The Resolver autumn 2013

THERESOLVER

T H E Q UA RT E R LY M AG A Z I N E O F T H E C H A RT E R E D I N S T I T U T E O F A R B I T RAT O R S

Which region has seen the biggest rise in disputes in the past year?

Why the role of expert witness is undergoing important changes Report from CIArb’s International Arbitration Conference 2013 in Malaysia How to get noticed www.ciarb.org

November 2013

Arbitrating partnership disputes

One for all and all for one?

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class service in International Commercial and Investment Arbitration.

X First

X Highly

qualified experts in Energy Law and Policy.

X Over

a decade of experience and expertise in the Energy Charter Treaty. and assistance on all aspects of Commercial and Investment Laws of the MENA Region.

X Advice

“We do not seek excellence.

We practice it.”

Professor Adnan Amkhan Bayno FCIArb Head of MENA Chambers

www.menachambers.com

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CONTACTS Redactive Publishing Ltd 17 Britton Street, London EC1M 5TP T: +44 (0)20 7880 6200 EDITORIAL T: +44 (0)20 7880 6200 E: editorial@ciarb.org Editor: Rima Evans Sub editor: Steve Smethurst Art editor: Adrian Taylor Picture editor: Claire Echavarry ADVERTISING Sales executive: James Condley T: +44 (0)20 7880 7661 E: james.condley@redactive.co.uk PUBLISHER Steve Grice E: steve.grice@redactive.co.uk PRODUCTION Production manager: Jane Easterman Senior production executive: Aysha Miah © THE RESOLVER is published on behalf of the Chartered Institute of Arbitrators (CIArb) by Redactive Publishing Ltd (RPL), 17 Britton St, London EC1M 5TP. This magazine aims to include a broad range of opinion and professional issues and articles do not necessarily reflect the views of CIArb nor should such opinions be relied upon as statements of fact. All rights reserved. This publication may not be reproduced, transmitted or stored in any print or electronic format, including but not limited to any online service, any database or any part of the internet, or in any other format in whole or in part in any media whatsoever, without the prior written permission of the publisher.

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Vinayak Pradhan

LEADER

WELCOME TO THE NOVEMBER EDITION OF The Resolver. Since my last column, the 2013 CIArb International Arbitration Conference has taken place and been a resounding success (see page 16 and www. ciarb.org/news/ciarb-news/branch-news). The eminent speakers lived up to their reputations, the topics were interesting and the social events exceptional. All credit – and thanks from the Institute – goes to the Malaysia Branch whose Organising Committee Chairman was Ashok Kumar Mahadev Ranai FCIArb. A number of reputed Malaysian law firms and other organisations, as well as three sets of Chambers, also contributed to the success of the conference.

The Institute would like to extend its thanks to them. The Conference had the unique honour of having two Chief Justices, those of Malaysia and Singapore, address the gathering. The latter identified serious issues with arbitration which could have an adverse effect on the process. Their speeches will appear in November’s edition of CIArb’s The Intenational Journal of Arbitration, Mediation and Dispute Management.

In July, I spoke at a seminar on the use of arbitration and expert determination at the AMPLA/IBA Resources and Energy Law Conference in Singapore. From there, I visited the Australian Branch, where I hosted a talk in Sydney on international arbitration, then spoke at a dinner hosted by the University of New South Wales, attended by the Chief Justice of New South Wales and the President of the NSW Court of Appeal. In October, I visited Boston to attend the Regional Branch Chairs’ meeting, while the Young Members’ Group Conference took place over 18-19 October in Istanbul. During November, I will attend the London Branch Annual Dinner, the Dispute Appointment Service Convention, a Young Members’ Group Reception and the Alexander Lecture.

In terms of this issue, articles to highlight include the analysis on page 6 about the role of expert witnesses and the cover feature on partnership disputes (page 10).

Sadly, this is my last column and I believe that the Institute is at a crossroads. I am of the view that the Institute should consider itself an influential international organisation and not be distracted by domestic concerns. To progress, the Institute has to be particularly sensitive to the needs and expectations of its international branches. Michael Stephens FCIArb is taking over as President and I would like to wish him all the best for his presidential year and trust that he will have a fruitful and enjoyable year. With my very best wishes to all CIArb members.

All credit – and our thanks – goes to the Malaysia Branch

Vinayak Pradhan FCIArb C.Arb, President of CIArb

CONTENTS WATCH 4-5 News: Survey indicates disputes are on the rise in Eastern and Central Europe; International Swaps and Derivatives Association publishes its arbitration guide; New arbitration law for Western Australia 9 Law round-up: Ust-Kamenogorsk Hydropower Plant JSC v AES Ust-Kamenogorsk Hydropower Plant LLP [2013] UKSC 35; Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc [2013] EWHC 1322 (TCC)

REGULARS AND FEATURES 6 10 14 15 16 17 18

Expert witnesses: The role is being amended, with ‘hot-tubbing’ being introduced Cover: Partnership disputes and the role of arbitration in resolving them How To… get noticed CIArb Branch news: East Asia Branch co-hosts an international mock arbitration, a first for the Phillipines; Zambia Branch conducts two sensitisation workshops on ADR CIArb International Arbitration Conference 2013: A report from Georgetown CIArb’s 6th Mediation Symposium: Picture coverage of the event in London What’s On: Round-up of upcoming training courses November 2013 | THERESOLVER

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78%

WATCH

The number of survey respondents who think arbitration is well suited for international disputes in the energy sector Source: 2013 International Arbitration survey, Queen Mary University of London and PwC

Not quiet on the eastern front The volume of disputes around the world has increased over the past 12 months, with the strongest perception of growth in Central and Eastern Europe, a survey of UK and global arbitration and litigation lawyers has found.

Mazars’ Dispute Resolution Survey 2013 also revealed that intellectual property (IP) was the strongest class of dispute. The report said results have been heavily influenced by the economic crisis.

The biggest number of respondents – 62 per cent – said that disputes had increased in Central and Eastern Europe, followed by 57 per cent reporting increases in the Middle East and 51 per cent in Asia Pacific and the UK. “The continuing turmoil created by the recession has seen a significant increase in litigation and arbitration around the globe,” Ghassan Sakhnini, Forensic and Investigation Services Partner at Mazars in Dubai, said in the report.

