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 does the Arbitration Act 1996 say about 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.
Can a party go against an arbitration agreement?
Yes, sometimes parties may think litigating is better than arbitrating therefore a stay of legal proceedings will commence.
What happens if there is a stay of 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.
How does a commencement of arbitration happen?
Similarly to serving a claim form, names/addresses of parties, circumstances of dispute + relief and list of possible arbitrators.
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 is the first step 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 is the award?
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.
