ARBITRATION PRACTICE AND PROCEDURE INTERLOCUTORY AND HEARING PROBLEMS 1 SECOND EDITIONPDF电子书下载

1 APPOINTMENT 1

1.1 Challenge to 1

1.1.1 The respondent challenges the qualification of the arbitrator 1

1.2 Disqualification for 2

1.2.1 Approached by one party 2

1.2.2 Called for interview by one party 3

1.3 Estoppel 4

1.3.1 Party who appoints an arbitrator subsequently estopped from ascer-taining that arbitrator has no authority 4

1.3.2 Is a newly appointed solicitor estopped from questioning the arbitrator’s jurisdiction? 6

1.4 Invalidity of 7

1.4.1 Respondent developer claims that Chartered Institute of Arbitrators has made an invalid appointment and that the arbitrator has no power to call a preliminary meeting 7

1.4.2 Appointment letter from nominating body signed by person other than that person named in contract 8

1.4.3 Respondent asserts the claimant has not complied with precondition related to arbitrator’s appointment 9

1.4.4 Respondent questions validity of appointment 12

1.4.5 Party contends appointment invalid as made out of time 13

1.4.6 Validity of unilateral reference for the appointment of an arbitrator 16

1.4.7 Conditional appointment of arbitrator 19

1.4.8 The appointment of an arbitrator must be made in strict compliance with the contract 22

1.4.9 Party attempts to nominate third arbitrator 23

1.4.10 Whether an appointment is valid where a joinder notice has been served prior to the date of that appointment 24

1.5 Non-Acceptance of Terms 25

1.5.1 Claimant refuses to accept arbitrator’s terms following appointment 25

1.6 Parties’ Failure to Agree 27

1.6.1 The dispute clause does not provide how an arbitrator should be appointed and the parties cannot agree 27

1.7 Withdrawal/Resignation From 28

1.7.1 Arbitrator attempts to withdraw after appointment 28

1.7.2 Arbitrator invited to withdraw 30

1.8 Wrong Reference 33

1.8.1 Appointment letter from nominating body cites incorrect reference to Act 33

1.8.2 Arbitrator’s qualifications do not meet specific requirements of arbi-tration agreement 35

2 ARBITRATION AGREEMENT 39

2.1 Ad hoc submissions 39

2.1.1 Reference to arbitration after dispute arises 39

2.1.2 Whether the subsequent conduct of the parties amounted to an "ad hoc"arbitration agreement 41

2.2 Condition Precedent 44

2.2.1 Whether arbitrator’s award is a condition precedent to a cause of action 44

2.2.2 Where a dispute has to be referred to engineer’s decision as a condition precedent to arbitration 46

2.3 Dispute as to Validity of 50

2.3.1 Compliance with contract, prerequisite to trigger written arbitration agreement 50

2.3.2 Respondent questions validity of arbitrator’s appointment as architect’s nal certificate had been issued 51

2.3.3 Where conclusiveness of architect’s final certificate time bars arbitration 53

2.4 Estoppel 54

2.4.1 Party asserts other party estopped from proceeding with arbitration 54

2.4.2 Whether a party is estopped by convention from denying the existence of an arbitration clause 56

2.5 Existence of 57

2.5.1 Contract contains conflicting dispute clauses 57

2.5.2 Is there a valid arbitration agreement if the contract is not signed? 59

2.5.3 Parties agree to arbitrate in mistaken belief that contract contains an arbitration clause 60

2.6 Existing Dispute 62

2.6.1 Where prior arbitration agreement may be too restrictive to cover an existing dispute 62

2.7 Invalidated by 63

2.7.1 Misrepresentation—where asserted options open to arbitrator and parties 63

2.7.2 Mistake—is award enforceable where arbitration based on a mistake of fact? 65

2.7.3 Illegality—whether illegality invalidates an arbitration clause 67

2.8 Need for written 68

2.8.1 Contract sealed with wrong company seal 68

2.8.2 Contract not signed—incorporated by reference? 69

2.8.3 Oral agreement to resolve dispute by arbitration 79

2.8.4 What effect an oral agreement made during the reference has on a written arbitration agreement 83

2.9 No dispute 85

2.9.1 Notice of arbitration given where no dispute exists 85

2.10 Time limits 88

2.10.1 Extension of time within which to commence arbitration 88

2.10.2 Power to the court to extend time prescribed by lease to commence arbitration proceedings 95

2.10.3 Whether time is of the essence in the appointment of an arbitrator in a rent review dispute 96

2.10.4 Application to appoint an arbitrator outwith the statutory time limit 98

2.10.5 Is determination of time limit issue a point of jurisdiction? 99

2.10.6 Arbitrator urged to reject an application for an extension of time to serve a statement of claim where the request is made out of time 101

2.10.7 Arbitrator has impossibly short period to make award within time limit set down in lease 105

2.11 Underlying contract, scope of 106

2.11.1 Contract is frustrated； does arbitration clause survive? 106

2.11.2 Contract void "ab initio"—severability of arbitration clause 107

3 ARBITRATOR 113

3.1 Arbitrator or expert 113

3.1.1 Where both parties are lay people and unlikely to adduce satisfactory evidence 113

3.1.2 Where a tenant wanted an expert not an arbitrator 114

3.2 Authority of 115

3.2.1 Party questions arbitrator’s authority unilaterally to set date for prelimi-nary meeting 115

3.2.2 Arbitrator directs a party to be represented at a meeting of experts 116

3.3 Death of 118

3.3.1 Arbitrator dies during interlocutory stage 118

3.3.2 Arbitrator dies during a long hearing 121

3.4 Examination by 122

3.4.1 Respondent accuses arbitrator of adopting an inquisitorial role 122

3.4.2 When the parties agree that the arbitrator can act inquisitorially 126

3.5 Functus officio 129

3.5.1 Joint arbitrators disagree and umpire appointed 129

3.5.2 Prior disclosure of contents of award to one party 131

3.5.3 Losing party telephones arbitrator 133

3.6 Independent advice 133

3.6.1 Arbitrator decides it necessary to consult a third party 133

3.7 Jurisdiction 135

3.7.1 Challenge of arbitrator’s jurisdiction at commencement of hearing 135

3.7.2 Arbitrators have no power to decide their own jurisdiction 137

3.7.3 Threat of injunction against arbitrator on grounds of no jurisdiction 139

3.7.4 Dispute in excess of jurisdiction 146

3.7.5 Did arbitrator have jurisdiction in dispute under ICE contract when question of reference of that dispute to engineer for his decision is disputed? 147

3.7.6 Respondent asserts that the claimant has failed to serve a notice to refer as required by the contract 149

3.7.7 Respondent asserts that arbitrator has no jurisdiction due to an oral agreement to refer the dispute to an official referee as arbitrator 151

