Session 4: Streamlining ADR Processes in Response to Increased Volumes of Conflict and the Economic Downturn Rashda R

2. IAMA 2009 Annual Conference Rashda Rana

3. Streamlining dispute resolution processes = efficiency in time and cost

4. Starting Point: Get it right at contract negotiation and drafting stage: Jurisdiction clauses Choice of law clauses

5. Choice of forum clause Arbitration or litigation Why bother to include such a clause Exclusive or non-exclusive The effect given to an exclusive jurisdiction clause

6. Choice of law clauses Why bother to include such a clause How NOT to draft such a clause Are there any limits to the choice

7. Different forms of ADR Certification Executive negotiations Early neutral evaluation Private (mini) trial Expert determination Dispute boards Mediation Med-arb Adjudication Arbitration

8. Third party neutral Minimal requirements of due process: Certification Early neutral evaluation Expert determination Dispute review boards

9. Direct involvement and most control by parties Executive negotiation Mediation

10. Process driven forms of ADR Private (mini) trial Dispute adjudication boards Med-arb Arbitration

11. �The essential difficultly is the tendency of every aspect of litigation to be bloated, flabby and excessively voluminous � allegations in pleadings, the content of discovery, and in particular, written argument, citation of authority, and summing up and judgments themselves� [J D Heydon J "Reciprocal Duties of Bench and Bar" (2007) 81 ALJ 23 at 28]

12. What the clients want: Savings in time and cost; Commercial considerations; and A process that produces a near certain result.

13. ADR clauses Clear language Smooth transition from one level to another in a multi-tiered dispute resolution clause Certainty of conclusion of one level Enforcement of any one level

14. Adjudication v Arbitration

15. Adjudication � What? Written submissions to a neutral third party who is usually a specialist in the area of dispute Process is usually short Decision can be final and binding Statutory right � interim decision

16. Arbitration � What? Contractual, consensual and private Empowers third party neutral to decide outcome of dispute According to relevant (chosen) law Hearings Binding and final

17. Adjudication � When? Early = dispute resolution process Discrete issue Payment claim Real time

18. Arbitration � When? End of project Short form, chess clock arbitrations on discrete issues

19. Adjudication � How? Statutory process � once election made, no choice in procedure Contractual mechanism � consensual process similar to statutory provisions - can be elective or compulsory Documentary Can be further submissions if adjudicator asks

20. Arbitration � How? Contractual, consensual, elective or compulsory Ad hoc Documentary but usually involves hearing Procedural choices open to parties

21. Adjudication � Why? Quick, cheap, efficient Largely private Can be final and binding BUT DAB�s/DRB�s � can be expensive � up to 0.25% of construction cost of project Statutory interim decisions

22. Arbitration � Why? Private Final and binding Time needed to prepare and put case Complexity of issues Mechanisms that enable resolution of international disputes Cross border enforceability

23. Conclusion - best means Adjudication Working well � improving cash-flow in industry Cheap, quick, efficient Near 100% resolution success rate Rough justice Force of judicial imprimatur No recourse for dissatisfied party except to arbitrate Arbitration Still working well but fewer Can be costly 100% success rate in that either settled or award issued Greater sense of adherence to rules of natural justice Large projects NY Convention