they want their dispute decided on what factors?

Answer 35

By a tribunal they’ve chosen
In a neutral location and with neutral arbitrators
In privacy
Speedily and efficiently; and
With light but efficient supervision by the courts

Question 36

what must be required in order for an effective reference to arbitration?

Answer 36

there must be a dispute/ difference
the dispute must be arbitrable - There needs to be a private law dispute capable of being determined within the limits of a private contractual process rather than a dispute relating to public law or legal status.
There must be an agreement to arbitrate
For AA 1996 to apply, the agreement to arbitrate must be in writing
Nature of dispute must come within the terms of the arbitration agreement
Parties must have had legal capacity to enter into the arbitration agreement
Any contractual condition precedent to arbitration must be complied with
The parties must find an arbitral tribunal willing to act and decide the dispute; and
The dispute must come within the terms of the particular reference to arbitration

Question 37

true or false:
Jurisdiction of an arbitral tribunal depends on the mandate given to it by the parties.
This won’t have jurisdiction unless the dispute comes within the terms of the particular reference to arbitration.
This will be limited by the terms of the arbitration agreement and the separate agreement between the tribunal and the parties appointing the tribunal.
Means that the arbitrators can’t make a decision against a person who’s not a party to the arbitration agreement or on matters not covered by the arbitration agreement or on matters not covered by the parties’ agreement with the arbitrators.

Answer 37

true

Question 38

true or false:
To prevent a party from breaching an agreement to arbitrate by bring court proceedings.
S9(1) AA 1996 allows the other side to apply for a stay of those court proceedings.
A stay can be sought whether the legal proceedings said to breach the arbitration agreement are brought by way of claim or counterclaim and include unfair prejudice petitions under s996 companies act 2006 as well as ordinary part 7 claims.
A stay under s9 imposes a halt on the legal proceedings and in practical terms usually has the consequences that the dispute will be referred for final determination by arbitration.
Main question under s9 arbitration act 1996 is whether the dispute raised in the litigation is a matter ‘which under the agreement is to be referred to arbitration.’
if it is- court ‘shall’ grant a stay unless the court is satisfied that the arbitration agreement is null and void, inoperative or incapable of being performed (so this is mandatory rather than discretionary)

Answer 38

true

Question 39

true or false:
Commenced by sending a notice of arbitration and then appointing the members of the arbitral tribunal.
A notice of arbitration aka a notice to arbitrate has to be in writing and must comply with the requirements for appointing the arbitral tribunal.
these requirements can be met by a reasonably simple letter.
In practice: letter tends to include additional details in order to comply with further requirements set out in any relevant institutional arbitral rules.
Parties are free to agree on the procedure for appointing the arbitrator(s) including the procedure for appointing any chairman or umpire.
Where the parties agree to a 3-member tribunal, the usual position is that each party appoints one arbitrator and these 2 arbitrators then appoint a 3rd member who acts as a chairman.
Arbitrators may be chosen because they are known professionally by or recommended to, the appointing parties or may be nominated by an arbitral institution.
Alternatively: arbitrators may be nominated by the President of a professional body.
In the absence of any contrary agreement, there are default provisions for different types of arbitral tribunal.
Before being appointed, and throughout the arbitration, each arbitrator is under a duty to disclose to the parties potential conflicts of interest that may give rise to a justifiable doubts over their independence or impartiality.
Parties are usually given a short period to raise any objections.

Answer 39

true

Question 40

what will the complexity of the procedure in an arbitration will depend on

Answer 40

what the parties have agreed which will be influenced by the nature and importance of the dispute.

Question 41

what is the overall aim of the procedure in arbitration

Answer 41

fair resolution of the dispute without unnecessary delay or expense.

Question 42

true or false:
a preliminary meeting is an opportunity for the parties and arbitrators to meet but its main purpose is as a forum for the tribunal to discuss jurisdictional matters and to make procedural directions for the preparation of evidence needed for deciding the reference.
There’s no set agenda for preliminary meetings.
May well be possible for directions to be agreed between the parties which will make a preliminary meeting less necessary
It’s becoming increasingly common to hold preliminary meetings by conference telephone calls or through video conferencing.
this will be often convened shortly after tribunal is appointed

Answer 42

true

Question 43

true or false:
It’s for the arbitration tribunal to decide all procedural and evidential matters that have been referred to it, subject to the right of the parties agree to such matters between themselves.

Answer 43

true

Question 44

What are the advantages of arbitration?

Answer 44

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 45

What are the disadvantages of arbitration?

Answer 45

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 46

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

Answer 46

gives binding decision based on judicial intervention.

Question 47

What is the procedure of arbitration?

Answer 47

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 48

How do you make the process of arbitration happen?

Answer 48

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 49

Name three ways where arbitrators can be chosen.

Answer 49

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 50

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 50

True.

Question 51

How will the outcome to arbitration be enforced if domestic?

Answer 51

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 52

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

Answer 52

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

Question 53

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

Answer 53

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

Question 54

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 54

Yes.

Question 55

What is expert determination?

Answer 55

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 56

What is the procedure for expert determination?

Answer 56

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 57

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 57

true.

Question 58

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

Answer 58

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

Question 59

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 59

true.

Question 60

What are the advantages of the expert determination procedure?

Answer 60

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 61

What are the disadvantages of the expert determination procedure?

Answer 61

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 62

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

Answer 62

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 63

How will the outcome be enforced in an expert determination?

Answer 63

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

Question 64

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 64

winding up or bankruptcy proceedings.