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ADR > 04 - Neutral and Expert > Flashcards

04 - Neutral and Expert Flashcards

1
Q

Early Neutral Evaluation

WHAT

A

Evaluative Process
NOT Determinative
Voluntary
Non Binding

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2
Q

Evaluate

WHAT

A 
Legal Merits
Facts
Evidence
Remedies
=> Recommendation
Likely Outcome
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3
Q

Evaluation

WHEN

A

ANY Stage
Contract Clause
Request

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4
Q

Evaluator

WHO

A

ADR Provider
Expert = Expert Evaluation
Lawyer
Judge

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5
Q

Evaluator

Qualities

A 
Neutral
Expertise
Experience
Available
Cost
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6
Q

Evaluator

Role

A

Evaluate

MAY Investigate = Facts Finding; Forensic Analysis

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7
Q

Early Neutral Evaluation

Agreement Terms

A 
Parties
Evaluator
Timetable
Venue
Procedure
Issues
Documents
Information
Recommendation
Costs; Signature
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8
Q

Early Neutral Evaluation

Procedure

A 
Consultation
Submissions = Oral; Written
Evaluate
MAY Investigate
Next Steps = ADR; Litigation
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9
Q

Early Neutral Evaluation

Consultation

A

Issues
Documents
Information
Evaluator = Time Limits; Powers

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10
Q

Early Neutral Evaluation

Recommendation Report

A 
Evaluation = Law; Facts; Evidence; Remedies
Recommendation = Merits; Likely Outcome; Reasons
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11
Q

Judicial Evaluation

WHAT

A

Evaluative Process
NOT Determinative
Voluntary
Non Binding

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12
Q

Judicial Evaluation

WHERE

A

Commercial Court

Technology AND Construction Court

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13
Q

Judicial Evaluation

WHO

A

Independent Judge

NO Involvement = Prevent Bias; Unless Consent

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14
Q

Judicial Evaluation

Court MAY

A

Provide Evaluation

Indicate Likely Outcome

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15
Q

Judicial Evaluation

Requirements

A

Party Agreement
Judge MUST Approve
MUST Aid Resolution

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16
Q

Expert Determination

WHAT

A

Determinative Process
NOT Facilitative OR Evaluative
Binding

17
Q

Determine

WHAT

A 
Legal Merits
Facts
Evidence
Remedies
=> Determination
Final Outcome
18
Q

Expert Determination

WHEN

A

Contract Clause

Request

19
Q

Expert Determination

Areas

A

Valuation = Construction

Technical Nature = Accountant; Engineer; Medical

20
Q

Expert Determination

WHERE

A

Professional Institute
Trade Body
ADR Provider
Direct

21
Q

Expert

Qualities

A 
Neutral
Expertise
Experience
Available
Cost
22
Q

Expert Determination

Agreement Terms

A 
Parties
Expert
Timetable
Venue
Procedure
Issues
Documents
Information = Confidential
Determination
Rights to Challenge
Costs / Signature
23
Q

Expert Determination

Procedure

A 
Consultation
Submissions = Oral; Written
Determination
MAY Investigate
Next Steps = ADR; Litigation
24
Q

Expert Determination

Consultation

A

Issues
Documents
Information
Expert = Time Limits; Powers

25
Q

Expert Determination

Determination Report

A 
Determination = Law; Facts; Evidence; Remedies
Decision = Merits; Final Outcome; Reasons
26
Q

Expert Determination

Determination Instructions

A

Confidential
Summary OR Detail
Decision = Binding; Right of Appeal
Reasons = Basis

27
Q

Expert Determination

Rights to Challenge

A

Grounds

Timescale

28
Q

Expert Determination

Court Approach

A

Uphold Contract Clause

NO Other Recourse to Resolve

29
Q

Expert Determination

Court Approach Requirements

A

Contract = Clear; Certain
Clause MUST = Issue; Jurisdiction; Binding
Expert = Instructions; Honest; Good Faith

30
Q

Expert Determination

Compliance Failure

A

Breach of Contract

Court Direction = Compliance

31
Q

Expert Determination

Court Powers

A

Stay Proceedings

Enforce = Contract; Judgement

32
Q

Expert Determination

Stay Considerations

A

Overriding Objective
Contract
ADR Appropriate
Costs

33
Q

Expert Determination

Grounds to Challenge

A

Legal Grounds

Contractual Grounds

34
Q

Grounds to Challenge

Legal Grounds TYPES

A

Expert NO Jurisdiction
Expert Departure from Instructions
Fraud OR Collusion

35
Q

Grounds to Challenge

Contractual Grounds MUST

A

Clause to Challenge

Reason = Expert Exclusive Remit to Determine

36
Q

Grounds to Challenge

Contractual Grounds TYPES

A

Error of Law
Manifest Error
NO Reasons = Decision

37
Q

Grounds to Challenge

Manifest Error

A

Obvious
Easily Demonstrable
Beyond Reasonable Contradiction

38
Q

Grounds to Challenge

Challenge Procedure

A

Part 23 Procedure = Proceedings Issued
Part 8 Procedure = Proceedings NOT Issued
MUST Evidence of Grounds

ADR (7 decks)

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