Alternative Dispute Resolution: Adjudicative Options (Syllabus 4)

Question 1

What is expert determination?

Answer 1

a process in which an expert is appointed to make a determination on the issues referred to him or her by the determinative process.

Question 2

When is expert determination usually used?

Answer 2

in a case that has a technical aspect where the parties will benefit from the determination of an appropriate expert.

Question 3

When can the parties decide to use expert determination?

Answer 3

the parties can contractually bind themselves ahed of a dispute arising or they may select this as the most appropriate form of ADR after a dispute has arisen

Question 4

How will the determination be governed?

Answer 4

through the terms of the contract by which the expert is appointed

Question 5

Is the determination final and binding?

Answer 5

Yes, this is normally stipulated in the contract.

Question 6

What does it mean that the determination is final?

Answer 6

it cannot be reviewed or appealed

Question 7

Can the parties agree that the determination is only temporarily binding?

Answer 7

Yes.

Question 8

Is expert determination subject to the supervision of the court?

Answer 8

No. But the court can come involved if a dispute arises as to the jurisdiction of the expert or either of the parties wishes to challenge the determination.

Question 9

Can a court order be made to enforce compliance with the determination?

Answer 9

Yes.

Question 10

What is the role of the expert in expert determination?

Answer 10

they are the decision-maker not a witness.

Question 11

What cases are suitable for expert determination?

Answer 11

expert determination is a useful and cost-effective way of determining disputes of a highly technical nature.

Question 12

What is the contractual nature of expert determination?

Answer 12

expert determination is usually used where the parties have agreed in advance to use it to resolve a dispute arising out of a contract. A separate contract comes into existence between the parties and expert when the matter is referred to the appointed expert for determination.

Question 13

What is the usual procedure for expert determination?

Answer 13

the parties usually provide the expert with:

(1) written submissions setting out their case on each issue
(2) copies of all relevant documents
(3) the parties may agree for the parties to make submissions at a meeting.

Question 14

What is the nature of a decision in expert determination?

Answer 14

a decision is usually binding on all parties, so the court will usually uphold the decision unless there are grounds for setting it aside.

Question 15

What is the effect of a party refusing to uphold an expert determination?

Answer 15

this will be deemed to be a breach of contract, so the other party may be entitled to damages for this breach

Question 16

What is the court’s discretion when a party fails to use the contractually agreed method to resolve a dispute?

Answer 16

the court has a discretion to stay the court proceedings issued and determine the dispute.

Question 17

What will the court consider when exercising its discretion to enforce clauses by staying proceedings?

Answer 17

(1) whether the agreement creates an enforceable obligation
(2) the extent to which the parties have complied with the requirements in a pre-action protocol
(3) whether the dispute is suitable for determination?
(4) whether the dispute could be resolved more quickly by our proceedings than by requiring parties to use the contractually agreed ADR method.
(5) whether a stay would comply with the overriding objective

Question 18

Who bears the burden to show that the proceedings should not be stayed so a party can invoke a contractually agreed method of ADR?

Answer 18

on the party seeking to litigate

Question 19

What will the court consider when deciding whether a determination can be challenged?

Answer 19

the court will consider what the terms of the contract are and whether or not the term in the contract contained reasons for the decision.

Question 20

What is the procedure for making a challenge to an expert determination?

Answer 20

this is usually made by issuing Part 8 proceedings. If the decision is set aside, the court may make the determination itself or it may direct a new expert to be instructed to determine the matter.

Question 21

How is a decision reached by expert determination enforced?

Answer 21

a failure by one side to honour the decision amounts to a breach of contract, so the other party can start proceedings and the court can enforce the decision like any other court order.

Question 22

What does an arbitration claim mean?

Answer 22

any application to the court under the Arbitration Act 1996

Question 23

How must an arbitration claim be started?

Answer 23

Unless the application is one to stay the proceedings, the claim must be started by issuing a claim form in accordance with the Part 8 procedure

Question 24

What types of claim is the arbitration claim form used for?

Answer 24

disputes as to whether there is a valid arbitration agreement or whether the arbitration tribunal is properly constituted.

Question 25

What must be included fun the arbitration claim form?

Answer 25

(1) a concise statement of:
- the remedy claimed and any questions on which the claimant seeks the decision of the court.
(2) details of any arbitration award challenged by the claimant.
(3) show that any statutory requirements have been met
(4) specify under which section of the 1996 Act the claim is made
(5) identify against which defendants a costs order is sought

Question 26

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

Answer 26

within 1 month from the date of issue.

Question 27

Who must an application notice seeking to stay legal proceedings be served on?

Answer 27

all of the parties to those proceedings

Question 28

Who can apply to stay legal proceedings under s.9 Arbitration Act?

Answer 28

a party to an arbitration agreement against whom “legal proceedings are brought… in respect of a matter which under the agreement is to be referred to arbitration”

Question 29

Can the court impose a stay in favour of a third party for the purpose of arbitration?