Meanwhile, 72 per cent of respondents acting on IP disputes said the volume of cases had increased in the last year, a trend that had been anticipated in the 2012 survey. Again this was mainly due to the economic environment.

“In tough economic times when

SHUTTERSTOCK

HMRC launches ADR service for East and Central Europe highlighted in global dispute survey tax disputes

Intellectual property was the strongest class of dispute in the survey

competition is strong, the protection of trademarks and trade secrets is of the upmost importance and a trend that respondents and Mazars expect to continue,” said Mark Taylor, Forensic and Investigation Services Partner at Mazars in London, in the report.

The other main categories of dispute on the rise included competition enquiries (68 per cent); regulatory investigations including bribery and corruption (66 per cent); fraud investigations and asset tracing (57 per cent); and acquisition, shareholder and partnership disputes (57 per cent).

Looking ahead, almost half of

respondents said they expected the number of disputes to increase by a third in the next 12 months, with those who work in regulatory investigations and on public sector cases anticipating the most growth.

The region with the most potential for growth in dispute resolution and litigation, according to a majority of 57 per cent of respondents, is Asia Pacific.

Currently its legal markets are valued at $109 billion, 13 per cent of the global total, the report said.

“Overall, the dominant theme is that respondents are looking east for growth, and competition, IP and regulatory disputes are where they expect the most activity.”

The UK government’s tax department has formally launched an ADR service for disputes with small businesses and individuals, following a two-year trial.

The process adopted by HM Revenue and Customs (HMRC) uses independent facilitators to resolve tax disputes during a compliance check. It aims to find a fair and quick outcome for both parties, helping to reduce their costs and avoid a tribunal.

The pilot involved extensive consultation with professional bodies and the voluntary sector.

Richard Summersgill, HMRC Director of Local Compliance, said: “I am delighted that ADR for small businesses and individuals has entered mainstream HMRC business. Taxpayers like its speed and flexibility, and evidence has shown that many disputes can be shortened and resolved without recourse to tribunal.”

ADR is open to all customers nationwide whose tax affairs are handled by HMRC’s Local Compliance SME and Local Compliance Individuals and Public Bodies business units.

The scheme does not guarantee resolution of the dispute but it aims to give taxpayers clarity on outstanding issues and next steps.

ISDA publishes eagerly awaited arbitration guide The International Swaps and Derivatives Association (ISDA) has published its long-awaited arbitration guide following a two-year consultation.

The 2013 ISDA Arbitration Guide provides model clauses for various forms of arbitration for use in derivative transactions as well as an overview of arbitration.

It includes guidance on the use of an arbitration clause with the 1992 and 2002 versions of the 4

ISDA Master Agreement. The guide is supplemental to ISDA User’s Guide and amends Section 13 of the ISDA Master Agreement.

It is the first comprehensive set of ISDA model arbitration provisions and can be used worldwide.

The model clauses provide for a number of different combinations of arbitral rules/institution and seat of arbitration, including the ICC Rules (London, New York or Paris seat), LCIA Rules (London

Trading firms have been consulted

seat), AAA-ICDR Rules (New York seat), HKIAC Rules (Hong Kong seat), SIAC Rules (Singapore seat), Swiss Chambers’ Arbitration

Institution Rules (Zurich or Geneva seat), and PRIME Finance Rules (London, New York or The Hague seat). In each case, the governing law of the Master Agreement will be either English or New York law.

ISDA started its consultation process in January 2011 with a diverse group of market participants, including financial firms, legal practitioners, arbitral institutions and academics.

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35%

The number of survey respondents who believe the 2008 financial crisis has resulted in an increase in disputes.

Source: 2013 International Arbitration survey, Queen Mary University of London and PwC

PA

Two CIArb members have been at the centre of attempts to resolve a dispute over the future of rugby’s Heineken Cup. Independent mediators Graeme Mew FCIArb and Stephen Drymer MCIArb have facilitated talks to save the European rugby tournament.

Top English and French rugby clubs have said they will have no involvement in the Heineken Cup or Amlin Challenge Cup from next season.

However, meetings attended by representatives from the English, Welsh, Irish, Scottish, French and Italian unions ended with progress on a number of issues, according to Mew and Drymer. This is despite top English and French clubs not attending the discussions.

A statement released just before The Resolver went to press said: “The meeting concluded with consensus among those present on competition format and distribution of revenues, and with agreement to meet again very shortly.”

Western Australia boost for domestic arbitration

The American Arbitration Association has issued revisions to its commercial arbitration rules. The changes apply to all cases filed after October 1, 2013.

Some significant changes include: • all cases exceeding $75,000 must be mediated concurrently with the arbitration proceeding, subject to the right of any party unilaterally to opt out; • use of the preliminary hearing to structure the arbitration proceedings; • requiring the tribunal to manage document exchange with a view to achieving an efficient and economical resolution; • granting extensive enforcement powers to the tribunal in conducting the arbitration and document production, and addressing willful non-compliance with any order; • authorising emergency relief for all cases in which the arbitration agreement was entered into on or after October 1, 2013; • authorising the tribunal to restrict a non-paying party from pursuing a claim (but not extending to defending against a claim).

A major overhaul of arbitration law in Western Australia has come into effect. The new Commercial Arbitration Act (CAA) 2012, which applies only to domestic commercial arbitrations, came into force on 7 August 2013.

Its key aim is to make commercial arbitration more attractive for the resolution of domestic and commercial disputes in the region by being fair and final and reducing delay and expense.

According to international law firm Allens, key changes include easier enforcement of awards; easier enforcement of arbitration

SHUTTERSTOCK

AAA revises its commercial arbitration rules

agreements; less scope for appeals so allowing the arbitration process to be final; a provision for confidentiality; giving arbitral tribunals the power to order interim measures; and making it harder to challenge arbitrators.

These reforms bring domestic and international arbitration in Australia substantially in line with one another, according to Allens.

The 2012 CAA applies to all arbitration agreements irrespective of when they were entered into, unless the arbitation actually commenced prior to 7 August 2013.

Energy dispute centre launched in Scotland A new centre specialising in international energy dispute resolution has been launched in Scotland. The International Centre for Energy Arbitration (ICEA) was opened last month by the First Minister of Scotland, Alex Salmond MSP. It is a joint venture between the Scottish Arbitration Centre and Centre for Energy, Petroleum and Mineral Law and Policy at the University of Dundee. The ICEA aims to work with the energy sector to enhance Scotland’s expertise in energy related disputes.

