ADR AND ARBITRATION

ADR AND ARBITRATION

1. s. 1(c) Arbitration Act

   • “self-standing” process and there should be minimal intervention from the court
     • s. 40
       • Imposes a general duty on the parties to do what is necessary to assist the smooth conduct of the arbitration including, of course, complying with the tribunal’s directions.
       • s. 41(5)
         • If parties fail to comply - tribunal entitled to make a ‘peremptory order’ giving the defaulting party a specified period of time to comply with the order.
           • s.33 - ALWAYS COMPLY
         • s. 41(7)
           • If fail again to comply - s. 41(7) = consequences A peremptory order operates in a similar way to an ‘unless order’
             • s. 38(3)
               • Security of Costs
                 • N.B No provision in the Arbitration Act for the court to get involved in this application and also no guidance in the Arbitration Act as to how the arbitrators should exercise their discretion
                   • Approach taken left to the tribunal - the cases and principles applied by a court when determining a security for costs application do not apply.
                     • s. 33 - ANY ORDER MADE MUST COMPLY
                     • Principles have usually developed on the basis of what is fair/doing justice to the parties. Many arbitrators have an English legal background so similar principles as arise under English common law.
                       • s. 41(6)
                         • Failure to comply with any peremptory order in relation to security for costs then it is open to the tribunal to make an award dismissing claim.
                           • s.59 =‘costs of the arbitration’
     • However
       • CPR 62 and PD
         • cover the procedure applicable to applications made to court in the context of arbitration matters.