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Part 3 Examination

This examination is based on the assumption that a candidate is already a Member and has passed (or been exempted from) the Part I and Part II Examinations and the Personal Assessment Programme.

This syllabus is not designed to supply or augment the knowledge required for the application of arbitration to the practice of any particular profession or trade.

There are three parts to this examination:

Part 1

This Part will consist of three papers each of three and a quarter hours on:

  • Paper 1 - Contract
  • Paper 2 - Delict
  • Paper 3 - Evidence

Candidates must answer four out of eight questions in each paper.

To achieve a pass candidates must gain at least 55%.

Aims

A course of study based on this syllabus should:

  • provide a sound understanding of the nature of law
  • provide a sound knowledge of the law of Contract, Delict and Evidence
  • provide an arbitrator with the ability to deal with matters of law in arbitration proceedings
  • provide a knowledge of the sources of law, including statutes and cases and of how these sources are applied in arbitration
  • develop an analytical and critical approach to the application of legal principles

Examination Objectives

Candidates should be able to demonstrate a sufficient understanding and knowledge of the law of Contract, Delict and Evidence to be able to deal with aspects of these subjects that might arise during arbitration proceedings. The standard will be a pass in an approved LLB course.

Syllabus Content - For Part IIIA

This Part will be divided into three papers.

Paper 1 - The Law of Contract

A. Concept and General Principles of Law

  • Administrative Law
  • Criminal Law
  • Civil Law involving delict and contract
  • Procedure in civil actions

B. The Law of Contract

  • Formation of Contracts - Oral contracts - Written contracts - Offer and acceptance - revocation and lapse of offer - Absence of need for consideration - Intention to create legal relations - Contracts uberrimae fidei
  • Terms of Contract - Representations - Conditions and warranties - Fundamental terms - Express terms - Implied terms and trade custom - Terms implied into sale of goods - Exclusion clauses - Effect of statutory provisions
  • Amendment of Contracts - Oral amendment of written contracts - contrast with variation orders issued under a construction contract
  • Interpretation of Contracts - Intention of the parties - Background facts - Dealing with consistencies - Rectification - Contracts (Scotland) Act 1997
  • Third Party involvement in contracts - Sub-contracting - Assignation of benefit of contracts - Death and bankruptcy - who has the right to sue and for what
  • Agency - Types of Agency - Creation and termination - Agent's rights and duties - Warranty of authority - Liability of agent - Undisclosed principal
  • Limitation of Actions - Statutory prescription and limitation
  • Quasi-contracts - Restitution - Quantum meruit
  • Remedies for breach of contract - Repudiation or rescission - Interdict - Specific implement - Damages - General and special damages, liquidated and unliquidated damages, penalties - Assessment of damages - Mitigation of loss - Remoteness of loss/damage - Set-off - Retention

Paper 2 - The Law of Delict

  • The Nature of Delict - Vicarious liability - Trespass to land - Dangerous premises - Private nuisance - The rule in Rylands v Fletcher - Interference with chattels - Interference with the person
  • Negligence - The rule in Donoghue v Stevenson + Extensions of the Rule + Standard of care + Negligent misstatement. The rule in Hedley Byrne v Heller & Partners - Defences + Volenti non fit injuria + Novus actus interveniens + Contributory negligence
  • Remedies - Interdict - Damages + Mitigation of loss + Remoteness of damage - Prescription and limitation

Paper 3 - The Law of Evidence

  • Types of Evidence - Best and inferior evidence - Direct and circumstantial evidence - Original and hearsay evidence - Real evidence - Expert evidence
  • Relevance and admissibility - Orders for evidence to be preserved
  • Proof - The burden of proof - Methods of proof - Standards of proof - "Judicial notice" - Similar fact evidence
  • Hearsay evidence - Rules for submission of hearsay evidence
  • Expert evidence - The role of the expert witness
  • Privilege - Absolute privilege - Privilege attaching to negotiations and offers of settlement - Meaning of "without prejudice" - Waiver of privilege
  • Examining Witnesses - Advantages and disadvantages of: Oral examination in chief; Written proofs of evidence; Expert reports; Cross-examination; Re-examination - Leading questions - when and when not allowed - The attendance of witnesses - Citation of witnesses: warrant from a court - Witnesses who are: ill; abroad; dead
  • Dealing with conflicts - The arbitrator's role when faced with conflicts of: + Factual evidence + Expert Opinion + Submissions as to the law applicable - How cases are distinguished

Part 2

This Part consists of two papers:

  • Paper 1 - The law, practice and procedure of arbitration.
  • Paper 2 - The defining of issues, drafting directions and interlocutors.

Aims

A course of study based on this syllabus should:

  • provide an in-depth knowledge and understanding of the law of arbitration
  • develop a sound knowledge and understanding of the principles of the practice and procedure of arbitration
  • develop an ability to analyse information, select appropriate rules and procedures and apply these in a reasoned manner
  • consider the importance of good management and inter-personal skills
  • develop the ability to define issues, draft directions and interlocutory orders
  • equip a candidate with a standard of good practice so as to be able to deal as arbitrator with all aspects of dispute proceedings

Examination Objectives

Candidates are required to demonstrate:

1. a knowledge of the law of arbitration as defined in the syllabus
2. an understanding of the concepts of arbitration as defined in the syllabus
3. an ability to define the issues and draft directions and interlocutors
4. an ability to deal with all aspects of arbitration practice

Paper 1 - The Law, Practice and Procedure of Arbitration

This paper will be three and one quarter hours. Candidates will be required to answer four out of eight questions.

