SA4 Adjudicative Options

Question 1

What does s9 Arbitration Act 1996 do?

Answer 1

Protects parties intention to arbitrate – if one party tries to issue legal proceedings against the other despite agreeing to arbitrate, the party who has been sued in court can apply to a judge to order a stay of those proceedings. Judge MUST issue stay so long as:
* Arbitration clause actually exists (must be in writing).
* Dispute falls within terms of the arbitration agreement.

Question 2

What is the effect of s7 Arbitration Act 1996?

Answer 2

If a contract becomes invalid, where an arbitration clause is contained within its terms, the clause will continue to be effective, independent of whatever happens to the rest of the larger contract.

i.e. agreement to arbitrate is separable from the substantive contract.

Question 3

At what point can an arbitration agreement be entered?

Answer 3

Any time, including after the dispute arises.

Question 4

In what capacity do questions of public law arise in arbitration?

Answer 4

Never. Arbitration is a private process between private parties.

Question 5

How can a party start an arbitration claim running?

Answer 5

Issue Part 8 claim.

Arbitration commences by one party sending the other notice of arbitration (won’t always be a CF, can be a simple letter).

CF is only issued if a party wants the High Court to intervene, to make orders that keep arbitration running as it should.

Question 6

What must a CF for an arbitration claim contain?

Answer 6

• Remedy claimed e.g. an order permitting an extension of the time limit for beginning the arbitral proceedings.
• Any qs on which a decision is needed by the claimant.
• Details of nay arbitration award challenged by C, which parts of it and why.
• Any statutory requirements that have been met.
• Which section of the 1996 Act the claim is made under.
• Identify any Ds from whom costs are sought.
• The names of who the arbitration CF is to be served on and their role.
• Whether the claim is made without notice.

Question 7

If a claim is already running and a party wants to stay proceedings under s9 Arbitration Act 1996, what must they do?

Answer 7

Make an application to stay proceedings using a regular application notice, filed at whichever court the claim was issued.

No need to issue an arbitration CF, as a claim is already running.

Question 8

What types of disputes are ‘arbitrable’?

Answer 8

Private law disputes, capable of being determined within the limits of a private contractual process.

There MUST be an agreement to arbitrate in writing.

Parties must have had legal capacity to enter into the arbitration agreement.

Question 9

What is the jurisdiction of the arbitral tribunal?

Answer 9

Depends on the mandate given to it by the parties.

Question 10

Where parties agree to a 3-member tribunal, who appoints the members?

Answer 10

Usual position is that each party appoints one member, and the two then appoint a third member who acts as the chairman.

Question 11

Before and during arbitration, what duty are the arbitrators under?

Answer 11

To disclose to parties potential conflicts of interest that may give rise to justifiable doubts over their independence or impartiality.

Parties are usually given a short period to raise any objections.

Question 12

In absence of procedure set out in an arbitration agreement, what course do the parties follow?

Answer 12

The default provisions of the AA 1996 will apply.

Question 13

What is the main purpose of an arbitration preliminary meeting?

Answer 13

Forum for the tribunal to discuss jurisdictional matters and make procedural directions for the preparation of the evidence needed for deciding the reference.

Make directions on procedure and evidence.

Question 14

Which two approaches are open to parties to adopt in arbitration hearings?

Answer 14

Adversarial or inquisitorial.

Question 15

How will arbitration proceedings end?

Answer 15

Arbitrators will include a mechanism for this – a date designated in the tribunal’s directions, a set period after a stage in the process or after the last closing submission at the hearing.

Question 16

After closure of arbitration hearing what is the rule regarding evidence/submissions?

Answer 16

No further evidence/submissions may be given.

Question 17

What are procedural orders?

Answer 17

Provide procedural directions and measures designed to preserve evidence/the subject matter of the dispute while an arbitration is proceeding.

Question 18

What is an interim award in an arbitration context?

Answer 18

Finally dispose of one or more of the substantive issues in the arbitration, leaving the other issues to be decided later.

Question 19

What is a final award in an arbitration context?

