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Cover A Practical Approach to Alternative Dispute Resolution

26. Arbitration  

This chapter discusses arbitration, which is an adjudicative dispute resolution process. It is based on an agreement between the parties to refer a dispute or difference between them to impartial arbitrators for a decision. As a consequence of the contractual basis of arbitration, it is not every dispute that can go to arbitration. The chapter considers the requirements for an effective reference to arbitration, but it should be noted that the agreement to arbitrate may be made before or after the relevant dispute has arisen. This means that there may be a pre-existing arbitration agreement which, when a dispute arises, one of the parties wishes to evade. There is a strong public policy in favour of upholding arbitration agreements; this is supported by the idea that an arbitration clause in a contract is separable from the rest of the substantive contract. Arbitrations in England and Wales are governed by the Arbitration Act 1996, which lays down a highly developed set of procedures for arbitrations.

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28. The Commercial Arbitration Process  

This chapter details the procedures followed in commercial arbitrations involving parties who are all located within England and Wales. Arbitration is intended to be private and confidential, concepts that flow from the private agreement of the parties to refer the matter to arbitration rather than the courts. There are many arbitral institutions, which may have their own institutional rules for arbitration, and they may also administer arbitrations. The chapter then considers how the procedural rules in the Arbitration Act 1996 are subject to contrary agreement by the parties. If institutional rules are silent on a procedural matter, the default provisions in the Arbitration Act 1996 apply. The chapter also looks at the role of legal representatives in arbitration, before discussing ‘look-sniff’ arbitrations and short-form arbitrations.

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27. Arbitral Tribunals  

This chapter examines how arbitrations are commenced with a notice of arbitration and the appointment of arbitral tribunals. Typically, arbitral tribunals will have either a sole arbitrator or a panel of three arbitrators. There are a number of variations on this theme. Examples include tribunals with a chairperson or an umpire, and the use of judge-arbitrators. The chapter then describes the contractual basis of the appointment of arbitrators, and the procedures dealing with the removal, resignation, or death of an arbitrator. The Arbitration Act 1996 seeks to give effect to the parties' agreements (between themselves or with the arbitrators) if it becomes necessary for an arbitrator to resign or be removed, but there are fall-back provisions allowing applications to the court because it is recognized that agreement may not be possible given the possibly contentious nature of these situations.

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29. International Arbitration  

This chapter focuses on international arbitration, which broadly covers any reference to arbitration involving parties in different states. International arbitration is most frequently met in the shipping, construction and engineering, oil and gas industries, and also in disputes involving insurance, banking, and financial services. Different systems of law may govern the substantive contract, the agreement to arbitrate, and the procedural law of an arbitration. Ideally the parties will have reached express agreement on the system(s) of law governing each of these areas. If there is no express agreement on the system of law, it will be determined from all the circumstances. The chapter then considers a range of possible challenges to the jurisdiction of a tribunal, as well as several different ways in which a challenge to the tribunal's jurisdiction can be brought. It also looks at the International Chamber of Commerce (ICC) arbitration rules and the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Arbitration.

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31. High Court Jurisdiction in Arbitration Claims  

This chapter addresses High Court jurisdiction in arbitration claims. Intervention by the courts in arbitrations is restricted to those situations allowed by the Arbitration Act 1996. These include situations where the judicial system can offer support to the arbitral process to make it effective and to correct obvious injustices. Applications in support of the arbitral process include applications relating to the appointment of arbitrators and procedural orders to secure evidence for use in arbitrations. Ultimately, judicial review of arbitral awards is strictly restricted. The main provisions deal with serious irregularities and appeals on points of law. Appeals to the Court of Appeal are (with minor exceptions) only available with the permission of the High Court judge.

Chapter

Cover The English Legal System

19. Alternative Dispute Resolution  

Alisdair A. Gillespie and Siobhan Weare

This chapter considers alternative dispute resolutions (ADR), which are ways that a dispute can be settled outside of the court process. The chapters considers the growth of ADR and how the courts now require litigants to consider ADR before commencing legal action. The courts have wide powers to encourage ADR and this chapter considers these powers and why the courts try to encourage ADR. The key forms of ADR are then presented, together with an analysis of their strengths and weaknesses.

Chapter

Cover The English Legal System

19. Alternative Dispute Resolution  

This chapter considers alternative dispute resolutions (ADR), which are ways that a dispute can be settled outside the court process. The chapter considers the growth of ADR and how the courts now require litigants to consider ADR before commencing legal action. The courts have wide powers to encourage ADR and this chapter considers these powers and why the courts try to encourage ADR. The key forms of ADR are then presented, together with an analysis of their strengths and weaknesses.

