Diploma in Arbitration Unit 1 Tutorial 1 August

Diploma in Arbitration Unit 1 Tutorial 1 August

Diploma in Arbitration Unit 1 Tutorial 1 August 2016 TUTOR David Cartwright MA, FRICS, C Arb, FCIArb, FAMINZ(Arb), MEWI Chartered Quantity Surveyor, Chartered Arbitrator, Registered Adjudicator, Conciliator and Mediator,

Alternative Dispute Resolution Arbitration Judicial role, applying experience but not inquisitor or applying own evidence, award binding and final (except if misdirected or erred in law). Immunity. Mediation Non Judicial role, less confrontational, not binding until mediation agreement signed, without prejudice to Court proceedings. Alternative Dispute Resolution

Expert Determination Inquisitorial role, less adversarial, binding. Adjudication Quasi judicial, decision temporarily binding. ARBITRATION

Advantages / Disadvantages Arbitration Act 1996: 1.Final Subject to a limited right of appeal to the Court if: i) Award obviously wrong, or ii) General public importance and open to serious doubt. Advantages / Disadvantages 2.Private Arises out of contract therefore:

No public gallery No Press 3.User Friendly To suit the parties convenience in terms of Dates, Hours, Venue although they may have to pay for Venue Advantages / Disadvantages 4. Less Formal No Court room No Wigs

Less Intimidating 5.Technical Tribunal Tribunal understands and is better equipped to weigh the evidence. BUT Less Legal Knowledge BUT Pay Tribunals Fee Advantages / Disadvantages 6.Choice of Tribunal Parties can and should agree the Tribunal 7. Party Autonomy Any agreement of the parties as to procedure prevails.

Tribunal decides procedure only if not so agreed Advantages / Disadvantages 8. Speed of Process To suit the common wish of the parties 9. Flexibility Of Procedure e.g.s Preliminary and Interlocutory meetings by post or video conference. In some cases no pleadings. Documents Only.

Inquisitorial procedure with only experts Advantages / Disadvantages Other Methods Mediation Cost effective, confidential, without prejudice. Expert Determination Allows specialist knowledge to be applied, cost effective, Inquisitorial, speed, flexibility. Adjudication Speed, confidential, temporarily binding, cannot

recover costs. Arbitration Overview Arbitration Act 1996 Application England & Wales / Northern Ireland General principles : Fair resolution Impartial tribunal Without unnecessary delay or expense (s.1(a))

Arbitration Act 1996 Parties free to agree, subject to safeguards (s.1(b)) Court not to intervene except as provided in the Act. (s.1(c))

Mandatory Provisions Schedule 1 List Remainder are non-mandatory so Parties may agree or may agree to apply Rules. Some Standard Rules JCT edition of The Construction Industry Model

Arbitration Rules. RICS Rules for Fast Track Chartered Institute of Arbitrators Rules. ICE Procedure UNCITRAL Rules (International) Appointment of Arbitrator By: An Agreed Body The Parties The Court

Before you Accept an Appointment, do you: Comply with any requirements? Have the specialist skills? Any dependence or bias? Time available? General Duty PRINCIPLES of Natural Justice: Audi Alteram Partem ("hear the other side too) Nemo Judex in Causa sua (no-one should be a judge in his own cause)

ARBITRATION ACT s.33(1)(a) Reasonable opportunity to: Put case Deal with opponents case Procedure Tribunal to decide all matters unless parties agree (s.34(1)) e.g.

Statements claim, defence, counterclaim Disclosure of documents Witness Statements Expert Reports Hearing when, where (s.34(2)) NB There are default powers COURT INTERVENTION (Post Award) Courts

Court can review: An Award as to substantive jurisdiction; or An Award on the merits, whole or in part, because no substantive jurisdiction (s.67) 1. Objections must be made timeously or the right to appeal may be lost: The Courts Power In Relation To The Award (s.73.1) 1.1 Objections to substantive jurisdiction before the first step as to the merits.(s.31.1)

1.2 Objections as to extent of jurisdiction as soon as possible after the offending matter raised. s.31.2) 2. Must first exhaust any arbitral process including correction under S.57. (s.70.2) 3. Appeal must be brought within 28 days of the date of the award or of results of any review process. (s.70(3)) SERIOUS IRREGULARITY CHALLENGE Exhaustive List: (s.68) Failure to comply with s.33