To achieve a pass a candidate must gain at least 55%.

Syllabus Contant - For Part IIB Paper 1

Arbitration in the context of all forms of Dispute Resolution

  • The appointment - Requirements for a valid appointment - Challenge of validity of appointment
  • Preliminary proceedings - The Common Law and application of specific arbitration rules - Handling Preliminary meetings - Directions and interlocutors - Pleadings, Adjustment, Open and Closed Record - Amendment of pleadings - Recovery and inspection of documents - Agreement of facts and figures - Fixing time and place of hearing - Certification of expert witnesses
  • Preliminary issues - The arbitrator's role in determining: points of law; issues of fact; expenses - Expenses generally - Capping of expenses - Security for expenses - Determining expenses + What considerations are relevant
  • Controlling the hearing - How to conduct the proceedings - The arbitrator's role in the: examination of witnesses; evidence on oath or affirmation - Issues involved in the appointment of experts, legal advisers, assessors - Whether or not ex parte proceedings can be ordered
  • The Award - Time for making the Award - Status of Awards issued later - Form of Award - Essentials of an enforceable Award - When to issue Awards on different issues (part and interim Awards) - Agreed Awards - Reasoned Awards - Interest - Expenses - Arbitrator's fees and fees of Clerk - Notification of Award - Correction of Award - Registration in Books of Council and session - Enforcement of Award - The arbitrator's duties concerning remission/setting aside of Award

Paper 2 - Issues and Drafting

This paper will be three and a half hours. There will be one compulsory drafting question.

To achieve a pass, candidates must gain at least 55%.

Syllabus Content - For Part IIB Paper 2

  • Deeds of Submission and appointment
  • Defining the issues
  • The drafting of interlocutors

Part 3

This Part consists of one compulsory question of four hours duration.

To achieve a pass a candidate must gain at least 70%.

Aims

A course of study based on this syllabus should:

  • develop a logical, analytical approach to decision making
  • develop a logical, analytical approach to legal reasoning
  • promote the importance of making decisions in accordance with legal principles
  • demonstrate method in deciding facts
  • develop an ability to write an enforceable, reasoned Award

Examination Objectives

Candidates are required to demonstrate:

  • analyse the facts and documents in arbitration proceedings and organise decisions on the facts and the law
  • To write an enforceable, reasoned Award which deals with matters in dispute in a clear and logical manner, using appropriate terminology, and taking into account the use of grammar, punctuation and spelling. The standard will be that required to render the Award enforceable in a Court.

Syllabus Content - For Part IIIC

Candidates must be able to:

  • analyse all the documents in a dispute
  • decide on the law
  • decide on the facts
  • write an enforceable, reasoned Award dealing with all matters

Assessment

This programme should be undertaken after you have been successful in the Personal Assessment for the Fellowship Course and the Part III Examinations. It requires you to:

1. Be attached to a Pupil Master and complete:

  • attend at least two preliminary meetings and draft the subsequent orders;
  • attend at least two days of one or more arbitration hearings, at which the parties are legally or professionally represented and if possible draft an Award;
  • documents only arbitration Awards;
  • receive a satisfactory written report from your Pupil Master, which must be submitted with your application.

2. Attend the CIArb Demonstration Hearing, which consists of a one-day arbitration hearing at which both Parties are legally represented.

  • You must make note of all the relevant evidence and after the hearing draft an Award for discussion and comment from your Pupil Master.
  • This hearing is compulsory, unless you are able to write an Award after attending an arbitration hearing under 1. sub-para. 2 above.

3. Attend a Practical Arbitration Training Course

  • This consists of one and a half days of discussion workshops based on a dispute which has been referred to arbitration. Both parties have representation and various situations are highlighted for discussion in small groups. Written exercises may also be included.

Exemptions

If you believe that your experience entitles you to:

  • Exemption from any of the steps, you should seek advice from your Pupil Master who will, if he/she thinks fit, make recommendation on your behalf.
  • Being attached to a Pupil Master, for example because you have already conducted three hearings and can produce your Awards, you should write to the Membership Secretary, detailing your arbitral experience and she will seek a decision from the Professional Committee. The decision is entirely at the Committee's discretion and reasons for rejection may not be provided.

Attend an Interview

During the interview you will be expected to demonstrate to the Panel that you have sufficient knowledge of the relevant law of contract, tort, evidence and arbitration to deal with an arbitration unsupervised. You will also have to show that you have the personal qualities to deal fairly with all aspects of a dispute and to efficiently deal with all matters, including providing an enforceable Award. When you have passed the Interview, you may apply to be elected a Fellow of the Chartered Institute of Arbitrators and once elected you will be permitted to use the title 'Chartered Arbitrator'.