Ray Turner

Arbitration Awards (eBook, PDF)

A Practical Approach

• Format: PDF

Produktbeschreibung

'Drawing on his long and practical experience [the author gives] guidance which only the foolhardy would reject without good reason for doing so. With this manual beside him, many an arbitrator will, I feel sure, sleep the sounder.' - The Rt Hon The Lord Bingham of Cornhill. The preparation of an arbitrator's award requires a rigorous approach to the consideration of submissions and evidence, and to the decisions stemming from that consideration, and the arbitrator must be competent to draft a valid and enforceable award. These tasks can be complex for any arbitrator, particularly so for the less experienced. This book has been written to provide clear and practical guidance, whilst emphasising that there is no standard method of preparing or writing an award. It includes illustrations relating to a wide range of types of award. It will be of interest to all arbitrators and those involved in the process, whether they are concerned with commodities, insurance, maritime matters, rent disputes, construction or commerce.

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Produktdetails

• Verlag: John Wiley & Sons
• Seitenzahl: 264
• Erscheinungstermin: 8. Mai 2008
• Englisch
• ISBN-13: 9781405144803
• Artikelnr.: 38458322

Autorenporträt

Ray Turner is a quantity surveyor, an arbitrator with over 40 years' experience of arbitrations, and a past chairman of the Chartered Institute of Arbitrators. He was formerly Visiting Professor of Arbitration at Leeds Metropolitan University. He was conducted several hundred arbitrations and was a member of various institutional panels of arbitrators. A Fellow of the Charted Institute of Arbitrators, having been a member since 1953, he was a member of its Council for 16 years, Chairman of the Institute, Chairman of its Arbitration Committee (twice) and its Profesional Conduct Committee, a member of other committees including its Examinations Board and Registration Board; tutor or course director on many of its courses at all levels, examiner, then moderator. Having conducted or lectured on arbitration courses for the Universities of York and Salford and for UMIST, in 1993 he was appointed the first Visiting Professor of Arbitration at Leeds Metropolitan University. He was the first external examiner on the College of Estate Management Diploma in Arbitration. He has lectured on arbitration topics on over 150 occasions for other bodies, and he has given papers or spoken on arbitration by invitation in Bermuda, Chicago, Gibraltar and Barcelona. A founder member of both the Society of Construction Arbitrators and the Society of Construction Law, he was for nine years a Vice-President of the Academy of Experts, a member of its fellowship vetting Committee, its Disciplinary Committee and its first working party on terms of appointment. A charted quanitity surveyor by profession, he was a member of the RICS QS Practice Board and chairman of its Fees and Conditions Panel, a member of its inter-divisional working parties on mutual insurance and on EC proposals on construction liability and he was RICS representative on the DOE/Construction Industry Liaison Group. Prior to retirment he lectured widely on matters relating to construction contracts and related insurances. From 1987 until 2001 he was a Member of the VAT and Duties Appeals Tribunals.

