Topic 3- Adjudicative ADR

Question 1

How is arbitration started?

Answer 1

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

Question 2

What must the arbitration claim form include?

Answer 2

• The remedy claimed
• The questions on which the claimant seeks the court decision
• Details of any arbitration award

Question 3

When must the arbitration claim form be served on the defendant?

Answer 3

1 month from the date of issue of the claim form

Question 4

How are proceedings stayed in arbitration?

Answer 4

Using a section 9 of the 1996 Act which serves on all parties to stay proceedings

Question 5

What are the two types of adjudicative ADR?

Answer 5

Arbitration

Expert Determination

Question 6

What is adjudicative ADR?

Answer 6

Where a third-party is used to impose a decision on the parties where there is a dispute

Question 7

Expert Determination

Answer 7

Where a neutral expert is appointed to make a determination on the issues

Question 8

When is expert determination commonly used?

Answer 8

In cases of a technical nature

Eg, using an expert such as a surveyor, engineer, accountant

Question 9

Is the decision made in expert determination binding?

Answer 9

It is usually binding and final, unless agreed it isn’t

Question 10

Is expert determination subject to court supervision?

Answer 10

No, unless a dispute arises as to the jurisdiction of the expert, or challenging the decision

Question 11

Cases suitable for Expert Determination

Answer 11

Highly technical cases, such as commercial cases

Question 12

Advantages of Expert Determination

Answer 12

Cost-effective
Speedy
Conclusive in determination
Confidential

Question 13

When will expert determination be used by the parties (contractually)?

Answer 13

Where the parties agree in advance in the underlying contract to use ED

Question 14

Procedure of Expert Determination

Answer 14

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

Question 15

What happens if one party ignores the expert determination clause?

Answer 15

The other party may be entitled to damages for breach of contract

The court may also issue a stay of proceedings to use ED

Question 16

Grounds for challenging an expert determination

Answer 16

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

Question 17

How will a challenge of expert determination be made?

Answer 17

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

Question 18

How can an expert determination be enforced?

Answer 18

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

Question 19

What is arbitration?

Answer 19

Involves an impartial arbitrator or tribunal who considers both sides of a dispute and makes a decision on the issues raised

Question 20

What statute governs arbitration?

Answer 20

The Arbitration Act 1996

Question 21

Who agrees on the expert in expert determination?

Answer 21

Both the parties agree, as this allows greater participation

Question 22

Three fundamental principles of arbitration

Answer 22

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

Question 23

Requirements for arbitration to be used

Answer 23

The issue must be arbitrable

There must be a dispute

There must be an agreement to arbitrate- must be in writing

Question 24

What is the most important requirement for the Arbitration Act, 1996 to apply?

Answer 24

The agreement to arbitrate must be in writing

Question 26

What section of the Arbitration Act, 1996 allow for a stay of proceedings?

Answer 26

Section 9

• This allows for a halt in proceedings to allow parties to engage in arbitration

Question 27

When will the court not grant a stay of proceedings under section 9 AA?

Answer 27

When the arbitration agreement is null and void, or incapable

Question 28

How are arbitration proceedings commenced?

Answer 28

Sending a notice of arbitration (in writing) then appointing members of the arbitral tribunal

Question 29

Who decides who to appoint in arbitration?

Answer 29

Both parties decide, or it can be nominated by a tribunal or body

Question 30

Stages of arbitration

Answer 30

1. Notice of arbitration and appointment of arbitrator
2. Preliminary meeting
3. Pre-trial hearing
4. Bundles made for docs
5. The hearing

Question 31

Four types of awards available to arbitrators

Answer 31

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

Question 32

How can an arbitral award be enforced?

Answer 32

By bringing a claim in the High Court

Or using a summary procedure under section 66 AA

Question 32

How is cross-border enforcement of arbitral awards achieved?

Answer 32

Through the New York Convention 1958

Here, an award is treated as made at the “seat of arbitration”

Question 33

What are the grounds for appealing an arbitral award?

Answer 33

There are very limited grounds (s69) for seeking judicial review:

• There must be a serious irregularity, or
• An appeal on a point of law

Question 34

How can an arbitral award appeal under a point of law be made?

Answer 34

All options of appeal must have been exhausted first to make an appeal under a point of law

Question 35

When can an appeal be made under S69 AA 1996?

Answer 35

May be brought with the leave of the court or with all the other parties in the proceedings

Question 36

How many days must an appeal of an arbitral award be made after award is given?

Answer 36

28 days after outcome

Question 37

What appeal comes under section 68 AA 1996?

Answer 37

Serious irregularity appeals

Question 38

What appeal comes under section 69 AA 1996?

Answer 38

Point of law appeals

Question 39

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?

Answer 39

The court may imply a term in the contract that the expert determination is to be final and binding on the parties