The Resolver May 2013

THERESOLVERT H E Q U A R T E R L Y M A G A Z I N E O F T H E C H A R T E R E D I N S T I T U T E O F A R B I T R A T O R S

UNCITRAL rules revamped to promote greater transparency in investor-state disputesWhy the arbitral process proposed for civil legal claims against the UK press needs expert inputHow to utilise CIArb's Property Disputes ServiceAll the latest news and events from CIArb

www.ciarb.org May 2013

Divorce without acrimony Why separating

couples are turning to

arbitration

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Looking to appoint a Dispute Resolver?CIArb-DAS can help you.

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LEADERWELCOME TO THE MAY EDITION OF The Resolver. On taking up the Presidency, I attended January’s Board of Management meeting in Bloomsbury Square. It was satisfying to see a candid discussion of the issues facing the Institute and a focus on taking proactive steps to meet these challenges.

My Presidential visits started with the Indian Branch, whose members I addressed in early February, both in Mumbai and New Delhi. The branch is working hard to promote the Institute and the cause of arbitration in India. The function in Mumbai was convened by the Mumbai Bar, which is creating a dedicated Arbitration Bar group. In Singapore, I participated in a session at the Law Society’s

litigation conference on the future of litigation and arbitration, moderated by Singapore Court of Appeal judge, Justice VK Rajah. It was interesting to note that the number of new cases fi led in the High Court of Singapore has diminished. Meanwhile, the Singapore Branch is going from strength to strength.

I also visited the East Asia Branch, where I spoke at an event at the Hong Kong International Arbitration

Centre. I then participated as an arbitrator in the annual Willem C Vis (East) International Commercial Arbitration Moot. Teams from 93 universities took part. It was initiated by the East Asia Branch and credit goes to the indefatigable Louise Barrington FCIArb for organising it.

Our showpiece event this year is CIArb’s International Arbitration Conference in Georgetown, Malaysia, from 22-24 August. The theme is “Tapping Asia’s Growth”. I would encourage members to attend – it will be an opportunity to mingle with people of diff erent cultures and legal systems, all sharing a common belief in arbitration. There will also be speakers projecting the anticipated progress in arbitrations in China and India, apart from keeping up with evolving techniques for dealing with private dispute resolution.

A word on CVs too. For the purpose of serving the Institute by getting appointed as neutrals, whether as arbitrators, adjudicators or mediators, the more detailed a CV is, the easier it is to pick someone appropriate. May I suggest that members take some time to review their CVs.

In this edition of The Resolver, you can read our cover feature on arbitration and divorce, a piece on how to utilise CIArb’s Property Disputes Service and all the latest CIArb news.

With my very best wishes to all members.

Vinayak Pradhan FCIArb C.Arb

I would encourage members to attend our showpiece event

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© THE RESOLVER is published on behalf of the Chartered Institute of Arbitrators (CIArb) by Redactive Publishing Ltd (RPL), 17 Britton St, London EC1M 5TP. This magazine aims to include a broad range of opinion and professional issues and articles do not necessarily refl ect the views of CIArb nor should such opinions be relied upon as statements of fact. All rights reserved. This publication may not be reproduced, transmitted or stored in any print or electronic format, including but not limited to any online service, any database or any part of the internet, or in any other format in whole or in part in any media whatsoever, without the prior written permission of the publisher. While all due care is taken in writing and producing this magazine, neither CIArb nor RPL accept any liability for the accuracy of the contents or any opinions expressed herein. Printed by Pensord Press Ltd ISSN 1743 8845

CIArb ENQUIRIES

WATCH4 News: Legal Aid changes come into eff ect in England and Wales; Drug-cheat Lance Armstrong calls for international tribunal to hear testimony8 Law round-up: Michael Wilson & Partners Ltd v Sinclair & Ors; Gray Construction Ltd v Harley Haddow LLP

OPINION7 Michael Cover: Is the arbitration service proposed by Lord Leveson fit for purpose?17 My Toughest Dispute: Robert J Gemmell; Best of the ADR Blogs

REGULARS AND FEATURES9 How To… utilise the CIArb Property Disputes Service 10 Cover: As courts around the world are squeezed for money and time, arbitration

schemes for divorcing couples are gaining momentum15 CIArb news: CIArb workshop to celebrate International Women’s Day; Branch news18 What’s On: Round-up of upcoming training courses

CONTENTS

Vinayak Pradhan

May 2013 | THERESOLVER 3

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4 THERESOLVER | May 2013

WATCH

Costs management rules and legal aid cuts eff ective from April 1 will bring sharper focus to the economics of litigation in England and Wales. The shake-up is likely to make private dispute resolution even more attractive.

The changes come on the back of Lord Justice Jackson’s review of civil litigation costs. This included divorce, employment, medical negligence and welfare cases. Legal Aid is to be withdrawn for these categories, regardless of an individual’s fi nancial position.

The Ministry of Justice (MoJ) has made clear that its resources will be focused more on criminal justice. Many of the changes are to be found in the Legal Aid, Sentencing and Punishment of Off enders Act 2012.

Lawyers, judges and court staff are also getting to grips with the new costs management rules in the 2013 amendment to the Civil Procedure Rules and Practice Directions. As Lord Jackson said: “We cannot go on any longer on the basis that litigation will cost whatever it costs.”

The Mercantile, Chancery and Technology and Construction Courts will make their own rules. In other larger “multi-track” cases issued from April, parties will have to exchange costs budgets and keep them updated. The

court must approve the budgets and take them into account in making procedural orders such as disclosure of documents.

A judge may make a costs management order, limiting a party’s recoverable costs by reference to its budget fi gure. This will reduce the need for detailed assessment of costs after a trial.

The approach to proportionality is set to change. Costs may in future be ruled disproportionate and irrecoverable even if it was reasonable or necessary to do the work. This will have a cooling eff ect on parties determined to win at all costs.

The fi xed recoverable costs of small personal injury cases have been cut and the doubling of the

fi nancial limit for the small claims track – to £10,000 – will increase the number of cases in which a successful party will not usually recover any solicitors’ costs.

All this is set to create more self-represented parties, adding to the burden on the courts and tribunals at a time when the MoJ has cut its own budget. Lawyers fear delays and administrative issues will get worse in county courts.

Many claimants will prefer to seek resolution through mediation or any available ombudsman scheme, and professional advisers will reassess the familiar issues of the advantages of arbitration.• Report by Chris Gilbert FCIArb C.Arb, a solicitor and ombudsman.

Private dispute resolution will benefi t from the ‘economics of litigation’

Singapore sees 25 per cent increase in new cases

Rule changes aid mediationLegal Aid cuts and budget restraints to ease court burden

The Singapore International Arbitration Centre (SIAC) handled 235 new cases in 2012, a 25 per cent increase on the previous year.

The increase means it is the world’s fastest growing major international arbitration centre, according to SIAC.

Total sums in dispute for 2012 amounted to SGD 3.61 billion, this was more than double the

ALA

MY

amount handled by the centre in previous years.

Disputes came from a range of diverse sectors including telecommunications, infrastructure, fi nancial derivatives, energy and insurance.

Last year also saw larger, more complex disputes being fi led at the SIAC, which has celebrated its 21st year.

the average cost in the UK of resolving property and fi nancial disputes caused by separating couples using mediation.For issues settled in court it is £4,000.Source: UK Ministry of Justice

£500

In 2012, parties from 39 jurisdictions were involved in cases at SIAC, with mainland Chinese and Indian parties featuring the most frequently.

For the fi rst time since 2007, parties from mainland China were the number-one source of cases fi led, with India a very close second. Success in these key Asian markets is a signifi cant

achievement for SIAC. The other signifi cant contributors were Indonesia and the USA.

A SIAC statement reported: “2013 heralds another successful year for SIAC. We have started the year with a fl urry of new cases fi led in the fi rst month and are well poised to build on our position as a leader in dispute resolution.”

