Parties
Place, date, time
Agenda laid out with a
view of obtaining "a fair resolution of disputes ... without unnecessary delay
or expense ..." (S1(a))
1. Introductions and preparation of an attendance listing showing names,
organisations, addresses, telephone numbers, fax numbers and email addresses.
2. Outline of the essence of the dispute. The parties should have
submitted a one or two page summary in advance of the meeting. The Arbitrator
will summarise his understanding of the disputes for the purposes of the
Preliminary Meeting.
3. Arbitration agreements in existence. The parties should have agreed
the existing arbitration agreements and submitted copies to the Arbitrator.
4. Consideration of further agreements to eliminate unnecessary
delay or expense.
4.1 The parties to the arbitration will be
represented in the proceedings by:
Party one:
Party two:
[Representatives may be but need not be lawyers. If there is
no agreement on representation then the parties "may be represented in the
proceedings by a lawyer or other person chosen by him". This does not mean a
person chosen by the lawyer. (S36)]
4.2 The Arbitrator has the power to order on a provisional basis any
relief which he would have power to grant in a final award (S39(1)).
[Provisional relief has to be taken into account in a final award. Provisional
relief is seen as a means of avoiding a build up of losses by allowing disputed
affairs to continue during the proceedings.]
4.3 The Arbitrator is to dispense with reasons in his award (S52(4)).
4.4 The Arbitrator is authorised to designate the "seat of the arbitration" (S(3)(c)). [A "seat of arbitration" has to be designated in the Award but in practice is only needed for the purposes of international enforcement of an Award.]
5. Set target date for the Arbitrator to issue his Award.
5.1 Working backwards from the target date for the Arbitrator to issue his Award
agree target elapsed wall clock time periods for:
Arbitrator's Award writing time.
The length of a hearing.
Reading and study time of next below.
Preparation of bundles of essential documents and witness statements relied on.
Reading and study time of next below.
Simultaneous preparation of case statements (on a without prejudice basis until
completed and supplied to
the Arbitrator). (See paragraph 7 below.)
Preliminary time required to identify resources and make arrangements for the
above.
5.2 Further activities that may need to be scheduled in:
An
Arbitrator's (expert) report to the parties.
Instruction of party appointed experts and preparation of their reports.
Consideration of experts' reports.
Additional meetings/hearing to deal with separable issues.
6. Avoiding unnecessary delay or expense.
6.1 The
Arbitrator intends to control the activities of the parties to the arbitration
with the Microsoft Project system (S33(2)). To that end the Arbitrator is minded
to direct that the parties prepare detailed plans for the activities as set out
above and any other activities they may undertake, and submit these to the
Arbitrator within 10 days of this meeting (S1). The parties are asked to agree
to pass scheduling information to the Arbitrator without any obligation to
supply a copy to the other parties. The Arbitrator seeks to be authorised to
convey the results produced from his Project Scheduling system to any party and
to direct any step to be completed by a specified date in order to avoid
unnecessary delay or expense. The use of a project scheduling system is not
thought necessary if a tight timetable has been set.
7. Simultaneous production of
Case
Statements.
7.1 A case statement sets out the why, who, what,
wherefore and when of a party's position in the dispute. In a case statement a
party's contentions and the evidence are integrated but a party must use
language such that contentions and facts can be differentiated. The evidence may
be quoted directly or incorporated by reference. The evidence must still be
either proven or accepted as true by other parties.
7.2 The simultaneous production of case statements requires that the parties reveal the thrust of their cases to each other as their case statements develop. Subject to a party showing otherwise it will be assumed that a party deliberately not revealing the thrust of their case in good time and as it develops does not have full confidence in the truth of their evidence and/or contentions.
7.3. A separate document "Model Arbitrator's Directions as to Case Statements" is attached to this Agenda. Verbose as this document may be, it presents old concepts in what is intended to be a new simple light. Subject to any representations made and alternatives put forward the Arbitrator intends to direct that this "Model Arbitrator's Directions as to Case Statements" be followed by the parties as far as is reasonable. High Court style pleadings are thought, prima facie, to lead to unnecessary delay and expense in an arbitration.