Chapter

Cover Legal Ethics

11. Alternative dispute resolution  

This chapter examines the ethical issues raised by alternative dispute resolution (ADR). It first looks at the process of negotiation, which is the way in which lawyers resolve most disputes. It then considers other forms of ADR, including mediation and, briefly, arbitration. The chapter highlights the advantages and disadvantages of these processes. There are particular concerns where one party is in a stronger bargaining position, for example in a family case which has involved domestic abuse. There is also much debate over the role a mediator should play, andin particular over whether a mediator should take a neutral role or persuade the parties to reach what they regard as a fair settlement. It also considers what attracts clients to use these forms of dispute resolution.

Chapter

Cover Legal Ethics

10. Alternative dispute resolution  

This chapter examines the ethical issues raised by alternative dispute resolution (ADR). It first looks at the process of negotiation, which is the way in which lawyers resolve most disputes. It then considers other forms of ADR, including mediation and, briefly, arbitration. The chapter highlights the advantages and disadvantages of these processes. It also considers what attracts clients to use these forms of dispute resolution.

Chapter

Cover Contract Law

12. Boilerplate Clauses  

This chapter examines some standard clauses found in commercial contracts today (often known as ‘boilerplate clauses’). The focus is on commercial contracts and terms that will, in all probability, have been drafted by lawyers. After first setting out some general considerations that relate to the structure of modern contracts, the discussion moves on to examine some standard form clauses to be found in such contracts. These include general clauses, retention of title clauses, price escalation clauses, clauses making provision for the payment of interest, force majeure clauses, choice of law clauses, arbitration clauses, jurisdiction clauses, hardship clauses, entire agreement clauses, no oral modification clauses, termination clauses, assignment, and, albeit briefly, exclusion and limitation clauses.

Chapter

Cover International Law Concentrate

10. Peaceful settlement of disputes  

This chapter examines the means and methods relating to the peaceful settlement of international disputes. The UN Charter obliges States to resolve their disputes peacefully and suggests certain means for such settlement: on the one hand, diplomatic means, like negotiation, mediation, conciliation, or the ‘good offices’ of the UN Secretary General and, on the other, legal methods, such as arbitration and recourse to the International Court of Justice (ICJ), which are binding. The ICJ exercises its jurisdiction over contentious cases only upon the consent of the parties to the dispute, which may be expressed through various forms (eg compromis or optional clause declaration). The ICJ may also render advisory opinions to questions of international law posed by the UN General Assembly, the Security Council, or other competent organs and organizations. The chapter also explains dispute settlement in the context of international investor–State arbitration and in the World Trade Organization.

Chapter

Cover English Legal System

16. Alternative dispute resolution  

Alternative Dispute Resolution (ADR) describes any method of resolving legal disputes other than through litigation in the courts or tribunals. ADR includes arbitration, mediation, adjudication, conciliation, med-arb, and early neutral evaluation/expert determination. This chapter explains the differences between the various forms of ADR, why ADR exists, its many advantages (compared to litigation), and its disadvantages. The chapter examines case law dealing with the ‘cost consequences’ of a failure by one party to a legal dispute to engage in ADR when presented with the opportunity to do so. The chapter considers whether ADR should be made compulsory and the extent to which the parties to a dispute, having agreed to resolve their dispute through ADR, can be compelled to honour that agreement.

Book

Cover A Practical Approach to Alternative Dispute Resolution

Susan Blake, Julie Browne, and Stuart Sime

A Practical Approach to Alternative Dispute Resolution provides a commentary on all of the major areas of out-of-court dispute resolution. The text is made up of six parts. Part I looks at the history and range of alternative dispute resolution (ADR) methods. The second part moves on to the interplay between ADR, civil procedural rules (CPR), and litigation. The third part focuses on negotiation and mediation. It looks at styles, strategies, and tactics; preparation for mediation; and the mediation process as a whole. It also touches on international mediation. Part IV is about evaluation, conciliation, and Ombudsmen. The fifth part examines recording settlement. The sixth and final part is about adjudicative ADR. It contains chapters on expert or neutral determination, construction industry adjudication, arbitration, arbitration tribunals, commercial arbitration, international arbitration, awards and orders, High Court jurisdiction in arbitration claims, and, finally, enforcement of settlement and awards.