Adjudicator to weigh up majorgrocery disputes A Groceries Code Adjudicator has been appointed in the UK to arbitrate disputes between large retailers and suppliers.

The government has appointed Christine Tacon to enforce a code of practice that requires supermarket chains treat their suppliers fairly. The Groceries Supply Code of Practice came into force in 2010. It says that the 10 largest supermarkets with a turnover of more than £1bn should deal with suppliers fairly; pay suppliers within a reasonable time; and not vary trade agreements retrospectively.

The Groceries Code Adjudicator will arbitrate disputes; investigate complaints from suppliers; ‘name and shame’ retailers that break the rules and can impose fi nes in the worst cases.

It is not yet established what the maximum fi ne would be. A bill creating the offi ce of adjudicator is going through Parliament. Until then, Tacon will act as Adjudicator-Designate.

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Couples ‘must try to mediate’The UK’s Ministry of Justice is to spend £25 million this year – up from £15 million – supporting publicly funded mediation for divorcing couples.

The additional funding is expected to meet increased use of mediation from April 2013 when legal aid for divorce cases is being pulled. New laws are also being created to ensure that separating couples must consider mediation to sort out details of their divorce before they decide to go to court.

Latest fi gures show that the highest number of couples, almost 3,000, fi led for divorce at Birmingham Civil Justice Centre

“I was none the wiser. Who was telling the truth?”→ See My Toughest Dispute, by Robert J Gemmell FCIArb, on page 17

and Family Courts; followed by Weston-super-Mare County Court, where more than 2,400 fi led (although mostly via the website Divorce-Online); then Leicester, where more than 1,800 couples petitioned for divorce. Figures did not include London.

Family Justice Minister Lord McNally said: “All too often I hear stories of families going through expensive and traumatic court hearings but we know that when working out how to split assets and arrange time with the children, mediation is a far simpler and cheaper approach for everyone and leads to better outcomes.

“That is why we are changing the law so that all couples seeking a court order about child contact or a fi nancial matter must attend a mediation information assessment meeting fi rst, to fi nd out about mediation and consider whether it is suitable for them. More people have been using mediation successfully recently.”

The average time taken to resolve property and fi nancial disputes caused by separation for a mediated case is 110 days compared with 435 days for non-mediated cases.• What about the use of arbitration in divorce? See feature, page 10

PA

Disgraced cycling champion Lance Armstrong (pictured) has called for an “international tribunal” to hear the full details of his doping past and to address professional cycling.

Earlier this year, Armstrong refused again to meet with the US Anti-Doping Agency (USADA) to give testimony. In a statement, one of his lawyers, Tim Herman, said Armstrong would only cooperate with an “international tribunal formed to comprehensively address pro cycling, an almost exclusively European sport.”

Herman added: “We remain hopeful that an international eff ort will be mounted and we will do everything we can to facilitate that result.

“In the meantime, for several reasons, Lance will not participate in USADA’s eff orts to conduct American prosecutions that only demonise selected individuals while failing to address the 95 per cent of the sport over which USADA has no jurisdiction.”

Recent attempts at forming a tribunal have failed. The International Cycling Union is now looking to form a Truth and Reconciliation Commission instead. In January, Armstrong admitted that he used performance-enhancing drugs during his record seven Tour de France championships from 1999-2005. He was stripped of all Tour de France titles last year.

New UN rules on investor-state disputesNew United Nations rules for greater transparency in disputes between investors and host countries have been announced.

The arbitration rules of the United Nations Commission for International Trade Law (UNCITRAL) have been revamped to ensure a high degree of openness of proceedings, in terms of making documents available to the public, access to hearings and in allowing interested parties such as non-governmental organisations to make submissions.

To date, UNCITRAL arbitration rules, which are the second most frequently used rules for investor-state dispute settlement, have been hugely confi dential with no or limited information provided to the public.

A UN working group has been developing the standards since 2010. They will now need to be approved by the UNCITRAL Commission in June/July and then by the UN General Assembly in September. They will apply automatically to all treaties concluded after their adoption, and work will continue in the working group on a system to permit the application of these rules on transparency to existing treaties.

The EU, which has been pushing for greater transparency in investment disputes, has welcomed the rules. EU trade spokesman John Clancy said: “The protection of investment and the availability of investor-state dispute settlement mechanisms play a key role in attracting investors and encouraging economic growth. Having these new transparency rules in place will set a benchmark for all future EU investment treaties. Improving transparency in investor-state dispute settlement is essential.”

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WATCH

An updated guide about the eff ective use of mediation in the workplace has been launched in the UK.

Mediation: An approach to resolving workplace issues has been put together by the Chartered Institute of Personnel and Development (CIPD) and the Advisory, Conciliation and Arbitration Service (Acas).

Its aim is to provide employers seeking to use mediation in their organisations with examples of good practice and practical advice. It will also help employers, trade unions and employees in deciding whether, and in what circumstances, mediation may be suitable.

The latest survey of employers published by the CIPD on confl ict management in 2011, showed that 57 per cent of respondents made use of mediation.

According to the CIPD, mediation is most eff ective when it is part of the organisation’s wider approach to people management and refl ected in its policies and processes.

Andrew Wareing, Chief Operating Offi cer at Acas, said:

“One of the greatest barriers to the more widespread use of mediation in the workplace is a lack of awareness of when, and how, it can be used to greatest eff ect. This is especially true for small and medium-sized organisations. This research, which describes successful

practice, makes an invaluable contribution as it can help those employers who are thinking about adopting mediation to learn from those who have more experience in the area.”• To download the free guide, visit: → www.cipd.co.uk/publicpolicy/policy-reports/mediation-resolving-issues.aspx

‘A lack of awareness’ is holding back mediation in smaller organisations

Mediation centre to ease court burden in Hyderabad

Eff ective mediation at work CIPD and Acas issue updated advice on workplace disputes

A new mediation centre has been opened in Hyderabad, India, to ease the burden on the courts.

The centre, an initiative set up by the High Court, will be dedicated to family cases in the district and aims to resolve disputes within 90 days. Family-related disputes will be priority, but the High Court will also be able to refer other cases such as those related to money suits, property or partition.

It was inaugurated in March by Altamas Kabir, the Chief Justice Of India and will be headed by S Ravi

SHUTT

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OCK

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Kumar, Secretary of the AP State Legal Service Authority.

Kumar said: “There are cases with the lower and high courts where even after seven years litigants are fi ghting for justice. Through mediation centres, we aim to solve the dispute within days. This way, the number of pending cases will be brought down by a considerable amount. We will not be charging any fee for the mediation.”

Sixty senior advocates with more than 15 years experience have been appointed as mediators. Hyderabad: sixty senior advocates have been appointed as mediators

New mediation ordinance in HK The new Hong Kong Mediation Ordinance (MO), which was offi cially enacted in June last year, came into eff ect on 1 January 2013.The MO applies retrospectively to pre-existing agreements to mediate and past mediations. Its purposes are to:• promote and facilitate the resolution of disputes through mediation, and promote Hong Kong as a prominent dispute resolution centre in the region• provide a regulatory framework for the conduct of mediation. The MO sets out all important defi nitions of “mediation”, “agreement to mediate” and “mediation communications” and the extent of its application including to the government • give the confi dentiality of mediation communications throughout the mediation process the full protection of the law, subject to limited exceptions.

The Hong Kong Mediation Accreditation Association Limited (HKMAAL), established as a non-statutory, industry-led body is due to become the sole accreditation body for mediators and the default appointing body where parties cannot agree on the appointment of a mediator.

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7 THERESOLVER | November 2010 May 2013 | THERESOLVER 7

OPINIONARBITRATION AND THE PRESS

IN THE UK, LORD JUSTICE Leveson, in his long-awaited report, recommended that an arbitral process, described as an “Arbitration Service”, should be established in relation to civil legal claims against the press. He refers to the press as “the publishers” and this how they will be referenced in this piece.

