This note deals with Arbitrators Directions, that is how the arbitrator tells
the parties what they are to do in preparing for and presenting their cases.
Comparable notes are on this website in the form of a
Dispute
Resolution Kit for use in an arbitration or in the court. There are links
between the two sets of comparable notes.
Few ever have more than one
dispute so having something explained in two different ways from different
perspectives can be an advantage in coming to terms with what has to be done.
1. Direction as to functional descriptions of
activities or tasks to be carried out by the parties in an Arbitration.
This direction is a model, the intentions of which may be followed in any way
desired.
2. The activities or tasks are descriptions of
procedural and evidential matters to be set in motion, carried out and achieved
prior to a hearing (if a hearing is to be held) in an Arbitration. The
functional descriptions are written in business language and describe the
materials to be created and their manner of presentation to the Arbitrator.
3. For each item, functionally described, activity or
task there will be scheduled time within which the materials are to be delivered
to the Arbitrator. Copies of all material delivered to the Arbitrator are to be
simultaneously sent to all other parties.
4. The materials produced for the Arbitrator are
collectively known as Case Statements. Typically a Case Statement will consist
of a Claim, a Defence, and perhaps a Reply.
4.1 Note: Pleadings in Court format are not required and are positively discouraged in an arbitration. As a practical matter there is no implication that anything not denied is admitted, nor any firm rule that complaints that come to light during the proceedings may not be raised. The language used in this note is precise of necessity and communications should normally be in business language. Not observing the intentions of this note without good cause may lead to less weight being given to the points a party is wishing to make.
4.2 These Functional Descriptions are intended to set
out a model for those things that need to be done in the proceedings. Disputes
are infinitely variable so adaptation will be necessary. The purpose of the
Functional Descriptions is to enable the Arbitrator to monitor progress in order
to meet the obligations placed on him to "avoid unnecessary delay or expense".
For example, if a hearing date has been set as six months hence it is common for
nothing to happen for the first four months and all the preparatory work to be
done in the last two months. The first four months in such circumstances are
seen as unnecessary delay to be avoided. Therefore in procedures suitable for a
particular case, activities have to be completed and reported on over the whole
of the time leading up to a hearing date.
4.3 Parties are encouraged to settle their disputes
by negotiation or mediation. The arbitrator may be prepared to act as mediator
during the arbitration providing the parties agree. Failing agreement in the
mediation the arbitration may resume. However, until all disputes are resolved
by agreement no delay in the arbitral process is likely to be permitted on
account of negotiations taking place. As from the commencement of the
arbitration (Arbitration
Act 1996 S14) the parties shall do all things necessary for the proper and
expeditious conduct of the arbitral proceedings (Arbitration
Act 1996 S40) and the Arbitrator will adopt procedures suitable to the
circumstances of the particular case, avoiding unnecessary delay or expense, so
as to provide a fair means for the resolution of the matters falling to be
determined (Arbitration
Act 1996 S33(1)(b)). Under these statutory requirements there is not seen to
be anything that can be done while negotiations are proceeding other than to
proceed with the Arbitration forthwith.
5.2 In the Contractual Statement and all other Statements etc referred to below the opinions on any relevant law, citing the authorities supporting the statements should be given. The arbitrator is not usually a lawyer, will professes not to know what the law is, but finds that he has no difficulty at all in interpreting the law should that be necessary.
6. Performance Statement
14
below and in
Action
plan.
6.1 Both parties will have a fair idea what the
disputes or differences are before the arbitration commences. This statement is
one party's understanding of the dispute or difference. It would be of
assistance if all parties submitted Performance Statements concurrently.
6.2 The Performance Statement will show the obligations that the party accepted in entering into the contract or were otherwise committed to. Reference should be made to the Evidence Statement where the obligation is identified.
6.3 The actual performance against the obligation should be set out point by point. A Scott Schedule may be used if appropriate.
7. Complaints Statement
15
below and in
Action
plan.
7.1 The matters in dispute ordered as far as
possible from the most important to the last important in the eyes of the
complainer. The focus of a Complaints Statement should be on those things that
it is said should have but did not happen and on those things it is said did
happen but should not have happened. An Evidence Listing cross-reference is
necessary to the obligation that is said not to have been met, by what did or
did not happen.
7.2 The Remedies sought on account of the complaints should be set out, each remedy as far as possible being identified against the complaint. The working showing how the Remedy was arrived at should be given.
8. Response Statement
16
below and in
Action
plan.
8.1 There are two sides to every dispute. The
Response Statement sets out the other side of a statement made as a complaint.
8.2 A Response Statement should quote the words being responded to and a reference provided as to the source of those words.