Andrew Mackenzie, Chief Executive of the Scottish Arbitration Centre and Secretary General of the ICEA said it will consult the energy sector and relevant representative bodies to establish trends and requirements for dispute resolution in this area.

Brandon Malone, Chairman of the Scottish Arbitration Centre and Director of the ICEA, said: “When it comes to energy dispute resolution in Scotland, we have a clustering of legal and technical energy expertise not readily found in any other part of the world.”

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NEWS ANALYSIS EXPERT WITNESSES Expert witnesses play a critical part in dispute resolution. However, recent important policy and legal changes have codified their duties but also brought about a significant paradigm shift.

David Blake explains

It is essential to draw a distinction between a witness and an expert witness 6

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Role of expert witness is under the microscope

The responsibility of being an expert witness is evolving following the arrival of the new Civil Procedure Rules (CPR), legal immunity for experts being abolished and the Jackson reforms 2013 which have fundamentally changed the commercial risk profile assumed by an expert.

Expert witnesses continue to play a pivotal role in the resolution of disputes in a wide range of industries such as personal injury, construction, engineering and information technology.

The CPR objective is to enable the court to deal with cases justly, ensuring that the parties are on an equal footing, saving expenses, and ensuring fairness and expeditiousness, for example.

Part 35 Experts and Assessors of the CPR defines an expert witness as, “…a person who has been instructed to give or prepare expert evidence for the purpose of proceedings.”

It is essential to draw a clear distinction between a witness and an expert witness. A witness confines their evidence to matters of fact whereas an expert witness can provide his or her specialist opinion in order to assist the tribunal’s knowledge. There is no detailed requirement which stipulates who may provide testimony as an expert witness.

It is, however, essential that the expert witness shall be especially qualified, by reason of special study, or long specialised practice,

in the subject upon which they are to offer their opinion to the tribunal. This is supported by Lord Justice Lloyd, who stated: “An expert may be qualified by skill and experience, as well as professional qualifications.”

The overriding duty of an expert witness is to the tribunal to whom the expert evidence is given. This duty overrides the contractual duty to the client.

Mr Justice Cresswell established the principles of expert evidence in his judgment of National Justice Compania Naviera SA v Prudential Assurance Co Ltd, a prominent shipping case otherwise known as the ‘Ikarian Reefer’. The principles set out in the above ruling were endorsed by Lord Woolf in his report on the civil justice system in England and Wales and have since been integrated into Part 35 (2) Experts and Assessors of the CPR (see panel, page 6).

It has been a long-established legal principle that an expert witness enjoyed the benefit of immunity from suit not only from claims in defamation but all claims including negligence; this position was most recently confirmed in 2000 in Stanton v Callaghan.

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However, the recent case of Jones v Kaney fundamentally changed this.

This affects an expert witness’ commercial risk profile and their professional indemnity insurance.

The respondent, Kaney, a clinical psychologist was instructed to give expert advice in personal injury proceedings. Kaney was instructed to examine the injured person and to prepare a report for the purpose of litigation.

The report concluded that the injured party was suffering from depression and some of the symptoms of post-traumatic stress disorder (PTSD). Dr El-Assra, an expert witness acting on behalf of the opposition, subsequently prepared a report which intimated the injured party was exaggerating his physical symptoms.

The district judge accordingly ordered the two experts to hold discussions and to prepare a joint statement. The discussions took place over the telephone and Dr El-Assra prepared a draft joint statement, which Kaney signed without amendment or comment.

The joint statement recorded that the injured party was found to be deceptive and deceitful in his reporting. It raised doubts as to whether his subjective reporting was genuine and reduced the severity of the personal injuries incurred, which was found to be damaging to the injured party’s claim.

When Kaney was interrogated by her client solicitor’s on the discrepancy between the joint report she had signed and her earlier assessment she confirmed: • she had not seen the report of the opposing expert at the time of the telephone conference; • the joint statement, as drafted by the opposing expert, did not reflect what she had agreed on in the telephone conversation, but she had felt under some pressure in agreeing to it; • her true view was that the claimant had been evasive rather than deceptive;

• it was her view that the claimant did suffer PTSD which was now resolved; • she was happy for the claimant’s then solicitors to amend the joint statement.

The injured party’s solicitors sought permission to change their expert witness but the district judge would not permit this. The injured party settled his claim for significantly less than the settlement would have been had Kaney not signed the joint statement in the terms that she did.

Counsel for the appellant in Jones v Kaney was careful to limit his case to the question of whether an expert witness was immune from suit in relation to the preparation of a joint statement, but the Supreme Court dealt with the broader issue of whether an expert witness enjoyed immunity from suit in negligence in the performance of their duties.

Jones v Kaney was heard by the Supreme Court, the seven residing judges agreeing by a majority that immunity from suit in negligence so far as it affects expert

witnesses should be abolished.

The immediate outcome of this case is clear: expert witnesses no longer enjoy the benefit of immunity from suit in negligence by those for whom they have acted.

This decision has unsettled a long established law in this field and the overriding view is it will be a considerable time before the law is settled again.

Possible implications of the decision include experts becoming more reluctant to provide opinion; experts possibly refraining from being as frank; experts becoming more expensive as insurance costs are passed on to the client; or experts seeking to exclude or limit their liability.

Meanwhile, the Jackson Reforms 2013 have also had an impact on

expert witnesses. In 2009, the Judiciary appointed Lord Justice Jackson to review the judicial system following a decade of the Woolf reforms, as it was perceived that while CPR had accelerated litigation, time-consuming case management had also increased the cost of litigation. The Jackson Reforms came into force in April and implement the majority of the recommendations from his 2010 Review of Civil Litigation Costs.

The reforms are aimed primarily at personal injury litigation but undoubtedly have an impact on commercial litigation. The most pertinent aspects affecting expert witnesses are the wide-ranging changes to cost management of litigation and the new concept of ‘hot tubbing’.

Cost-management procedures have been implemented for all multi-track cases commenced on or after 1 April 2013, with the exception of the Chancery Division, the Technology and Construction

November 2013 | THERESOLVER

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NEWS ANALYSIS EXPERT WITNESSES Court and the London Mercantile, which will by special arrangement be exempt from automatic costs management where at the first case management conference the sums in dispute exceed £2 million.