Inhaltsangabe

Part A Introduction.
Chapter 1: A preliminary introduction; 1.1 Purpose and nature; 1.1.1
Definition.
1.1.2 Purpose; 1.1.3 Nature; 1.1.4 Requirement for natural justice; 1.2
Relevant law; 1.2.1 General; 1.2.2 The Arbitration Act 1996; 1.3
Requirements of an enforceable award; 1.3.1 Formal requirements: 1 Writing
and signature: 2 Identification of the parties: 3 Recitals: 4 Reasons: 5
Date: 6 Statement of Seat: 7 Issues dealt with: 8 Notification; 1.3.2
Substantive requirements: 1 Cogency: 2 Completeness: 3 Certainty: 4
Finality: 5 Enforceability: 6 Jurisdiction: 7 Legality: 8 Possibility: 9
Consistency: 10 Compliance with submission; 1.4 Distinctions from a
judgement; 1.5 Illustrative monetary award (See Appendix 3).
Part B Background principles.
Chapter 2: Types of awards; 2.1 Introduction; 2.2 "Substantive" awards;
2.2.1 Monetary awards; 2.2.2 Declaratory awards; 2.2.3 Performance awards;
2.2.4 Injunctive awards; 2.2.5 Rectificative awards: 1 Rectification: 2
Setting aside: 3 Cancellation; 2.3 "Supportive" awards; 2.3.1 Awards on
jurisdiction; 2.3.2 Agreed awards; 2.3.3 Awards on separate issues; 2.3.4
Awards on reserved matters; 2.3.5 Corrective or additional awards; 2.3.6
Awards following remission; 2.3.7 Awards giving further reasons; 2.3.8
Awards following payment during the reference; 2.3.9 Awards following: 1
earlier order giving provisional relief under section 39: 2 earlier
adjudicator's decision; 2.3.10 Unreasoned awards; 2.4 "Procedural" awards;
2.4.1 Awards dismissing the claim; 2.4.2 Awards on abandonment; 2.5
"Institutional" awards; 2.5.1 Awards under rules or other statutes; 2.5.2
Awards under "consumer" schemes; 2.6 "Ancillary" awards.
2.6.1 When is an award (perhaps) not an award?.
Chapter 3: Style, content and check-lists; 3.1 Style; 3.1.1 Narrative
style; 3.1.2 Language; 3.1.3 Headings and list of contents; 3.1.4 Reasons
and their incorporation; 3.1.5 Checking; 3.2 Content; 3.2.1 In general;
3.2.2 Basic structure; 3.3 Expanded check-list; 3.3.1 Section A Heading;
3.3.2 Section B Background; 3.3.3 Section B1 Identification and
jurisdiction; 3.3.4 Section B2 Interlocutory procedural matters; 3.3.5
Section B3 Hearing; 3.3.6 Section C Submissions and evidence; 3.3.7 Section
D Analysis/findings/reasons/decisions; 3.3.8 Section E Value Added Tax
implications; 3.3.9 Section F Interest; 3.3.10 Section G Costs; 3.3.11
Section H Operative section; 3.3.12 Section I Reserved matters; 3.3.13
Section J Signature and formalities; 3.3.14 Final check.
Chapter 4: An approach to decision-making; 4.1 Background; 4.2 Underlying
matters; 4.3 The components of decision-making; 4.3.1 The substantive
issues: 1 Basis of determination: 2 Collation of information: 3
Consideration of submissions: Agreed facts, Uncontested facts, Documentary
evidence, Inspection of the subject-matter, Expert evidence, Facts to be
found from consideration of evidence, Applicable law (or other basis), The
pleadings/ opening and closing submissions: 4 Determination, issue by
issue: 5 Accumulation of related issues: 6 Decision-making tasks -
substantive issues: 7 Condensing reasons into suitable form; 4.3.2 Value
Added Tax: 1 Background: General, Likely circumstances: 2 Decision-making
tasks relating to VAT; 4.3.3 Interest: 1 Background, General, Restraint on
discretion, Set-off?, Possible complexities, Post-award interest: 2
Decision-making tasks relating to interest; 4.3.4 Costs:1 Background:
General, Costs follow the event, except ..., Basis of determination of
recoverable costs, Effect of offer of settlement, Set-off?, Quantum,
Arbitrator's fees and expenses: 2 Decision-making tasks relating to costs;
4.3.5 Reserved matters.
Chapter 5: Synthesis of an award; 5.1 Introduction to the illustrations;
5.2 The basic scenario; 5.3 Synthesis of an award; 5.3.1 Section A The
Heading; 5.3.2 Section B Background; 5.3.3 Section B1 Identification and
jurisdiction: 1 Identification of the parties: 2 Contract, or other
relationship.3 Law of the contract:4 Arbitration agreement: 5 Provisions
for appointment: 6 Applicable rules: 7 A dispute having arisen: 8 Nature of
the dispute and matters in issue: 9 Appointment: 10 Challenge to
jurisdiction: 11 Basis for decision: 12 Other matters; 5.3.4 Section B2
Interlocutory procedural matters: 1 Transfers: 2 Seat: 3 Interlocutory
agreement on rules, powers or procedures Procedural/ evidential matters,
Consolidation/ concurrent hearings, Experts, legal advisers, assessors,
Property the subject of proceedings, Preservation of evidence: 4 Use of
uncommon powers: 5 Clarification/ amendment of issues: 6 Previous awards: 7
Issue(s) to be determined by this award: 8 Meetings: preliminary, further,
review: 9 Consequent/ subsequent applications/ orders Attended hearing or
"documents only", Type of statements, timetable, Disclosure/ production of
documents, Exchange of witness proofs and experts' reports, Meetings of
experts, Language and translation, Questions to be put, Other relevant
matters: 10 Resultant party action Brief details of exchange, Admissions or
agreements, result of meeting(s) of experts, Any resultant reduction in/
expansion of matters in issue: 11 Other directions and/or administrative
actions Orders for security, Limitation of costs, Any valid "costs in any
event" agreement, Any "costs in any event" directions:12 Provisional
orders: 13 Party default (and consequence Inordinate or inexcusable delay,
Failure to comply with order/direction: 14 Peremptory orders: 15 Other
relevant matters; 5.3.5 Section B3 Hearing: 1 Transfers: 2 Hearing: 3
Failure to attend / ex parte proceedings: 4 Representation and witnesses: 5
