l · A BRIEF HISTORY OF ARBITRATION iN GREAT BRITAIN l What is arbitration? General principles Choosing the arbitrator Flexibility and cost Use of arbitration asa method of dispute resolution Training and certification of arbitrators History General Basis oflaw History of Arbitration Acts The Arbitration Act 1 996 The underlying principles of the Arbitration Act 1 996 3- ARBITRATION AGREEMENTS Oral or in writing Oral agreements Written agreements 1 2 2 3 3 3 4 Z. INTRODUCTION TO ARBITRATION LAW iN ENGLAND, WALES AND NORTHERN IRELAND 5 6 7 11 11 11 ix x Contents Agreements before or after dispute arises Agreements which provide for one party to pay the costs in any event Binding nature of arbitration agreements Separability of arbitration agreernerıts Stay of court proceedings Domestic arbitration agreements Arbitration rules Ad hoc arbitration 4. APPOINTMENT When the arbitration commences Numbers of arbitrators Appointment by the parties Named in the arbitration agreement Chosen after the dispute arises Appointing bodies Typical procedure for appointment Nomination or appointment Conditional appointments Immunity of arbitral institutions Court appointments Acceptance of appointment and terms of engagement Model terms of engagement Termination of the arbitrator's appointment Liability for the arbitrator's fees Immunity of the arbitrator Resignation exception 5. THE ARBITRATOR General duty of the arbitral tribunal Sole arbitrator Tribunals of more than one arbitrator Three arbitrators or two arbitrators and an umpire Jurisdiction and powers of the tribunal Lack of jurisdiction Sources of iurisdiction Powers Sources of powers Examples of powers given to arbitral tribunals by the Arbitration Act 1996 12 12 13 ı3 ı3 ı4 ı5 16 27 28 28 29 29 29 30 30 30 31 Contents xi The difference between jurisdiction and powers 32 Determination of and challenge to the arbitrator's jurisdiction 33 Arbitrator deciding his own jurisdiction 33 Awards on iurisdictiorı 33 Challenges to awards on iurisdiction 34 Court deciding jurisdictiorı 34 Use of the arbitrator's expertise 34 Awards reliant on the arbitrator's expertise 34 Expertise only used to assist in understanding the evidence and the issues 35 Revocation of arbitrator's authority 36 Removal of an arbitrator by the court 36 Successful challenge for serious irregularity in award not sufficient for removal 37 Continuing to act while proceedings pending 37 Entitlement to fees 37 Resignation of arbitrator 37 Arbitrator's personal entitlement to fees and expenses 38 Effect of agreement to arbitrator's terms 38 Lien on award 38 Fees considered and adjusted by the court 39 6. MULTI-MEMBER TRIBUNALS Appointment Number of arbitrators Chairman Umpire Hearing Awards 7. THE PRELIMINARY MEETING Purpose Format of the preliminary meeting lntroductions Working through the agenda Identifying the written arbitration agreement Any challenges to jurisdiction? Any extension to or curtailment of default powers? Illustrative agendas for preliminary meetings Brief commentary on agenda items 41 41 42 42 42 43 45 46 46 46 47 47 48 48 51 xii Contents 1. Agreement of the arbitrator's Standard Scale of Charges and Terms ofEngagement · 2. To identify written arbitration agreement 3. To identify the nature of the matters in dispute in general terms 4. Whether arbitration to be governed by any institutional arbitration rules 5. Whether parties have erıtered into any other agreernents affecting the arbitrator's powers under the norı-rrıarıdatory Sections of the Arbitration Act 1996 6. Seat of the arbitration-is it agreed to be England? 7. Language ofthe arbitration-is it confirmed to be English? 8. Do any questions ofjurisdiction arise? 9. Whether any and if so what form of written statements of daim and defence are to be used, when they should be supplied and the extent to which such statements can later be amended? 10. Whether any and if so what docurrıents or classes of documents should be disclosed between and produced by the parties and at what stage=-if so, dates for exchange oflists and inspection 11. Whether any and if so what questions should be put to arıd answered by the respective parties and when and in what form this should be done 12. Do the strict rules of evidence apply? 13. Whether and to what extent the tribunal should itself take the initiative in ascertaining the facts and the law 14. Is there to be a hearing or is the matter to be decided on the basis of documents only? 15. Whether and to what extent there should be oral or written evidence of fact 54 51 58 58 58 59 59 16. 17. 18. 19. 20. 21. 22. 23. 24. Expert witnesses Pre-hearing review meeting: date, time and location-to be attended by advocate chosen for the hearing Bundles of documents, restricted to those to be referred to at the hearing The hearing Tribunal to appoint legal advisers and/or technical assessors 64 Are the parties to be represented at the hearing, if so, by whom? 64 Date for exchange ofwritten opening statements 64 Are witnesses to be examined on oath or affirmation? 65 Closing submissions-oral or in writing?: if in writing dates for service 59 61 62 62 65 Contents xiii 25. Have the parties agreed that the award shall be in any particular form? 65 26. Any agreement between the parties that the arbitrator may order provisional relief-section 39 of the Arbitration Act 1996 66 27. Any points of law or issues that may be appropriate for a partial award-section 47 of the Arbitration Act 1 996 66 28. Confirmation that the substantive law applicable is English law 66 29. Do the parties choose not to have a reasoned award? 66 30. Any agreement to exclude powers ofthe court to determine points of law under sections 45 and/or 69 of the Arbitration Act 1996 67 31. Any agreement that the arbitral proceedings shall be consolidated with other arbitral proceedings or that concurrent hearings shall be held: if so, on what terms 67 32. Security for the arbitrator's fees and expenses 67 33. Limiting the recoverable costs ofwhole or part ofthe arbitration (the legal or other costs of the parties) to a specified amount 68 34. Figures to be agreed as figures 69 35. Correspondence, plans and photographs to be agreed as such as far as possible 69 36. Communications with the arbitrator 69 37. Can arbitrator use his expert knowledge and experience?; any restrictions 69 38. Site inspection?; if so, when 70 39. Does the arbitrator have authority to record any agreements reached at the preliminary meeting on behalf of the parties? 70 40. Any other business 70 Illustrative order for directions following a preliminary meeting 70 8. PREPARATION FOR THE HEARING General duty of the parties Pleadings or statements of case Reducing the issues to writirıg Applications to extend time for service or for leave to amend Extending time for service Leave to amend Requests for further and better particulars Discovery and inspection Discovery Privilege Inspection 75 76 78 79 79 80 81 83 83 83 84 xiv Contents Disputes over discovery 84 Controlling discovery 85 The role of the expert witness 86 Limiting the number of experts 86 Without prejudice meetings and joint reports of rnatters agreed and not agreed 86 Primary dury of expert is to the tribunal 87 Tribunal appointed experts 87 Experts and assessors 88 Party appointed experts 88 Witnesses of fact 88 Security for costs 89 Security for the arbitrator's fees and expenses 89 Security for the parties' costs 89 Who can be asked to provide security? 89 Principles to be adopted 90 Problems for arbitrators in hearing applications for security for costs 90 Interlocutory meetings and orders 91 Decisions and reasons 91 Orders for directions 92 Typical interlocutory issues 92 Pre-hearing review 93 Compliance with orders for directions 94 Limiting the recoverable costs of the parties 9 5 Choice ofrepresentation at the hearing 96 Bundle for the hearing 96 Preliminary issues or points of law 97 Inspection of subject matter of dispute 98 9. COURT ASSI