So what exactly is expert determination and how does it differ from other methods?

This is one of a number of private dispute resolution methods collectively referred to as alternative dispute resolution (ADR). Other ADR methods include arbitration and mediation.

In expert determination an independent expert is asked by the disputing parties to decide one or more issues between them. The experts are required to use their knowledge and experience to reach a decision based on their own investigation of the issues. The experts must act fairly and the parties must agree to be bound by the decision.

In England and Wales arbitration is supported and controlled by the Arbitration Act 1996, which supports the enforceability of arbitration awards locally and internationally. There is no similar statutory involvement in expert determination.

In arbitration, fairness is formalised by the Arbitration Act. The arbitrator can only undertake an investigation if permitted by the parties and must share the results with the parties. Unlike the arbitrator, the expert is not immune from actions for negligence. In mediation, the mediator helps the parties arrive at their own settlement.

Are there particular types of dispute that suit expert determination?

Expert determinations tend to be applied to technical disputes. The expert is usually chosen for their expertise. The types of dispute for an accountant acting as expert include: share/business valuation disputes; disputes in relation to completion accounts; deferred consideration disputes following a sale of a business; profit share disputes in partnerships and joint venture agreements; and disputes about the loss of profits from breach of contract.

There can be numerous subsidiary disputes in connection with facts and the interpretation of words, which may be outside the expertise of the expert.

Together with other procedural considerations, the expert may need to agree arrangements to enable these matters to be dealt with in a way that does not lead to the validity of his award in respect of the substantive issue(s) being undermined.

How are appointments as expert made and what happens if no agreement can be reached?

A dispute resolution clause may be included in a contract, for example in a sale and purchase agreement for a company, which requires that an expert is appointed to resolve the dispute by expert determination.

If the parties to the agreement have not named the expert, or they are unable to agree on an expert, the contract may provide that the appointment is made by the president of a particular professional body from among its members.

Alternatively, there may be no pre-existing contractual provision for the appointment of an expert to determine the dispute. The parties may decide to use expert determination to solve the dispute.

How does the whole process work and what can the parties expect in terms of fees?

The initial stage of an expert determination assignment involves completion of the engagement formalities and agreement of the expert’s powers. The expert will check whether these are sufficient and, if not, seek to agree those necessary to fulfil their mandate.

The expert will usually issue directions in relation to disclosure of documentation and exchange of submissions including content, sequence and timing.

It is not unusual for further procedural issues to emerge as the matter proceeds.

These may include: defining the issue(s) for determination; dealing with delay on the part of a party; and dealing with abuse of the established process generally.

The written decision of the expert may be by letter to the parties, or in some other form of notice. In arbitration, accompanying reasons for the decision are a requirement, subject to the parties choosing otherwise. In contrast, in expert determination, unless it is agreed that they are required, the expert need not give reasons.

In arbitration, unless the parties agree otherwise, the arbitrator is required to deal with their costs and is empowered to award interest. In contrast, in expert determination these matters may not be within the agreed brief. In any event, it may only be the allocation of the expert’s fees which are in issue as far as the expert is concerned. Alternatively, the parties may have agreed to share these costs.

How much does the whole process cost and how does it compare with other methods?

In expert determination there may be no hearing, reduced disclosure (being disclosure necessary to meet the expert’s requirements), relatively little legal representation required if any, and no reasons given with the award. As a consequence expert determination is likely to be significantly cheaper than litigation. Due to the less formal structure of expert determination, subject to the agreed arbitration process, it can similarly be cheaper than arbitration.

Source: ITweek, UK. Daniel Djanogly is a partner at Kingston Smith LLP.

- The American Arbitration Association – AAA – says ODR is used in only a small percentage of all cases settled, but it has seen recent growth. In 2006, 3,000 of the 160,000 cases the AAA handled were done digitally.

- ODR, Online dispute resolution is a broad category: Any mediation, ar­bitration or dispute resolution that takes place outside of court and at least partially online qualifies. It differs from alternative dispute res­olution, which refers to processes outside governmental jurisdiction. ODR can mean anything from e-mailing documents and evidence to using videoconferencing to bring the sides together. And it has been most effective in international or long-distance disputes involving technology issues.

