BPTC Law Notes Alternative Dispute Resolution Notes
A collection of the best BPTC notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".
In short, these are what we believe to be the strongest set of BPTC notes available in the UK this year. This collection of BPTC notes is fully updated for recent exams, ...
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ARBITRATION N.B. Provisions highlighted in red = mandatory provisions
Procedure (often non-mandatory and can be excluded to reduce chance of going to court)
commenced by a notice
preliminary hearing (sort out how arbitration going to work cf case management hearing) e.g.
points of claim / defence
disclosure
witness statements
expert reports (and meetings?)
hearing (mostly oral)
award
Key principles
what is arbitration?
= a procedure by which an impartial tribunal decides the outcome of a dispute between parties, following their submission to that procedure
place on spectrum of dispute resolution
flexible, depends on type: quick and dirty (no set rules, decision possibly not made on legal basis) v arbitration by supreme court justices
med-arb - must try mediation before arbitration
terminology
tribunal / arbitral panel / arbitrators = sir or madam
claimant
respondent
arbitration sometimes called a reference
seat = the jurisdictional seat of the arbitration designated by agreement of the parties / those authorised by them
how do parties end up in arbitration under AA?
by effective reference:
dispute (s6) / "difference" (s82(1)) +
private law dispute (including ECHR + EU competition law) +
agreement to arbitrate / arbitration clause (submit present and future disputes to arbitration (s6(1)) +
can be before or after dispute arises
party bound by pre-existing arbitration clause even if subsequently changes its mind; if party ignores, can stay litigation under s9 (see below)
NOT discharged by death of a party (s8)
dispute comes within arbitration clause +
tribunal's mandate conferred by clause itself
not a technical exercise
parties have capacity to enter arbitration agreement +
condition precedent in arbitration clause complied with e.g. med-arb, arb-lit +
willing tribunal
separability of arbitration clause
usually 4 contracts:
substantive contract on which dispute based
agreement to arbitrate
even if just a term in substantive contract = distinct agreement even if substantive contract invalid, agreement to arbitrate = valid (s7)
agreement between parties + arbitral institution referring dispute to arbitration under rules of institution
agreement between parties and / or arbitral institution + arbitrators
typical content of arbitration clause
must:
be in writing, "recorded by any means" (s5)
agree to submit all present and future disputes to arbitration
may set out:
seat
venue
language
number of arbitrators
qualifications of arbitrators
how arbitrators to be appointed
criteria to be met before arbitration started e.g. how long after dispute arises
dates for disclosure
costs
ad hoc / institutional?
basis of arbitrator's decision (legal? factual?)
(if desired) med-arb clause
timing before arbitration kicks in
placement of mediation windows
escalation clause: make clear if failure to settle results in litigation or arbitration
whether mediator and arbitrator will be same person (confidentiality problems, usually only in very specialised dispute)
(if desired) arb-med clause
timing before mediation kicks in
(if desired) exclusion of appeal on point of law
(if desired) specify institutional rules
types of arbitration
institutional:
arbitration administered by arbitral institution + conducted in accordance with its rules
institutional rules sit alongside AA e.g. AA "reasonable time" institution "28 days = reasonable"
Act silent agreement / rules
if rules silent Act
ad hoc: no arbitral institution - parties decide procedure themselves
3 key principles (s1)
object: fair resolution of disputes by impartial tribunal without unnecessary delay or expense (cf general duties s33 (tribunal) / s40 (parties))
party autonomy: parties free to agree how their disputes are resolved, subject only to safeguards necessary in the public interest
pre-existing arbitration clause
written agreement after dispute arises
during course of arbitration (s34)
judicial non-intervention: court should not intervene except as provided by AA (s1(c))
duty of court and parties
parties (s40)
ensure proper and expeditious conduct of arbitration - comply without delay with all orders of tribunal
tribunal (s33)
act fairly and impartially between parties
give parties reasonable opportunity to put case and deal with opponents
adopt suitable procedures
can be inquisitorial as opposed to adversarial (s34(2)(e) and (g))
avoid unnecessary delay and expense
produce fair resolution
seat (s3)
= system of law that governs arbitration
courts of seat have supervisory jurisdiction over arbitration
unlike litigation, need NOT be a jurisdictional connection to seat
seat need NOT be where hearing takes place
law governing substantive contract need NOT be that of seat, NOR must tribunal decide on strictly legal principles (s46(1))
decided by intention of parties, directly / via institution
English court will grant stay under s9, regardless of whether seat is England (s2(2)(a))
award
seat = place award treated as being made, unless parties agree otherwise (s53)
applications for enforcement of award take place in country of enforcement NOT seat (s2(2)(b))
if seat = England
procedure = AA + English law
supervisory jurisdiction = English courts
hearing = anywhere
award made in England
applicable law of substantive contract = any
mandatory provisions
s9 - 11 stay of legal proceedings
s12 power of court to extend time for beginning arbitral proceedings
s13 application of Limitation Acts
s24 power of court to remove an arbitrator
s26(1) effect of death of an arbitrator
s28 liability of parties for fees + expenses of arbitrators
s29 immunity of arbitrators
s31 objections to the substantive jurisdiction of arbitrators
s32 determination of preliminary point on jurisdiction
s33 general duty of arbitral tribunals
s37(2) items to be regarded as expenses of arbitrators
s40 general duties of parties
s43 securing the attendance of witnesses
s56 power to...
Buy the full version of these notes or essay plans and more in our Alternative Dispute Resolution Notes.
A collection of the best BPTC notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of samples from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor".
In short, these are what we believe to be the strongest set of BPTC notes available in the UK this year. This collection of BPTC notes is fully updated for recent exams, ...
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