3.7.8 Appointed as arbitrator instead of independent expert 153

3.7.9 Whether conduct amounts to a waiver or estoppel of objection to jurisdiction 154

3.7.10 The arbitrator has serious doubts about his jurisdiction 155

3.7.11 Arbitrator’s jurisdiction limited strictly to terms of arbitration agree-ment 152

3.8 Loss of documents 158

3.8.1 Loss or destruction of arbitrator’s notes following conclusion of hearing and before award 158

3.8.2 Arbitrator’s notes destroyed in car accident during hearing 159

3.9 Mistake by 161

3.9.1 Arbitrator accused of making a mistake in reasoning 161

3.10 Non-impartiality of 162

3.10.1 Arbitrator’s personal knowledge of one party 162

3.10.2 Arbitrator’s close personal connection with parties’ witnesses 164

3.10.3 Party to arbitration seeks to have arbitration award set aside because of arbitrator’s previous professional relationship with other party 165

3.10.4 Arbitrator discovers that his partner has previously acted for the claimant 167

3.10.5 Arbitrator enquires of health of one party and is accused of bias 169

3.10.6 Friend of arbitrator appointed as expert 169

3.10.7 Arbitrator accused of bias towards a party’s advocate 171

3.11 Note taking 172

3.11.1 General guidance 172

3.11.2 Shorthand writer unable to take note 176

3.12 Own knowledge, use of 177

3.12.1 Arbitrator holds contrary view to experts—how far can he use his own knowledge? 177

3.12.2 Arbitrator’s personal knowledge of a recent relevant rent agreement 180

3.12.3 Where arbitrator’s special knowledge not able to be used 183

3.12.4 Arbitrator’s personal knowledge of the facts in dispute 184

3.12.5 Caution exercised by an arbitrator in using his own knowledge and experience 185

3.12.6 Important to make parties aware of what is in the arbitrator’s mind 186

3.12.7 The arbitrator has received written closing submissions but neither party has addressed a legal issue which the arbitrator considers is relevant 187

3.12.8 Arbitrator—own knowledge in ex parte hearing 188

3.13 Post award involvement 191

3.13.1 Successful party claims award does not cover all issues referred to arbitration 191

3.14 Powers of 192

3.14.1 Can an arbitrator’s decision on an interlocutory matter be challenged successfully? 192

3.14.2 Power of an arbitrator to strike out case for want of prosecution 194

3.14.3 Consideration to take into account in striking out for want of prosecution 198

3.14.4 Respondent applies to arbitrator to strike out the claimant’s claim for want of prosecution 202

3.15 Removal of 212

3.15.1 Respondent seeks removal of arbitrator on grounds of bias and alleges that the arbitrator ignored a legal point 212

3.15.2 Parties wish to remove arbitrator 220

Appendix "A"—Model Revocation Agreement 224

Appendix "B"—New Agreement 225

3.15.3 One party dissatisfied with arbitrator 227

3.15.4 Respondent seeks removal of arbitrator on grounds of lack of impar-tiality 228

3.15.5 Is arbitrator’s shareholding in company associated with one party a ground for removal for misconduct? 230

3.15.6 Arbitrator has connection with one of the parties 232

3.16 Resignation 234

3.16.1 Arbitrator resigns and parties hold him responsible for costs thrown away 234

Appendix "A"—Model Agreement with Arbitrator on his resignation 241

3.16.2 Three arbitrator tribunal.Resignation of one arbitrator at beginning of hearing.Is termination of hearing and/or the proceedings inevitable? 242

4 AWARD 245

4.1 Action on 245

4.1.1 What effect has an arbitrator’s award on subsequent High Court proceedings? 245

4.1.2 Effectiveness of an award in a "name borrowing" arbitration 247

Appendix "A"—Model of a "Name Borrowing" Agreement 250

4.2 Appeal from 252

4.2.1 Parties rights of appeal from award 252

4.2.2 Where court will order further reasons 253

4.2.3 Award appealed on ground that the arbitrator failed to state reasons in sufficient detail 258

4.3 Consent 259

4.3.1 Ensure that terms of settlement in consent award are within arbitrator’s jurisdiction 259

Appendix "A"—Typical Consent Award 263

4.3.2 Arbitrator requested to countersign consent award the terms of which caused him anxiety 265

4.3.3 Arbitrator receives terms of settlement which appear to be ambiguous 267

4.3.4 Disagreement as to terms of settlement 269

4.3.5 Disagreement between the parties as to whether the dispute has been settled 270

4.4 Enforcement 270

4.4.1 Following an award in favour of the claimant the respondent goes to ground 270

4.4.2 Where award unenforceable without post dispute agreement with "consumer" 280

4.4.3 Enforcement of award out of time 284

4.5 Errors—in or on the face of 285

4.5.1 Generally where an arbitrator can correct errors and where he cannot 285

4.5.2 Claimant alleges fact on face of award shows arbitrator to have made an error of computation 291

4.5.3 Arbitrator’s interim award fails to deal with two substantive Points of Claim and awards a sum for liquidated and ascertained damages which, by common agreement, is incorrect 293

