Syllabus Area 4 - ADR Flashcards
What are Arbitration Claims?
Type of ADR process, usually a commercial dispute, whereby an impartial adjudicator whose decision will be binding at the end of it is an alternative to litigation.
When is Arbitration instigated?
Either 1) can opt for arbitration instead of litigation when dispute has arisen OR 2) usually companies will put this in a clause when negotiating.
Why would a company choose arbitration?
It keeps things out of court, it is private, it is less cost, it is usually commercially driven, flexible.
What are the Arbitration Act 1996 principles?
1) the objective of arbitration is for a fair resolution without unnecessary delay/expense, 2) parties should be free to agree on how their disputes are resolved, 3) matters governed by the Act, the court shall not intervene.
What are the principles of the Arbitratior?
To act fair and cooperate with parties.
How is an Arbitration agreement agreed upon?
There are mandatory provisions in Schedule 1 of Arbitration Act 1996 that parties must abide by but other than that, parties can contract out what they like in terms of the non-mandatory provisions.
Who makes the Arbitration procedure?
The parties themselves can OR they can select an arbitration institution to help with the process.
What are the requirements of Arbitration?
A valid arbitration agreement must exist by writing or evidenced in writing.
What procedure is used to start an arb claim?
Part 8 procedure to be followed.
What must happen to stay legal proceedings?
The party who wants to arbitrate MUST acknowledge service for the other party to not obtain default judgment and apply for the stay of proceedings under CPR 62.8 so that the dispute can be dealt with under S9 of the Act (this is to stay legal proceedings).
Why is S9 so important?
It is important because it will allow the court to pause proceedings whilst protecting the other party who wants to arbitrate as it shows that they have not taken a steps in proceedings and “submitted” to the courts jurisdiction.
What is the CPR 62.8 Procedure?
For a court to stay proceedings there must be an: application notice, draft order and evidence in support to confirm there is a dispute and it falls within the arbitration clause.
What is contained in CF and timing of serving CF?
Similarly to serving a claim form, names/addresses of parties, circumstances of dispute + relief and list of possible arbitrators / CF MUST be served 1 month after issue
How to appoint an Arbitrator?
Usually within the agreement it will state how the parties will choose but parties often agree to appointing one arbitrator each and a third appointed by co-arbitrators.
What are the duty of an arbitrator?
Act fairly, impartially, adopt procedures suitable for circumstances.
What are the mandatory duties of parties?
Comply without delay.
What happens in the preliminary hearing of arbitration?
A preliminary hearing: this includes giving directions, timetables, outline cases, rules/procedure, disclosure of docs.
When would the High Court be involved in Arbitration?
Only if taking evidence/preserving evidence, inspecting evidence, selling goods involved within proceedings, interim injunctions.
What can the award include for arbitration?
It is different to usual claim: arbitrator will decide the dispute under the law parties have chosen OR in accordance with other considerations e.g contract law, commercial principles, religious principles - it will be final and binding.
When can an award be challenged?
Only if there is a challenge on jurisdiction, serious irregularity or point of law.
How can arbitration awards be enforced?
This country and if cross border? If it is a domestic arbitration award, under S66 of the Act, the successful party can bring a claim to High Court which converts the Arbitration award into a court judgment. OR if it is an cross border enforcement, the successful party will enforce through the New York Convention which makes the arbitration award automatically enforceable without re-examination of merits.
Where do you serve Arb claim form?
last known address of party.
What is included in an arb agreement?
There are mandatory provisions in Schedule 1 of Arbitration Act 1996 that parties must abide by but other than that, parties can contract out what they like in terms of the non-mandatory provisions.
Who can be involved in arb?
Only parties to arb agreement
What happens before the commencement of Arb?
Beforehand: Schedule 1 of Arbitration Act 1996 provides parties with mandatory provisions of how an Arbitration agreement is agreed. But the procedure, the parties can agree the procedure themselves OR select an arbitration institution to help with the process.
Can it be arb be appealed
Awards can only be challenged on point of law, irregularity or jurisdiction
Who can request the stay
parties to agreement or third parties if there is an intended benefit
what constitutes a matter for arb
What issues are raised in the legal proceedings.
Whether those issues are part of the arbitration agreement.
Whether they are central to the dispute and could be resolved in arbitration.
what does/does not count as steps barring arb application
DOES: secuity of costs, disclosure of docs, attending cmc, giving undertaking, filing defence, summary judgment. DOES NOT: Filling affadavit or witness statement, asking for extension of time, negotations/correspondence
what is the standard of probabilities if disputing a claim going to arb
It rests on C to show dispute is not referred to arbitration
what types of dispute are appropriate for arb
anything but usually contract
what is ED
this is where determination of issues is referred to an expert. Usually technical nature. Can be made by an independent third party.
When can ED arise
parties may contractually bind themselves before or after a dispute has arisen
is ED binding and can it be appealed?
typically decision binding in contract - as it is final it cannot be appealed.
does court supervise ED or arb?
ED - no. Arb - occasionally HC may get involved for if taking evidence/preserving evidence, inspecting evidence, selling goods involved within proceedings, interim injunctions.
Can ED be appealed?
potentially if there is a manifest error.
how is ED different to arb?
subject to little review or intervention by court, no award or judgment or right of appeal
why is ED good?
cost effective and useful
When is ED used?
commonly used where the parties agree in advance in the underlying contract between them to use expert determination to resolve a specified or any dispute arising out of the contract
what is the process of ED
written submissions set out case of each their issues, copies of all relevant documents given, parties agree experts to conduct their own lines of inquiry.
what happens if you ignore ED clause
can be a breach of contract and entitled to damages unless ambiguous drafted then will be upheld by courts
how can ED decision be enforced
it is not enforced the same way as a court decision
what can expert be liable for
expert can be liable in negligence or breach of contract in the determination if does not act in accordance with contract
