Alternative dispute resolution in IT matters, in UK

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

ICC dispute resolution course in Singapore

The interactive training session will take participants through the different stages of any amicable dispute resolution procedure, such as mediation. After defining the roles of the mediator, parties, and lawyers, participants will work in small groups on a mock case. Each group will be led by a renowned dispute resolution practitioner. A real case study will be used to illustrate the roles of the parties.

“This new course is a unique opportunity for participants to gain insight into the different stages of any amicable dispute resolution procedure. Bringing together individuals from widely diverse professional and cultural backgrounds, the training creates an exceptional forum for exchanging experience and viewpoints,” said Melanie Meilhac, Manager, ICC (International Chamber of Commerce) Dispute Resolution Services.

ICC’s (International Chamber of Commerce) first ADR training session, held in Paris last April, attracted participants from 15 countries, reflecting the increased attention that the international legal community is giving to mediation and other methods of dispute resolution. Continue reading ICC dispute resolution course in Singapore

New Procedures in the Institute of Arbitration

The Standard Dispute Rules (hereinafter referred to as ‘the rules’) are used, both nationally and internationally, to find a solution to a dispute or to obtain a verdict, quickly, simply and more cheaply, either through reconciliation or arbitration.

I. Conciliation
Either party may demand conciliation. The demand for conciliation is made by letter, fax or Internet. Within 10 workdays, and once the administrative costs have been covered, the other party (parties) is (are) advised of this demand for conciliation. The applicant is notified of any response or reaction by the other party. If the case reveals a serious difficulty the parties may, in that event, call for an expert or a mediator to be appointed, so as to avoid litigation. After one month or when the conciliation fails, either party may initiate arbitration proceedings.

II. Expertise and Mediation
All the parties may demand, together, in writing, for an expert or mediator. Within 15 workdays, and once the administrative costs have been covered, an expert or a mediator will be appointed. Each party bears the costs thereof for equal parts. Within 30 days after the appointment, the expert or mediator shall meet the parties and, within 3 months, he shall make a compromise or give a report with a clear opinion.

III. Arbitration
Before initiating arbitration in the first instance parties are obliged to make an attempt at conciliation every time the law imposes it.

Art. 1: General
Arbitration has, since 1958, been an internationally recognized procedure (convention of New York). Unless otherwise agreed between the parties, only the laws of the country of the clerk’s office of the Court shall apply. The law applies to all that is not expressly stipulated in these rules.

Art. 2: Jurisdiction
Parties who had not foreseen an arbitration clause, may, after a dispute has arisen, conclude a contract thereto. An arbitration agreement must be incorporated in a document signed by both parties or in other legally binding documents. Disputes which cannot be legally submitted for arbitration shall be inadmissible. If one party refuses to take part in the proceedings or does not present its arguments within the stipulated time limit, the dispute will be heard anyway and an award shall be pronounced. Continue reading New Procedures in the Institute of Arbitration

4th Annual International Competitions for Online Dispute Resolution – ICODR 2005

Registration for the 4th Annual International Competitions for Online Dispute Resolution (ICODR 2005) is open again. The competitions will be held early next year.
The goal is to enhance worldwide law student understanding of online dispute resolution. Competitions are being held again in negotiation, mediation, and arbitration and a prototype litigation competition is being started this year. ICODR is open to law students anywhere in the world and is free. Continue reading 4th Annual International Competitions for Online Dispute Resolution – ICODR 2005

Building Contract Disputes

I write and annually update Building Contract Disputes: Practice and Precedents (Sweet & Maxwell, London), which includes chapters on ADR, adjudication and arbitration, and a directory of dispute resolution service providers. Continue reading Building Contract Disputes

SEMINAR: Online Arbitration: What Technology can do for Arbitral Institutions

The Online Arbitration: What Technology can do for Arbitral Institutions seminar is free-of-charge and is being presented on two alternative dates: Thursday January 16 or Friday January 17 2002. Brunel University, United Kingdom.

The expectation is that online technology will speed up and reduce the cost of international arbitration proceedings. It is expected to remove the need for sending large quantities of paper through courier services and replace face-to-face meetings by cheaper and easier online video conferencing. This seminar will ask the question “How realistic are these expectations?”

For the last two years the E-Arbitration-T team of lawyers and technologists have been looking at these issues. A key feature of international arbitration is that it delivers a result – the award – that national courts will recognise and enforce. We cannot simply substitute Internet and computer technology without considering the criteria courts will apply in deciding that the award was made properly and fairly within the intent of relevant international law. This seminar will look at the technological options and the rules and procedures necessary to exploit them. It will also examine the need for change in the international legal framework to reap the full technological benefits. Continue reading SEMINAR: Online Arbitration: What Technology can do for Arbitral Institutions