Lord Leveson says this service should draw on independent legal experts of high reputation and ability “on a cost-only basis” to the publishers who subscribe to his proposed self-regulation scheme. The process should be fair, quick and inexpensive, inquisitorial and generally free for claimants. There should be power to hold hearings, but only when necessary. Frivolous and vexatious claims should be capable of being struck out at an early stage.

The devil is in the detail. The report goes on to say that incentives are required to ensure that publishers sign up to the self-regulatory scheme. The recommendations couple this incentive for publishers with the incentive for the public of providing an improved route to justice for individuals by the establishment of an arbitration service, run by the regulator and staff ed by retired judges or senior lawyers, whose fees would be met by the publishers.

Michael

CoverIf the publisher concerned fails

to become part of the proposed self-regulatory scheme and hence is not required to use the arbitration service, the court, in subsequent privacy litigation, would be able to deprive the publisher of its costs and the Civil Procedure Rules would be amended accordingly.

The prospect of parties being required to use private dispute resolution, whether arbitration, mediation or adjudication, is

usually enough to awake the regular experts on the European Convention on Human Rights. This proposal is no exception, and a parallel proposal in the Defamation Bill,

which went before Parliament (but was halted as The Resolver went to press), has attracted such attention from Lord Lester of Herne Hill. He is right to counsel caution, but the argument should go further. Private dispute resolution has a vital role to play in our society and economy.

A better scheme for the press would recognise the teachings of Frank Sander, Emeritus Harvard Professor, on the multi-door courthouse. Cases would be screened for their suitability for resolution by litigation, arbitration or mediation, so the court would have three ‘doors’. Such a scheme would also recognise what was said by Sir

Michael Cover FCIArb is a barrister, Accredited Mediator and Chartered Arbitrator. He is a founder member of ArbDB, the International Arbitration and Dispute Board Chambers and a full member of In Place of Strife, the Mediation Chambers. He can be contacted at Email [email protected] and → www.michaelcover.com

Cases could be screened for their

suitability for resolution by

litigation, arbitration or mediation, so the

court would have three ‘doors’

Peter Cresswell at the Master’s Lecture of the Worshipful Company of Arbitrators in March 2013, where he commended private dispute resolution schemes such as the CEDR ABTA Travel Arbitration Scheme and the City Disputes Panel of the CIArb. In passing, we could note that the much-vaunted Commercial Court in London only has one door!

It might also recognise that arbitrators and, indeed, third-party neutrals in private dispute resolution, do not have to be and are not always lawyers. There is little need for the controversial proposal for cost sanctions on those publishers who fail to take part in the proposed scheme of self-regulation; the courts already have a wide general discretion on costs and case law points an ability to impose costs sanctions for unreasonable failure to use private dispute resolution, generally mediation. Arbitrators already have quasi-inquisitorial powers under the Arbitration Act 1996.

Any arbitration scheme should also be independently run and not run by the proposed regulator. Several independent institutions would be able to run such a scheme: CIArb, CEDR and WIPO.

The suggestion of privacy disputes being resolved by private dispute resolution is therefore a good one, but the publishers and the government need to consult those who know about these things in order to come up with the right answer. We are not there yet. �

A system for press regulation in the UK based on the Leveson Report has been approved, though not without political drama. Will a proposed arbitration scheme for civil legal claims against the press be workable?

ONLINE

Join the debate at CIArb’s LinkedIn group→ www.linkedin.com

• This article went to press before the law establishing press regulation was passed.

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MR EMMOTT WAS A DIRECTOR and employee of Michael Wilson & Partners (MWP). His employment contract provided

for arbitration in London. MWP brought arbitral proceedings against Mr Emmott alleging breach of contract and fi duciary duty. MWP claimed, among other things, that Mr Emmott participated in a conspiracy to divert work to a competitor business and that certain shares had been issued to EPIL, a Bahamian company owned by Mr Emmott, for the benefi t of Mr Emmott, and these shares should have come to MWP. Mr Emmott contended that the shares were in fact intended for a non-party to the arbitration agreement (Mr Sinclair, a managing director and major shareholder of Sokol) and that they were simply warehoused by EPIL. MWP invited Mr Sinclair to join the arbitration as a party in order that the claims in respect of the shares could be determined conclusively as between all parties concerned. Mr Sinclair refused and yet participated as a witness in the arbitration and funded Mr Emmott’s defence. The tribunal found that there was no breach of fi duciary duty by Mr Emmott and that the shares were benefi cially held by Mr Sinclair. Subsequently, EPIL transferred the shares to Mr Sinclair. MWP sought to raise the same issues in the High Court against Mr Sinclair and Sokol (the Sinclair Defendants). The Sinclair Defendants applied to strike out MWP’s claim on the basis that the shares were never received by EPIL on behalf of Mr Emmott. They alleged that they were received by EPIL on behalf of Mr Sinclair and there was therefore no breach of fi duciary duty by Mr Emmott. The application to strike out was supported by Mr Emmott.

A DISPUTE AROSE BETWEEN Gray Construction Ltd (Gray) and Harley Haddow LLP (Harley) concerning the sums Gray

had expended in an arbitration with the National House Building Council (NHBC). The arbitration settled following Gray’s payment to NHBC of £110,000 and it sought to recover from Harley that sum, one-half of the arbitrator’s charges, fees and other expenses in the dispute with NHBC. Harley sought disclosure of the documents concerning the subject matter of the arbitration, including the parties’ pleadings and the terms on which the arbitration settled. The parties had agreed that disclosure of such documents could be granted on the basis that Gray would lodge the documents relating to the arbitration in a confi dential envelope so that the court could determine whether to order the disclosure. Harley applied to the court for permission to open the confi dential envelope. Gray opposed the motion on the grounds that it would produce an affi davit by Mrs Webster, the solicitor who had acted for it in the arbitration with NHBC and in its settlement, which, according to Gray, would suffi ce since her evidence could be tested on cross-examination. Harley’s defender disagreed, arguing it was not suffi cient as it had a right to prepare for the proof of evidence, including cross-examination, and that it needed to see documents relevant to assessing the reasonableness of the settlement. The parties were prepared to proceed for the purposes of this application on the basis that confi dentiality extended to all documents produced or created by or on

○ THE JUDGMENTThe court held that the underlying factual allegations concerning the conduct of Mr Emmott mirrored those of the arbitration. Although Mr Sinclair was not a party to the arbitration, and court proceedings were therefore the only means by which MWP could bring its claim against Mr Sinclair, the special

circumstances of this case (in particular Mr Sinclair’s involvement in the arbitration) led the court to conclude that the doctrine of abuse of process applied to this case and MWP’s claim was struck out.

○ WHAT IT MEANSThis case provides guidance on the doctrine of abuse of process and collateral attacks on a previous determination in cases where the relevant determination was made by an arbitration tribunal.

The full judgment is available at: → www.bailii.org/ew/cases/EWHC/Comm/2012/2560.html

LAWROUND-UP

○ ARBITRATION

○ ARBITRATION

THE CASE

THE CASE

Gray Construction Ltd v Harley Haddow LLP [2012] Scottish Court of Session CSOH 92

Michael Wilson & Partners Ltd v Sinclair & Ors [2012] EWHC 2560 (Comm)

An overview of recent key court cases

THE DOCTRINE OF ABUSE OF PROCESS IN RELATION TO A PREVIOUS ARBITRAL AWARD

THE LIMITS OF CONFIDENTIALITY IN ARBITRAL PROCEEDINGS

The court held that, under Scottish law, public interest can

override an obligation of confi dentiality

The court concluded that the doctrine of

abuse of process applied to this case

○ WHAT IT MEANSThe case provides a useful illustration as to the circumstances in which the court will override the obligation of confi dentiality in arbitration proceedings.