Excess of power Contrary to agreed procedure Failure to deal with all issues (See S.57(3)(b)-additional award) Excess of power by institution Uncertainty or ambiguity in the award Fraud SERIOUS IRREGULARITY CHALLENGE Continued Failure as to form (s.52) Admitted irregularity of the proceedings or in the

award Note Must have caused or will cause substantial injustice Beware - Same as for review of jurisdiction award s.70(2), s.70(3) and s.73 Power Of The Court

Remit in whole or in part Set aside in whole or in part Declare of no effect in whole or in part, i.e. void from the beginning, e.g. for fraud or failure as to form (s.52). Note Must be remitted unless inappropriate. Can be in conjunction with application for removal s.24

APPEAL ON POINT OF LAW First Step a) Agreement of all parties b) Leave of the Court Beware c) Must exhaust all review processes s70(2) d) Must commence within 28 days of award or of results

of appeal s.70(3). Note: s. 80(5) - Power of Court to extend time Leave will be granted only if Rights substantially affected Point of law was put to the tribunal Decision was obviously wrong or was of general public importance and is open to serious doubt Just and proper for court to determine the question

Confirm [s67(3)] Power Of The Court As To The Award Vary Remit in whole or in part Set aside in whole or in part

Note: Must be remitted unless inappropriate Review A general review of the principles behind the Arbitration Act Looked at some sample questions Hopefully aided you own personal review of your progress

Recently Viewed Presentations



    Can you do these activities to keep your brain strong over the break? Color in a flower for each activity that you do. Read 20 minutes. Count to . 100 by 10's. Count to . 100 by 1's. Practice my...
  • Project Management for RIMI - GKC ARMA

    Project Management for RIMI - GKC ARMA

    Build, Test, Deliver RBR Rules (Pilot) (Estimate based upon vendor) RIM -XX Days. Install and Configure Email Integration (Pilot) (Estimate based upon vendor) RIM -XX Days. IT - XX Day. Validation. Confirm System Performance Validations (36) (Estimate based upon number...
  • CH 5 MARGIN REVIEW QUESTIONS 1. What different

    CH 5 MARGIN REVIEW QUESTIONS 1. What different

    Buddhism challenged Hindu traditions through its rejection of the religious authority of the Brahmins, the lack of interest in abstract speculation about the creation of the world or the existence of gods, and its rejection of the inequalities of a...
  • Credit Score - Sunnyside Christian High School

    Credit Score - Sunnyside Christian High School

    Credit History. Your credit history is a financial profile. May include such information as: How promptly you have paid off credit cards and loans . How well you have handled paying other bills, such as rent and utilities . Your...
  • Chapter 3 BDIS - csuohio.edu

    Chapter 3 BDIS - csuohio.edu

    The Innovator's Dilemma is a book by Clayton M. Christensen Companies like Xerox, IBM, Sears, and DEC all listened to existing customers, invented aggressively in technology, had their competitive antenna up, and still lost their market-dominate positions Christensen believes that...
  • 14- 1 B40.2302 Class #7  BM6 chapters 15.2-15.6,

    14- 1 B40.2302 Class #7 BM6 chapters 15.2-15.6,

    … same payoff as levered equity!) M&M Debt Policy Irrelevance Macbeth continued We know that… and also that… Rearranging … Macbeth continued Check Prop. II for Macbeth. For 100% equity firm… For 50% equity, 50% debt firm… r D E...
  • Diapositive 1 - Copernicus.org

    Diapositive 1 - Copernicus.org

    2 MINUTE- MADNESS - OVERVIEW Context. Hydrometricdata are essential for manyhydrological issues such as flood forecasting and warning, engineering design and policydecisionsrelated to water resource management as well as calibration of hydrologicalmodels.
  • Time-varying and time-invariant covariates in a latent growth

    Time-varying and time-invariant covariates in a latent growth

    Possible range: 1-5 Latent Growth Curve Analyses Mplus 2.0 (Muthen & Muthen, 2001) Maximum Likelihood Three Models Model 1: Basic growth model Depression at three time points Model 2: Adds time-invariant covariates Age, education Model 3: Adds time-varying covariates Perceived...