4.5.4 Arbitrator admits inadmissible evidence 294

4.5.5 When an error on the face of the award justifies giving leave to appeal 295

4.5.6 Power of the arbitrator to correct error in award caused through misunderstanding over offer to settle 296

4.5.7 Arbitrator erroneously double-counted an item in making award 298

Appendix "A"—Typical Corrective notice 300

4.6 Example of 301

4.6.1 What form should the award take? 301

4.6.2 Arbitrator’s award on disregarding tenant’s improvements in rent review 305

4.7 Interim 309

4.7.1 Power to make interim award 309

4.7.2 Application for interim award in respect of costs of interlocutory proceedings 314

4.7.3 Award "Final Save as to Taxation of Costs" 317

4.7.4 When an arbitrator should not have published an Interim Award 318

4.7.5 Where an interim award may not be Final 320

4.8 Reasoned 322

4.8.1 What is a reasoned award and when should it be given? 322

4.8.2 The arbitrator’s approach to writing a reasoned award 326

4.8.3 Unrepresented party not clear whether they want reasons or not 330

4.8.4 In a pre-AA ’96 Act reference an unrepresented party requests reasons after award is published 333

4.8.5 Party requests retrospective reasons after award 335

4.8.6 Request for reasons, not particularised 336

4.8.7 Request for "open" reasons 337

4.8.8 Where an arbitrator fails to give further reasons even though ordered to do so by the court 338

4.8.9 Extent to which reasons should be given for factual findings in a rent review dispute 339

4.8.10 When parties do not require a reasoned award 340

Appendix "A"—Typical Agreement to dispense with reasons—s.52(1) 343

4.9 Remitted 343

4.9.1 Award remitted following procedural mishap 343

4.9.2 Power of the arbitrator on remission of award 345

4.9.3 Is the court’s jurisdiction to remit award under s.22 AA ’50 (s.68(3) AA’96) unlimited? 346

4.10 Specific performance 349

4.10.1 Arbitrator requested to award specific performance 349

4.11 Timing of 351

4.11.1 Arbitrator’s award in danger of being published after statutory time limit 351

4.11.2 Where an arbitrator takes an inordinate time to make his award following the conclusion of the hearing 352

4.12 Weighing the evidence 355

4.12.1 How to weight the evidence when drafting an award 355

5 CAUSE OF ACTION 363

5.1 Accrual of 363

5.1.1 Dispute between parties concerning accrual of cause of action 363

5.2 Replaced by award 366

5.2.1 When the cause of action is widened after reference and subsequently replaced by award 366

6 CLAIM DEFENCE AND COUNTERCLAIM 373

6.1 Claim—hopeless 373

6.1.1 Points of claim indicate a hopeless case 373

6.1.2 Claimant submits what may be a spurious claim 376

6.2 Defence—hopeless 377

6.2.1 It becomes apparent at preliminary meeting that respondent has very poor defence 377

6.3 Counterclaim—right to mount 380

6.3.1 Impoverished respondent seeks to mount counterclaim 380

7 COMMON LAW ARBITRATIONS 383

7.1 Common Law Arbitrations 383

7.1.1 Arbitration clause incorporated by reference averred to be invalid 383

7.1.2 Arbitrator requested to make a peremptory order 385

7.1.3 One party seeks to revoke the arbitrator’s appointment 387

8 CONTRACT 389

8.1 Is there a written? 389

8.1.1 Doubt raised as to whether a written contract exists or not 389

Appendix "A"—Typical "ad hoc" written arbitration agreement 391

8.2 Existence of 392

8.2.1 Dispute as to the existence of a contract 392

8.3 Not signed 394

8.3.1 Work executed under contract not signed 394

8.4 Wrong, cited in pleadings 395

8.4.1 Appointment made under one contract but Points of Claim refer to a different contract 395

9 COSTS 397

9.1 Generally 397

9.1.1 Award does not cover costs 397

9.1.2 Arbitrator must act judicially in deciding costs 398

9.1.3 Where one party alleges that the arbitrator has not excercised his discretion judicially in dealing with costs 400

9.1.4 Parties fail to address the arbitrator on costs before close of hearing 401

9.1.5 Who should get costs if a Point of Claim is withdrawn before hearing commences? 402

9.2 Power to deal with 403

9.2.1 Where does the arbitrator’s power come from? 403

9.2.2 Parties request arbitrator to give an informal indication on costs 405

9.2.3 Where one party wishes to defer determination of costs 406

9.3 What costs? 407

9.3.1 Costs of the reference and costs of the award 407

9.3.2 How to deal with court costs in arbitration 409

9.3.3 Can an arbitrator deal with the court costs of determining a preliminary point of law 410

9.3.4 Application for costs of matters pleaded and subsequently admitted 411

9.4 Follow the event 413

9.4.1 What is the event? 413

9.4.2 Identity of the successful party 416

9.5 Unusual award as to 419

9.5.1 When the arbitrator is minded to depart from the usual rule of "costs follow the event" 419

9.5.2 Claimant awarded part of claim but directed to bear own costs and pay substantial element of the respondent’s costs. 421

9.5.3 When costs do not "follow the event" 424

9.6 Interlocutory directions 426

9.6.1 Generally 426

9.6.2 Why an arbitrator should not link a cost order to the right to serve a pleading 429

9.6.3 What happens to interlocutory costs orders when an award is appealed? 434

9.6.4 When interlocutory costs are paid in any event by the party who is subsequently successful in the action and is awarded costs 435

9.7 Costs—of a lay representative 437

9.7.1 Power to award costs of party where represented by a non-practising lawyer or other unqualified person 437

9.8 Agreement between the parties as to costs 440

9.8.1 Whether an agreement between the parties that they bear their own costs is valid 440

9.8.2 Claimant who accepts the respondent’s offer to settle in the terms of an agreed settlement subsequently applies to the arbitrator for an order for costs 443

9.8.3 Parties agree settlement terms but fail to include arbitrator’s fee 444

9.9 Where there is a counterclaim 445

9.9.1 What now is the event? 445

9.9.2 Costs where the claimant wins the claim but loses the counterclaim 447

9.10 Where there are offers to settle 448

9.10.1 The effect of a "sealed offer" on costs 448

9.10.2 Rent review costs, close Calderbank offers, discretion acting judicially 450

9.10.3 The effect of a change of pleadings upon an offer to settle 456

9.10.4 The reasonableness of refusing an offer in a multi-party action 458

9.10.5 Offers where there is a claim and a counterclaim 460

9.10.6 Where there is an offer and a counter-offer 461

9.10.7 Relevance of offer, counter-offer and withdrawal of offer in exercising discretion as to costs 462

9.10.8 Where doubt exists over the event for which both a sealed and an "open" offer received 464

9.11 Applications to court 466

9.11.1 How binding is a party’s standard terms to limit his costs? 466

9.11.2 The arbitrator fails to make an award as to costs 467

9.11.3 Appeal against an unusual award as to costs 469

9.11.4 How the court can assist where one party claims that the arbitrator’s fees appear to be excessive 470

9.11.5 Arbitrator refuses to deliver award until fees are paid 473

9.12 Security for the parties’ costs 474

9.12.1 Power of arbitrator to order security for costs 474

Appendix "A"—Typical "ad hoc" Arbitration Agreement 481

9.12.2 What factors should an arbitrator take into account when deciding whether or not to exercise his discretion to order security for a party’s costs? 482

9.12.3 Security for costs in a "documents only" arbitration 488

9.12.4 Security for costs under rules 489

9.12.5 The procedure the arbitrator should follow in dealing with security for parties’ costs 491

Appendix "A"—Typical direction for procedure for dealing with security for costs application 494

9.12.6 The claimant fails to comply with the arbitrator’s direction for affidavit evidence 496

9.12.7 The criteria the arbitrator should apply in deciding whether to order security and, if so, how much and in what form? 497

Appendix "A"—Typical direction ordering security for costs 509

9.12.8 The respondent makes an application to increase security previously ordered 511

Appendix "A"—Typical direction ordering an increase in security for costs previously awarded 513

9.12.9 How to deal with a security for costs application where either party could be the claimaint 514

9.12.10 Can an arbitrator consider sealed offers when considering a security for costs application? 515

9.12.11 Where a party fails to comply with an arbitrator’s order for security 515

9.12.12 When the costs of a security for costs application might not "follow the event" 517

9.12.13 What to do with money put up as security for costs 518

9.13 Recoverable costs 519

9.13.1 Arbitrator asked to exercise power to cap costs 519

Appendix "A"—Typical order for directions for limiting the parties’ recoverable costs—s.65 AA ’96 527

9.13.2 An arbitrator decides to exercise his discretion to tax the parties’ costs 528

9.13.3 Parties cannot agree on the form of Bill for arbitrator’s settlement of costs 530

Appendix "A"—Typical direction for Settlement of Costs 532

9.13.4 Procedure to follow where arbitrator to tax the parties’ costs 534

9.13.5 Procedure to follow where arbitrator is to determine the parties’ recoverable costs 544

10 DAMAGES 553

10.1 Assessment of 553

10.1.1 Generally 553

10.1.2 How to decide when a party is liable for damages 557

Appendix "A"—Flow chart showing how to analyse a Point of Claim or counterclaim 561

10.1.3 Where damages assessed on same basis in contract as in tort 562

10.1.4 Damages claimed for defective work executed some years before 567

10.1.5 Measure of damages where there is a third party settlement 568

10.2 Quantum of 569

10.2.1 Liquidated damages linked to sectional completion and whether notice is a condition precedent to deducting them 569