Automatic costs management is, however, likely to be applied to these courts in the future.

The purpose of the amendments are to allow the courts to attempt to ensure recoverable costs are proportionate to what is at stake and to specify at the outset what costs a party will be liable for, if unsuccessful in its case. The new regulations set out a detailed process for agreeing a budget for costs with reviews at regular intervals and a mechanism for the court to impose a cost management order. The successful party’s budget, as approved by the court, will act as a cap on the costs that it can claim from the other side unless there is ‘good reason’ to allow departure from the budget.

On 28 January 2013 the Court of Appeal gave a ruling on Sylvia Henry v News Group Newspapers Ltd with regards to cost budgeting under a pilot scheme.

On this occasion it was held that there was good reason to depart from the court-approved costs budget to the amount of around £300,000. However Lord Justice Moore-Bick’s comments on the case should be noted: “The primary function of the budget is to ensure that the costs incurred are not only reasonable but proportionate to what is at stake in the proceedings. If, as is the intention of the rule, budgets are approved by the court and revisited at regular intervals, the receiving party is unlikely to persuade the court that costs incurred in excess of the budget are reasonable and proportionate to what is at stake.”

As a result of this new process, expert witnesses will have to provide an estimate of their costs in advance and exercise strict cost control on their expenditure during a case. Obviously, they are still bound by their primary obligation to the tribunal but may 8

WHAT ARE THE PRINCIPLES OF EXPERT EVIDENCE? • Expert evidence should be an independent product of the expert uninfluenced by the pressures of litigation.

• Experts should assist the court by providing objective, unbiased opinions on matters within their expertise, and should not assume the role of an advocate.

• Experts should consider all material facts including those which might detract from their opinions.

• Experts should make it clear when a question or issue falls outside their expertise; and they are not able to reach a definite opinion, for example because they have insufficient information.

• If, after producing a report, an expert’s view changes on any material matter, such a change of view should be communicated to all parties without delay, and when appropriate to the court.

now be at an additional commercial risk if they exceed their estimate without good cause while still needing to act. For example, if an expert estimates their report will take 100 hours but it actually takes 150 hours, clearly they are at risk for the additional 50 hours.

This new risk underlines the need for experts to fully understand what issues they are required to opine upon and what evidence is available to them to analyse, so an accurate cost estimate can be provided.

Lord Justice Jackson also identified concerns regarding the length of experts’ reports and associated costs of expert evidence in civil litigation in his Review of Civil Litigation Costs.

Although he accepted that there wasn’t a solution suitable for all types of cases he did make reference to the practice of concurrent evidence otherwise known as ‘hot tubbing’, which has enjoyed success in arbitration in the Australian Courts.

Lord Justice Jackson explained: “At trial, experts in the same discipline are sworn in at the same time and the judge chairs a discussion between the experts.

The pre-trial document recording the matters upon which the experts disagree serves as the agenda… Counsel join in the discussion. They can put questions to the experts, as and when permitted by the judge. In addition, the experts can put questions to each other.”

Lord Justice Jackson suggested that the hot-tubbing approach

should be piloted in court cases, with the experts’, parties’ and judge’s agreement. At present the pilot scheme has been introduced to courts in Manchester and Bristol, as well as the Technology and Construction Court in London and Mercantile Court.

The broad objective of the pilot is to test whether it is more costefficient to both the parties and the courts for all experts to give evidence concurrently rather than sequentially; to provide evidence about the type of case for which it is suitable; whether the process should be rolled out more generally and, if so, whether any changes should be made to the process before it is rolled out.

The start of April 2013 saw the much-heralded addition of a new paragraph 11 to Practice Direction 35 to the CPR. It enables the court to order, at any stage in the proceedings, that some or all of the experts should give their evidence concurrently (hot tubbing).

My own experience is that the process does work as it provides a razor-sharp focus of the main contentious issues that may exist between two experts’ opinion for the tribunal to consider.

• CIArb is holding a workshop, led by David Blake, on being an expert witness on November 19.

→ www.ciarb.org/education-andtraining/course-finder David Blake FCIArb, Dip.Arb, FRICS, is Chairman and co-founder of Blake Newport Associates Ltd, commercial and contract management consultants, and is head of its Dispute Resolution and Expert Witness services.

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LAW

An overview of recent key court cases

ROUND-UP INJUNCTIONS RESTRAINING FOREIGN COURT PROCEEDINGS WHERE NO ARBITRATION IS INITIATED

THE CASE ○ ARBITRATION

Ust-Kamenogorsk Hydropower Plant JSC v AES UstKamenogorsk Hydropower Plant LLP [2013] UKSC 35

HYDROPOWER PLANT LLP (HPLLP) WAS THE GRANTEE AND lessee of a 25-year concession granted by Hydropower Plant JSC (HPJSC), entitling it to operate an energy producing hydroelectric plant in Kazakhstan. The concession, governed by Kazakh law, contained an ICC arbitration agreement, governed by English law, with a London seat.

In 2004, the Republic of Kazakhstan (the concession’s original owner and grantor) brought proceedings in the Kazakh Supreme Court against HPLLP’s predecessors in title and obtained a ruling that the arbitration agreement was contrary to public policy and therefore invalid. In 2009, HPJSC brought proceedings against HPLLP in Kazakhstan alleging that it had failed to supply information concerning concession assets pursuant to a request duly made under the concession agreement. HPLLP applied to the Kazakh court for a stay of proceedings. HPLLP’s application to stay these proceedings under the arbitration agreement was dismissed on the basis that it had been annulled by the Supreme Court’s ruling. As a result, HPLLP issued proceedings before the English Court claiming declarations that the arbitration agreement was valid and enforceable and a without notice interim anti-suit injunction restraining HPJSC from pursuing proceedings before the Kazakh court.

Burton J granted HPLLP such a declaration together with the injunction.

HPJSC appealed against Burton J’s order. The appeal was dismissed. Burton J and the Court of Appeal held that they were not bound by the Kazakh court’s conclusions in relation to an arbitration agreement subject to English law.

HPJSC sought to challenge the Court of Appeal’s judgment. The issue was whether the English court had power to declare that the claim could only

properly be brought in arbitration or to injunct the continuation or commencement of proceedings brought in any other forum outside the Brussels/Lugano space. The unusual feature was that HPLLP had not commenced, and had no intention or wished to commence, any arbitration proceedings. Its contention was simply that HPJSC should not pursue or be free to pursue court proceedings against it.

therefore, that Burton J had jurisdiction to grant the injunction.

