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ARBITRATION and ADR: UK and INTERNATIONAL PERSPECTIVES

ARBITRATION and ADR: UK and INTERNATIONAL PERSPECTIVES. a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb CEDR-Accredited Mediator to CIArb East Asia Branch 20 th March 2007. OVERVIEW of PRESENTATION. Introduction Dispute Resolution Options Some UK Perspectives

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ARBITRATION and ADR: UK and INTERNATIONAL PERSPECTIVES

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  1. ARBITRATION and ADR: UK and INTERNATIONAL PERSPECTIVES a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb CEDR-Accredited Mediator to CIArb East Asia Branch 20th March 2007

  2. OVERVIEW of PRESENTATION • Introduction • Dispute Resolution Options • Some UK Perspectives • Some International Perspectives • Some Key Issues • Conclusions

  3. DISPUTE RESOLUTION OPTIONS • Litigation • Arbitration • Adjudication • Mediation • Expert Determination • Other ADR

  4. LITIGATION in ENGLAND & WALES • Pre-1996 Oil Industry View • Effect of CPR post-1999 • Robust Case Management • Too robust ? • Timescales – Short & Sharp • The Jackson 67-day Judgment • “Front Comor”

  5. ARBITRATION: E&W PROBLEM AREAS • 2006 10-Year Survey • Too slow, Too Expensive • Continues to Mirror Court Procedures • AA96 Powers Not Fully Utilised • Cost-Capping (s.65) • Creativity under s.34 • Awards Too Long, Too Late • User Needs Ignored • Process run by Lawyers for Lawyers

  6. ARBITRATION: INTERNATIONAL • Far Too Slow, Far Too Expensive • Concentration in Hands of the Few • Cost-Cutting in HKIAC/SIAC/KKLRCA but • London QCs • Excessive disclosure • Awards Far Too Long, Far Too Late • 60-page Procedural Order • 400-page awards • 3-Year Delays

  7. ADJUDICATION: UK PROBLEM AREAS • Paper War • Ambush • Day of Judgement - 2400 on Day 28 • Epping Electrical v Briggs & Forrester • Cubitt v Fleetglade • Adjudicator almost incurred £0.7m liability • Over-Lawyering • Professional Negligence Cases • Final Account Cases

  8. MEDIATION: UK PROBLEM AREAS • Over-Proceduralisation • Over-Lawyering – Senior + Junior Counsel • Rigidity/Fossilised Approach • Lack of Court Power to Compel • Fear of Evaluation • Fear of Judicial Settlement • TCC • ZpO §278 • Minimal Impact in Scotland

  9. EXPERT DETERMINATION • Historical Origins • Comprehensive English Case Law • Robust Support by English Courts • Use of Expert’s Expertise • Non-Applicability of Rules of Natural Justice • Expert Has Procedural Free Hand • Severe Limits on Grounds for Challenge but • Halifax Life v Equitable Life • Enforcement

  10. NON-DETERMINATIVE ADR • Executive Negotiation • Early Neutral Evaluation (ENE) • Private Mini-Trials • DABs & DRBs • Mediation/Conciliation • Med-Arb and Arb-Med • Other/None of the Above

  11. ADR: SOME KEY ISSUES • Is Decision Binding ? • Enforcement • User Reluctance to Try Something New • Lawyer Resistance • Requirement for Precedent ? • Proceeds of Crime Act/Money-Laundering Regulations

  12. CONCLUSIONS (1) • Litigation is a Threat to Arbitration • Adjudication Threatens to Strangle Itself • Mediation Becoming too Rigid/Fossilised • Other Options Being Ignored • Creative Solutions to Modern Problems • Take Risks – Caution is Expensive ! • Lose Fear of P/I Risks

  13. CONCLUSIONS (2) THANK YOU for listening to me this evening

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