10.2.2 When employer wrongfully repudiates contract 577

10.2.3 Loss and expense claims clarified 580

10.3 For distress and inconvenience 586

10.3.1 Power to award general damages in building cases 586

11 DECLARATORY RELIEF 595

11.1 Arbitrator’s power to award 595

11.1.1 Arbitrator’s power to make a declaratory award 595

12 DIRECTIONS 599

12.1 General 599

12.1.1 The arbitrator’s power to give directions 599

12.1.2 Typical direction concerning the preliminary meeting 601

Appendix "A"—Typical letter to parties re appointment and checklist for preliminary meeting 602

Appendix "B"—Typical Order for directions confirming date,time and venue for Preliminary Meeting 606

Appendix "C"—Typical agenda for a preliminary meeting under JCT Arbi-tration Rules 607

Appendix "D"—Typical Direction following preliminary meeting—JCT Arbi-tration Rules 616

12.2 Interlocutory 624

12.2.1 Extending time for service of party’s statement 624

Appendix "A"—Direction extending time for service of statement 627

12.2.2 Amendment of a party’s statement 628

Appendix "A"—Direction consenting to request to amend pleadings 629

12.2.3 Notice under the Civil Evidence Act 1995 630

Appendix "A"—Typical direction covering notice under the Civil Evidence Act 1995 632

12.2.4 When a pre-hearing review should be held 633

Appendix "A"—Typical Direction convening a pre-hearing review meeting 635

Appendix "B"—Typical agenda for pre-hearing review meeting 636

Appendix "C"—Typical Direction following pre-hearing review meeting—post AA ’96 638

12.2.5 Arbitrator not bound to give reasons for interlocutory directions and court cannot review or revise them 641

12.2.6 Arbitrator not obliged to give reason for interlocutory decisions but does so voluntarily 642

12.2.7 Loss and expense claim in construction contract—when and to what extent should the arbitrator order fully particularised details of his claim? 644

12.3 Arbitrator’s, non-compliance with 647

12.3.1 Generally 647

12.3.2 Failure to serve claim as directed 652

Appendix "A"—Peremptory Order following failure to serve a statement of case 654

12.3.3 Failure to serve Defence as directed 655

12.3.4 Failure by a party to reply to a request for Further and Better Particulars 655

Appendix "A"—Typical Direction following failure to comply with a request for Further and Better Particulars 657

12.3.5 Failure of party to comply with Direction for Specific Discovery 659

Appendix "A"—Typical Peremptory Order for Specific Discovery 661

12.3.6 Unless Order re failure to serve witness statements 662

Appendix "A"—Typical Unless Order following failure to serve witness statements 663

12.3.7 Respondent refuses to waste his time defending a sham claim 664

Appendix "A"—Typical Direction warning of possible ex parte hearing 666

12.4 Amendment of 668

12.4.1 Application to amend an arbitrators direction which was made without prior discussion with the parties 668

13 DOCUMENTS 669

13.1 Authenticity distinguished from admissibility 669

13.1.1 How to determine authenticity of possibly admissible evidence 669

13.2 Discovery of 670

13.2.1 Restricted discovery during determination of preliminary issue 670

13.2.2 Request by parties for early discovery 671

13.2.3 In a large and complex case claimant requested the arbitrator to order the respondent to swear an affidavit that all relevant papers had been discovered 672

13.2.4 Unreasonably wide request for discovery 674

13.2.5 Arbitrator takes independent legal advice on order for discoverY 675

Appendix "A"—Typical Order for Directions for Discovery of Documents 677

13.2.6 Specific Discovery 678

Appendix "A"—Typical Order for Directions for Specific Discovery 681

13.2.7 Very late request for further discovery 683

13.2.8 Application for discovery during the course of the hearing 684

13.2.9 Court no longer has power to order discovery in arbitration 685

13.2.10 How far does discovery need to go on computer disks? 686

13.2.11 The extent to which discovery should be ordered by the arbitrator 687

13.2.12 The restriction on documents obtained in discovery 688

13.2.13 Does a party have to disclose all copies of a particular document following an order for discovery 689

13.3 Inspection of 690

13.3.1 Documents destroyed, therefore not available for inspection 690

13.4 Only 691

13.4.1 Arbitrator requires further submissions in order to determine the dispute 691

13.4.2 Privileged document accidentally included and essential document omitted 691

13.4.3 A brief preliminary meeting with the parties in "documents only" arbitration sometimes bears fruit 693

Appendix "A"—Typical request for written answers to questions 696

13.4.4 Whether an arbitrator should admit a further submission after close of Pleadings? 697

13.4.5 How to react to a third party’s attempted interference with a reference 697

13.4.6 Where documents contain a claim which arises following the application to refer 699

13.4.7 Where burden of proof can shift to the respondent 700

13.4.8 Where a similar fact evidence might be admissible in a "documents only" arbitration 702

13.4.9 Following an award the unrepresented claimant accuses the arbitrator of failing to note crucial evidence 703

13.4.10 Should an arbitrator order a claimant to provide security for costs in a "documents only" reference? 705

13.4.11 When an arbitrator had to seek counsel’s opinion on how far he could go in seeking clarification of a party’s statement in a "documents only" arbitration 705

13.4.12 Where it is desirable, or necessary, to switch from a "documents only" procedure to an oral hearing 711

13.4.13 Model Award 711

Appendix "A" Model Award 713

13.5 Production of 717

13.5.1 Introduction at hearing of documents not previously referred to 717

13.6 Reading of 718

13.6.1 Extent to which the arbitrator should read the hearing bundle 718

13.7 Statements in 719

13.7.1 Arbitrator received confidential document from claimant complaining of respondent 719

14 EVIDENCE 721

14.1 Admissibility of 721

14.1.1 Generally—Arbitrator must admit all admissible evidence 721

14.1.2 Is evidence from another unrelated dispute admissible in the subject dispute? 724

14.1.3 Where the maker of a statement which a party wishes to put in evidence has to be called, even if no formal notice given by the opposing party 728

14.1.4 Power of arbitrator to limit admissible evidence 730

14.1.5 Admissibility of unsigned witness statements where party evinces an intention of taking no further part in the proceedings 732

14.1.6 Admissibility of documents inadvertently missed in discovery 734

14.1.7 The effect of s.34(2)(f) AA ’96 (Evidence—admissibility, relevance and weight) in rent review arbitrations 735

14.2 Estoppel 737

14.2.1 Cause of action estoppel defence may not always apply 737

14.2.2 Whether issue estoppel can be successfully pleaded 738

14.2.3 A party seeks to estop the other party from re-opening, with the arbitrator, an issue on which he asserts previous agreement was reached 741

