SGS 11 (ADR & Arbitration) Flashcards
How can you tell if a provision of the Arbitration Act is mandatory?
Listed in Sch 1
What is an arbitration seat?
complex package of legal principles impacting how arbitration is conducted and enforceability of the award (jurisdiction in which arb is taking place).
NOT NECESSARILY WHERE THE HEARING WILL TAKE PLACE.
How is arbitration enforced?
New York convention : enforcement regimes for international awards (an award rendered in a Convention states is automatically enforceable in another convention state)
s.66: (mandatory - party can apply to High Court for permission to convert award into a court judgement.
Define:
Mediation
Arbitration
Litigation
confidential process through medium of an impartial third party aimed at resolving the dispute but with no binding decision.
Procedure by which an impartial, independent third party decides the outcome of a dispute between two or more parties.
Use of court system to resolve dispute.
What are four disadvantages of mediation compared to litigation?
court can enforce their resolution and it is legally binding.
no guaranteed result (wasted day and costs of court)
Less predictable (no precedent / legally correct)
Not necessarily a legally correct solution
Four disadvantages of arbitration as compared to litigation?
costs of arbitral institution fees, arbitrators.
No power to join third parties unless they agree (right to arbitrate derives from arbitration agreement)
no precedent powers
harder to decide summarily (s.47 AA less effective than CPR 24).
Four advantages of arbitration as compared to litigation?
Choose arbitrator (with specialist knowledge)
Enforce internationally
Tailor to dispute
Reduced disclosure requirement.
What happens after arbitrators have been appointed?
s.34: preliminary meeting (akin to CMC). Sets out directions such as when, where procedures are to be held, level of disclosure, witness statements, experts, costs (ss60-65).
What is notable about s.52 AA 1996?
If parties choose to dispense with need for arbitrators to provide reasons for their award, this automatically also impliedly excludes ss.45 and 69.
What are the benefits of mediation?
Quicker
Preserves relationship
Cheaper
Confidential
Commercial solutions
More flexible as parties play active role
Final decision (cannot be appealed)
Can mediation settlements be enforced?
If there is a case pending at time, settlement agreement can be incorporated into a ‘consent order’ and enforced.
If no proceedings, then only enforceable if parts enter into a contract.
What is an ‘ad hoc’ arbitration?
One in which a institutional arbitration has not been agreed.
If institutional agreed, parties follow its rules and institution supervises the conduct.
What must always be borne in mind when any direction is made in arbitration proceedings?
The need to comply with s.33 AA 1996.
If arbitration is occurring in England but subject to German law, what particular direction may be appropriate?
expert evidence on the relevant German law and how it could apply to the dispute (ss. 46 and 37 AA)
Costs of arbitration?
Fees of institution AND arbitrators.
In litigation cost of judge and courtroom are included in court fees.
