hi I have 12 questions need answer for them please

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TFCApr2019-Day4Slides.pptx

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Gafta GPD Trade Foundation Course

23rd – 26th April 2019

London

Day Four

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Dispute resolution

Jonathan Waters

LLB, LLM, MCIARB, CMC Registered Mediator, Barrister General Counsel

Gafta

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Dispute Resolution

Methods of solving disputes:

Discussion and Negotiation

Mediation by a neutral third party

Arbitration

Courts (litigation)

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What is Arbitration?

Resolution of a dispute outside the courts in private

Parties agree to refer dispute to a panel of one or more arbitrators

Parties agree to be contractually bound by decision of the arbitrators which is legally binding

Courts reluctant to intervene

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Advantages

Neutral

Confidential

Cost-effective

Quick

Flexible

Enforceable

Limitations

Confidentiality (adverse press may be an advantage!)

Complexity (may not always lead to cost-effectiveness/speed)

May not be allowed to use lawyers at hearing (may also be an advantage!)

Arbitration

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Examples of Disputes

Breach of contract (was there a contract?)

Failure to ship

Failure to pay

Quality, condition, description of goods

Assessment of damages

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Arbitration Agreement

All other terms, conditions and rules not in contradiction with the above, contained in Form No:

“….. Of the Grain and Feed Trade Association, including the Arbitration Form No. 125 (of which the parties admit that they have knowledge and notice) apply to this contract, the details given above shall be taken as having been written into such Form in the appropriate place”.

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Preliminary Issues

Incorporation of Form 125 into contract

Issues arising in practice:

Relevant law

Jurisdiction

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Form 125

Arbitration

Appeal

Two-tier system

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First Tier Hearing

Sole arbitrator, or

Panel of 3

526 new cases in 2018 (984 in 2017)

Cases are becoming more complex, factually and legally

Aggregate award of damages - $32m (Average award $290k)

Largest single award value of $19.1M (2016)

Lawyers tend to be used ‘pre-hearing’

Right of appeal

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125: Overview (1) New Rules Effective 1 September 2016

Rule 2: Claimant serves notice on Respondent

Rule 2: must do so within prescribed time limits (generally one year)

Rule 3: panel of 3 arbitrators appointed (or sole, if parties agree)

All arbitrators must be neutral

Generally:

Claimant appoints arbitrator

Respondent appoints arbitrator

Gafta appoint chair

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125: Overview (2)

Rule 4: Procedure

Claimant makes submission and pays a deposit

Respondent submits defence

Claimant has option to reply

Tribunal determines timetable/case management

Generally, paper based

Lapse of claim after 1 year

Hearing if requested. Legal representation not allowed (unless parties agree)

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125: Overview (3)

Rule 8: Tribunal decides if it has jurisdiction

Rule 9: Awards (Judgement)

In writing

Sets out decision and reasons for it including remedies and costs

Gafta sends to parties (after payment of fees/expenses incurred by tribunal and Gafta)

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Remedies

Damages (may require consideration, establishing market price on day of default to establish loss):

Interest

Costs

Non-monetary awards: (very rare)

Rectification

Specific performance

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Appeals

Rule 10: right of Appeal

Lodging an Appeal:

Within 30 days of date of award

Appellants pay a deposit

Rule 11: Appointment of Board of Appeal

Oral hearings (may be granted on request of either party. Again, no legal representation before the Board unless the parties agree)

Appeal takes form of new hearing

Board can confirm, vary, amend, set aside award

2018 – 28% of first tier cases are appealed (of which in 65% the outcome didn’t change)

2018 34 Appeals

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Enforcement

Rule 24: Gafta defaulters procedure – posting on Gafta website/circular to members (‘name and shame’)

Suspension/Termination of membership

Application to the Courts

New York Convention

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Access to the Courts

Arbitration Act 1996

Challenge jurisdiction (S67)

Serious irregularity (S68)

Exceeds powers

Failure to deal with issues

Irregularity in conduct

Point of Law (S69)

Reality: very little change of a successful Appeal against any Arbitration Award

S68: Since 2015, only 1 successful Appeal (out of 112 cases)

S69: Since 2015 only 5 successful Appeals (out of 162 cases)

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Expedited Disputes – Rule No. 128

Sole Arbitrator

Fixed Timetable

No Appeal

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The Concept of Mediation

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What is mediation?

How does mediation work?

What are the advantages of mediation?

What is the role of the mediator and what skills are needed?

The Concept of Mediation

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What is mediation?

Managed negotiation

Without prejudice/confidential

Voluntary participation

No judgment or other decision

Designed to lead to a binding settlement agreement

The mediator is the key to the process, but does not decide the outcome

Flexible options for settlement, including new business

Can also be used to set terms, e.g. pricing under a long term contract

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Role and Skills of the Mediator (1)

The mediator is NOT a judge

Independent

Suitable qualifications/experience. Perhaps a lawyer, or a commercial person (or both)

Controls the procedure: Open sessions and separate meetings

Will listen to what both parties say about:

Their views of the dispute

Their commercial interests

The mediator will not repeat everything one party says to the other party – they will only pass on what he is asked to

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To make the parties see reality:

Comment on strengths and weaknesses of both parties’ cases.

Convey an impression of the way in which the arbitrators might see certain aspects of the case on both sides.

Cut through emotion to get to the issues.

To bring a new dynamic to the negotiations:

Fresh impetus to settle.

Perhaps get around obstructive lawyers or other advisers.

Role and Skills of the Mediator (2)

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What can mediators not do?

Decide the case for the parties

Provide legal advice to the parties

Force a settlement on the parties

Stop a time bar from expiring – you may need to commence Gafta arbitration before you mediate

Cannot make orders, e.g. a freezing order or a disclosure order

Cannot give publicity to an outcome. Settlement will be private

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Gafta Mediation Rules 128

At any time

With parties agreement

Process completed within 45 days

Arties submit written opening statement (5 days in advance)

Legal representation allowed

Confidential/ without prejudice

Cost: £950

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Ask the Arbitrator

Jane Libre

Gafta Arbitrator

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Refreshments

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Revision session Please feel free to ask any questions you may have in preparation for the exam

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Exam

Rules:

Access the exam via the link in your email.

You have 1 hour

Please do not talk during the exam

When you have finished, hand your paper to the Chair

Remember to put your name on your paper!

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Lunch & end of course networking

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