Answer 29

Yes, it is possible on the basis of an intention to rely on a contractual defence which was subject to a term providing for the submission of disputes to arbitration.

Question 30

If an action against a company is stayed, does this mean that an action against the company’s parent should also be stayed?

Answer 30

No, if there was no guarantee that a dispute between the company’s parent would be solved by arbitration then this would not matter.

Question 31

What must the defendant serve before a stay can be imposed?

Answer 31

an acknowledgement of service.

Question 32

Can the defendant get the proceedings stayed if they have served a defence?

Answer 32

No

Question 33

When must the application to stay proceedings be made?

Answer 33

After the defendant has acknowledged service but before he has taken any step in the proceedings to answer the substantive claim.

Question 34

Who bears the burden to show that the claim should proceed?

Answer 34

the claimant

Question 35

What is arbitration?

Answer 35

an impartial arbitrator or tribunal considering both sides of a dispute and making a decision on the issues related

Question 36

When are arbitration agreements usually made?

Answer 36

they are made when the parties enter into a contract and are used as a method for dealing with a dispute

Question 37

What is the difference between mandatory and non-mandatory provisions in the Arbitration Act 1996?

Answer 37

the mandatory provisions cover matters that are essential for the effective resolution of disputes, everything else is covered by non-mandatory provisions.

Question 38

What are the three general principles of arbitrations?

Answer 38

(1) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense
(2) the parties should be free to agree how their disputes are resolved, subject to safeguards that are necessary in the pubic interest; and
(3) the court should not intervene except as provided by the Arbitration Act 1996.

Question 39

What are the key aspects of a decision to use arbitration?

Answer 39

(1) the parties choose the tribunal
(2) the arbitration takes place in a neutral location
(3) confidential
(4) fast and efficient
(5) light but efficient supervision by the court.

Question 40

What requirements must be met for arbitration?

Answer 40

(1) dispute
(2) dispute must be arbitrable
(3) agreement must be in writing
(4) the nature of the dispute must come within the terms of the arbitration agreement.
(5) the parties must have legal capacity to enter into the agreement.

Question 41

What types of disputes can be referred to arbitration?

Answer 41

Almost any dispute but arbitration is most commonly used when resolving disputes arising out of a contract

Question 42

Will a tribunal always have the jurisdiction for the arbitration?

Answer 42

Not always, it depends on the terms of the reference to arbitration in the agreement.

Question 43

How can a party prevent the breach of an agreement to arbitrate?

Answer 43

By using s.9 Arbitration Act, and applying to stay the court proceedings.

Question 44

What is the min question under s.9 1996 Act?

Answer 44

whether the dispute raised is a matter “which under the agreement is to be referred to arbitration”

Question 45

How are arbitrations commenced?

Answer 45

By sending a notice of arbitration and appointing the members of the arbitral tribunal.

Question 46

What are the requirements for the notice of arbitration?

Answer 46

it must be in writing and it must comply with the requirements for appointing the arbitral tribunal

Question 47

How is the arbitrator appointed?

Answer 47

the parties are free to agree on the procedure for appointing the arbitrator or arbitrators.

Question 48

What occurs in the preliminary meeting?

Answer 48

usually convened shortly after the tribunal is appointed. the purpose is a forum for the tribunal ton discuss jurisdictional matters and to make procedural directions for the preparation of the evidence needed.

Question 49

What are the time limits for directions?

Answer 49

it is up to the tribunal to fix these and extend the time limits if need be.

Question 50

What do the bundles for arbitrations include?

Answer 50

the statements of case, procedural orders and directions. Contemporaneous documentation, witness statements of both factual and expert witnesses.

Question 51

Is there a right to an oral hearing for arbitration?

Answer 51

No, the tribunal can decide whether written or oral evidence will be more appropriate.

Question 52

What style is the hearing?

Answer 52

it can be either adversarial or inquisitorial

Question 53

Is arbitration confidential?

Answer 53

Yes

Question 54

What are the different awards and orders available to arbitrators?

Answer 54

(1) procedural orders
(2) interim awards
(3) final awards
(4) costs awards

Question 55

Are orders and awards binding in arbitration?

Answer 55

Yes

Question 56

How can you enforce an arbitration order or award?

Answer 56

by brining a civil claim in the High Court, or by using the summary procedure under s.66 AA 1996.

Question 57

Is permission needed to enforce an award of an arbitral tribunal?

Answer 57

Yes, permission is sought by issuing an arbitration claim form in the High Court.

Question 58

Can you get cross-border arbitration agreements enforced?

Answer 58

Yes, most often through the New York Convention 1958.

Question 59

Can you appeal an arbitration decision?

Answer 59

there are only limited grounds for seeking judicial review:

1) under s.68 for serious irregularity (unless parties exclude this right
(2) s.69 appeal on a point of law.