8.3 The response itself should point by point deal with the statement responded to giving the appropriate references in the Evidence Listing.
8.4 The effect of the Response on any Remedies sought should be set out showing the working behind the effect.
9. Evidence Listing
17
below and in
Action
plan.
9.1 A listing of those things that a party
wishes the Arbitrator to take into account in reaching his decision in an Award.
The listing is of references to documents as such, witness statements, artifacts
or whatever constitutes the evidence.
9.2. The listing should be in a chronological Effective Date order. For example, a witness statement may relate to happenings over a two year period. References to paragraphs of the witness statement relating to happenings at a particular time will appear with that particular time as the Effective Date. In the case of witness statements, for example, the actual date of the witness statement should also be given for certainty of identification.
9.3 No attempt should be made to list or produce every document that relates to the matters in dispute. Further Evidence Listings and evidence may be produced at any time, by leave, which will only be given if the other parties will have sufficient opportunity to deal with that evidence adequately.
10. Enquiry
18
below and in
Action
plan.
10.1 Subject to a cut-off date to be
fixed, an Enquiry may be directed to the other party(ies). The Enquiry
may relate to Obligations, Performance, Complaints, Responses or Evidence. The
Enquiry should quote the material to which the Enquiry relates, preferably by
quotation, but certainly by reference to where it occurs in the evidence
materials.
10.2 The Enquiry to Answer should be set out in terms of and as far as possible using the words in the quotation.
10.3 An Enquiry to Answer may relate to any matter of fact or law that has been put forward.
10.4 As far as possible separate Enquiries should be used for questions relating to a party's contentions, questions relating to evidence and questions relating to matters of law. There is no limit to the number of Enquiries that may be made in an honest, reasonable endeavour to advance the matter.
11. Answers to Enquiry
19
below and in
Action
plan.
11.1 An Answer to an Enquiry must be provided
within a time limit set. The Answer to an Enquiry must quote
the Enquiry asked and its reference numbers.
11.2 The Answer to an Enquiry should fully resolve the questions raised and not leave matters where it could be necessary to raise Enquiries on Answers which are only permitted in the time limit set for Enquiries.
11.3 The Answer to an Enquiry should be an honest, reasonable endeavour to advance the matter.
12. Layouts for Guidance
12.1 These Functional Descriptions are supplemented by
pro-forma layouts of Case Statements showing the headings under which material
may be presented. The "below" and "above" references relate the paragraphs of
the Functional Descriptions above with the paragraphs of the pro-forma layouts
below.
12.2 The layouts are offered by way of guidance as to what is thought necessary in a "normal" dispute. The layouts are not mandatory and their presentation does not in any way restrict how a party may put forward its case.
12.3 Court style pleading and rules for pleading are not
thought appropriate. After the conclusion of the Arbitration and an elapse of
time feedback to the author of this note on procedural matters is earnestly
sought.
Contractual Statement by Document Number
Date
Name(s) of Individual(s):
Name and address of Entity: (If necessary show: Trading;
Legal; Business; for service of Documents; particulars
separately.)
Contract(s) relied on: Detail all contractual documents.
Arbitration agreement:
Performance Statement of: Document Number
Date
Obligation(s) to perform: (Cite contract term.)
Actual performance: (Refer to evidence relied on.)
Complaints Statement of: Document Number
Date
Obligation(s) said to be not met: (Cite contract term or
otherwise.)
What should have been done but was not: (Refer to evidence
relied on.)
What was done but should not have been done: (Refer to
evidence relied on.)
The losses incurred under each matter complained of and the
Remedy sought.
Response Statement of: Document Number
Date
Statement Responded to:
Response: (Refer to evidence relied on.)
Evidence Listing of: Document Number
Date
Type Doc/para
Effective Date Doc. or Stat. Originator number Actual Date
Note The Effective Date is the date when the events occurred.
Entries should be in Effective Date order. Actual date is the date on a document
or witness statement. The same document or statement may be referred to several
times. "Doc" is an abbreviation for Document and "Stat" an abbreviation for
Witness Statement. For the avoidance of doubt the following is repeated from
paragraph 9 above " No attempt should be made to list or produce every document
that relates to the matters in dispute. Further Evidence Listings and evidence
may be produced at any time, by leave, which will only be given
if the other parties will have sufficient opportunity to deal with that evidence
adequately."
Enquiry by: Document Number
Date
Addressed to:
Enquiry on their Statement page paragraph
Where it is said:
Enquiry to Answer:
Answer to Enquiry by: Document Number
Date
Enquiry from:
Based on their Statement page paragraph.
Where it is said:
Enquiry to Answer:
Answer to Enquiry;