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MODULE 3 – Arbitration
Practice, Procedure, Drafting and Deciding
Overall aim
To provide detailed knowledge of and guided practice in the main procedural elements involved in a commercial arbitration, so that successful participants are proficient in giving independent advice on the process and drafting as professional advocates or arbitrator.
Key learning objectives
On successful completion of this module participants will be able to:
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a) |
Describe and explain in depth all the key elements of procedure involved in the arbitral process, including:
- drafting an arbitration agreement;
- detailing procedure;
- making submissions and interlocutory applications;
- making interlocutory decisions;
- presenting and receiving evidence; and
- everything usually required of all the performers in the process except writing a Final Award.
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b) |
Demonstrate practical skill in carrying out the tasks involved in preparing and progressing an arbitration, including the above tasks.
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c) |
Demonstrate skill in controlling an arbitration, communicating effectively with parties, providing justice clearly and fairly, and applying appropriate rules and procedures in a reasoned manner.
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Syllabus
Writing an arbitration Agreement |
Schedules of Fees & Expenses |
General Drafting (grammar, spelling, punctuation) |
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Drafting in arbitrations (words and phrases with specific legal meaning)
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Interlocutories |
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Definition of the term
Responding to a nomination
Conflict of interest
Preliminaries: arbitrator as manager |
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Detailing the procedure |
Submissions
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Purpose and application
Pleadings: |
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Definition and purpose
Forms
Comparison with court procedure
General requirements
Disclosure of documents |
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General and specific disclosure |
Oral evidence |
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Factual and Expert
Examination of witnesses |
Interlocutory applications |
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Challenges (to jurisdiction, arbitrability, conflict of interest)
Amendments to pleadings |
Security for costs |
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Purpose
Supplementary factors |
Reasonable costs |
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Definition, limitation and determination |
Offers to settle |
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Comparison with court procedures
Purpose and requirements for validity
Types (privileged, ‘sealed’, open) |
Case stated to the Court |
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Definition and purpose |
Inspection of physical real evidence |
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Procedural requirements |
Main stages in an arbitration |
Issues in dispute |
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Defining, ordering and handling issues
Summarising evidence
Dealing with legal submissions
Analysing and deciding issues |
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Structure of arguments |
How to deal with arguments |
How to deal with a claim |
Assessment
Assessment for this module involves a combination of two different approaches. It consists of three elements:
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1. |
Two coursework assignments (10% each), one to be submitted before the second tutorial, the other during the oral assessment workshop (3 below).
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2. |
A 3-hour written open-book examination (80%) with questions on each of the sections of the above defined syllabus.
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The pass mark for these two elements is 55% which must be achieved in both the 3-hour examination and overall. |
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3. |
An interactive 1½-day oral practice-cum-assessment workshop, where situations will be presented to participants for their consideration in groups as to what to do in such circumstances. Participants are assessed in terms of their knowledge, judgment and interactive/self-presentation skills. |
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Assessment of this element is on a pass or fail basis. |
Delivery and completion of the module
This module can be completed in a period of four months. It is delivered by a combination of guided reading, face-to-face tutorials in months 2 and 3, and the Workshop in month 4.
Study Time
Typically, the total recommended study time for this Module is 52 hours excluding time taken in answering Assignments. This is scheduled into studying individual sections of the Workbook [24 hours], followed by practice Assignments, with periods of revision [16 hours] before each of the two 6-hour Tutorials. Each holding of this Module has its own Programme schedule showing the dates for each part and with these recommended times detailed.
Entry qualifications
This Module focuses on the process, key documents and procedures in a modern, commercial arbitration – with the exception of writing a final and enforceable, reasoned Award (covered in Module 4). It is therefore recommended for anyone involved in any aspect of or stage in commercial arbitration, including lawyers drafting dispute resolution agreements, professionals acting as advocates in disputes and potential arbitrators.
Membership
Participants should be existing Members of the Institute (MCIArb).
Essential Reading
Workbook: Arbitration Practice, Procedure and Drafting.
Additional Reading
Participants may find it useful to refer to the following to supplement their learning:
Bernstein’s Handbook of Arbitration and Dispute Resolution Practice by John Tackaberry and Arthur Marriott [4th edition 2003]
Arbitration Practice & Procedure by D Mark Cato [3rd edition 2002]
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