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a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb CEDR-Accredited Mediator

BEYOND KNOWN SPACE: Arbitration & Dispute Resolution in the 4 th Dimension The 36 th Steege Kingston Lecture. a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb CEDR-Accredited Mediator 8 th March 2007. OVERVIEW of PRESENTATION. Introduction The Toolkit

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a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb CEDR-Accredited Mediator

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  1. BEYOND KNOWN SPACE:Arbitration & Dispute Resolution in the 4th DimensionThe 36th Steege Kingston Lecture a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb CEDR-Accredited Mediator 8th March 2007

  2. OVERVIEW of PRESENTATION • Introduction • The Toolkit • Dispute Resolution Options • Forms of ADR • Some Key Issues • Conclusions

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

  4. LITIGATION • Difficulties of Litigating • Local Laws – are they adequate ? • Courts – Good, Bad and Ugly • Finality • Timescales - long and VERY long • Enforceability • Costs

  5. ARBITRATION: AN OVERVIEW • What Is It ? • Origins • Market Men • Cost/Time-Effective • Confidentiality of Proceedings/Award • Institutions and Tribunals • Profusion of Laws • Finality • Enforceability • Insurance Arbitration

  6. ARBITRATION: PROCEEDINGS • Party Autonomy • Ad Hoc vs Institutional Arbitration • Choice of Lex Arbitri • Choice of Rules/Institution • Choice of Tribunal • Choice of Seat • Choice of Language/Procedure/Other • Ethics/Disclosure

  7. ARBITRATION: KEY LEGAL ISSUES • Arbitrability • Capacity • Substantive vs Procedural Laws • Enforceability • Public Policy Exception (NYC V(2)(b)) • Protectionism

  8. ARBITRATION: AWARDS • Appeals • Jurisdiction • Procedural Failures • Issues of Law • Enforcement • New York Convention 1958 • Limited Grounds for Refusal • Serious Failures Only • Court May (not Shall) Refuse

  9. FORMS OF ADR • Determinative • Expert Determination • Adjudication • Other • Non-Determinative • Mediation/Conciliation • ENE/PMTs/DABs/DRBs • Med-Arb and Arb-Med • Other

  10. EXPERT DETERMINATION • Historical Origins • Comprehensive English Case Law • Use of Expert’s Expertise • Applicability of Rules of Natural Justice • Expert Has Procedural Free Hand • Severe Limits on Grounds for Challenge • Robust Support by English Courts • Enforcement

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

  12. 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

  13. CONCLUSIONS (1) • Widen The Options/Expand the Toolkit • Creative Solutions to Modern Problems • Take Risks – Caution is Expensive ! • Lose Fear of P/I Risks

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

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