Introduction to Arbitration: How is arbitration relevant to the Surveyor? Glenn Haley Thursday, 28 th October 2010 © Clayton Utz

Overview Dealing with disputes generally What is arbitration / ADR? The phases / stages of a typical arbitration How is arbitration relevant to the surveyor?

Two Broad Categories of Dealing With Disputes What are the main “techniques”? Two broad categories: o Avoidance or minimisation at outset o Dealing effectively with disputes that do arise So, at the outset, you need to decide, as a matter of principle, what are your aims and preferences

What are Your Aims and Preferences? Full scale argument and fully binding decision? Rough and ready binding decision? Temporary decision? Structured facilitation of negotiations? Independent input from third party, to jump start negotiations? Or, simply to “put off the evil day to later”?

Avoidance or Minimisation This is the ideal, the holy grail It is the ideal for which Tang and Latham say we should be striving Some issues and strategies: o Getting the contract documents right o Fair and appropriate allocation of risk o Partnering o Effective project monitoring and project management

Getting the Contract Documents Right Choosing the right type of project delivery structure Choosing the right conditions of contract Choosing the right sub-contract arrangements Proper and careful contract drafting Filling out the contract schedules with care

Why have ADR at all?

“New” Style ADR Procedures??

ADR generally Traditional litigation Arbitration Mediation Adjudication Expert determination ENE Coin tossing?

What is (and isn’t) “Arbitration”? A method of dispute resolution An “alternative” method Romilly MR in Collins v Collins (1858): “An arbitration is a reference to the decision of one or more persons, either with or without an umpire, of some matters in difference between the parties.” This definition can apply to other forms of ADR as well

Essential Features of Arbitration Consensual (but binding – “stay” to arbitration) Party autonomy Jurisdiction of tribunal fixed by terms of reference “Judicial” nature of the proceedings Management of proceedings by the tribunal Final and legally binding process Limited scope for intervention by the courts

Brief History of Arbitration Greek / Roman references from approx 500 BC England 600 to 700 AD Commonly used in mediaeval England (but note tension between courts and arbitration) Merchants guilds and crafts in England First England arbitration legislation in 1697

Advantages / Disadvantages Expertise of tribunal Privacy and confidentiality Speed Cost Flexibility – party autonomy, not slaves to court procedures Strict rules of evidence don’t apply Freedom of representation Limited rights of challenge

What procedures? The key is “flexibility” Today’s demonstration arbitration is a fairly “traditional” style hearing But, importantly, an arbitrator can be flexible and does not have to follow court-style procedures Section 2AA of the Arbitration Ordinance Section 2GA

Hong Kong’s “laws” of arbitration Arbitration Ordinance (Cap 341) A new ordinance is being drafted now – currently in the Bills Committee in LegCo UNCITRAL model law Domestic and international arbitrations

Types of Arbitration There is no exhaustive or closed list Flexibility is the key But, some common types are: o “Court” style o Short form o Documents-only (sometimes with short hearing) o Look-sniff

Arbitration versus Litigation (1) What are the perceived advantages of arbitration over litigation? o Privacy / confidentiality o Speed o Cost o Expertise of tribunal o Finality

Arbitration versus Litigation (2) The original purpose of arbitration was to offer a practical alternative to businessmen But, sadly, this alternative is not always delivered Lawyers have done their best over the years to make arbitration “ just like ” the traditional litigation, with which they are comfortable If you make arbitration “ just like ” litigation, it actually becomes a more expensive option. Unlike in court, you have to pay the ” judge ” and pay for the “ court room ” !

Arbitration versus Litigation (3) Does arbitration have to be just like litigation? No! The Arbitrator has wide powers (and indeed a statutory duty) to adopt expeditious, efficient and cost-effective methods Examples of ways to tailor the procedure: o Chess clock arbitration o Limited discovery o Documents only or “small claims” procedure

The Stages of a Typical Arbitration (1) Drafting the arbitration clause Drafting the arbitration notice Choosing the right arbitrator Setting the timetable / procedures The pleadings / statements of case phase

The Stages of a Typical Arbitration (2) The interlocutory / procedural phase The disclosure of documents phase The witness statement and expert reports phase The substantive hearing (the “trial”) The arbitrator’s award (the decision) The enforcement / challenge phase

Roles for a Surveyor? As a party As a factual witness As an expert witness As an advisor to a party As an advocate (case presenter) As an arbitrator