- ODR will always be most important for online businesses since it’s clear the Internet is not always a harmonious place, giving rise to many disputes. Often those disputes involve small dollar amounts, far-flung ad­versarial parties and seemingly petty issues. In the wildly popular online game Second Life, a dispute arose because one player put a nude image where another player would be forced to look at it. It’s the kind of thing that’s too small to litigate in the real world—but using Web mediation, it got resolved.

- ODR makes most sense in cases in which attorneys’ fees would exceed what could be recouped. But many large organizations, particularly insurance companies and municipalities, are finding ODR saves them money even in big-money cases because a matter can be handled much faster.

- ODR is faster because it is not dependent on getting on a mediator’s or judge’s calendar. Using e-mail, discussion groups and Web sites, agreements can be written, posted and responded to when convenient. And when something needs to get done fast, participants can log on to a chat or a secure online session and hash out a dispute no matter where in the world participants may be.

- ODR has the added benefit of simplifying jurisdictional issues. Such matters can be resolved at the outset once all parties agree. And there is greater flexibility for the adversarial parties, with each dispute process tailored to each dispute’s needs. As long as someone can get online, he or she can participate in the process.

ODR Aplications:

Online dispute resolution may not have taken over the process of solving conflict, but it has provided new, efficient and low-cost ways to reach the goal. The following are a few examples of ODR applications:

1. FILING A CLAIM ONLINE

SquareTrade uses a tool called Direct Negotiation, which handles all the communications through e-mail, including an online form to explain the complaint and possible resolutions, and contact with the defending party to see if it will counter. If Direct Negotiation doesn’t bring a settlement, a mediator can join in.

2. TRADING SETTLEMENT OFFERS

In Cybersettle’s system, a claims professional initiates the process with confidential offers. The opposition is notified by fax, e-mail or mail, and the respondent has three tries to settle the claim. If the complainant’s offer is less than or equal to the opposition’s, the claim settles.

3. DISCUSSING THE ISSUES

The E-Arbitration-T Open Source Groupware and Customer Relationship Management Suite allows parties to create an entire ODR system, handling online case document sharing between all parties and offering full security. Off-the-shelf solutions like wikis and whiteboards also allow parties to share information, discuss and collaborate on documents, and even reach agreements online.

4. SIGNING AN AGREEMENT

The federal E-Sign Act has validated the use of electronic documents and electronic signatures since 2000. Digital signatures can now be added to many commonly used documents, including those created with Adobe Acrobat 8.

More information in: Settling It On the Web.

OECD countries have agreed a new approach to better protect the rights of consumers and make online shopping safer. They call on national authorities and business to make it easier, cheaper and quicker for people to resolve complaints and get compensation when they are unhappy with goods or services they have bought. The OECD member countries are: Australia, Austria, Belgium, Canada, the Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, New Zealand, Norway, Poland, Portugal, the Slovak Republic, Spain, Sweden, Switzerland, Turkey, the United Kingdom and the United States. The Commission of the European Communities takes part in the work of the OECD.

The OECD Recommendation on Consumer Dispute Resolution and Redress offers a roadmap for consumer protection agencies to address the practical and legal obstacles that many consumers face when trying to exchange goods or get their money back from firms, in their own country or abroad.

Most OECD countries already have laws or self-regulated schemes to help consumers, ranging from small claims courts to credit card protection and collective action lawsuits. But most of these were designed before e-commerce took off and are poorly suited to handling cross-border complaints. The Recommendation advises countries on steps they should take to update their laws to take into account these new developments.

It also calls on member countries to develop bi-lateral or multi-lateral arrangements in order to improve international judicial co-operation and use technology more effectively, making it easier to share information across borders.

In addition to a framework that details the basic elements necessary to an effective consumer dispute resolution and redress mechanism, it highlights the need for countries, both at a government level and via consumer protection agencies, to tell consumers who to approach when they have a problem and what they can do to resolve it. Companies should also set out clear, simple policies that explain what steps customers should follow to make a complaint and then have it resolved.

Consumers should also have the right to band together to take legal action against a firm, known as “collective action lawsuits.” This is important because in most European countries even if consumers have the right to take collective action in principle, there are so many restrictions that in practice they cannot. This means that their only option is take a firm to court on their own, which is usually too expensive for most people to even consider.