The appeal was dismissed.

○ THE JUDGMENT

The full judgment is available at:

Lord Mance decided that where an injunction is sought to restrain foreign proceedings in breach of an arbitration agreement, the courts have power to grant such an injunction in accordance with section 37 of the Senior Courts Act 1981, regardless of whether or not arbitral proceedings are on foot or proposed. The Supreme Court held,

○ WHAT IT MEANS

This case provides guidance as to the court’s power to grant anti-suit injunctions to restrain the continuation or commencement of foreign (non-EU) court proceedings in cases where no arbitration is proposed. → www.bailii.org/cases/UKSC/ 2013/35.html

The unusual issue was that HPLLP had not commenced any arbitration proceedings

THE CHALLENGE OF ADJUDICATORS’ DECISIONS: LIMITATION PERIODS APPLICABLE TO CLAIMS AND COUNTERCLAIMS

THE CASE ○ ADJUDICATION

Aspect Contracts (Asbestos) Ltd v Higgins Construction Plc [2013] EWHC 1322 (TCC)

A DISPUTE BETWEEN ASPECT (ASP) AND HIGGINS (HIG) concerned the scope of a 2004 asbestos survey carried out by ASP. In 2009, HIG served its notice of adjudication on ASP and sought £822,482.67 for breach of contract. HIG submitted that ASP failed to identify the presence of additional asbestos containing material (ACM).

The adjudicator found that there were breaches of contract on the part of ASP and awarded HIG £658,017 for damages, including interest. In 2012 (seven years after the alleged discovery of ACM), ASP issued court proceedings in the TCC seeking a negative declaration that it was not liable to pay damages and/or interest to HIG in the amount decided by the adjudicator or at all. It also sought repayment, or alternatively, restitution of the sum paid. HIG pleaded a limitation defence, denied any entitlement to restitution and counterclaimed for the difference between the sum claimed as damages in the adjudication and the lower sum decided on by the adjudicator. ASP further argued that HIG’s counterclaim was statutory barred. The court was asked to determine whether there was an implied term that the unsuccessful party in adjudication proceedings was entitled to have the dispute determined by litigation and to repayment, if successful (as well as the limitation period applicable thereto). The court was also asked to make a ruling as to the limitation period for a claim in restitution, and the limitation period applicable to the counterclaim. The point at issue was whether ASP’s cause or right of action to recover money paid out pursuant to the adjudicator’s decision ran from the date of payment, and

therefore, whether the six-year limitation period ran from that moment, or from the date when the contract was performed. ○ THE JUDGMENT

The court held that the cause of action for a negative declaration was in contract and tort and the applicable limitation period was six years from the latest date when the contract was performed (some nine years before), because there could be no breach after performance. It also held that there was no separate cause of action in restitution.

Akenhead J decided that there was no implied term (as pleaded) and that ASP’s claim involving a negative declaration that it was not in breach of contract, and HIG’s counterclaim for the balance of its loss, were therefore barred. Claim

and counterclaim were dismissed. ○ WHAT IT MEANS

This focuses on the limitation periods applicable to the claims and counterclaims that pertain to the challenge of an adjudicator’s decision.

The full judgment is available at:

→ www.bailii.org/ew/cases/EWHC/ TCC/2013/1322.html Both reports by Julio César Betancourt MCIArb, Head of Research and Academic Affairs and Velia Soames Solicitor, Director of Legal Services at CIArb.

,

The court held there was no separate cause of action in restitution

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PARTNERSHIP DISPUTES ARBITRATION

United we stand, divided we fall?

The current economic climate has put undue pressure on partnerships causing all kinds of disputes to arise. What role has arbitration to play?

By Dr Michael Reynolds Illustration: Giles Mead CAN WE HELP? Do you have a dispute?

Contact Waj Khan at CIArb’s Dispute Appointment Service.

Email wkhan@ciarb.org

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PARTNERSHIP DISPUTES CAN BE THE most trying of all types of arbitration matters contested. Like family disputes they involve personalities and money, but more importantly, perhaps, livelihoods and careers.

In domestic matters, the range of disputes depends on the nature of the business.

Arbitrators can find themselves dealing with disputes as to partnership property, breaches of fiduciary duty, claims over profit share, goodwill, as well as claims arising out of a partner’s negligence.

Disputes which arise in partnerships may be protracted and complex. The first stage in resolving any dispute should be by negotiation. The firm may have its own particular process for dealing with matters informally and internally in order to see whether the matter can be reconciled without recourse to a more formal process involving outside third parties.

In our book Partnership Disputes (Nova Law and Finance, 2013), my co-author James Davies and I suggest a form of internal process that may save both money and time.

Alternatively, the next best option would be for the partners to appoint a mediator who understands the nature of the business and is capable of facilitating a reasonable solution acceptable to the partnership.

Regrettably, however, many cases cannot be resolved by mediation or negotiation because relationships have irretrievably broken down and it is very difficult to mend them. Where the dispute involves competing interests, reconciliation and settlement may be achieved through negotiation or mediation. However, where it involves complex legal issues and, in particular, legal rights, such as title to property, ownership of assets and breaches of fiduciary

duty, arbitration is more appropriate. This is because the more complex disputes require evidence to be adduced, claims to be proved and an award to be given in a judicial manner.

In addition, arbitration, as a private process does not expose businesses to risk-averse publicity, unlike litigation.

It is also arguable that such matters, in many cases, are far too important to the partners to be determined without recourse to law and consequently arbitration may provide an appropriate recourse to justice.

In many cases there is no cheap, quick fix and one-size-fits-all solution but with an experienced arbitrator the process may be cheaper and speedier than litigating, depending on the arbitrator’s availability.

Despite political commentators’ optimistic predictions for an economic recovery, history suggests that such severe contractions in the economy as recently experienced take time to rebalance. Small businesses usually bear the brunt and many are partnerships. One example is the contraction of many smaller

In addition, arbitration, as a private process, does not expose businesses to risk-averse publicity, unlike litigation

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PARTNERSHIP DISPUTES ARBITRATION law firms and the enormous financial pressures on those that had legal aid funding. Whether it is those types of businesses or others they may be reluctant to go to arbitration considering mediation as a matter of practicality. Alternatively, they may be forced to resile from their rights and take no action simply because they cannot afford it.