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Cover A Practical Approach to Alternative Dispute Resolution

2. Overview of ADR Options  

This chapter presents an overview of the alternative dispute resolution (ADR) options available to parties to a dispute in England and Wales, outlining the most commonly used processes. A lawyer should be familiar with the range of ADR options and be able to advise a client on appropriate use of ADR. This includes familiarity with each process, when it should be used, who might attend, and key strengths and weaknesses. ADR options can be broadly divided into processes that are adjudicative (where a third party takes a decision) and those which are non-adjudicative (where the parties approve any proposed settlement). The main non-adjudicative options are negotiation and mediation. The main difference between the two is that a negotiation is normally conducted by lawyers, whereas a mediation includes a neutral third party. Meanwhile, the main adjudicative options are arbitration and expert determination.

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Cover A Practical Approach to Alternative Dispute Resolution

30. Arbitration Awards and Orders  

This chapter assesses four different types of awards and orders that are available to arbitrators. Procedural orders provide procedural directions and measures designed to preserve evidence or the subject-matter of the dispute (conservatory measures) while an arbitration is proceeding. Meanwhile, interim awards and awards on different issues dispose of one or more of the substantive issues in the arbitration, leaving the other issues to be decided later. Final awards dispose of the arbitration, while costs awards provide for the payment of the costs incurred in the arbitration between the parties. Usually, once an order or award is made, it is binding on the parties. Most sets of institutional arbitral rules include provision for parties making suggestions for the correction of clerical mistakes in orders and awards. Lawyers also need to advise their clients on the meaning and effect of the tribunal's decision, and where there is further work to be done, to take the client's instructions on the next steps.

Chapter

Cover Cassese's International Law

13. Peaceful Settlement of International Disputes  

Paola Gaeta, Jorge E. Viñuales, and Salvatore Zappalà

The general obligation of peaceful settlement of disputes complementing the general ban on the use or threat of force prompted States to revitalize and strengthen the traditional means for settling disputes and establish innovative and flexible mechanisms for preventing disputes or, more generally, inducing compliance with international law. This chapter discusses the so-called diplomatic mechanisms for promoting agreement between disputants, the so-called judicial means (arbitration and adjudication), and the interplay between them. The chapter further examines the establishment of more flexible mechanisms for either preventing or settling disputes, in particular non-compliance and supervisory procedures.

Chapter

Cover International Law

12. The peaceful settlement of disputes  

This chapter discusses some of the more relevant methods for peaceful dispute settlement. It begins by introducing a number of non-adjudicatory settlement mechanisms and providing a brief overview of the role played by the UN. It then discusses the adjudicatory means of settling disputes, including international arbitration; the competences and powers of the International Court of Justice; issues of access to the Court and the Court’s jurisdiction in contentious cases; the power of the Court to issue provisional measures; the effects of the Court’s decisions; the relationship between the Court and the UN Security Council; and the Court’s competence to issue advisory opinions.

Chapter

Cover Brownlie's Principles of Public International Law

32. Third party settlement of international disputes  

This chapter discusses the third party settlement of international disputes. It covers arbitration and the origins of international dispute settlement; the idea of judicial settlement of international disputes; the International Court of Justice, interstate arbitration, dispute settlement under UNCLOS, the WTO dispute settlement body, and international investment tribunals.

Chapter

Cover Cases & Materials on International Law

16. Peaceful Settlement of International Disputes  

An international legal order must have rules in regard to the settlement of disputes. These rules are particularly necessary in an international community where States are not equal in terms of diplomatic power, access to weapons or access to resources, and where there is the potential for massive harm to people and to territory. This chapter discusses the general obligation on States; non-judicial settlement procedures; arbitration; specific international tribunals; the International Court of Justice and its interaction with the Security Council.

Chapter

Cover International Law

12. International dispute settlement and the ICJ  

This chapter examines the various political or diplomatic methods available for international dispute settlement. These methods include negotiation, mediation or ‘good offices’, inquiry, and conciliation. The array of diplomatic techniques available to parties to resolve a dispute is complemented by various means of settling disputes through the application of binding solutions based on the law. Two in particular, arbitration and adjudication, principally developed from earlier forms of non-binding settlement. Though these are different, they are linked by two principal characteristics. Foremost, they allow for a third party to issue a decision that is binding on the parties. Secondly, resorting to these methods requires the prior consent of the parties. The chapter then considers the International Court of Justice, the ‘principal judicial organ’ of the United Nations. The ICJ’s structure was frequently utilized as a model for later judicial institutions, making an enormous contribution to the development of international law.