The Recommendation builds on a substantial body of OECD work carried out over the past decade on consumer policy issues. These include the 1999 OECD Guidelines for Consumer Protection in the Context of Electronic Commerce (www.oecd.org/dataoecd/18/13/34023235.pdf), the 2003 OECD Guidelines for Protecting Consumers from Fraudulent and Deceptive Commercial Practices Across Borders ( www.oecd.org/dataoecd/24/33/2956464.pdf) and a 2005 Report on Consumer Dispute Resolution and Redress in the Global Marketplace (www.oecd.org/dataoecd/26/61/36456184.pdf).

See the full text of the Recommendation. For further information, journalists are invited to contact Peter Avery, OECD’s Science, Technology and Industry Directorate (+ 33. 1. 45. 24. 93. 63).

For furher information, see www.oecd.org/sti/consumer-policy

The Center for Information Technology and Dispute Resolution at the University of Massachusetts (CITDR) invites you to participate in the seventh annual online dispute resolution Cyberweek.

This is an all-online Web based conference with no fee for participation and registration. A few of the opportunities planned for Cyberweek include:

* Release of the new ODR library and database

* Discussions with leading practitioners and theorists about the present and future of ODR

* Report on the UN Forum on ODR 2004

* The 2005 International Competition on Online Dispute Resolution (presently ongoing)

* Seminar on the challenges in planning and implementing ODR efforts – examples from Sri Lanka, the Phillipines and Great Britain

* Panel discussion on teaching ODR * Seminar on public sector ODR – the University of Massachusetts/National Mediation Board/National Science Foundation project

* Demonstration of teaching and collaborating in groups with Moodle

* Simulated dispute resolution processes

* Demonstrations involving ConflictLab.com, SmartSettle.com, Info-Share.org and others.

Kieran Flatt asks Alan Connarty, director of operations at the Chartered Institute of Arbitrators, why his organisation is championing the cause of electronic dispute resolution in some cases.

In many of these disputes, the opposing parties may have very little to do with the UK. Alan Connarty, director of operations at the Chartered Institute of Arbitrators (CIArb), says that England and Wales and specifically, London gets the business for three reasons: the efficiency of the process, trust in the local law and trust in the local law firms. But has he not heard the frequently voiced assertions that London risks losing business to more modern or dynamic jurisdictions Is this overstatement or fact

“It is a bit of both,” Connarty says. “Some of what is said on the subject is wild rumour. In the Far East technology is marching steadily onwards but I would hesitate to say that London is dragging its heels. It is true that some countries have modernised very rapidly and they are now going out to promote their jurisdiction as a convenient venue for both online and regular types of arbitration.”

So does CIArb disapprove of this behaviour No, Connarty says: “We encourage it very strongly. While we recognise the value of London we also support the sensible use of IT.”

In arbitration centres such as London, Rotterdam and Hamburg, CIArb would like to see more use of video conferencing and more commitment to electronic document management as a means of supporting mediation and arbitration.

Only in the past 12 months has CIArb begun to see the use of video conferencing for commercial disputes in London. “Video conferencing provides an opportunity for witness statements,” he says. “It enables an understanding by both parties of exactly what a witness has said.”

CIArb would also like to see the introduction of virtual courtrooms and is enthused by the work carried out by Court 21, a Leeds-based project linked to the citys university. Connarty describes the project as “very promising indeed”. Some of Court 21s work is expected to bear fruit in the next six months, with real, live dispute resolution systems on the market. Connarty expresses the hope that Court 21 will provide an integrated, end-to-end solution that can realistically be used for online mediation.

He also commends Lloyds for putting some of its open form shipping disputes into online resolution systems to cut costs and improve procedures. “This sort of dispute lends itself well to online resolution,” Connarty says. The American Arbitration Association (www.adr.org) has also gone online, setting up an office in Dublin for maritime arbitration, which uses an online procedure. Connarty says that even its detractors have to admit that the move “has provoked people to start thinking” more seriously about online dispute resolution.

In the US itself, there are several online technologies and video conferencing solutions used for arbitration and mediation. Taking these from a regional to a national level will be the next step forward for them, Connarty says. He adds that business in the US seems far more e-enabled than in Europe. “Traditionalists, and there are many in London, say they have not seen any demand for online arbitration,” he adds. “However, online dispute resolution is viable in the UK and most legal aspects can be addressed in English law.”

