Andrews on Civil Processes - Volume 2
By Neil Andrews
In two volumes, Neil Andrews (University of Cambridge) examines civil processes in England and Wales, which are two leading legal jurisdictions in this area of law as many non-resident parties choose to conduct arbitration in London or bring proceedings before the English High Court, notably the Commercial Court. Written in a clear and well-ordered style, Andrews on Civil Processes therefore discusses the most important styles of civil dispute resolution: court proceedings (Volume 1) and mediation and arbitration (Volume 2). Andrews guides the reader through the practice of dispute resolution in all its major forms: public and private, adjudicative, and conciliatory. The subject-matter has been split into two volumes to provide specialists with a choice, however the two volumes are certainly complementary. They provide a complete picture of the court and arbitration systems, and of the developing technique of mediation. Advisors seeking further leads are also assisted by detailed citation of primary sources and rich bibliographical references. *** Volume 1: Court Proceedings - In England, there has been a sustained effort to control court proceedings and render them more efficient. This Volume 1 explores common legal principles and connections between the court system and the alternative techniques of arbitration and mediation. For example, there is discussion of: the four forms of civil justice (Chapter 1: mediation, settlement without mediation, arbitration, and court proceedings); the six phases of court proceedings (Chapter 4); the four forms of English multi-party litigation (Chapter 22); and the five constellations of procedural principle - advice and access, empowering the parties, conditions for sound decision-making, an efficient process, a fair process, and upholding judgment (Chapters 25 to 29). Most recently, reform of costs was examined by Lord Justice Jackson's inquiry in 2009-10. This 2013 publication takes the complex set of reforms and changes introduced in April 2013 into account and provides detailed discussion where relevant (inter alia. qualified one way cost shifting, damages-based agreements, and the changes to conditional fee agreements and the system of settlement offers). A convenient survey of these changes is also set out in the introductory chapter. *** Volume 2: Arbitration and Mediation - Over the last decade, there has been greater resort to non-judicial modes of dispute resolution, notably mediation and arbitration. Mediation is now better understood by businesses and organizations. In England, resort to mediation has increased, including within the heartland of commercial disputes. The Ministry of Justice for England and Wales (2010) reported 'a doubling of mediation activity since 2007.' The main factors driving increased resort to mediation, not just in England, are: (a) the perception that court litigation is unpredictable; (b) the court process is a source of expense, delay, and anxiety; (c) final judgment normally awards victory to only one winner; and (d) trial is open-air justice, visible to mankind in general. Sir Rupert Jackson has also said that 'ADR... is a tool which can be used to reduce costs... It is a sad fact that many cases settle at a late stage, when substantial costs have been run up' ('The Role of Alternative Dispute Resolution...,' lecture, March 8, 2012). The European Directive 2008/52/EC on Mediation in Civil and Commercial Matters reflects the global rise of this technique. The English courts encourage resort to mediation, in appropriate contexts, by use of costs sanctions. Furthermore, many corporations now prefer to use international arbitration in combination with other ADR mechanisms, as specified in a 'multi-tiered' or 'escalation' dispute resolution clause. These prescribe a step-by-step approach, negotiation and mediation, which must be exhausted before the parties can commence court or arbitral proceedings. The Court of Appeal in Sulamerica Cia Nacional de Seguros SA v. Enesa Engenharia SA (2012) made clear that a contractual reference to mediation as a desirable mechanism is not the same as a clear and binding contractual commitment to engage in mediation. The same court also noted that the agreement to mediate must be sufficiently certain. Lawyers and experts in London have extensive experience of international commercial arbitration. However, London is also increasingly used by non-English parties. In Volume II, detailed discussion of arbitration places the English system in a global context. The subject is systematically arranged in 18 chapters devoted to this complex field. Chapter 3 is looking at the three pillars of commercial arbitration in particular. For non-English lawyers, important points include the following two topics: First, English awards can be challenged before the English High Court on the basis of an error of English law (section 69, Arbitration Act 1996). But, the High Court will grant permission for such an appeal only sparingly. Furthermore, a properly drafted arbitration clause can exclude this possibility of an appeal under section 69. Secondly, as for court enforcement of foreign awards, in Dallah Real Estate & Tourism Holding Co v. Pakistan (2010), the UK Supreme Court refused to enforce a Paris arbitral award, because (in its view) the arbitral tribunal had incorrectly held that the Government of Pakistan was party to the arbitration agreement.
Publication Date: 6/13/2013