ARBITRATION and ADR: UK and INTERNATIONAL PERSPECTIVES

ARBITRATION and ADR: UK and INTERNATIONAL PERSPECTIVES

a presentation by

HEW R. DUNDASChartered Arbitrator DipICArb CEDR-Accredited Mediator

to CIArb East Asia Branch

20th March 2007

OVERVIEW of PRESENTATION

Introduction Dispute Resolution Options

Some UK Perspectives

Some International Perspectives

Some Key Issues Conclusions

DISPUTE RESOLUTION OPTIONS

Litigation Arbitration Adjudication Mediation Expert Determination Other ADR

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”

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

ARBITRATION: INTERNATIONAL

Far Too Slow, Far Too Expensive Concentration in Hands of the Few Cost-Cutting in HKIAC/SIAC/KKLRCA but

London QCsExcessive disclosure

Awards Far Too Long, Far Too Late60-page Procedural Order400-page awards3-Year Delays

ADJUDICATION: UK PROBLEM AREAS

Paper War Ambush Day of Judgement - 2400 on Day 28

Epping Electrical v Briggs & ForresterCubitt v Fleetglade

Adjudicator almost incurred £0.7m liability

Over-Lawyering Professional Negligence Cases Final Account Cases

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

TCCZpO §278

Minimal Impact in Scotland

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

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

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

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

CONCLUSIONS (2)

THANK YOU

for listening to me this evening