The full judgment is available at: → www.bailii.org/scot/cases/ScotCS/2012/2012CSOH92.html

Both reports by Tony Marks FCIArb, Director of Legal Services and Julio César Betancourt MCIArb, Head of Research and Academic Aff airs at CIArb

○ THE JUDGMENTThe court held that there was an implied obligation of confi dentiality arising out of the nature of arbitration. The court further held that, under Scottish law, public interest can override such an obligation. If the documents are essential to the action, the court will normally order the production of such documents, but if they are not essential to the action or if the information can be recovered elsewhere without breaching a confi dence, the court may exercise its discretion to refuse to order disclosure. In this case, the court decided that disclosure of the documents was necessary to allow Harley to prepare for its proof.

The application was opposed by MWP. The Sinclair Defendants maintained that these issues had already been determined against MWP in the arbitration, and that it was an abuse of the process of the court to permit MWP to make a collateral attack on the tribunal’s award. MWP argued that the doctrine of abuse of process was not applicable to this case since Mr Sinclair was not a party to the arbitration and could not rely on it.

behalf of the parties in connection with the arbitration.

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HOW TO…

FOR THOSE INVOLVED IN ANY type of property dispute, the CIArb Property Disputes Service (CIArb-PDS) off ers effi cient, fl exible alternatives to court. Professionals advising their clients on how to manage and/or resolve property disputes should be able to highlight alternatives to traditional litigation which may be quicker and more cost-eff ective. CIArb-PDS off ers a range of alternative dispute resolution (ADR) services, including arbitration, mediation and expert determination, and this confi dential service is suitable for all commercial and residential property disputes.

1 ⁄ How to make an applicationWhere a contract

contains a dispute resolution clause that nominates the President of CIArb to appoint a designated expert, CIArb -PDS will identify a suitably qualifi ed practitioner to act as a neutral third-party resolver. This service is independent and impartial. However, even where the contract does not nominate the President, CIArb-PDS will still be able to assist you if the parties to the dispute may agree to approach

CIArb. Application forms can be downloaded from CIArb’s website.

→ www.ciarb.org/das

2 ⁄ Diff erent types of property disputes

� Landlord and tenantRent reviews, lease renewal and disputes over commercial and residential service charges� Easements rights of wayExtent of and repairs of rights of way, general issues regarding extent and easement including drainage and water rights, as well as obstruction of rights of way� Professional disputesClaims by solicitors, architects and other professionals for outstanding fees in property-related matters, as well as claims for professional negligence against solicitors, architects and other professionals for damages� Property ownership and interferenceBoundary disputes, nuisance by noise, encroachment or smell, and enforcement of restrictive covenant� UtilitiesClaims for damage caused by utilities to adjacent property

under statutory powers and claims by utilities for damage caused by third parties, including other utilities.

3 ⁄ How a property dispute

resolver is appointedEach third-party resolver is selected on the basis that they are a suitably qualifi ed practitioner with specialist knowledge in their fi eld; other criteria that may be used to select the resolver include the geographic location of the parties and the nature of the dispute.

4 ⁄ Understanding the panel process

CIArb-PDS appoints third-party resolvers from several panels. These are comprised of CIArb members who are experienced practitioners, who have attained the appropriate level of qualifi cation and experience. Panel members are regulated by CIArb and provide an independent and impartial service underpinned by integrity and professionalism.

“This confi dential service is suitable for all commercial and residential property disputes”

…utilise the CIArb Property Disputes ServiceBy Lucy Chakaodza and Waj KhanIllustration: Cameron Law

Lucy Chakaodza is PR and Communications Executive and Waj Khan is Property Disputes Appointments Service Manager at CIArb. For further information contact Waj Khan at Email [email protected]

FCIA b A li ti f b

han


ONLINE

Join the debate at → www.twitter.com/CIARBDAS→ www.linkedin.com and search for CIArb-Dispute Appointment Service

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gathering behind this initiative, but also a clear urgency in meeting demand.

Two years ago, Scotland welcomed an arbitration scheme which was set up by the Family Law Arbitration Group Scotland (Flags). It is also the fi rst anniversary of a new initiative in England and Wales which allows divorcing couples to resolve family law disputes relating to fi nance or property for the fi rst time (see The Resolver, January 2012).

Meanwhile, in British Columbia, Canada, although the concept of family arbitrations is certainly not untested, an overhaul of the 1979 Family Relations Act, eff ective from this March codifi es family law arbitration.

“The use of arbitration in this fi eld is reaching a watershed,” according to Rachael Kelsey, arbitrator with Flags and family law specialist based in Edinburgh. “It comes down to public spending and money – and growing pressure on the court system. This seems to be a problem across the globe.”

Georgialee Lang MCIArb, arbitrator and attorney in Vancouver, agrees: “There is a whole plethora of problems with the justice system for family law whether that is in Canada, the US, UK, or myriad other countries. The system fosters disharmony and confl ict, and there are lengthy delays and outrageous legal fees.”

The use of arbitration in this fi eld is growing as governments realise that

ARBITRATIONDIVORCE

MONEY and time pressures are bearing down on court systems around the world. This is intensifying the case for arbitration in divorce and family law proceedings.

As experts in family law continue to raise awareness of the benefi ts of referral to arbitration, it is clear this way of resolving disputes away from the courtroom is reaching a watershed. In some areas, such as in Ontario, Canada and Australia, family law arbitration schemes have been on off er for some years. However, in others, they are being put in place in relatively quick succession, signalling the momentum

A decent proposalBy Rima EvansIllustration: Nick Lowndes

With court systems increasingly under pressure, the use of arbitration in divorce casesis starting to gain momentum across the globe

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family law courts can be “the worst place for couples to resolve their

divorce issues,” Lang adds.Meanwhile, on the demand side, Kelsey

points out that cultural changes are coming into play, giving the benefi ts of arbitration added appeal. “There is more of a service culture generally. People are expecting to be told what the timescales are, what the costs are and so on. That’s not limited to family law. The world has moved on.

“Arbitration provides a service that the public sector court service does not, and I don’t think ever will, provide to clients who are fairly commercially savvy,” she says.

Some of the advantages of arbitration include it being less acrimonious than court; being able to choose a date and location of hearing convenient to the parties; having privacy and confi dentiality (particularly advantageous for high-profi le celebrity couples who wish to keep away from the public eye); the process being much faster, more fl exible and often cheaper; and having a choice in who hears the case.

The latter seems to be a signifi cant point since a criticism reported in several countries is that court hearings tend not to be heard by family law specialists. Lang even goes on to say that in her experience: “Insiders know very well that most judges would opt out of family law cases if they had a choice.”

On the other hand, under certain family law arbitration schemes, arbitrators undergo rigorous training and have to meet strict criteria, including having a minimum number of years experience in the family law arena.

Beyond the advantages to individuals, these schemes can also bring in savings to the public purse.

The arbitral model for family law in Scotland uses rules that were brought in with the Arbitration (Scotland) Act 2010. It can be used for any family law issue including child matters and the arbitrator’s decision is binding.

Kelsey concluded the fi rst arbitration under the scheme in Scotland in January. She says: “It is a slow burn process. There are quite a few arbitrations working their way through the system but we never expected to be deluged. It is a new process and people are understandably wary at the moment. It took fi ve to 10 years for people to feel comfortable about mediation.

However, she adds: “We have had an extremely positive response from our judiciary and The Law Society.”

The comparison with the experience of

mediation, which took years to gain momentum, is echoed by Geoff Wilson, Partner at HopgoodGanim and family law specialist in Australia. There, an eff ective regime for family law arbitration (limited to fi nancial matters such as property settlement, spousal maintenance, fi nancial agreements and bankruptcy issues) with supportive regulations has been in place since 2000. Yet these have not been embraced by practitioners or clients.

Wilson says: “Arbitrators have been trained and there is a ready stock of arbitrators available including recently retired Family Court judges. There is a wait and see mentality with practitioners waiting on the larger family law practices in Australia to run a few arbitrations before venturing into uncharted waters.”