8. Project Scheduling
8.1 The Arbitrator is aware of
other attempts made elsewhere to run an arbitration using Project Scheduling
techniques. The Arbitrator will be using Microsoft Project software for Project
Scheduling purposes and invites the parties to consider using the same software
for their own internal purposes. Running an Arbitration requires the cooperation
of all the parties involved working together just like any other project. By
electing to arbitrate the disputing parties have impliedly agreed to cooperate
but in any event are required to do so (S40(1)).
8.2. This Agenda for a Preliminary Meeting is based on a model of arbitration in the Arbitrator's mind's eye that needs to be moulded and developed by experience so as to make it possible to adopt procedures for a particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined (S33(1)(b)).
9. Project cost forecasting
9.1 Concomitant with the
control over the elapsed time of an arbitration is control over the expense
being incurred. For that reason each of the activities identified as necessary
leading up to a hearing must be accompanied by a cost estimate.
9.2 Both time and cost estimates should be provided on each of the three bases of the least, most likely and greatest expected. Based on the figures initially submitted, his own estimates and as a result of project scheduling the Arbitrator is minded to make a direction limiting the recoverable costs of the arbitration to a specified amount (S65(1)). Once such a direction has been made the specified amount may be taken to be the limit that the losing party may have to pay by way of costs of the arbitration.
9.3. However, Note:
The parties should include in their time and cost estimates contingencies
(greatest time and cost) for likely happenings.
If one party puts an unnecessary burden on the other (such as raising
unnecessary or an unnecessary number of Enquiries) they may find that the
direction as to the limit on recoverable costs for which they could be liable
may be varied (S65(2)).
The recoverable costs in the arbitration include the Arbitrator's fees and
expenses and notice is given that the Arbitrator will vary the limit on the
recoverable costs of the arbitration if that is necessary so that he will
receive such reasonable fees and expenses as are appropriate in the
circumstances (S64(1)).
9.4 The limit is on recoverable costs in the arbitration. There is no limit on how much a party may spend in preparation for the arbitration, just a limit placed on how much of their expenditure they may recover if they win.
9.5 Any limit on the recoverable costs in the arbitration must be fair on
each party and also fair as between the parties. For this reason the Arbitrator
will be taking a separately arrived at view of any limit to a specified amount
that he may direct as the recoverable costs in the arbitration. This separately
arrived at view will be derived from a monthly notification by each party to the
Arbitrator only of their estimation of the totals only likely to be incurred by
them or for which they are liable up to the issue of the Arbitrator's award on
the expected date, showing separately:
fees and expenses of any arbitral institution concerned.
legal costs.
other costs.
The monthly notification by each party is to be sent
directly by the party themselves to the Arbitrator on the monthly anniversary of
the date of the start of the first preliminary meeting. It is the Arbitrator's
intention to make an award allocating the costs of the arbitration as between
the parties (S61) and the costs of or incidental to any proceedings to determine
the amount of the recoverable costs of the arbitration (S59(2)) will be included
in any limit set on the recoverable costs in the arbitration.
9.6Note Well: Project Scheduling and Project Cost Control are seen as essential in a high value dispute that might take six months or more and where the arbitrator is to act inquisitorially and with no expert witnesses as such. In low value quickly resolved (7 days) disputes Project Scheduling and Project Cost Control is a waste of time and money. What must be avoided is a dispute getting to a situation where it is driven on by the sunk costs that have been incurred. Paragraphs 8 and 9 must be considered and discussed at the preliminary meeting with all these considerations in mind. An arbitrator is not free to decide procedure at his whim, all his decisions have to be taken judicially which broadly means listening to what the parties have to say before deciding what is to be done.
10. Are there any things that need to be preserved or secured for the purposes of the arbitration?
11. Any communication to the Arbitrator should be in writing with a copy simultaneously sent to the other parties.
12. Liberty for any party to apply or to respond. These traditional words are almost the only carry over from earlier arbitration practice to working under the Arbitration Act 1996. The parties are asked to enter into the new spirit of arbitration which the present verbosity is an attempt to convey. As of this instant the present verbosity is not regarded as unnecessary delay or expense on account of the very natural inertia of prior arbitration practice that has to be overcome.
Signed
Arbitrator