Given these contradictory considerations why then should partnership disputes be arbitrated? Such disputes should be arbitrated in cases where a judicial process is required without attendant publicity. Matters relating to partnership business are primarily confidential to the partners running the business. They neither want the world, nor their competitors, to know their business.

Arbitration is one way of keeping the dispute which could damage the reputation of the business out of public view.

The essential ingredient in any partnership is that the partners act in concert for the benefit of the firm, exercising complete trust in one another. Professional practices were established on that basis and hence the partners of a firm owe fiduciary duties to one another without which no partnership could survive. Put simply, it really is a case of all for one and one for all in partnerships. If that is not the case then disputes are more likely to occur.

The likelihood of such disputes has increased not only because of the collapse in confidence in the economy in 2008, but because over the past two decades professional organisations, no doubt encouraged by optimistic, but misguided economists, and the so called Big Bang, radicalised professional practices with younger and inexperienced partners facilitated by easy credit.

At the same time, under the mirage of so called globalisation, English practices, whose strength and credibility rested on their traditional ethics, threw such tradition to the winds embracing globalisation and rapid expansion. In the short term this resulted in more work, but it is already imploding causing many firms to cut back and increasing the enormous pressures on all partners in many fields. It is here that one foresees “substantial headwinds” or “choppy waters” as Sir Mervyn King, the former Governor of the Bank of England, suggested.

In that context, the possibility of difficulties and disputes is high.

So in this austerity climate we must ask what kinds of disputes are arising, and what are the issues for arbitrators to consider?

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There was a possibility of conflict existing between a partner’s duty to the partnership and his personal interest 1. Conflict issues In these uncertain times one can sense that the chances for conflicts between the interests of the partners are much greater. As an example, a partner in a professional firm may be unduly tempted to appropriate the business of the firm for his or her personal gain at the expense of their partners. Obviously, this type of conduct fundamentally undermines the whole ethos of a partnership and may amount to a breach of the partner’s statutory obligations imposed by sections 28-30 of the Partnership Act 1890. Such instances may be higher today than they were a decade or so ago due to the fierce competitiveness in a depressed market.

The obligations extend so that partners must avoid conflicts of duty between the partnership and their personal interests; to account to the firm for any benefit derived from the partnership or from any transaction or use of the property of the partnership, its name or business connection.

Interesting cases may arise, such as occurred in Don King Productions Inc v Warren, concerning the obligation to account for profits. Here, there was a significant possibility of conflict existing between a partner’s duty to the partnership and his personal interest.

In this case the question was as to whether a partner entering into a transaction for his own benefit had effected that transaction by reason of his fiduciary position in the partnership or by reason of any opportunity or knowledge resulting from it.

When the defendant, Warren, purported to transfer the benefit in certain boxers’ contracts to King it was argued that these were personal and not partnership property. The Court of Appeal disagreed holding that these contracts were not assignable as personalty. Thus, it was held that where a partner entered into several contracts, renewal of some contracts would inure for the benefit of the firm, not for the

partner’s benefit prior to dissolution of the firm. While this matter was litigated it is of a type that can be arbitrated.

2. Property issues Arbitrators dealing with this type of dispute would find it speculative to pronounce upon the nature of a particular partner’s interest without the fullest examination of the facts and the context. This is made more important by the provisions of the Partnership Act itself and whether or not the property, whether real or personal is, in the words of the Act: “Property and rights and interests in property originally brought into the partnership stock or acquired, whether by purchase or otherwise, on account of the firm, or for the purposes and in the course of the partnership business… and [are] held and applied by the partners exclusively for the purposes of the partnership and in accordance with the partnership agreement.”

This is all a matter of evidence and identification that can only be adduced through careful analysis of the evidence before the arbitrator.

Thus, in order to avoid litigation or dispute it is important, from a practical point of view, that the partnership agreement identifies whether the premises are partnership property owned by the partners in their respective contributions, or whether the premises are simply for the use of the business partner who has a licence to practice there.

Lawyers appreciate that it is vital that land transferred to the partnership is vested in at least two partners and no more than four partners. The partnership agreement must declare that the property will constitute partnership property. If this is not spelled out it will lead to arguments on interpretation.

The ownership of land does not mean that the land is a partnership asset even if the profits are shared by co-owners as profits.

This may lead to disputes when the property has been used by the firm for some time and it has been taken for granted that it is partnership property. Businesses will invest in renewal and maintenance, they may expand the workplaces, but caution is required here as it may not be partnership property.

For example, in Davis v Davis it was held that improvements made to business property (expanded workshops) were outside the scope of the partnership ie, not an asset. This is unfortunate because many think that land which has been considered to have been brought into a partnership by reason of the nature of the business is a partnership asset.

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In Waterer v Waterer, two people were partners in business as nursery gardeners. Lord Justice James, in giving judgment, held that the land used in the trade was part of the partnership property, and therefore personal estate. The house and land not used for the partnership business, but let to tenants, remained real estate. So although a partnership may exist the property may not be partnership property.

Thus, the arbitrator like the judges in these seminal cases will have to consider those two aspects as to partnership existence and title to property. Thus, a knowledge of law in these areas is a prerequisite.

The arbitrator dealing with partnership property cases will therefore be required to consider the usage of the asset by the business and whether that constitutes a partnership asset. This will require detailed scrutiny of the nature of the business, the particular usage of the asset in question, and how title to it arises. If the asset was purchased with partnership funds then there will be a presumption in favour of the partnership, which may make the arbitrator’s task slightly easier, but the complexity of some of these cases cannot be underestimated.

3. Profit share The quintessential commercial objective of a business partnership is to make a profit. The current problem in this economic cycle is that too many firms make no profit or run at a loss.

This can be true of many small firms today especially those servicing, for example, the construction industry where profit margins have been cut to the bone to secure new work. In these situations the probability of tension and disputes arising is obviously greater. Such disputes involve arguments as to who bears the loss and who takes the profit and in what proportions.

