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LPC Law Notes Civil Litigation Notes

Arbitration Adr Notes

Updated Arbitration Adr Notes

Civil Litigation Notes

Civil Litigation

Approximately 418 pages

A collection of the best LPC Civil Litigation notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LPC 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 Civil Lit notes available in the UK this year. This collection of notes is fully updated ...

The following is a more accessible plain text extract of the PDF sample above, taken from our Civil Litigation Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

When advising clients on the pros/cons of different courses of action:

  • P4 requires a solicitor to act in the best interests of each client.

  • P5 provides that solicitors must provide a proper service to their clients.

  • O(1.12) requires the clients are in a position to make informed decisions about the services they need, how the matter will be handled, and the options available to them.

Furthermore, endeavour to ensure you client understands the different COSTS involved (O(1.13) – best possible information about likely overall cost and IB(1.13) solicitors should discuss whether the potential outcomes are likely to justify the risk involved).

Escalation Clauses

Some contracts contains these, which set out a range of steps that should be taken in the event of a dispute. The usual order is:

  1. Parties must negotiate in good faith

  2. If that fails to resolve a dispute, the will mediate

  3. If no settlement is reached at mediation, they will arbitrate

This can be helpful in providing the parties will a guide as to what the expected procedure will be in a dispute.

NB: there can be certain difficulties will a mediation clause:

  • It Is hard to gauge whether someone has complied with their obligations – someone may just arrive at the mediation and sit there, with no intention of actually mediating. It is hard to prove whether someone is negotiating in good faith.

  • There is no guaranteed solution in any event.

Types of ADR

1) Expert Determination

Description Advantages Disadvantages
  • This is where an independent expert on the subject matter is appointed by the parties.

  • It is an inquisitorial process which results in a binding decision.

  • The expert has no authority to make costs UNLESS the parties grant him such authority in the contract.

  • Quick

  • Cheap

  • Flexible – i.e. the parties’ can agree it will be a non-binding decision (early neutral evaluation – find out how the case may go in court)

  • Confidential

SUITABLE FOR:

  • Disputes req. technical knowledge

  • Cases with 1 main issue in contention

NOT SUITABLE for:

  • Cases with a number of issues that are relevant.

2) Mediation

Description Advantages Disadvantages
  • A confidential process intended to facilitate DR through the medium of an impartial 3rd party.

  • The mediator makes no binding decision – he is merely there to help the parties’ come to an agreement.

  • If the mediation fails, the content remains confidential and the content isn't made known to court.

  • A party who unreasonably refuses to mediate might be on the receiving end of costs sanctions – CPR 44.3(4)(a).

  • It preserves commercial relationship

  • Quick (takes a couple of weeks)

  • Confidentiality

  • VERY flexible – the solution can be anything you want whereas in lit/arb it is damages or nothing.

  • More informal and less adversarial

  • It requires good faith or it wont work (i.e. both parties actually trying to settle)

  • Requires the agreement of both parties.

  • Issues of enforceability

  • Issue of COSTS (i.e. who pays?) – this can either be agreed by the parties or at trial.

The process of mediation

  1. Mediator meets each party

  2. First joint session – parties come together and discuss their case (can be helpful to get things off their chests)

  3. Parties break away

  4. Final joint session

The Lawyer’s role in mediation

  • Explaining mediation to the client and considering whether it is appropriate in the circumstances

  • Preparing the client for mediation

  • Selecting and agreeing a mediator alongside the other party

  • Agreeing on how costs will be borne

  • Arranging the mediation venue

  • Deal with arranging a stay of proceedings (if necessary)

  • Preparing written submissions to the mediator

  • Settling the mediation agreement

  • Assisting in the negotiation stage

  • Drafting the settlement agreement (if necessary)

Tomlin orders

  • If the case is already underway (i.e. pending) and a mediation settlement is reached, the agreement can be incorporated into a consent order and therefore enforced as a court order.

  • The court may stay proceedings pending payment/in order to carry out the terms of the agreement.

  • This type of order is known as a Tomlin Order.

3) Arbitration

Description Advantages Disadvantages
  • An impartial 3rd party reaches a binding decision for parties via a private tribunal.

    • Usually through an arbitral institution which have their own set of rules.

  • Governed by Arbitration Act 1996. Some of the provisions are mandatory and others non-mandatory that parties’ can choose to adopt or exclude.

  • Where: requires a SEAT (physical place).

  • What law?

    • Governing law – the law of the contract

    • Jurisdiction – which court should apply the law in reach the decision.

  • FLEXIBILITY – parties can choose exactly how dispute will be dealt with.

    • Choice of timetable, arbitrator, experts, seat, arbitration agreement etc.

  • Privacy/confidentiality

  • Decisions are BINDING and enforceable by the courts (s.66 AA).

  • Can reach practical solutions not available in court.

  • Costs and time – can be as costly/timely as litigation (if not more so as arbitrator there every day!).

  • Some remedies unavailable (e.g. injunctions)

  • Adversarial

  • **3rd parties to the contract – can only take the party you contracted with to arbitration if contract had arbitration clause (so you may have to sue other parties)

Arbitration Agreements – issues to consider (could be a short long-form question)

Components:

  • s.5 AA – must be in writing (or evidenced in writing).

  • Scope – what types of dispute are to be referred to in arbitration?

  • Tribunal – it’s composition; will it be an institution? Will there be a set of rules?

  • Arbitrator who will it be? Institution? How many?

  • Seat and governing law of the arbitration and physical location of the arbitration

  • Non-mandatory provisions the parties’ decide to include (i.e. powers of court)

  • s.52 – should you allow the Arbitrators...

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