Answer 19

Finally disposing of the arbitration.

Question 20

What is a cost award in an arbitration context?

Answer 20

Provide for payment of the costs incurred in the arbitration between the parties.

Question 21

Are arbitration orders for awards binding on parties?

Answer 21

Usually (but most sets of institutional arbitral rules include provision for parties making suggestions for the correction of clerical mistakes in orders and awards).

Question 22

How can a domestic arbitral award be enforced?

What is the procedure?

Answer 22

By brining an ordinary civil claim on the award in the HC/by using summary procedure under s66(1) AA 1996.

Issuing an arbitration form in the HC, without notice.

Question 23

How can a cross-border arbitral award be enforced?

What is the procedure?

Answer 23

Through the New York Convention 1958.

In deciding whether the convention applies, an award is treated as made at the seat of the arbitration, regardless of where it was signed, despatched or delivered to any of the parties.

The party seeking the recognition/enforcement of the award must produce the duly authenticated original award or a duly certified copy and the original arbitration agreement or a duly certified copy.

Question 24

What is the effect of expert determination?

Answer 24

Terminates the dispute. Includes contractually agreed consequences such as the payment of money by one party to the other.

Question 25

Which two contracts are involved in Expert Determination?

Answer 25

1) Between the parties themselves – to be bound by ED (for a future dispute/a dispute that has already arisen).

2) Between an expert and the parties engaging the service of the expert. Fixes the terms of the engagement and the ambit of the questions to be determined.

Question 26

If parties have agreed to use ED in advance, what can a party do if the other tries to sue?

Answer 26

Apply to the court in which the proceedings have been issued for a stay. If that succeeds, all parties will be ordered to abide by the ED agreement that it entered.

Question 27

Which question will a judge look at if a party sues another for not complying with the terms of an ED contract?

Answer 27

Whether the ED clause was sufficiently certain to be enforceable.

Typical issues might be:
* Should the expert have been a named individual under the terms of the agreement?
* If not, what would have made them eligible to be chosen as an expert?
* What qualifications did they need/did the experts have those?
* How should they have been appointed?
* Were they appointed in the wrong way?

Question 28

Are expert determiners engaged under the rules of Part 35 CPR?

Answer 28

No. They have no function in providing evidence in court.

Question 29

Is Neutral Determination adjudicative? Is it determinative?

Answer 29

Yes and yes.

Question 30

How will the court construe the terms of a contract for expert determination?

Answer 30

The court will identify the intention of the parties by reference to what a reasonable person, with the parties’ shared background knowledge, would have understood them to have meant by the language they used in the agreement.

Words must be interpreted in the context of the agreement as a whole.

Question 31

What is the typical procedure for Expert Determination?

Answer 31

1) Parties give written submissions setting out their case on each of the issues.
2) Copies of all relevant docs (usually in agreed bundle).
3) Attendance and XX of witnesses.
4) Parties may also agree that the expert can conduct his/her own lines of inquiry.

Question 32

Does an expert determination decision take the form of an award/order?

Answer 32

No - unlike in arbitration.

Question 33

If one party refuses to comply with an expert determination agreement, what might the other party be entitled to?

Answer 33

Damages for breach of contract.

Question 34

What will the court consider when ascertaining whether an expert determination can be challenged?

Answer 34

The terms of the expert determination contract.

Question 35

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

Answer 35

Issuing Part 8 proceedings.

Can also be used to decide any disputes about the interpretation of clauses in advance of ED.

Question 36

Can a determination be enforced in the same way as if it were a court decision?

Answer 36

No. Failure to honour the decision  breach of contract.

Court can make an order giving effect to the decision of the expert. This can be enforced in the same way as any other judgment.

Question 37

What is an ‘arbitration claim’?

Answer 37

A claim to determine:
a) whether there is a valid arbitration agreement.
b) Whether an arbitration tribunal is properly constituted/what matters have been submitted to arbitration in accordance with the arbitration agreement.

Question 38

What must an arbitration claim form (under Part 8) include?