A year after its launch in England and Wales, the Family Arbitration Scheme run by the Institute of Family Law Arbitrators (IFLA), and backed by CIArb among others, seems already to be making steady progress. The number of arbitrations has just reached double fi gures.

Under this initiative, only fi nancial issues

arising from a dispute during divorce are covered. Although practitioners report, this is hardly limiting since fi nancial matters constitute the majority of family law disputes.

Suzanne Kingston MCIArb, Partner in the Family Department at Withers LLP, Accredited Arbitrator and one of the teachers of the IFLA scheme said: “I am really pleased that the IFLA scheme is now up and running. It gives clients the opportunity to have another way to resolve their disputes, which is really important particularly in the current economic climate.”

Sir Peter Singer MCIArb, an arbitrator with the IFLA scheme and former High Court Family Division Judge is optimistic the scheme will receive “critical mass” and that a big push may be the withdrawal of legal aid for divorce cases this April.

“Come April, when the courts are goingto become inundated, people will resort more to arbitration. However its advantages will also become more appreciated as success stories are spread by word of mouth by family law professionals.”

What is as yet untested under the IFLA scheme is the fact that, unlike in Scotland, an arbitrator’s decision, relating to a fi nancial dispute following divorce, would not be automatically enforceable under the Arbitration Act 1996 in the same way as a purely civil award.

The enforceability of an arbitration agreement during the arbitral proceedings, in the context of a fi nancial dispute following divorce, will depend upon how the courts interpret the applicability of the Arbitration Act 1996 in a family context. Leading lawyers are pushing for statutory reform in this respect.

Rhys Taylor MCIArb specialist family barrister and arbitrator explains that as the Law Commission is currently reviewing matrimonial law and is considering having a law related to the statutory enforceability of pre-nuptial agreements why not consider reform of agreements to arbitrate in the family context?

Taylor, along with Sir Peter Singer, and backed by leading family law experts, authored a submission to the Law Commission “for statutory provision to be made, alongside the Law Commission’s recommendations concerning nuptial agreements, for acceptance, encouragement and enforcement of the binding agreement into which disputant parties enter when they opt to submit fi nancial issues to arbitration by accredited and regulated family law expert arbitrators such as those who

“Insiders know well that most judges would opt out of family law cases if they had a choice”



Does this ring a bell? You sit opposite a client whose face gradually lengthens, whose mouth drops and whose eyes widen in dismay and disbelief as you describe how long it takes to bring matrimonial fi nancial issues to a conclusion through the court litigation process.

You have advised of the other ways there are to resolve their case but, no matter how enthusiastically you describe mediation, their response is negative and they comment: my ex-husband/wife will only listen to a judge. You encouragingly mention the collaborative procedure and that sadly, too, is dismissed.

The case itself does not contain a great value in terms of the assets and capital, far more high street than high net worth - but the parties are at loggerheads on all aspects of their marriage and its fi nancial aftermath.

The one thing that your client does not want is for the matter to go on for what might seem to be an interminable period with the prospect of expensive, lengthy and stressful court appearances, most likely before diff erent judges on each occasion. What do you off er?

In a recent case, I was acting for a client in such a situation and I suggested arbitration. After explaining what arbitration meant and how the fi nancial issues between the parties could be dealt with more speedily and with less formality than through the courts, and with a fi nal and binding arbitrator’s award as the outcome, the client agreed that I should propose arbitration to the other side’s solicitors.

Fortunately, the parties agreed and the arbitration process kicked into action.

We agreed on two arbitrators we would be happy to engage and the Institute of Family Law Arbitrators (IFLA) Form ARB1 was completed, setting out the basic issues and submitted to IFLA. Within days, one of our nominated arbitrators confi rmed his agreement to be appointed and an initial meeting was arranged.

The fi rst benefi t of the process had already been felt. Up to this point the parties had not been able to agree on anything, and yet here they were agreeing to ‘think outside the box’ and resolve their fi nancial matters through arbitration.

The proposal to arbitrate also led to a

second benefi t: the immediate rapport between myself and my opposite number when it came to completing the IFLA Form ARB1 and setting out the issues that we both considered the arbitrator should deal with.

Another benefi t was felt at the initial meeting with the arbitrator: there was good communication between solicitors and the atmosphere was therefore friendly.

At that initial pre-commitment hearing the arbitrator explained to both parties and to the solicitors present what arbitration was all about and how he suggested they should proceed. He also explained the IFLA scheme rules by which the process would be governed. Most importantly he reiterated what we solicitors had already advised: that once they agreed to arbitration and the process was under way, a central part of their agreement was to be bound by the arbitrator’s decision which would be fi nal and binding upon them.

During the initial hearing, the parties, who had barely spoken to each other for quite some time, started to engage with each other, making points jointly to the arbitrator. A rapport was clearly building up between them and the arbitrator as well as between the solicitors and the arbitrator. For the fi rst time, the parties were able to look straight at the decision-maker and hear him talk to them as they, in turn, were able to talk to him. They decided quickly that the arbitrator should be appointed.

The preliminary hearing at which fundamentals would be discussed (similar perhaps to a fi rst directions appointment [FDA]) was the next step. The practicalities as to where and when the preliminary hearing should take place were agreed and what should be done meanwhile. In fact

the date selected was just two weeks later. In that time, checklists were to be completed and documents exchanged.

The preliminary hearing allowed a full discussion to take place on the issues that had been listed in the Form ARB1 enabling all parties including the arbitrator to prioritise what each was seeking and what was important to each of them. This was a powerful meeting and the clients’ confi dence grew, encouraged by the very fact of there being continuity of the same arbitrator. Judicial continuity is something we rarely get in court: here was a chance to see how very important it is and what immense assistance and confi dence it gives the clients.

At the preliminary hearing’s conclusion, directions were given to prepare for the fi nal hearing. The solicitors were asked to provide written submissions by a specifi c date, which proved a very benefi cial exercise. With submissions exchanged, I asked the arbitrator whether he would be agreeable to a variation of his directions allowing the parties to fi le counter-arguments by a specifi c date. The arbitrator readily agreed enabling everything to be ready for the fi nal hearing. This was yet another benefi t of having the same decision maker throughout the entire process.

Rather than the clients incurring the additional expense of a full oral hearing, with cross-examination, the arbitrator was asked to arrive at his award as a paper-only exercise. By this stage he had the relevant documents, arguments and counter-arguments before him. The relief to the clients was palpable, the pressure and tensions lifted from them – now all they wanted was to have the decision as soon as possible. The detailed award received enabled the clients to get on with their lives.

This arbitration from start to fi nal award took four months. For court, over that same period we would not even have reached fi rst base, the FDA hearing date.

Arbitration certainly reduced the anxiety and the misery for the clients, and disposing of their case so satisfactorily and swiftly leaves me better able to deal with the next matrimonial case that lands at my door.

‘Have you heard about the Family Arbitration Scheme?’ I shall ask them…

HOW ARBITRATION REDUCED ‘TIME AND MISERY’ FOR CLIENTSView from the Inside: Family law arbitrator Dennis Sheridan MCIArb describes his experience of the IFLA process

“The relief to the clients was palpable, the pressure and tensions lifted from them”



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are members of the Chartered Institute of Arbitrators and who off er their

services under the IFLA scheme.”Taylor adds: “In a divorce scenario, this

would mean there would be a way to automatically enforce the agreement to arbitrate provided there had been legal advice and there had been disclosure. It would provide bespoke provision for family law.” A response is expected by the end of the year.

Meanwhile, the new laws in British Columbia (BC) were introduced in 2011 to mitigate growing dissatisfaction with the family justice system and provide an alternative to the courts.

They set out what family law arbitration is, criteria and training required for being an arbitrator and, crucially, that it’s to be the preferred method of resolution. The laws will allow arbitration in respect of any family law issue.