14.3 Expert 742

14.3.1 Generally 742

14.3.2 One party appoints an expert, the other party fails to do so 756

14.3.3 Expert appointed by the arbitrator 759

Appendix "A"—Standard direction on expert evidence 763

14.3.4 Using a second expert witness 764

14.3.5 Admissibility of expert evidence 765

14.3.6 Whether the arbitrator has power to order the disclosure of an expert’s report 767

14.3.7 Expert witness dies just before the hearing 770

14.3.8 Distinguishing between evidence of witnesses of fact and expert witnesses 772

14.3.9 Expert evidence in complete contradiction 773

14.3.10 Expert witnesses unable to agree on any matters of fact in dispute 776

14.3.11 Neither expert’s evidence preferred by the arbitrator 779

14.3.12 Party prompts own expert while giving evidence 780

14.3.13 Problem of hearing expert evidence on lengthy Scott Schedule 781

14.3.14 The respondent makes an application during the hearing to have his key witness of fact called as an expert 782

14.3.15 An ex-employee wishes to appear as an expert witness for the party who previously employed him 784

14.3.16 Expert did not produce his own backup material 785

14.3.17 Expert deviates from his report and argues merits of his party’s case 787

14.3.18 Expert omits to deal with material facts 789

14.3.19 Determination—taxation of incompetent expert’s costs 790

14.3.20 Expert is clearly partisan 791

14.3.21 Expert evidence contradicts evidence that the expert gave in a previous arbitration 795

14.3.22 An expert includes evidence in his report from another expert 796

14.3.23 The tribunal appointed expert 798

Appendix "A"—Typical alternative agenda items for the option of a tribunal appointed expert 802

14.4 Fresh 803

14.4.1 Arbitrator’s failure to consider fresh evidence before publishing award in "documents only" reference 803

14.4.2 Party attempts to admit fresh evidence after conclusion of hearing but before award 805

14.4.3 Party submits fresh evidence to the arbitrator after publication of his nal award 806

14.4.4 Party no opportunity of making submission to arbitrator on fresh evidence after hearing the facts 807

14.4.5 After granting an adjournment request to the claimant to seek legal advice on a fresh point, the claimant fails to make any further written submissions 809

14.5 Hearing 810

14.5.1 A key witness who cannot be available for the hearing seeks to give evidence to the arbitrator in the absence of the other party 810

14.5.2 Arbitrator receives evidence in absence of both parties 812

14.5.3 Arbitrator determines dispute without hearing either party 812

14.5.4 The admissibility of documents into an "ex parte" hearing not previously discovered 813

14.5.5 Witness’s evidence varies from his written proof 814

14.6 Hearsay 815

14.6.1 Generally, What is hearsay evidence? 815

14.6.2 Hearsay evidence is now, prima facie, admissible unless parties agree that the strict rules of evidence are to apply 817

14.6.3 Claimant requests consent to refer to a letter rather than calling the writer 821

14.7 Privilege 821

14.7.1 A claim of legal professional privilege 821

14.7.2 Litigation privilege and non-practising legally qualified advisers 823

14.7.3 What "privilege" can be claimed by non-legally qualified advisers? 826

14.7.4 Privilege in rent review arbitrations 829

14.7.5 Privileged material referred to at a preliminary meeting 832

14.7.6 Refusal to disclose confidential documents 833

14.7.7 Argument adduced at hearing from a privileged document 835

14.7.8 Where a "without prejudice" offer may not be privileged 836

14.7.9 Deliberate disclosure of a "without prejudice" letter to the arbitrator? 837

14.7.10 Public interest claimed as privilege 841

14.8 Proofs of 844

14.8.1 Party’s counsel objects to exchange of proofs of evidence 844

14.8.2 How exchanged statements of witnesses of fact may be used at a hearing 845

14.8.3 Parties ordered to exchange witnesses’ proofs of evidence； one party fails to do so 847

Appendix "A"—Unless Order—Order for Directions 849

14.8.4 Parties ordered to exchange witnesses’ proofs of evidence.One party fails to do so, even after threat of debarment 850

Appendix "A"—Unless Order—Order for Directions No 19 853

14.9 Relevant 854

14.9.1 Distinction between relevance and weight 854

14.9.2 Claimant fails to deal with what the arbitrator considers is relevant point 855

14.9.3 Counsel questions relevance of tenant’s accounts in rent review dispute 856

14.10 Similar fact 859

14.10.1 Application for discovery of similar fact evidence 859

15 EXPERT DETERMINATION 863

15.1 Expert determination 863

1.1 Whether person is appointed as an arbitrator or an independent expert? 863

1.2 When can a determination by an expert be successfully challenged? 865

1.3 Independent expert or arbitrator? 867

1.4 The independent expert not bound to act judicially 869

1.5 Determination in the absence of a dispute 871

1.6 Can an independent expert unilaterally decide to determine a preliminary issue? 872

1.7 Should an independent expert give reasons for his determination? 872

16 FEES 875

16.1 Generally 875

16.1.1 Generally 875

Appendix "A"—Arbitrator’s Terms 888

Appendix "B"—Time Sheet 890

Appendix "B"—Expense Sheet 891

Appendix "C"—Typical Fee Statement 892

16.2 Non agreement of 895

16.2.1 One party agrees to arbitrator’s fees, the other does not 895

16.2.2 Neither party responds to arbitrator’s request to sign terms； the arbitrator subsequently seeks a commitment fee 897

16.2.3 Party considers arbitrator’s fees too high 899

16.2.4 Fees—How does the party with liability to pay the Arbitrator’s Fees challenge the amount of such fees when they have already been paid by the other party? 901

16.3 Non payment of 903

16.3.1 Parties agree arbitrator’s terms at preliminary meeting but fail to return them signed.They also fail to pay interim fees subsequently requested 903

16.3.2 Cheque for interim fees is not honoured 911

16.3.3 A hearing becomes protracted and runs considerably over the time set aside by the arbitrator； consequently he finds himself considerably exposed for fees outstanding which he may not recover for several months 912

16.3.4 Payment of arbitrator’s out-of-pocket expenses 915

16.3.5 One party offers to pay half of the arbitrator’s fees only on collection of award 916

16.3.6 Arbitrator publishes award and parties do not collect 918

16.3.7 Parties settle, but make no agreement concerning the arbitrator’s fees and neither accepts liability for them 919

Appendix "A"—Typical points of claim 923

16.4 Arbitrators, security for 927

16.4.1 Generally 927

16.4.2 Failure by one or both parties to comply with a direction of the arbitrator to provide security for his fees and expenses 931

Appendix "A"—Typical Direction for procedure for dealing with the arbi-trator’s security for costs 933

Appendix "B"—Typical Peremptory Order following failure to provide security when directed 935

16.4.3 What to do with a substantial sum lodged with the arbitrator as security for his costs 936

16.4.4 Arbitrator, anticipating ex parte hearing, sets level of security for his fees and expenses.Respondent unexpectedly turns up.Claimant insists that respondent be directed to pay a moiety of the security 937

16.4.5 Hearing adjourned on application of respondent.Under circumstances,claimant asks arbitrator to direct that respondent put up some security for arbitrator’s fees and expenses—all previously provided by the claimant.Arbitrator so directs.Respondent does not comply 938