Oral evidence: 6 Default during hearing: 7 Inspection: 8 Agreed list of
issues: 9 Other matters; 5.3.6 Section C Submissions and evidence: 1 The
contentions: 2 Opening and closing submissions: 3 Witnesses / evidence, if
not covered in B Identification of witnesses, Precis of relevant evidence,
Equivalent description in ex-parte proceedings: 4 Inspection, if not
covered in B Purpose of inspection, Result of inspection: 5 Other matters;
5.3.7 Section D Analysis/ findings/reasons/ decisions: 1 List of issues: 2
Common ground: 3 Analysis of submissions and evidence Facts/ law/
application/ decision, Interest as special damages, Decision on substantive
issue(s), Counterclaim or set-off: 4 Summary of decisions on substantive
issues: 5 Amounts paid during period of arbitration; 5.3.8 Section E Value
Added Tax implications: 1 Dealing with Value Added Tax; 5.3.9 Section F
Interest: 1 Interest within the award: 2 Post-award interest; 5.3.10
Section G Costs: 1 Award of costs; 5.3.11 Section H Operative Section
(Award): 1 Introduction: 2 Type of award: 3 Conditions or terms: 4 Time for
performance: 5 Post-award interest: 6 Value Added Tax: 7 Costs; 5.3.12
Section I Reserved matters; 5.3.13 Section J Signature and formalities.
Part D Illustrations.
Chapter 6: Substantive awards; 6.1 Introduction; 6.2 A Monetary award; 6.3
A Monetary award without any counterclaim; 6.3.1 Where the claim is
successful: 1 Summary; 6.3.2 Where the claim fails; 6.4 A Monetary award
with a counterclaim; 6.4.1 Counterclaim which constitutes a set-off: 1
Heading and Preamble: 2 Dispute/ matters in issue: 3 Issues in this award:
4 Inspections: 5 Contentions re Counterclaim: 6 Analysis/ Decisions/
Counterclaim or set-off: 7 VAT implications: 8 Interest: 9 Costs - single
event: 10 Operative section; 6.4.2 Counterclaim which does not constitute a
set-off: 1 Background and submissions: 2 Counterclaim or set-off: 3
Interest: 4 Costs - separate events: 5 Operative section: 6 Reserved
matters; 6.4.3 Counterclaim variants; 6.5 A Declaratory award; 6.6 A
Performance award; 6.7 An Injunctive award; 6.8 A Rectificative award.
Chapter 7: Supportive awards; 7.1 Introduction; 7.2 An award on
jurisdiction; 7.3 An agreed award; 7.4 Awards on separate issues; 7.4.1 The
first award; 7.4.2 Subsequent awards; 7.5 An award on reserved matters;
7.5.1 On matters other than the amount of recoverable costs; 7.5.2 On the
amount of recoverable costs; 7.6 A corrective or additional award; 7.6.1 A
Corrective award; 7.6.2 An Additional award; 7.7 An award following
remission; 7.8 An award giving further reasons; 7.9 An award following
payment during the reference; 7.9.1 Where payment made no provision for
interest; 7.9.2 Where payment made provision for interest; 7.10 An award
following; 7.10.1 an earlier order giving provisional relief: 1 relating to
substantive claim: 2 relating to costs; 7.10.2 an earlier adjudication;
7.11 An unreasoned award.
Chapter 8: Procedural awards; Institutional awards; Ancillary awards; 8.1
Introduction; 8.2 Procedural awards; 8.2.1 An award dismissing the claim: 1
entire claim: 2 certain (but not all) issues; 8.2.2 An award on
abandonment: 1 Settlement in unknown amount: 2 Abandonment as such
"Closing order", Abandonment before acceptance of appointment, Abandonment
after acceptance of appointment, It could have been an award, but ...;8.3
Institutional awards; 8.3.1 An award under rules (or other statute); 8.3.2
An award under a "consumer" scheme; 8.4 Ancillary awards; 8.4.1 When is an
award (perhaps) not an award?.
Part E Variants.
Chapter 9: Other options and variations in content; 9.1 Introduction; 9.2
Format of this chapter; 9.3 Options and variations; Section A 9.3.1
Heading; Section B 9.3.2 Background; Section B1 9.3.3 Identification and
jurisdiction: 1 Identification of the parties/Contract or other
relationship A claim in tort / submission agreement: 2 Provision for
appointment/ Appointment Appointment by appointing authority: 3 Basis for
decision; Section B2 9.3.4 Interlocutory procedural matters: 1 Seat: 2
Interlocutory agreement on rules, powers or procedures On procedural and
evidential matters, On consolidation / concurrent hearings, On appointment
of experts, Relating to property ..., On preservation of evidence: 3 Use of
"uncommon" powers: 4 Meetings ...pre-hearing review: 5 Consequent and
subsequent applications and orders Attended hearing or "documents only"?:
6 Resultant party action Result of meeting(s) of experts: 7 Other
directions and/or administrative action Orders for security, Limitation of
costs: 8 Provisional orders: 9 Party default/ Peremptory orders; Section B3
9.3.5 Hearing: 1 Failure to attend / ex-parte proceedings; Section C 9.3.6
Submissions and evidence: 1 Rules of evidence - relaxation; Section D 9.3.7
Analysis etc: 1 Analysis under section 46(1)(b): 2 Appended reasons;
Section E 9.3.8 Value Added Tax: 1 VAT not applicable: 2 VAT as a component
of damages; Section F 9.3.9 Interest: 1 Intervening event; Section G 9.3.10
Costs: 1 Award on reserved liability for costs/ rejected offer of
settlement; Section H 9.3.11 Operative section: 1 Time for performance/
compliance: 2 Post-award interest - starting date: 3 Release or disposal of
security for costs; 9.4 Tribunals other than a sole arbitrator; 9.5
Multi-party arbitrations; 9.6 Effect of party autonomy.
Part F Appendices.
Appendix 1 Expanded check-list (from Chapter 3).
Appendix 2 Manual collation of submissions and evidence.
Appendix 3 Substantive monetary award (from Chapter 5).
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