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
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