16.4.6 Security for arbitrator’s fees after company put into liquidation 939

17 HEARING 941

17.1 Adjournment of 941

17.1.1 Parties jointly request adjournment of hearing 941

17.1.2 A hearing is set and one or both parties fail to turn up 942

17.1.3 Adjournment requested to consider supplementary expert’s report 943

17.2 Agreed bundle 944

17.2.1 No agreed bundle delivered to the arbitrator 944

17.2.2 Parties fail to prepare agreed bundle and produce their own 946

17.3 Evidence 947

17.3.1 When relaxation of strict rules of evidence is permissible 947

17.3.2 Counsel constantly objects to leading questions 949

17.4 Interventions 950

17.4.1 Arbitrator stops counsel after long-winded submission 950

17.4.2 When it is permissible for an arbitrator to interrupt counsel 952

17.4.3 Arbitrator interrupts counsel indicating his acceptance of point being made 954

17.5 Order of 956

17.5.1 Respondent seeks to interpose his expert earlier into the hearing 956

17.6 Party’s right to be present throughout 957

17.6.1 Respondent consistently rude to the arbitrator 957

17.6.2 Arbitrator excludes objectionable party 959

17.7 Postponement of 960

17.7.1 Postponement requested due to non-availability of Counsel 960

17.7.2 Respondent wishes to postpone start of hearing 961

17.8 Presence of a stranger 963

17.8.1 Attendance of person not involved in dispute 963

17.8.2 Confidentiality of arbitral proceedings 964

17.9 Right to have 968

17.9.1 One party wants to have oral hearing the other wants "documents only" 968

17.10 Speed of progress at 969

17.10.1 Arbitrator controls speed of progress at hearing 969

17.11 Unequal representation at 970

17.11.1 Unequal representation at hearing 970

18 INJUNCTION 973

18.1 Arbitrator’s power to grant 973

18.1.1 Employer requests the arbitrator to grant an interim injunction against an obstructive contractor 973

18.1.2 Power of the court 975

19 INSPECTION 977

19.1 Arbitrator’s power to order 977

19.1.1 Whether arbitrator has power to order inspection of property which is the subject of the reference 977

19.1.2 Arbitrator wishes to inspect a model of the property which is the subject of the reference 978

19.1.3 When an arbitrator should inspect the property subject of the dispute 980

19.2 Difficulties arising from 982

19.2.1 Requirement to inspect frustrated by claimant 982

19.2.2 One party requests arbitrator to inspect property： the other party objects so the arbitrator offers to use the visit to take evidence 983

19.2.3 Respondent ignores all arbitrator’s directions and subsequently denies access for arbitrator’s inspection 984

19.3 Rights of parties at 985

19.3.1 The rights of parties at an inspection compared with rights at the hearing itself 985

20 INTEREST 989

20.1 General and special damages 989

20.1.1 Whether the arbitrator has power to award interest by way of general damages for late payment of debt 989

20.2 Special damages 997

20.2.1 Interest incurred as a direct loss and/or expense or as special damages 997

20.3 Discretion under AA ’96 999

20.3.1 How s.49 AA ’96 has changed the arbitrator’s discretion to award interest under s.19A AA ’50 999

20.3.2 Whether there is a contrict between the arbitrator’s discretion under s.49 AA ’96 and a contractual right to interest? 1005

20.4 Finance charges 1006

20.4.1 Whether finance charges are a recoverable head of damage in a claim for direct loss and/or expense and whether such can be validly claimed on a compound interest basis 1006

20.5 Sums due and unpaid, on 1009

20.5.1 Whether the arbitrator has power to award interest on sums paid late but before the arbitration commences 1009

20.5.2 Whether the arbitrator has power to award interest on sums found by him to be under-certified 1010

20.5.3 The distinction between mere counterclaims and counterclaims which also constitute defences of abatement or set off 1013

20.6 Not pleaded 1016

20.6.1 Neither party claims interest 1016

20.7 Where there is an offer to settle 1017

20.7.1 Where interest can have a significant effect 1017

21 SERIOUS IRREGULARITY 1019

21.1 Serious irregularity—misconduct 1019

21.1.1 Generally 1019

21.1.2 Thomasina researches cases of "Misconduct" 1025

21.1.3 Cases of "Misconduct" in Construction Cases 1030

21.1.4 Cases of "Misconduct" in Rent Review Cases 1039

21.2 Serious irregularity—failure by the tribunal to comply with s.33 and resulting in s.24 sanctions 1042

21.2.1 Failure to disclose documents to both sides； admissibility of evidence 1042

21.2.2 Whether to refuse adjournment could be said to be not properly conducting the proceedings 1046

21.2.3 Arbitrator comes to view contrary to evidence adduced before him 1047

21.2.4 Arbitrator fails to deal with interest； is this a serious irregularity? 1048

21.2.5 When an injudicious remark of the arbitrator can amount to misconduct 1049

21.3 Serious irregularity—challenging the award 1050

21.3.1 Failure by the tribunal to comply with s.33 (general duty of tribunal) (s.68(2)(a)) 1050

21.3.2 Arbitrator exceeds his powers by giving order for general discovery when the rules permit only specific discovery (s.68(2)(b)) 1056

21.3.3 Failure by the arbitrator to conduct the proceedings in accordance with the procedure agreed by the parties (s.68(2)(c)) 1057

21.3.4 Failure by the tribunal to deal with all the issues that were put to it (s.68(2)(d)) 1059

21.3.5 Uncertainty or ambiguity as to the effect of the award (s.68(2)(f)) 1060

21.3.6 An award is obtained by fraud (s.68(2)(g)) 1061

21.3.7 An award is made without being dated or stating the seat of the arbitration in contravention to s.68(2)(h) AA ’96 1062

21.3.8 An arbitrator admits to an irregularity in the award (s.68(2)(i) AA ’96) 1062

21.4 Misconduct—immunity from suit 1063

21.4.1 Of the arbitrator 1063

21.4.2 Of the Appointing Body 1067

22 OATH 1073

22.1 Taking of 1073

22.1.1 Difficulty arises at hearing over form of sacred book 1073

22.1.2 Witness privately prompted by his advocate whilst still under oath 1075

22.1.3 Witness clearly lying under oath 1076

23 OFFER TO SETTLE 1079

23.1 Open 1079

23.1.1 Arbitrator sent a copy of an "open" offer 1079

23.1.2 Should an open offer attract interest? 1080

23.2 Sealed 1080

23.2.1 Arbitrator asks parties if a sealed offer has been made 1080

23.2.2 Existence of "secret" offer disclosed to arbitrator 1081

23.2.3 Failure to disclose the existence of a sealed offer before award 1083

23.3 Treatment of costs when 1085

23.3.1 When the sealed offer exceeds the net amount awarded 1085

23.4 Without prejudice 1087

23.4.1 Disclosure of "without prejudice" offer 1087

23.4.2 Arbitrator sent a copy of a "without prejudice" offer 1089

24 PARTIES 1091

24.1 Assignment of claim 1091

24.1.1 Receiver of claimant company assigns to a third party right to arbitrate a dispute 1091

24.2 Bankruptcy of 1092

24.2.1 Party is put into bankruptcy during arbitration 1092

24.3 Death of 1094

24.3.1 Party dies during reference 1094

24.4 Disputes as to 1098

24.4.1 When the claimant believes that there are joint respondents and the respondent avers that there is a third party to the contract which the claimant denies 1098

24.5 Illness of 1102

24.5.1 Party requests indefinite deferment due to illness 1102

24.6 Liquidation of 1103

24.6.1 Power of arbitrator to proceed when party put into compulsory liquidation 1103

24.6.2 Party in liquidation； original assignor’s right to arbitration 1104

24.6.3 Claimant goes into creditors’ voluntary liquidation during reference 1105

24.7 Loss of confidence in arbitrator 1107

24.7.1 During a hearing a party loses confidence in ability of the arbitrator to grasp satisfactorily the problems being arbitrated 1107

