When leading businesses
Daniel Djanogly was interviewed by ITweek, UK about experts in alternative dispute resolution are a popular way to resolve disputes between conflicting parties in technica cases:
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. Continue reading Alternative dispute resolution in IT matters, in UK
International Dispute Resolution in United Kingdom UK
World of Arbitration In a civilised society, citizens look to the courts to settle their disputes. The courts put judges at the disposal of the parties, the courts determine the substantive and procedural law which is to be applied and the courts enforce their own orders through court officers, when necessary. It is a one-stop shop.
For those engaged in alternative dispute resolution – ADR, the courts are available not merely to enforce decisions and awards but also to supervise and control the chosen ADR procedures, should matters go awry.
Where disputes arise in the international arena, the picture is a little different because national courts are rarely acceptable to both sides. Disputes between states or between an individual and a foreign state or between an individual and an international organisation may be regarded as being in a special category, where the aggrieved party may have recourse to treaty arbitration. Examples are arbitration before the PCA1 and arbitration under the auspices of ICSID2. Beyond that special category, the parties must make express provision for dispute resolution in their agreement, failing which the aggrieved party will be left to seek his remedy from the domestic courts of one country or another, depending upon which will assume jurisdiction.
The result is a contrast. Whereas national courts often represent a convenient and acceptable means of dispute resolution for parties to a dispute which has no international element, there is no international equivalent. In consequence, most international disputes fall to be resolved through a process or by a tribunal which is essentially consensual in origin.
This paper is concerned with the resolution of disputes arising under international construction contracts. The purpose is to survey the available alternatives and to identify some of the considerations to be borne in mind by those concerned. In this last context, the emphasis is on two key considerations, being enforcement and applicable law. Continue reading International Dispute Resolution in United Kingdom UK
CEDR, in partnership with CMS, is carrying out research into the varying stages of development of mediation in the EU.
The research project follows the European Commission’s Green Paper on ADR and the subsequent report of the European Parliament. Both the report and the summary of responses to the Green Paper emphasised the need for further research into ADR before any harmonisation could be attempted on a European level.
The study concentrates on court-annexed mediation schemes for commercial disputes, excluding the areas of family and employment law, and will focus on the 15 member states. The aim of the research is to compile a geographical guide describing the development of ADR in each member state. From this it will be possible to analyse the relative progress of each country and isolate any key issues which warrant further research.
CEDR and CMS aim to regularly update the report in order to provide a contemporary view of the development of mediation across the EU.
Completing the questionnaire
As part of the research we would be grateful if you as a Law Firm, ADR provider, public administrations or other interested stakeholder, could find the time to complete the questionnaire to assist CEDR in compiling an accurate study into the current status of mediation in the EU.
The questionnaire, available in English, French and German, can be downloaded in word format in the following website..
Rafael writes that The Independent Housing Ombudsman Scheme (UK) has published its 2002 annual report. The report describes a period of continuing increase in the total volume of complaints (3640, 5.5% more than last year) and a marked rise in the number of cases which required a determination by the Ombudsman (16% more than last year).
Bad administration was found in two-thirds of all the complaints investigated. Failures by landlords to deal with repairs and with anti-social behaviour were the reasons for more than half of the complaints. It also reports many changes in the administration and operation of the Scheme. In particular it has recruited more staff and reformed casework management procedures. Continue reading UK Housing Ombudsman issues annual report Year 2002