Such matters may be resolved in arbitration where the arbitrator will decide who is entitled or who is liable to the profit or loss. With the

Government policy has been tending to shift civil justice to the private sector without overt encouragement to arbitration benefit of profit comes the burden of loss so that the rule of law requires that such a recipient who shares the profits of a business is also liable for its debts and obligations, as De Grey, CJ said in Grace v Smith: “Every man who has a share of the profits of a trade, ought also to bear his share of the loss.�

However, this rule effectuates only where, according to Cox v Hickman, the sharing of profits of the business does not result in those sharing the profit assuming the liability unless they personally carried on the business, or it is carried on by others as their real or ostensible

agents. A person who therefore does not hold himself out as a partner is not liable to third parties for the acts of persons whose profits he shares unless he and they are really partners inter se, or unless they are his agents. That rule applying, one can well foresee the probability of many more matters being referred to arbitration in cases where policies may result in changes to the justice system.

In overall terms, government policy has been tending to shift civil justice to the private sector without overt encouragement to arbitration. There are increasing signals from the UK Ministry of Justice and the European Commission as to the need to look at alternatives to court procedures driven by the economic decline, but also by an increasingly sceptical general public.

While mediation has undoubted benefits to those who can resolve matters of competing interests, arbitration has the advantage of being able to resolve conflicts as to rights.

The fact is that arbitration has an excellent framework, as designed by Lord Saville and his team, that has stood the test of time so providing excellent opportunities for appropriately qualified arbitrators in this area.

If one considers the popularity of construction adjudication and the outstanding contribution of international and maritime arbitration in London one can suggest possibly that arbitration might well become a preferred choice of dispute resolution process for partnership disputes for the reasons given.

Dr Michael Reynolds FCIArb is a Solicitor, practising Chartered Arbitrator and Programme Associate at the Socio-Legal Centre, University of Oxford. He was formerly a member of the Editorial Board of Arbitration and has authored books on expert witnesses, construction litigation and arbitration. He has written numerous articles in professional and academic journals on comparative legal systems and dispute resolution.

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HOW TO…

…get noticed

By Lawrence Wiseman Illustration: Cameron Law “Know the regulator, an international competitor and recent industry events”

Y

YOU ARE A PROFESSIONAL IN A world of fluid careers. You may be a contractor, business owner, trustee or employee, but you need to reassess your next career move constantly. It is your personal network that can drive professional growth. Getting noticed is a key part of that, a chance to convince contacts you are someone worth getting to know. It relies on identifying common ground, showcasing personality and building rapport; these skills open new opportunities. In a five-minute conversation, a few well-asked questions are far more impressive than trying to bombard your contact with an oral CV.

1 ⁄

Show up

MORE INFO Looking for an opportunity to network?

Attend one of CIArb’s flagship events.

Further information is available on the CIArb website or from our events team Email events@ciarb.org

Lawrence Wiseman FCIArb is a Senior Associate – Forensic Service at PwC

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Nothing is so impressive as showing up in person, whether at a CIArb seminar, internal ‘lunchand-learn’, or formal networking event. The power of putting a name to a face, and the opportunity to make an impression on a contact, is unparalleled.

Get onto mailing lists, ask for invitations and let people know that you are interested in events.

A recent opportunity came from a discussion with a colleague from a ‘rival’ firm. He mentioned an event he’d attended and I asked to be put in touch with the organisers.

A week later, I was invited to a fantastic industry event. Never be afraid to ask.

2 ⁄

Know the language

If you’re going to network, you should understand the industry’s language. Research in advance, where possible.

Knowing the regulator, an international competitor and recent industry events can give you three talking points upon which to build an engaging conversation.

More generally, read about areas that interest you. This means a little weekly bedtime reading but makes all the difference. Trade publications and websites give you a real flavour for industry trends, and enable you to speak as a knowledgeable observer.

3 ⁄

Engage as an equal

Communicate as an adult who values their own knowledge, without being arrogant or awe-struck around senior contacts. Contacts are excited by someone who has interesting ideas but who knows their limits.

Recently, I met a friendly contact who was in my industry. We discussed a recent regulatory investigation. He had interesting ideas though I vocally disagreed with some of his views. Later, I found out he held one of his firm’s most senior roles. Had I known this initially, I would have been intimidated and unlikely to have had such an interesting two-way discussion. The next day, he

connected me with an interesting opportunity – something which only happened because I approached him as a confident, but not arrogant, colleague.

4 ⁄

Be the outsider

Expert contacts know their business inside and out and don’t always want to hear the same set of questions. Use your unique knowledge to ask new questions; show that you think creatively. Your questions can pique interest, generate fascinating conversations and build a dialogue.

At a brunch, I was sitting with a telecoms manager (far from my industry). He described changes in network provisioning and I asked if anyone was treating provisioning as a tradable commodity, and creating futures markets. This launched into a long discussion on the commoditisation of networks.

It was a question nobody in his business would ask, but one which was natural to me with experience with active trading desks.

5 ⁄

The big question

Above all, be friendly, relaxed and engaging. My acid test is always “if I had to work with this person on a project for three weeks in a hotel, would I enjoy it?” If, after meeting you, the answer is yes, then you are well on your way to a great networking contact.

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CIArb NEWS BRANCH ROUND-UP EAST ASIA

First international mock arbitration The East Asia Branch (EAB) supported this year’s Regional Arbitral Institutes Forum (RAIF) held in Cebu, Philippines, by co-producing the event’s day-long mock arbitration with the Philippine Institute of Arbitrators.

The mock arbitration, based on the ICC rules of arbitration, took place on 21 June at the University of San Jose Recoletos.

It provided a unique opportunity for participants to witness how proceedings in international commercial arbitrations are conducted in practice.

The event marked the first time an international mock arbitration has been conducted in the country. It has led to the Office for Alternative Dispute Resolution of the Department of Justice of the Republic of the Philippines requesting a repeat performance when the country celebrates its ADR Week during 16-19 December 2013.

Earlier, on 7 June, following

SCOTLAND, UK

Dubai insights William Frain-Bell FCIArb, an advocate with Terra Firma in Scotland, gave a fascinating and thought-provoking lecture on arbitration in Dubai to the Northern Scotland Chapter in June.

William, who is also a barrister, has appeared as counsel in leading Dubai World Tribunal cases. He outlined the “South Sea Bubble” of Dubai real estate development describing how dispute resolution using local courts was not seen as acceptable by international parties. This led to the setting up of the Dubai World Tribunal, he said.