According to Connarty, online is shorthand for “cheaper and quicker”. “When law firms are talking to their clients, they should be offering them a variety of different forms of ADR,” he says. CIArb has estimated that in about 10% of cases, where it has been offered, clients have favoured the online option. Business, quite surprisingly, has been rather reluctant to use it.

Connarty sees the real challenge as persuading the parties to be more active in their use of modern facilities. “We are seeing a mix of participation,” he says. “For law firms and their clients, the challenge is to start using the internet as a communication tool for resolving disputes. Their concerns should be: is it confidential and private; is it secure I have seen no evidence to suggest that it is not.”

Source: Legal IT – online IT magazine”

Tuesday 7 December 2004, 14:00 – 17:00 at Tilburg University, Building A, Room AZ 186
ICTs have the potential to enhance and revolutionize conflict resolution mechanisms by making these processes more efficient and cheaper. The lectures will give an in-depth introduction to the emerging field of Online Dispute Resolution (ODR) and will discus the benefits of and challenges for ODR technology.

Programme

14:00 – 14:05 dr. Ronald Leenes Welcome

14:05 – 14:35 prof. Maurits Barendrecht
Access to Courts and Civil Procedure Rules? Key Features of Effective
Institutions for Dispute Resolution

14:35 – 15:05 mr. Berend de Vries
ODR: Challenges and Opportunities for Enhancing Dispute Resolution

15:05 – 15:15 Discussion: ADR/ODR – a solution? For what?

15:15 – 15:30 tea break

15:30 – 16:00 dr. Arno Lodder
How to support parties in ODR best? Fundamental and practical
guidelines on the use of technology

16:00 – 16:30 prof. John Zeleznikow
Using game theory and artificial intelligence to provide support with
regard to trade offs – a case study.

16:30 – 16:45 dr. Ronald Leenes
Layla, the Layman’s legal assistant, glimpse of a new research project

16:45 – 17:00 Discussion: ODR technology

17:00 Cocktail reception

For more information, see

http://www.uvt.nl/faculteiten/frw/onderzoek/schoordijk/tilt/lectures/lectures.html.

You can attend free of charge, please …

register via e-mail
(b.r.devries)uvt.nl.

Kind Regards,

Berend de Vries
Tilburg University
Tilburg Institute for Law, Technology, and Society (TILT)
www.uvt.nl/tilt
Tel. +31 (0)13 466 8193
Tel. +31 (0)13 466 8199

http://ssrn.com/author=356185

Events and Courses on A Colleague writes “Diploma in International Commercial Arbitration: Singapore, 5 -13 January 2004 & Balliol College, Oxford 18 – 26 September 2004

This Diploma is considered the flagship of the Chartered Institute’s international arbitration training.
ADR/ODR
Launched by the Chartered Institute of Arbitrators in 1995 it has more than 200 diplomates in many countries including, Australia, New Zealand, Hong Kong, Singapore, Malaysia, Canada, the USA, Nigeria, France, Switzerland, Israel, Ireland, England and Scotland.

This is an extremely intensive course, covering topics from: the laws applicable in international commercial arbitration and arbitrability, to the jurisdiction, powers and obligations of an arbitrator; the roles of the tribunal and the parties and procedure for the arbitration.

The Course Director, Professor Phillip Capper, a partner with Lovells international law firm and former Chairman of the Faculty of Law, University of Oxford, will be assisted by practising international arbitrators and lawyers from around the world.
Courses in 2004 are planned to take place in Singapore from 5 until 13 January and in Balliol College, Oxford from 18 until 26 September.

Year 2004

While our current geographic focus is the San Francisco Bay Area, qualified neutrals in other major cities are also encouraged to contact us.

Please reply by in complete confidence with a resume to panel@mediatorswanted.com

http://www.mediatorswanted.com/”

Year 2003

Many organisations expressed they interest in this Green Paper. Most of they have directly participated in the debate launched by the Green Paper, by submitting comments on it. The European Commission would like to thank them for they contribution.

In the context of the consultation exercise launched by the Green Paper, a public hearing will be held on this subject in Brussels on Friday 21 February 2003.

Further detailed information on this event will be posted on this webpage in the next few days, together with a summary of the comments to the Green Paper received by the Commission:
http://europa.eu.int/comm/justice_home/news/consulting_public/news_consulting_public_en.htm”

Year 2003