NON-MEDIATION ADR and its APPLICABILITY in the MARITIME INDUSTRY a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb International Arbitrator,

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Presentation transcript:

NON-MEDIATION ADR and its APPLICABILITY in the MARITIME INDUSTRY a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb International Arbitrator, Mediator & Expert Determiner ICMA XVI Singapore 26 th February 2007

DISPUTE RESOLUTION OPTIONS  Litigation  Arbitration  Mediation  Non-Mediation ADR  Applicability in Maritime Industry

ADR: OVERVIEW  What is ADR ?  Why ADR ?  Relationship with Courts  Compulsory or Voluntary ?  Court Support of:  The Process  The Outcome  Qualifications and Training

MEDIATION  Consensual Process  Confidentiality  Facilitative/Evaluative – A Spectrum  The Process  The Outcome  Is Art 6 ECHR an Issue ?  Strengths and Weaknesses

MAIN FORMS of NON-MEDIATION ADR  Expert Determination  Executive Negotiation  Early Neutral Evaluation (ENE)  Private Mini-Trials  Hybrids: Med-Arb, Arb-Med, MedExDet  Other  Label-Free ADR

EXPERT DETERMINATION  Origins  Nature of the Process  Nature of the Decision  English Law (Bernhard Schulte)  Other Laws  Enforceability  Strengths and Weaknesses

SOME MEDIATION HYBRIDS  US Origins  Med-Arb  Effectively “outlawed” in England  Arb-Med  MedExDet  Arbitrediation  Other  Strengths and Weaknesses

SOME CURRENT ISSUES in the MARITIME INDUSTRY  Preference for Litigation/Arbitration  Expert Determination Not Universally Known  Failure to Use full ADR Toolkit  Ignorance of non-Mediation ADR  The Lawyers’ Involvement  Single Ship Companies

CASE STUDY: CATS DISPUTE  CATS - North Sea Gas Pipeline  Capacity Reservation by 3 rd Party User  Send Or Pay Obligation; £45m paid  Fall In Gas Price – Contract Uneconomic  High Court/CoA/House of Lords  Did the Subsea valve work ?  Was CATS “Available “ ?  £100m at stake; £8-12 million legal costs

CONCLUSIONS (1)  Wide Range of Dispute Resolution Tools  Lack of understanding of ADR techniques  Minimal Application of Mediation  No Application of Non-Mediation ADR  Plenty of Scope for Progress !!

CONCLUSIONS (2) THANK YOU for listening to me today