Decision Making in the Context of the Administrative Sanctions Procedure

Decision Making in the Context of the Administrative Sanctions Procedure A programme for Inquiry Members of the Financial Service Regulatory Authority 19 and 26 May, 2007 G Brian Hutchinson, BCL LLM DAL FCIArb BL Vice Dean, School of Law

Award Writing in Arbitrations

Preparing to Write The Award (Decision) • Remember the Substantive Requirements: • Cogent • Complete • Certain • Final • Enforceable

Summarising the Claims

Status of the Decision • Final? • Interim on some heads of claim? • Interim on Liability? • Final? • Suggestion that Specific Performance Awards should be interim?

Presentation of the Case • Formal Pleadings? • Statement of Case? • Scott Schedule? • Correspondence?

Proof: • Burden of Proof: • he who asserts must prove • Normally claimant • Standard of Proof • more likely than not. • Equal, then fails.

The Factual Evidence • Documents and Witnesses • Is witness testimony consistent and coherent? • Is reaction under cross-examination convincing?

Opinion Evidence • Are experts qualified? • What common ground is there? • Has expert remained impartial?

Points of Law • Are relevant authorities cited? • Are they biding or merely persuasive? • Where there is conflict, which comes closest to the case? • Has a full report of each authority been produced?

Closing Points • Can provide a useful starting point and agenda for writing the award.

Costs • Do they follow the event • What is the event? • Offers? Nature of the offer? • Are there any interlocutory matters which could affect costs? • Give reasons for unusual award of costs. • Costs of the Reference • Costs of the Award

Reasons • All that is required is that arbitrators should set out what, in their view of the evidence, did or did not happen and should explain succinctly why, in the light of what happened, they have reached their decision and what that decision is. That is all that’s meant by “reasoned award”. -Bremer Handelsgesellschaft v. Westzucker (No. 2) [1981] 2 Lloyd’s, per Donaldson LJ. • (In the Meadowsweet v. Bindweed handout)

Reasoned Awards • “ A reasoned award is one which states the reasons for the award in sufficient detail for the court to consider any question of law arising therefrom” . “The Ninemia” [1986] QB 802 • Note context, however.

Reasoning Issue Fact Fact or Law? Law Evidence Law Identification & Evaluation Submissions, Authorities, Application Finding / Holding

Legal Issues to be addressed in reasoning:

Final Check (by analogy): • Have all heads of claim been dealt with? • Have all heads of counterclaim been dealt with? • Has anything which was not claimed been awarded? • Has interest been properly dealt with? • Have the costs of the reference been dealt with? • Have the costs of the award been dealt with?

Drafting the Decision

Remember the Formal Requirements, particularly: • Writing • Reasons • Recitals • Date • Signature

Pointer: • “There are nine and sixty ways of constructing tribal lays and every single one of them is right” - Kipling.

Heading: In the matter of the Arbitration Acts 1954 to 1998, and in the matter of an Arbitration between: A.B. Claimants and C.D. Respondents

Sub-Heading: • Final Award • Interim Award • Second Interim Award • Final Consent Award

Introduction • Recitals: “Whereas…” • Remember Christopher Brown v. Genossenschaft Osterreichiser, particularly: • Agreement (set-out, mention rules) • Dispute within Scope (more to follow) • Arbitrator Appointed (say how and when accepted)

Identify Procedure Adopted • pleadings • meetings • discovery • (Think Costs – were they reserved or were costs awarded “in any event?”)

Outline of Dispute • Could be taken from the pleadings. • Short approach quite acceptable: • “The claimant claims: • £73,798 for loss and expense allegedly incurred as a direct consequence of delay and disruption to its work by the respondents • £6,196.25 for reimbursement of monies allegedly wrongfully deducted from valuation no 3. • Interest • Costs • “The Respondent denies any of the relief sought by the claimant and counterclaims: • etc…”

Summarising the Evidence • “First, even where a judge knows that the losing party is almost bound to appeal, the prospect of appeal has no effect on the contents of the judgment. Second, it is not necessary – and probably not even desirable – that an arbitrator should attempt, as a judge does, to summarise the evidence given by the parties on each disputed factual issue. Nor, save perhaps where the arbitrator has been asked before making his award to set out in his reasons the evidence upon which a particular finding of fact is based, should the arbitrator set out all the relevant evidence on a point.” – Lord Justice Bingham, in an address to the CIArb.

Giving your reasons • State the Issue & its Significance • Mention the Evidence or Submissions • Evaluate the evidence or apply the law • State your decision. • (Alternatives…)

Giving your reasons • O’Reilly & Sfaniaki 66 Arbitration 79 • Advise the parties: • Why the winning party one AND • Why the losing party lost (on what basis were their contentions rejected?) • Explain the legal reasons • Normally requested to fuel appeal.

Award • “having considered the evidence and the submissions adduced by and on behalf of the parties I HEREBY PUBLISH MY FINAL AWARD:” • Analytical approach to each claim and counterclaim most useful. • “I Hereby award and Direct that...” • “Full and final satisfaction” • Time for Payment?

Costs • Of Reference, liability not quantum • Of Award, liability and Quantum?

Final Formalities: • Signature • Date • Witnesses • Place

Decision Making in the Context of the Administrative Sanctions Procedure