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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 - PowerPoint PPT Presentation
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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