24.8 Personal contacts with 1108

24.8.1 Arbitrator found to have regular contact with one party 1108

24.9 Receivership, in 1110

24.9.1 Party put into receivership during arbitration 1110

24.10 Reluctant respondent 1111

24.10.1 Respondent fails to acknowledge arbitrator’s letters 1111

24.10.2 Respondent persistently fails to comply with arbitrator’s directions 1115

24.10.3 Respondent engaged in delaying tactics 1115

24.11 In repudiatory breach 1117

24.11.1 When a respondent seeks a declaration that the claimant has repudi-ated the Arbitration Agreement 1117

24.12 Impecuniosity of 1119

24.12.1 The respondent (counter-claimant) admits to being totally out of funds 1119

24.13 Role reversal 1120

24.13.1 Respondent becomes claimant 1120

24.13.2 Tenant avers that he, not the landlord, should be the claimant 1121

24.14 Written Agreement, of 1121

24.14.1 One party attempts to resile from an earlier agreement 1121

25 POINTS OF LAW 1125

25.1 Preliminary issue on 1125

25.1.1 Preliminary issue of point of law 1125

25.1.2 Party asks arbitrator to apply to the High Court to determine point of law 1130

25.1.3 Arbitrator faces difficult legal argument 1131

25.1.4 Where an arbitrator may be aware of legal authority not cited by either side 1133

25.1.5 Duty of counsel when a difficult point of law arises 1133

25.1.6 Where no authority cited in support of legal contentions 1135

25.1.7 Landlord avers a typing error in the notice of review, which the tenant has signed and returned 1136

25.1.8 Differing interpretations arise out of a rent review clause 1138

25.1.9 Arbitrator to assess level of rent on review for full repairing and insuring lease subject to schedule of conditions left blank 1139

26 PLEADINGS 1141

26.1 Statements of claim and defence 1141

26.1.1 Formal pleadings or statement of case? 1141

26.2 Amendment of 1146

26.2.1 Generally 1146

Appendix "A"—Typical Order for Directions granting an application to amend Pleadings 1150

26.2.2 Late amendment of pleading necessary to include counterclaim 1152

26.2.3 Claimant requests amendment of pleadings during hearing 1153

26.2.4 Late request to cover continuing loss of pleaded item 1155

26.3 Fraud in 1157

26.3.1 Suggestion of fraud in pleadings 1157

26.4 Further and better particulars 1158

26.4.1 Generally 1158

Appendix "A"—Typical requests for Further and Better Particulars of defence and counterclaim 1162

Appendix "B"—Unless order in respect of failure to reply to Further and Better Particulars 1164

26.4.2 How to deal with requests for Particulars to which the asking party declines to reply 1166

26.5 Late service of 1167

26.5.1 Extending the timetable for service of pleadings 1167

26.6 Not properly particularised 1168

26.6.1 Claim in pleadings in "global" terms 1168

26.6.2 Arbitrator directs how inadequate pleadings should be remedied 1173

26.6.3 Questions put to the parties 1175

Appendix "A"—Typical Order re Notice to Admit Facts 1179

Appendix "B"—Re typical request for Interrogatories (Questions from the arbitrator) 1180

26.7 Re-service of 1181

26.7.1 Party’s newly appointed solicitor requests consent to Re-Serve Defence and Counterclaim previously inadequately served by lay representative 1181

Appendix "A"—Typical Direction granting the respondents application to re-serve its defence 1184

Appendix "B"—Typical Direction seven-day notice to respondent re failure to serve defence 1186

26.8 Without prejudice 1187

26.8.1 Pleadings alleged to be "without prejudice" 1187

27 PROCEEDINGS 1189

27.1 Abandonment of reference 1189

27.1.1 Absentee respondent, working and resident overseas, refuses to appoint representative.Claimant elects to start arbitration proceedings and subsequently claims abandonment 1189

27.2 Conduct of 1191

27.2.1 How the Arbitration Act 1996 has changed the approach of the parties and the arbitrator 1191

27.2.2 The parties rule—O.K.！ 1197

27.2.3 Parties actively co-operate with the arbitrator in devising a cost-effective procedure to resolve this dispute 1206

27.2.4 Consideration of the most cost effective procedure 1208

27.2.5 The preliminary meeting and beyond 1216

27.2.6 Parties disagree on form of proceedings 1220

27.2.7 Requirement to follow agreed procedure 1223

27.2.8 Doing something contrary to the parties’ expectations in a written representations rent review procedure 1224

Appendix "A"—Typical opening letter to the parties 1226

Appendix "B"—Typical follow up letter 1228

Appendix "C"—Typical preliminary meeting agenda 1229

Appendix "D"—Order for directions on documents only with or without a preliminary meeting 1231

27.2.9 Wot, no preliminary meeting? 1234

Appendix "A"—Typical letter to lay parties where arbitrator decides to dispense with preliminary meeting 1236

Appendix "A"—List of matters which need to be covered by my directions to the parties 1239

Appendix "B"—Typical abbreviated terms for a simple dispute with lay parties 1240

27.3 Equitable determinations 1242

27.3.1 Parties consider effect of adopting an equity clause 1242

27.4 Exclusion agreements, entering into 1248

27.4.1 Party queries effect of entering into an exclusion agreement 1248

Appendix "A"—Typical Agreement to exclude the jurisdiction of the court ss.45(1) and 69(1) 1252

27.4.2 Party asks if exclusion agreement applies to interim award 1253

27.5 "Ex parte" 1254

27.5.1 Generally—when may an arbitrator proceed "ex parte" and what principles should he observe? 1254

27.5.2 Respondent fails to communicate with arbitrator following withdrawal of instructions from solicitor 1258

27.5.3 The reluctant respondent’s bluff is called 1260

27.5.4 The respondent appears, without warning, on the first day of the hearing 1262

27.5.5 The respondent says he will not attend the hearing due to insufficient time to prepare 1263

27.5.6 Respondent fails to appear at the hearing.The claimant attempts to introduce evidence in his absence 1265

27.5.7 Dealing with a counterclaim and costs at an "ex parte" hearing 1266

27.6 Proceedings—multi-party arbitrations 1267

27.6.1 The employer seeks to commence an arbitration against a nominated subcontractor and against the main contractor in the same action 1267

27.6.2 Application made to consolidate two arbitrations 1268

27.6.3 The arbitrator’s power to consolidate or order concurrent hearings in related disputes 1274

27.6.4 What alteration is necessary to normal procedures when joinder provisions are invoked? 1281

Appendix "A"—Extract from typical Direction in joinder cases 1284

27.6.5 When a subcontractor with a genuine dispute may find himself involved in an arbitration under the main contract and have to wait for years to receive his just entitlement 1286

27.6.6 Difficulties and costs where separate arbitration clauses in related contacts 1287

27.7 Stay of, overlap with litigation 1288

27.7.1 Limitations of arbitrator’s consideration of overlapping issues when arbitration and litigation proceed in parallel 1288

