1. ARBITRATION and ADR: UK and INTERNATIONAL PERSPECTIVES a presentation by HEW R. DUNDAS Chartered Arbitrator DipICArb CEDR-Accredited Mediator to CIArb East Asia Branch 20 th March 2007

2. OVERVIEW of PRESENTATION  Introduction  Dispute Resolution Options  Some UK Perspectives  Some International Perspectives  Some Key Issues  Conclusions

3. DISPUTE RESOLUTION OPTIONS  Litigation  Arbitration  Adjudication  Mediation  Expert Determination  Other ADR

4. LITIGATION in ENGLAND & WALES  Pre-1996 Oil Industry View  Effect of CPR post-1999  Robust Case Management  Too robust ?  Timescales – Short & Sharp  The Jackson 67-day Judgment  “Front Comor”

5. ARBITRATION: E&W PROBLEM AREAS  2006 10-Year Survey  Too slow, Too Expensive  Continues to Mirror Court Procedures  AA96 Powers Not Fully Utilised  Cost-Capping (s.65)  Creativity under s.34  Awards Too Long, Too Late  User Needs Ignored  Process run by Lawyers for Lawyers

6. ARBITRATION: INTERNATIONAL  Far Too Slow, Far Too Expensive  Concentration in Hands of the Few  Cost-Cutting in HKIAC/SIAC/KKLRCA but  London QCs  Excessive disclosure  Awards Far Too Long, Far Too Late  60-page Procedural Order  400-page awards  3-Year Delays

7. ADJUDICATION: UK PROBLEM AREAS  Paper War  Ambush  Day of Judgement - 2400 on Day 28  Epping Electrical v Briggs & Forrester  Cubitt v Fleetglade  Adjudicator almost incurred £0.7m liability  Over-Lawyering  Professional Negligence Cases  Final Account Cases

8. MEDIATION: UK PROBLEM AREAS  Over-Proceduralisation  Over-Lawyering – Senior + Junior Counsel  Rigidity/Fossilised Approach  Lack of Court Power to Compel  Fear of Evaluation  Fear of Judicial Settlement  TCC  ZpO §278  Minimal Impact in Scotland

9. EXPERT DETERMINATION  Historical Origins  Comprehensive English Case Law  Robust Support by English Courts  Use of Expert’s Expertise  Non-Applicability of Rules of Natural Justice  Expert Has Procedural Free Hand  Severe Limits on Grounds for Challenge but  Halifax Life v Equitable Life  Enforcement

10. NON-DETERMINATIVE ADR  Executive Negotiation  Early Neutral Evaluation (ENE)  Private Mini-Trials  DABs & DRBs  Mediation/Conciliation  Med-Arb and Arb-Med  Other/None of the Above

11. ADR: SOME KEY ISSUES  Is Decision Binding ?  Enforcement  User Reluctance to Try Something New  Lawyer Resistance  Requirement for Precedent ?  Proceeds of Crime Act/Money-Laundering Regulations

12. CONCLUSIONS (1)  Litigation is a Threat to Arbitration  Adjudication Threatens to Strangle Itself  Mediation Becoming too Rigid/Fossilised  Other Options Being Ignored  Creative Solutions to Modern Problems  Take Risks – Caution is Expensive !  Lose Fear of P/I Risks

13. CONCLUSIONS (2) THANK YOU for listening to me this evening