5. Adjudicative ADR Flashcards
(22 cards)
What does ‘arbitration claim’ mean under CPR 62.2?
An arbitration claim includes:
- Applications to the court under the Arbitration Act 1996.
- Claims to determine the validity of an arbitration agreement.
- Claims to determine whether an arbitral tribunal is properly constituted.
- Claims to determine what matters have been submitted to arbitration.
- Claims to declare an arbitration award is not binding.
- Any other application affecting arbitration proceedings or agreements.
How must an arbitration claim be started under CPR 62.3?
exception
An arbitration claim must be started by issuing an arbitration claim form in accordance with the Part 8 procedure, except where Section 9 of the Arbitration Act applies, which requires an application notice.
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(8) What details must be included in an arbitration claim form under CPR 62.4?
The claim form must include:
- A concise statement of the remedy claimed.
- Questions on which the claimant seeks a court decision.
- Details of any arbitration award being challenged.
- Grounds for the challenge.
- Proof of compliance with statutory requirements.
- Sections of the Arbitration Act 1996 relied upon.
- Identification of any defendants against whom costs orders are sought.
- Specification of parties to be served or a declaration that the claim is made without notice.
(3) What is the process for applying for a stay of legal proceedings under CPR 62.8?
The process involves:
- Serving the application notice on all parties with an address for service.
- If the party has no address, serving at their last known address or a location where it is likely to come to their attention.
- Court may determine if an arbitration agreement exists and whether the dispute falls within its terms
Who can apply for a stay under Section 9(1) of the Arbitration Act?
Any party to an arbitration agreement against whom legal proceedings are brought concerning a matter subject to arbitration can apply. This includes anyone claiming under or through a party as per Section 82(2).
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What is the timing requirement for a stay application under Section 9(3)?
A stay application must be made before taking any steps in the legal proceedings to answer the substantive claim.
(3) What are the general principles under Section 1 of the Arbitration Act 1996?
The principles are:
- Fair resolution of disputes without unnecessary delay or expense.
- Party autonomy in deciding procedural matters.
- Limited court intervention.
(5) What are the requirements for an effective reference to arbitration?
Requirements include:
- A written arbitration agreement.
- A dispute that is arbitrable (private law disputes).
- Fulfillment of any contractual condition precedents.
- Legal capacity of the parties.
- A willing arbitral tribunal.
(3) What are the types of arbitration awards?
Awards can be:
- Interim: Resolves one or more substantive issues but leaves others open.
- Partial: Addresses some claims in the arbitration.
- Final: Resolves all issues in the arbitration and is binding on the parties.
What is the procedure for enforcing arbitration awards under Section 66 of the Arbitration Act?
The procedure involves:
- Filing an arbitration claim form in the High Court.
- Seeking the court’s permission to enforce the award as a judgment or order.
What are the features of expert determination?
Features include:
- Involves an expert resolving disputes referred by the parties.
- Common for technical disputes requiring specific expertise (e.g., accountants, engineers).
- Decision is typically binding unless otherwise agreed.
- Operates independently of the courts.
(3) What are the grounds for challenging an expert determination decision?
Challenges may arise due to:
- Manifest errors in the decision.
- Failure to follow agreed procedures.
- Jurisdictional disputes.
(3) How are expert determination decisions enforced?
Enforcement methods include:
- Seeking court orders to enforce the decision.
- Using summary judgment if no valid grounds for challenge exist.
- Initiating bankruptcy or winding-up proceedings for monetary non-compliance.
(3) What determines the jurisdiction of the arbitration tribunal?
The tribunal’s jurisdiction arises from:
- The arbitration agreement between the parties.
- The mandate granted to the tribunal.
- It is limited to matters within the scope of the arbitration agreement and the agreement appointing the tribunal.
What are the 9 steps of the arbitration process in order?
The steps are:
1. Issuance of a notice of arbitration.
2. Appointment of arbitrators as per the agreement or institutional rules.
3. Preliminary meeting to address jurisdictional issues and procedural directions.
4. Evidential directions, including disclosure and expert evidence.
5. Pre-trial hearings for complex cases.
6. Submission of bundles, written submissions, and skeleton arguments.
7. The hearing, which may involve oral or written evidence and submissions.
8. Closing the arbitration process and issuing the award.
How do you commence arbitration
formalities/content notice of arbitration (3)
To commence arbitration:
- Issue a notice of arbitration to the other party.
The notice must:
- Be in writing.
- Comply with any agreed or institutional rules for appointing arbitrators.
- Include details such as the nature of the dispute, the remedy sought, and any procedural requirements.
- This notice marks the beginning of the arbitration process.
(3/4) What is the procedure for expert determination?
The procedure typically involves:
- Submission of written submissions by each party, outlining their case on each issue.
- Provision of relevant documents, ideally in an agreed bundle for efficiency.
- Optional attendance or cross-examination of witnesses, if agreed upon by the parties.
- The expert may pursue independent lines of inquiry if permitted by the agreement.
(3) What is the nature of a decision in expert determination?
The nature of the decision is:
- Binding if the parties agree it to be so.
- It does not take the form of an arbitral award but is enforceable as a contract term.
- The court generally upholds the decision unless there are grounds for setting it aside.
What is the process for applications to stay court proceedings pending expert determination?
what must other party show
what factors are considered
The process involves:
- The court exercising discretion to stay proceedings when a party has failed to use the agreed contractual ADR mechanism.
- The party seeking litigation must show valid reasons why the dispute should not proceed through expert determination.
- Factors considered include the enforceability of the agreement, compliance with pre-action protocols, suitability of the dispute for ADR, costs, speed of resolution, and alignment with the overriding objective.
(3) What are the grounds for challenging expert determination decisions?
How are the challenges typically made
what types of challenge can be made
Challenges may arise due to:
- Manifest errors in the decision.
- Jurisdictional disputes.
- Non-compliance with agreed procedures.
- Challenges are typically made through Part 8 proceedings, which can:
- Challenge the decision itself.
- Resolve disputes about the interpretation of the expert determination clause.
- Resolve disagreements about matters referred to the expert.