Lang says: “People have been doing arbitration, but this law brings in tight rules and controls. What is of real signifi cance is that its been given credibility by the law saying that arbitration is the preferred method of resolution.”

A long-standing criticism of arbitration across the board is that while, in theory, it should be cost eff ective, in practice, it can rack up huge costs. The fact, too, that an arbitrator charges a fee while a judge in court proceedings is free does raise the question whether the process is a realistic option for the less wealthy.

Lang says that in BC this has been a worry. “People have been arbitrating already here and, to date, it’s been used more by high net worth individuals,” Lang admits. “But, I believe, there will be a concerted eff ort here to make it aff ordable to those on lower incomes. There are ways to do that by tailoring the arbitration so it’s cost-eff ective, such as, for example, limiting the hearing time.”

In the UK, the IFLA scheme has been represented by the British press as an option for the super rich bickering over big-money divorce settlements and who want to maintain privacy. Yet this is a distorted view of what is actually happening on the ground.

Singer says: “I’m aware of several low-value arbitrations dealt with by local solicitors that would otherwise have been dealt with at local county court level. Not by any stretch of the imagination are these big-money cases.”

Anecdotally, the experience in Australia to date, though limited, has been that the

majority of arbitration cases have been undertaken in modest fi nancial cases under legal aid programmes.

Kelsey agrees this is not just a route for the wealthy, pointing out that the scheme in Scotland has caught the eye of the Scottish Legal Aid Board.

“It is in discussion with Flags about what kind of charging structure could be put in place and what kind of cases could be

referred to arbitration. The obvious cases are the simple, straight forward ones.

“If the legal aid board think there is merit in this it will hugely take off ,” says Kelsey.

Mediation and negotiation has long been a tool to help embattled divorcing couples. But the value of arbitration is clearly gaining currency around the world.

W v M [2012] EWHC 1679 (Fam)This dealt with a Trust of Land and Appointment of Trustees Act 1996. The case involved confi dentiality and whether or not the proceedings should be anonymised. Mostyn J concluded: “Where parties are agreed that their case should be aff orded total privacy there is a very simple solution: they sign an arbitration agreement. Arbitration has long been available in proceedings such as these. Recently arbitration has also become available in fi nancial remedy proceedings by virtue of the much to be welcomed scheme promoted by the Institute of Family Law Arbitrators. In those proceedings also privacy can now be guaranteed.” It is to be welcomed that such a senior judge endorses the IFLA scheme and arbitration more generally.

T v T [2012] EWHC 3462 (Fam) The case concerned an American couple who, before their marriage in the US, entered into a premarital agreement containing an arbitration clause. Their married life was mainly lived in England and their marriage broke down while they were living there. The husband started divorce proceedings in the US and the wife in England. The wife declined to embark on the arbitration process prescribed by the premarital agreement claiming that she was not bound by any part of it. The husband started proceedings in the US to compel her to do so. The wife then sought an injunction in England to restrain the husband from proceeding with that application.

The application for an injunction was refused by Nicholas Francis QC . His

judgment has many points of interest including the fi nding that the arbitration clause was not void on the basis that it ousted the jurisdiction of the court.

Francis also considered the separability of the arbitration clause.

This case not only shows how important arbitration is becoming as a method of dispute resolution but that it has wide-ranging implications for the drafting of arbitration clauses in various documents to include prenuptial agreements.

AI v MT [2013] EWHC 100 (Fam)In this case the court (Baker J) approved an arbitration process before a Rabbi in New York under the auspices of the Beth Din to determine all issues following the breakdown of the marriage of an international couple. The issues involved were child abduction, contact, residence, fi nances and obtaining a get, but the court kept strict control of the process so as not to oust the jurisdiction of the English Court and to protect the welfare of the children involved. Having ordered foreign law evidence and evidence relating to the Beth Din arbitration, Baker J was satisfi ed that it was in the parties’ interests (and that of the children) for the process to go ahead.

A carefully crafted “safe harbour” order was approved by Baker J which made it possible for the arbitration process to go ahead in New York, but preserved the overriding role of the English Court to determine issues. In his judgment, Baker J makes explicit reference to the Family Proceedings Rules 2010 promotion of ADR (Rule 1.4) and Family Law Arbitration Scheme.

ARBITRATION IN THE COURTSSeveral key legal cases have served to underline the important role arbitration can play in family law cases, writes Suzanne Kingston who spearheaded family law arbitration in England and Wales


The Institute held its fi rst workshop to celebrate International Women’s Day (IWD) on 8 March.

The event was held in association with Belief in Mediation and Arbitration (BIMA), a multi-faith group of commercial mediators and arbitrators. BIMA is committed to resolving confl icts with and between faith communities as well as promoting the use of arbitration, mediation and facilitated dialogue.

The theme for the afternoon was “Women as catalysts for change in confl icts justifi ed by religious belief”. More than 70 people attended.

The purpose of the event was to inspire female ADR professionals and peacemakers from a variety of backgrounds to form a collaborative international campaign network to encourage and bring about positive changes in confl icts that are justifi ed by religious belief.

The event consisted of a number of workshops and inspirational speakers such as Professor Derek Roebuck MCIArb, patron of BIMA; Laura Marks, Director and Founder of Mitzvah Day, who led a session on interfaith bridge-building in the UK; Helen Curtis

Barrister, mediator and restorative justice facilitator, and Rev Rose Hudson-Wilkin, Chaplain of the House of Commons and patron of BIMA.

Cherie Booth QC sent a video conference message to delegates who attended the international commercial mediation workshop.

She told them: “When women are fully committed, particularly to peace processes across the world, in using their mediation skills, then it makes a huge diff erence at international level and, of course, here in the UK.”

Dr Zaza Johnson Elsheikh, BIMA Co Chair, said: “The event was very successful and culminated in an international collaboration of people committed to peace-making. Women have been active in peace-building for decades but, very much in the background.

“The time has come for them to step forward to the fore and be more visible in peace-building. I would like to encourage accredited mediators and arbitrators to pursue this goal. I founded BIMA in 2011 because I believe that the key to achieving peace is by securing the eff orts of as many diff erent people across the spectrums of age, gender, race and religious belief.”

Madrid speeches boost awareness of ADR mechanisms

CIArb NEWS


Julio César Betancourt MCIArb, the Institute’s Head of Research and Academic Aff airs, has spoken at a series of conferences in Madrid in a bid to advance debate and public understanding about signifi cant issues in contemporary ADR.

The conferences took place in Madrid from 29-31 January 2013 and his speeches formed part of an agreement between CIArb and the University CEU of San Pablo.

The events were organised by the University Carlos III of Madrid, the Institute of European Studies (CEU), and the International Centre for Arbitration, Mediation, and Negotiation (CIAMEN).

The conferences gathered a wide spectrum of ADR experts, including members of the judiciary, academics and practitioners, to discuss a wide range of conceptual and practical issues concerning the use of ADR mechanisms in general, and the main ADR categories,

namely arbitration and mediation, in particular.

Betancourt said: “We strive to promote and facilitate the use of ADR mechanisms worldwide. These types of initiatives are very important to disseminate and exchange information concerning the promising alternatives to the court system and their institutionalisation as a means of improving access to justice.”

Dr Maria Inmaculada Rodríguez Roblero, Coordinator of CIAMEN, said: “We have been working together for more than a year to develop and pioneer several projects, including these conferences, and the fruits of our labours have begun to pay off .

“Our projects have attracted a lot of attention not only in the ADR community, but also among students, which is encouraging and, at the same time, stimulating.”

IWD call for women to resolve confl icts

Pictured left to right: Jose Maria Beneyto, Mariana Hernandez Crespo and Julio César Betancourt

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IRELAND

Call for speakersIn Dublin, the Irish Branch continues to hold a monthly roundtable forum. While most often featuring domestic practitioners, a number of international guests have attended to speak or chair the event, including John Tackaberry QC FCIArb and David Brynmor Thomas MCIArb.

