Topic 3- Adjudicative ADR Flashcards
How is arbitration started?
An arbitration claim form must be issued (1 month after issue)
An application under Section 9 Arbitration Act, 1996 should be used to stay the proceedings
What must the arbitration claim form include?
- The remedy claimed
- The questions on which the claimant seeks the court decision
- Details of any arbitration award
When must the arbitration claim form be served on the defendant?
1 month from the date of issue of the claim form
How are proceedings stayed in arbitration?
Using a section 9 of the 1996 Act which serves on all parties to stay proceedings
What are the two types of adjudicative ADR?
Arbitration
Expert Determination
What is adjudicative ADR?
Where a third-party is used to impose a decision on the parties where there is a dispute
Expert Determination
Where a neutral expert is appointed to make a determination on the issues
When is expert determination commonly used?
In cases of a technical nature
Eg, using an expert such as a surveyor, engineer, accountant
Is the decision made in expert determination binding?
It is usually binding and final, unless agreed it isn’t
Is expert determination subject to court supervision?
No, unless a dispute arises as to the jurisdiction of the expert, or challenging the decision
Cases suitable for Expert Determination
Highly technical cases, such as commercial cases
Advantages of Expert Determination
Cost-effective
Speedy
Conclusive in determination
Confidential
When will expert determination be used by the parties (contractually)?
Where the parties agree in advance in the underlying contract to use ED
Procedure of Expert Determination
Each party will send to the expert:
- Written submissions setting out their case
- Copies of all relevant documents
- What lines of inquiry the expert can conduct
What happens if one party ignores the expert determination clause?
The other party may be entitled to damages for breach of contract
The court may also issue a stay of proceedings to use ED
Grounds for challenging an expert determination
There are contractual grounds for challenging a decision:
- Failing to provide reasons for the determination where the contract requires
- Manifest error
- An error of law
- Lack of procedural fairness
- If the determination was not meant to be final and binding
How will a challenge of expert determination be made?
A party can issue Part 8 proceedings
If the decision is set aside, then the court can either make the determination itself, or direct a new expert to determine the matter
How can an expert determination be enforced?
Failure of one side to honour the decision amounts to breach of contract
Proceedings can then be issued, where a judge can then give effect to the decision via an order
What is arbitration?
Involves an impartial arbitrator or tribunal who considers both sides of a dispute and makes a decision on the issues raised
What statute governs arbitration?
The Arbitration Act 1996
Who agrees on the expert in expert determination?
Both the parties agree, as this allows greater participation
Three fundamental principles of arbitration
To obtain fair resolution of disputes without unnecessary delay or expense
The parties should be free to agree how their disputes are resolved
The court should not intervene, except in some circumstances
Requirements for arbitration to be used
The issue must be arbitrable
There must be a dispute
There must be an agreement to arbitrate- must be in writing
What is the most important requirement for the Arbitration Act, 1996 to apply?
The agreement to arbitrate must be in writing
What section of the Arbitration Act, 1996 allow for a stay of proceedings?
Section 9
- This allows for a halt in proceedings to allow parties to engage in arbitration
When will the court not grant a stay of proceedings under section 9 AA?
When the arbitration agreement is null and void, or incapable
How are arbitration proceedings commenced?
Sending a notice of arbitration (in writing) then appointing members of the arbitral tribunal
Who decides who to appoint in arbitration?
Both parties decide, or it can be nominated by a tribunal or body
Stages of arbitration
- Notice of arbitration and appointment of arbitrator
- Preliminary meeting
- Pre-trial hearing
- Bundles made for docs
- The hearing
Four types of awards available to arbitrators
Procedural awards- provide directions and measures
Interim awards- dispose of issues in the arbitration
Final awards- disposing of the arbitration
Costs awards- provide payment of costs
How can an arbitral award be enforced?
By bringing a claim in the High Court
Or using a summary procedure under section 66 AA
How is cross-border enforcement of arbitral awards achieved?
Through the New York Convention 1958
Here, an award is treated as made at the “seat of arbitration”
What are the grounds for appealing an arbitral award?
There are very limited grounds (s69) for seeking judicial review:
- There must be a serious irregularity, or
- An appeal on a point of law
How can an arbitral award appeal under a point of law be made?
All options of appeal must have been exhausted first to make an appeal under a point of law
When can an appeal be made under S69 AA 1996?
May be brought with the leave of the court or with all the other parties in the proceedings
How many days must an appeal of an arbitral award be made after award is given?
28 days after outcome
What appeal comes under section 68 AA 1996?
Serious irregularity appeals
What appeal comes under section 69 AA 1996?
Point of law appeals
If there is no term in a contract for expert determination that the ED is to be final and binding, how will the court construe the contract?
The court may imply a term in the contract that the expert determination is to be final and binding on the parties
Is ADR suitable where there are serious allegations such as fraud?
No, ADR should not be used
Where a contract gives an expert final decision-making powers, will this be binding?
Yes