Answer 38

A concise statement of:
a) The remedy claimed
b) Any questions on which the C seeks the decision of the court.
c) Give details of any arbitration award challenged by C, identify which part(s) are challenged and specifying the grounds for the challenge.
d) Show that any statutory requirements have been met.
e) Specify under which section of the 1996 Act the claim is made.
f) Identify which (if any) Ds a costs order is sought.
g) Specify either:
a. The person(s) on whom the arbitration claim form is to be served, stating their role in the arbitration and whether they are defendants.
b. That the claim is made w.out notice.

Question 39

What is the time limit for serving an arbitration CF on D?

Answer 39

Within one month from the date of issue (unless the court orders otherwise).

Question 40

Who must an application notice seeking a stay of legal proceedings under s9 AA 1996 be served on?

Answer 40

All parties to those proceedings who have given an address for service/any other party to proceedings at last known address/a place where it is likely to come to his attention.

Question 41

Can s9 AA 1996 apply if the parties to the court proceedings are not the parties (or persons claiming through/under a party) to the arbitration agreement?

Answer 41

No.

However in case 2nd and 3rd Ds were entitled to a stay of proceedings under s9 AA 1996 by virtue of the arbitration clause in the partnership deed. They were no parties to the deed but it mentioned them by name, giving the benefit of certain exclusions and indemnities, and incorporated the Contracts (Rights of Third Parties) Act 1999.

Question 42

What happens where the provisions of one agreement give jurisdiction to the court and in another refer disputes to arbitration?

Answer 42

The allocation of jurisdiction is a fundamental one.

Question 43

Can a party who has started to engage in litigation then apply for a stay stating there was an agreement to arbitrate?

Answer 43

No.

Though the application for a stay cannot precede the taking of the appropriate step if any to acknowledge the legal proceedings, the application must be made BEFORE taking any step to answer the substantive claim.

Is too late after a defence.

Question 44

Does opposition to an application for final judgment constitute a ‘step’ in the action when determining whether a party can apply to stay proceedings an engage in arbitration?

Answer 44

It may.

But no “step” is taken by a D opposing an application who not merely raises the matter of the arbitration clause in their affidavit/WS but at the same time takes out an application to stay the claim.

Question 45

Does D’s application for an extension of time to serve its defence constitute a ‘step’ in the action when determining whether a party can apply to stay proceedings an engage in arbitration?

Answer 45

Not necessarily – it depends whether the taking of that step can be said to constitute an election.

In case, 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 qu4estion had demonstrated an election to abandon its contractual right to a stay).

Question 46

Does a party who initiates an app for a stay pending an arbitration take a “step” in the proceedings within the meaning of s9(3) AA 1996 if they simultaneously/subsequently invoke/accept the court’s jurisdiction?

Answer 46

No, provided they do so only conditionally on their stay application failing.

Question 47

Who does it rest on to show that a dispute ought not to be referred to arbitration?

(Commentary to s9 AA 1996)

Answer 47

The claimant.

Question 48

What are the two jurisdictional thresholds which are to be decided by the court before a stay to arbitrate can be granted?

What is the standard of proof?

Answer 48

1) Whether there is a concluded arbitration agreement.
2) Whether the issue in the proceedings is a matter which under the AA is to be referred to arbitration.

The balance of probabilities.

Question 49

What is the difference between a notice of arbitration and an arbitration claim form?

Answer 49

A notice of arbitration is the document which commences the arbitration process. An arbitration claim form (contrary to what its name might suggest) does not commence the arbitration process but triggers an application to the High Court for intervention in or regulation of the arbitral proceedings.

Question 50

Which document is the vehicle for seeking a stay of proceedings under s.9 of the Arbitration Act 1996?

Answer 50

An N244 application notice

Question 51

In a claim where there are 2 or more Ds, and the order is sought against any one/more of them, what conditions must be satisfied for an interim payment to be ordered?

Answer 51

1) That if the claim went to trial, C WOULD OBTAIN JUDGMENT for a SUBSTANTIAL amount of money against at least one of the defendants (but the court cannot determine which)
2) AND D is insured/a public body.