Mason Hayes & Curran hosted the most recent roundtable on misconduct, chaired by well-known Irish commercial silk David Barniville and featuring Simon Maynard from the London offi ce of Allen and Overy, and Romain Dupeyré MCIArb, a new partner in Bouckaert Ormen Passemard Sportes in Paris.

Attendance remains strong and

there are plans for more events in 2013. Organiser Arran Dowling-Hussey FCIArb said: “We would be pleased to hear from any CIArb colleagues interested in attending or speaking on a trip to Dublin.” → Email: [email protected]

LONDON, UK

Hot propertyThe London Branch held its annual property arbitration seminar on 29 January entitled ‘Hot topics in property arbitration’, hosted by Linklaters LLP and chaired by Margaret Bickford-Smith QC MCIArb.

The guest speakers were Katie Bradford FCIArb, property and fi nance litigation partner at Linklaters LLP, Nicholas Dowding QC, of Falcon Chambers, and

Torquil Gyngell FRICS. The audience of 140 included CIArb Director General Anthony Abrahams MCIArb.

As part of an engaging but authoritative double-act, Nicholas Dowding QC and Torquil Gyngell gave their views on a range of practical but problematic valuation issues including lack of comparable evidence, lack of demand and valuation assumptions in diffi cult cases.

An appreciative specialist audience noted that Nicholas Dowding QC highlighted the likely increased importance of arbitration as a means of dispute resolution in property work of the future.

Katie Bradford FCIArb provided a detailed update on arbitration case law, in particular the availability of arbitration

(including issues raised by tiered dispute resolution provisions), challenges to an award, and points on timing of challenges.

EAST ANGLIA, UK

Sports lessonLast month’s AGM saw Rob Tate FCIArb take over as Chairman and Chris Gilbert FCIArb as Vice Chairman of East Anglia Branch.

The branch is excited by plans for its annual summer seminar at Downing College, Cambridge. The theme is ‘The men in the middle’, and will identify lessons for arbitrators, adjudicators and ombudsmen from sports referees dealing with dissent from players, managers and supporters.

• For longer versions of branch news → www.ciarb.org/branch-news

Business in the PRCA half-day joint conference was organised by the East Asia Branch of CIArb and South China International Economic and Trade Arbitration Commission – also known as the Shenzhen Court of International Arbitration (SCIA) – in January.

‘Doing business in the PRC: risks, precautions and dispute resolution options’ was held at the HKIAC in Hong Kong. The event was a huge success, with around 100 delegates attending from Guangdong, Shenzhen and Hong Kong.

It brought together in-house counsel, lawyers, accountants and arbitration practitioners to discuss the various issues involved when entities are doing business in the People’s Republic of China (PRC) – for example, in-bound investments and how to tackle risks and take precautionary steps in dealing with disputes.

EAST ASIA

The conference was divided into two sessions. The fi rst looked at risks and precautions from the perspectives of entities, business advisers and lawyers. The second session covered resolution mechanism options from the viewpoint of lawyers and arbitrators with experience in HK and PRC jurisdictions, as well as other jurisdictions.

Highlights of the event included presentations from in-house counsel, lawyers, business advisors and arbitrators, as well as a former judge of the PRC Court.

The Branch expresses sincere gratitude to Mr Huen Wong, Chairman of the HKIAC, who delivered the keynote address to start the conference, as well as the various guest speakers and Messrs Mayer Brown JSM who sponsored the cocktail reception.

This event signifi es the close collaboration and cooperation between CIArb and SCIA.

CIArb NEWSBRANCH ROUND-UP

KENYA The Kenya Branch of CIArb held its annual end-of-year cocktail party at the Nairobi Serena Hotel in December. It was attended by more than 100 members and invited guests.

The guest of honour was the Attorney General of Kenya, Hon Prof Githu Muigai FCIArb, who addressed the gathering along with the Branch Chairman Dr Kariuki Muigua FCIArb. Engineer Peter Scott MCIArb gave a vote of thanks to the guests and members present. Everyone enjoyed the occasion, which was well catered for by the fi ve-star central Nairobi hotel.

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17 THERESOLVER | November 2010 May 2013 | THERESOLVER 17

IN PRACTICEMY TOUGHEST DISPUTE

1 ⁄ Lessons from Nanny McPhee Andrea Maia

My son loves Nanny McPhee… It goes more or less like this: In 19th century England, a widowed man has seven children who have had a series of 17 nannies, whom they systematically drive out… Desperate to fi nd another nanny, after a series of mysterious events, an unusual and hideous woman named Nanny McPhee arrives at his home and the movie goes on. There is a special dialogue which can summarise the rest of the story very well:

Nanny McPhee: “There is something you should understand about the way I work. When you need me but do not want me, then I must stay. When you want me but no longer need me, then I have to go. It’s rather sad, really, but there it is.

Simon (one of the children): We will never want you!Nanny McPhee: Then I will never go.”For my son, it is guaranteed entertainment. To me, as a mediator, this

apparently childish movie all of sudden started to look like a lesson… Perhaps, in fact, mediators are Nanny McPhee’s [sic] for grown ups. Perhaps our job is to be there when we are needed and leave when our presence is no longer required, but often desired.

To see the full blog Nanny McPhee’s for Grown-ups, 25 February 2013, visit → http://kluwermediationblog.comAndrea Maia is a lawyer, mediator and Founding Partner at FindResolution

2 ⁄ Should local Chambers of Commerce be more international? Michael McIlwrath

Throughout many parts of Europe, municipal chambers of commerce have long helped businesses resolve their disputes… In a country of fi erce individualists like Italy, the prevailing model seems to be every city equipped with its own rules and panel of arbitrators and mediators…By contrast, the model adopted by the DIS, the German Arbitration Institute, is more disciplined, centralised and, well, let’s just say more German. The DIS provides the arbitration and mediation services for over a dozen municipal chambers of commerce of many large cities in Germany. It makes no diff erence, for example, if a party fi les a claim with the Frankfurt Chamber of Commerce or the Stuttgart Chamber...

I am proud to say that my adopted home of Florence has embraced a similarly cooperative approach… The Florence Chamber has signed a pact with its northerly sister, the Milan Chamber of Commerce’s Court of Arbitration… It’s not surprising that Florence would be among the fi rst of Italian cities to accept that surrendering local control is a path to becoming more attractive to foreign parties. After all, this is a city whose grandeur was built on the economic force of trade guilds dependent upon the power of cooperation and reciprocity, centuries before reliable judicial systems came into existence.

To see the full blog Dispute with a View, 28 February 2013, visit → http://kluwerarbitrationblog.comMichael McIlwrath is Senior Counsel, Litigation, for GE Oil & Gas division in Italy

Follow CIArb and take part in the debate at:

twitter.com/Ciarb linkedin.com facebook.com

BEST OF THEADR BLOGS

IT WAS MY second appointment as arbitrator. The claimant submitted his claim and wanted me to decide whether a settlement agreement had been entered into and, if so, for how much.

The respondent informed me that, due to counsel’s availability and because he intended to introduce a counterclaim, a further six weeks was required to make his submission.

After six weeks, the respondent requested more time for submissions because of a death in the family. Overseas travel was allegedly required to go to the funeral. “The respondent is lying, no more delays,” cried the claimant, demanding proof that someone had died and copies of passports to prove travel.

I decided not to require proof of death – a bit too sensitive an issue, I thought – but I did demand proof of travel. I then issued a peremptory order, directing that unless the respondent submitted his defence and counterclaim by a certain date, I would direct that pleadings would be deemed to be closed and that I would proceed to an award on the basis of the materials properly provided to me. The respondent promptly served his defence and counterclaim.