27.7.2 Concurrent proceedings—inter-relationship with court proceedings 1292

27.7.3 Whether a court action should be stayed where a writ is issued as a pre-emptive strike before arbitration proceedings can begin? 1296

27.7.4 When a step taken in litigation may justify a stay of arbitration proceedings 1297

27.7.5 Refusal to operate an Arbitration Agreement—can a party go to court? 1298

27.8 Substantive and procedural law 1300

27.8.1 Arbitrator asked to rule on the proper law of the contract and what rules should apply to access to witnesses 1300

28 PROPERTY 1305

28.1 Subject of Reference 1305

28.1.1 Claimant makes application to the arbitrator to release property,retained by the respondent, which is subject of the reference 1305

28.1.2 Respondent threatens to sell goods which are the subject of the reference 1307

29 RECTIFICATION 1311

29.1 Contract, of 1311

29.1.1 Power of arbitrator to deal with rectification of the contract 1311

29.1.2 Power of arbitrator to order damages resulting from rectification of contract 1313

30 REPRESENTATION 1315

30.1 Party in Person, Assistance of 1315

30.1.1 Right of party appearing in person to have assistance of a McKenzie friend 1315

30.1.2 Extent to which the arbitrator assists an unrepresented party 1316

30.2 Poor Quality 1317

30.2.1 Counsel presenting case in incompetent fashion 1317

30.2.2 Parties’ representatives have little or no idea of arbitration procedure 1318

30.3 Legal 1319

30.3.1 "Fit for Counsel" 1319

Appendix "A"—Typical extract from Order for Directions 1323

30.3.2 Solicitor withdraws before the hearing 1324

30.3.3 Counsel appears at hearing without warning 1324

31 SPECIFIC PERFORMANCE 1327

31.1 Interim award for 1327

31.1.1 Claimant seeks order for specific performance from unique specialist contractor 1327

32 SUBMISSIONS 1331

32.1 Closing 1331

32.1.1 Advocate’s closing submissions 1331

32.2 Copied to both sides 1334

32.2.1 Documents received by arbitrator not sent to other side 1334

32.3 Opening 1335

32.3.1 Counsel’s opening submissions 1335

33 VALUE ADDED TAX 1339

33.1 Value added tax 1339

33.1.1 Generally 1339

33.1.2 The VAT position when a party settles 1345

Appendix "A"—Agreed Minutes of Meeting between HM Customs and Excise (VAT Office) and Law Society—23 October 1991 1350

33.1.3 The treatment of VAT and damages and "offers" to settle 1354

34 WITNESSES 1357

34.1 Appearing for both sides 1357

34.1.1 Both parties wish to call same witness 1357

34.2 Compellability to give evidence 1358

34.2.1 Generally 1358

34.2.2 Witness called by claimant refuses to attend hearing.Respondent alleges that this witness is central to his case 1361

34.3 Illness of 1362

34.3.1 Persistent interruptions to hearing through witness’s incapacity 1362

34.4 Leading questions and prompting witness 1363

34.4.1 When leading questions should be allowed and when prompting a witness is unacceptable 1363

34.5 Hostile/objectionable behaviour 1364

34.5.1 When a witness’s behaviour in giving evidence becomes unacceptable 1364

34.6 Order of 1366

34.6.1 Counsel requests that expert be called before witnesses of fact 1366

34.7 Perjury, committed by 1367

34.7.1 Witness clearly lying under oath and solicitors’ duty to ensure the truth of witness statements 1367

34.8 Proof of evidence 1368

34.8.1 Generally 1368

34.9 Question, refusal to answer 1371

34.9.1 Witness who previously agreed to give evidence now refuses to do so 1371

35 APPEALS TO COURT 1373

35.1 Power of court to extend time for beginning arbitral proceedings 1373

35.1.1 Generally 1373

35.2 Determination of preliminary point of jurisdiction 1375

35.2.1 Generally 1375

35.2.2 Challenging an arbitrator’s jurisdiction—ss.32 and 73 AA ’96 1377

35.3 Challenging the award jurisdiction 1378

35.3.1 Generally 1378

35.3.2 Arbitrator awards a longer extension of time than is asked for—s.68(1) and (2) AA ’96 1381

35.4 Determination of preliminary point of law 1382

35.4.1 Generally 1382

35.4.2 Preliminary issue—the arbitrator’s powers—ss.45 and 34 1384

35.5 On point of law 1385

35.5.1 Is the appeal within the time limits set down in the Act? 1385

35.5.2 Where the appeal is out of time 1387

35.5.3 Generally 1390

35.5.4 Appealing on a point of law 1399

35.5.5 Limitations on application to the court—s.70(2)(b) 1402

35.5.6 Parties pre-consent to appeal 1403

35.5.7 The court’s discretion to grant leave to appeal in respect of a question of law not argued before the arbitrator 1405

35.5.8 Party seeks leave to appeal to the Court of Appeal on decision of the High Court 1406

APPENDIX 1—STATUTES 1409

1.1 Arbitration Act 1950 1409

1.2 Arbitration Act 1975 1429

1.3 Arbitration Act 1979 1431

1.4 Arbitration Act 1996 1437

1.5 Civil Evidence Act 1968 1484

1.6 Civil Evidence Act 1972 1490

1.7 Civil Evidence Act 1995 1493

1.8 Agricultural Holdings Act 1986 1505

1.9 Agricultural Tenancies Act 1995 1510

APPENDIX 2—RULES OF THE SUPREME COURT 1997 1513

APPENDIX 3—DISPUTE RESOLUTION 1551

3.1 CIArb Arbitration Rules (1988) 1551

3.2 CIArb Short Form Arbitration Rules 1991 1558

3.3 CIArb Guidelines for Supervised Settlement Procedure (1990 Edition) 1561

3.4 CIArb New Consumer Dispute Resolution Scheme 1565

3.5 CIArb Standard Consumer Arbitration Scheme Guidance Notes for the Parties 1575

3.6 Arbitration Scheme for the Association of British Travel Agents 1579

3.7 Schedule of Administered Schemes 1583

3.8 Guidelines of Good Practice for Arbitrators 1585

3.9 The LMAA Terms (1997) 1588

3.10 The LMAA Small Claims Procedure (1994) 1600

3.11 The LMAA FALCA Rules (1996) (Fast and Low Cost Arbitration) 1604

3.12 FOSFA Rules of Arbitration and Appeal 1990 1609

3.13 GAFTA Arbitration Rules No.125 1616

3.14 Draft ICC Rules 1997 1627

3.15 Draft New LCIA Rules 1997 1638

3.16 The JCT Arbitration Rules (18 July 1988) 1651

3.17 Draft Proposed Amended JCT Rules 1997 1659

3.18 JCT Contracts, Sub-Contracts and Arbitration Rules—Note to Users 1670

3.19 The Royal Institution of Chartered Surveyors： Appointment of arbitrators and independent experts, particularly in commercial property rent review disputes—policy statement on alleged conflicts of interest 1673

3.20 Institution of Civil Engineers’ Arbitration Procedure (1997) 1675

3.21 The Construction Industry Model Arbitration (CIMA) Rules 1686

Index 1705