The counterclaim alleged a host of defects in the construction works and an expert report had been submitted in respect of alleged defects. The issues in the dispute included valuation of the

Robert J GemmellFCIArb, C.Arb, Regional Manager (Queensland) Dispute Services, Aquenta Consulting, Brisbane, Australia

works, quality of work and materials, late completion, repudiatory breach of contract, loss of profi t and mitigation.

The claimant served a reply and defence to the respondent’s defence and counterclaim and brought on board his own expert.

A three-day hearing followed in London. To save time, I had directed that each of the witnesses’ statements would stand as evidence in chief, and opening submissions were to be in writing, sent to me one week before the hearing. Yet one of the parties only faxed their opening submissions to me the night before the hearing.

At the hearing one witness didn’t speak English and required a

translator. Another admitted to being an illegal worker. After listening to all the witnesses of fact being examined, under oath, I was none the

wiser. Who was telling the truth? I completed my award and

notifi ed the parties it was ready to be dispatched upon payment of my fees. The claimant went into liquidation. I went to the county court and submitted a claim form. The judge found in my favour and awarded me my costs on an indemnity basis. The Supreme Court awarded me 95 per cent of my costs including interest. All over now? Not quite…

Months later, after putting a legal charge on several properties, the respondent paid my fees and costs.

I decided not to require proof of death

– a bit too sensitive an issue, I thought –

but I did demand proof of travel

A protracted case involved death, late submissions and two challenging witnesses

LONDON UK

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The Members’ lunch for 2013 will be held on 14 May.→ www.ciarb.org/conferences

CIArb AGMThis year’s AGM is being held at 12 Bloomsbury Square (Council Chamber) on Thursday 16 May at 6.15pm. It is followed by the Roebuck Lecture and a wine reception.For more details, contact → Email: [email protected]

Roebuck LectureThis year’s lecture will be held at 12 Bloomsbury Square on 16 May, following the CIArb AGM (see above). This year’s speaker is commercial mediator and arbitrator Stephen Ruttle QC of Brickcourt Chambers.More details can be found at → www.ciarb.org/conferences

CIArb International Arbitration ConferenceOrganised and hosted by the Malaysia Branch, the conference theme is ‘Tapping Asia’s Growth’. It will be held from 22-24 August at the E&O Hotel in Georgetown, Penang. It will include a welcome reception, keynote speech and optional tours around Penang. More details can be found at → www.ciarb.org/conferences

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CIArb EVENTS SPOTLIGHT

WHAT’S ONTRAININGCIArb professional training diary May – December 2013

Further information on all professional training courses can be found at: → www.ciarb.org/course-fi nderEducation Team • T + 44 (0)20 7421 7439 • F + 44 (0)20 7404 4023 • E [email protected]

ONLINE

Courses held at 12 Bloomsbury Square, London (unless otherwise indicated)

Introduction to MediationThe general principles of mediation.

30 October 2013Duration: 1 dayFee: £480

Module 3 Mediation Key aspects of the legal system covering the law of contract, tort and evidence and how disputes may be treated and resolved according to law.

7 October 2013 Duration: 7 monthsFee: £1,320

Module 4 Mediation Application of academic knowledge of mediation theory.

Open EntryDuration: 6 monthsFee: £660

Emotion in Mediation Developing skills and confi dence in dealing with emotional parties in a mediation.

26 September 2013Duration: 1 dayLocation: LondonFee: £238.80

Introduction to ArbitrationThe general principles of arbitration.

15 October 2013Duration: 1 dayFee: £480

Module 1 – Law of Obligations and Civil EvidenceKey aspects of the legal system covering the law of contract, tort and evidence and how disputes may be treated and resolved according to law.

7 October 2013Duration: 7 monthsFee: £1,320

Module 2 – Domestic ArbitrationProvides a detailed knowledge and understanding of the law of arbitration.


Module 3 – Domestic ArbitrationGuided practice in the main procedural elements in a domestic arbitration.


Module 4 – Domestic ArbitrationPractice in all the requirements for the writing of a fi nal, reasoned and enforceable arbitration award.


Accelerated Route to Membership A fast-track route to Membership through the domestic arbitration pathway.

28-29 November 2013Duration: 2 daysFee: £1,320

Accelerated Route to Fellowship A fast-track route to Fellowship through the domestic arbitration pathway.

18-19 November 2013Duration: 2 daysFee: £1,860

Introduction to ADRA complete explanation of the main categories of alternative dispute resolution.

21 May 201324 September 201325 November 2013Duration: 1 dayFee: £420

Introduction to AdjudicationThe general principles of construction adjudication.

30 September 2013Duration: 1 dayFee: £480

Module 2 AdjudicationProvides a detailed understanding of the legal and procedural principles involved in construction adjudication.


Module 3 AdjudicationGuided practice in the main procedural elements of a construction adjudication.

28 October 2013 Duration: 6 monthsFee: £1,860

Module 4 Adjudication Practice in all the requirements for the writing of a reasoned decision.


Accelerated Route to MembershipA fast-track route to Membership through the adjudication pathway.

18-19 July 201328-29 October 2013Duration: 2 daysFee: £1,320

Accelerated Route to FellowshipA fast-track route to Fellowship through the adjudication pathway.

18-19 June 2013Duration: 2 daysFee: £1,860

Introduction to International ArbitrationThe general principles of international arbitration.

12 June 20134 November 2013Location: LondonFee: £480

Module 2 International ArbitrationProvides a detailed knowledge and understanding of the law of international arbitration.

14 October 2013

Duration: 5 monthsFee: £1,320

Module 3 International ArbitrationGuided practice in the procedural elements involved in an international arbitration.


Module 4 International ArbitrationPractice in all the requirements for the writing of a fi nal, reasoned and enforceable arbitration award.


Accelerated Route to Membership A fast-track route to Membership through the international arbitration pathway.

17-18 July 201328-29 November 2013Duration: 2 daysFee: £1,320

Accelerated Route to Fellowship A fast-track route to Fellowship through the international arbitration pathway.

6-7 August 201318-19 November 2013Duration: 2 daysFee: £1,860

21-23 June 2013Duration: 3 daysLocation: Geneva, SwitzerlandPlease contact the European Branch for further information.

12-14 July 2013Location: San FranciscoDuration: 3 daysPlease contact the North American Branch for further information.

KEY:� MEDIATION� ARBITRATION� GENERAL ADR

� ADJUDICATION� INTERNATIONAL ARBITRATION

Diploma in International Commercial ArbitrationThe Diploma course is internationally recognised and is designed to provide a thorough understanding of the practice and procedure of international commercial arbitration. This is an intensive nine-day residential course with lectures, tutorials and discussion workshops. It is aimed at practising lawyers, professionals and CIArb Members and Fellows who are familiar with legal reasoning and concepts, are involved in arbitration (domestic or international) and who wish to increase their knowledge and understanding of international commercial arbitration. On successful completion of the Diploma course and the Module 4 Award Writing course, candidates will be awarded a CIArb Diploma in International Commercial Arbitration.

14-22 September 2013 (Part 1)Location: OxfordDuration: 9 daysFee: £6,000

14-22 September and 28 October 2013 (Parts 1 and 2)Location: OxfordDuration: 9 days + 4 monthsFee: £7,200

RECOMMENDED COURSE

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Room HireCIArb, 12 Bloomsbury Square, LondonCIArb’s Georgian premises are located on one of London’s oldest garden squares.Conveniently situated in central London and close to all major transport links, 12 Bloomsbury Square offers:

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I N T E R N A T I O N A LA R B I T R A T I O NC O N F E R E N C E

CIArb 2013

George Town, Penang, Malaysia

22-24 August 2013Asia’s Growth

Arbitration:Tapping

O R G A N I S E D B Y :

The Programme

The Speakers

Topics to be Discussed:

For more information, please contact the Conference Secretariat atT: +6 03 214 241 05 E: [email protected] W: www.ciarb2013.com

The Conference

The ModeratorsWho Should Attend

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Documents

The Resolver May 2013