Counsel representing disputing parties came from

The University of San Jose Recoletos in Cebu hosted a mock arbitration

EAB’s Young Members’ Group (YMG) Annual General Meeting, YMG members had the honour of attending an evening talk

by Professor Anselmo Reyes FCIArb, on the subject of: “What assistance will a tribunal be seeking from counsel, experts and factual witnesses in an arbitration?”

An ex-judge of the Court of First Instance, Professor Reyes is a commercial arbitrator, advocate in arbitrations, mediator, professor of legal practice and author.

In August, Rajiv Dutta ACIArb, Senior Advocate and a wellknown figure in the Indian legal community, gave EAB a talk

around the world with different cultural perspectives on court procedure, attendees heard.

held its ninth Annual Joint Seminar with the London Court of International Arbitration entitled, “Arbitration in Central & Eastern Europe” and hosted

by Clifford Chance.

The speakers, introduced

by Hew Dundas FCIArb, a past President of CIArb and former Branch Chairman, were (in alphabetical order of country): Dr Florian Kremslehner (Austria); Professor Dr Iur Alexander Bĕlohlávek (Czech Republic); Bartosz Krużewski (Poland); Dr Crenguta Leaua (Romania); and last, but not least, the former Secretary of UNCITRAL, Dr Jernej Sekolec (Slovenia).

The presentation provoked a lively debate. The reception was also kindly provided by Clifford Chance.

LONDON, UK

Mediation 2013 On 3 July, the branch held its Annual Mediation Seminar, kindly hosted again by Clyde & Co Solicitors. The theme was: “Mediation 2013: How is it done?

The conduct of a mediation today”. It was delivered by Jane Andrewartha, Arabella Ramage and David Richbell FCIArb. The talk was chaired by Margaret Bickford-Smith QC MCIArb and encouraged a lively debate from a well-attended audience which continued during the reception held afterward.

On 18 September, the branch

entitled: “The Growing Importance of India as a World Economic Power and Myths Surrounding Arbitration Practice in India”.

In June, the Taiwan Chapter organised a mediation course in Taipei at the Center for Public and Business Administration Education, National Chengchi University. More than 30 people attended, including university law professors, lawyers, and business people. Colin Wall FCIArb and Mary Thomson FCIArb were the assessors of the course.

Also in June, Glenn Haley FCIArb gave his last lecture of the “Nuts and Bolts” series, titled: “Costs, Offers to Settle and Payments-in”, at the Hong Kong International Arbitration Centre.

The lecture was transmitted in real time to the Philippines and Taiwan Chapters via Webex, and it was sponsored

by Merrill Corporation.

ZAMBIA

ADR workshops Zambia Branch has conducted two sensitisation workshops on ADR for the business community.

The first workshop was held in Lusaka, Zambia’s capital city, on 31 July, and the second was held in the Copperbelt city of Kitwe on 29 August.

The focus of both workshops was to raise awareness among the business community on the various advantages of ADR and encourage them to settle commercial disputes through arbitration. The keynote speech was presented by our former Chief Justice, Mr Justice Mathew Ngulube MCIArb. • For longer versions of branch news → www.ciarb.org/branch-news November 2013 | THERESOLVER

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CIArb NEWS INTERNATIONAL ARBITRATION CONFERENCE

Pearls of wisdom from Georgetown Renowned Malaysian heritage site hosts the CIArb International Arbitration Conference 2013 The ancient port of Georgetown on the island of Penang in Malaysia (which is also known as the ‘Pearl of the Orient’), is a UNESCO World Heritage Site.

From 22-24 August it played host to the CIArb International Arbitration Conference 2013.

More than 300 delegates from more than 25 countries enjoyed a stimulating and informative programme at the conference.

They were also entertained by a packed calendar of social events.

The ‘East meets West’ nature of the Conference was emphasised by the large number of foreign delegates, including a number of barristers.

Former President of CIArb, Professor Doug Jones AO FCIArb C.Arb, speaking on behalf of the delegates at the closing gala dinner, described it as “the best conference in CIArb’s history.”

It was held in Malaysia to coincide with the presidency of Vinayak Pradhan FCIArb C.Arb, the first Malaysian to hold the post (pictured, above right).

The conference, themed ‘Tapping Asia’s Growth’, was privileged to be addressed by the Chief Justices of two countries, Malaysia and Singapore.

Also attending were CIArb Malaysian Branch Chair David Cheah FCIArb C.Arb; Organising Committee Chairman Ashok Kumar Mahadev Ranai FCIArb; the Director of the Kuala Lumpur Regional Centre for Arbitration, Professor Datuk Sundra Rajoo FCIArb C.Arb; CIArb Deputy President Michael Stephens FCIArb; Chairman of the Board of Trustees John Wright FCIArb and the Director General, Anthony Abrahams MCIArb. The Chief Justice of Malaysia, the Right Honourable Tun Arifin Zakaria, gave the opening address 16

Farewell toast: CIArb President Vinayak Pradhan at the gala dinner

Cultural night at the Khoo Kongsi

and outlined developments in the supportive approach of the Malaysian judiciary to arbitration.

The keynote address by the Honourable Chief Justice of Singapore, Sundaresh Menon, entitled, “Some Cautionary Notes for an Age of Opportunity” drew on his experience in international arbitration. He told delegates: “How successfully this Titanic continues to sail ahead will depend on the diligence of its stewards in spotting and reacting to the approaching icebergs.”

The Chief Justice identified three such icebergs, namely the dramatic growth of new entrants to arbitration; the increasing use of third-party

and interactive sessions, special mention should be made of “Inside Judge’s Minds: An Insight into the Judicial Approach towards Enforcement and Challenges against International Arbitral Awards”.

The session, chaired by retired Malaysian Court of Appeal judge Tan Sri VC George, saw four sitting superior court judges from different jurisdictions give their perspectives on the topic. The Judiciary plays a vital role in facilitating and concluding the process of an effective arbitration and it was helpful to know how judges think.

The social programme kicked off with a reception evening on the lawn of the historic Eastern & Oriental Hotel. On the second night, the speakers visited the Blue Mansion, the home a century or so ago to rags-to-riches Chinese immigrant Cheong Fatt Tze. A cultural dinner was also held at the Khoo Kongsi, a 19th century clan temple which also houses a small museum.

The conference ended on a high note with a gala dinner at the Eastern & Oriental’s grand ballroom. Organising Committee Chairman Ashok Kumar thanked the delegates for making the conference an unqualified success.

funding in international commercial arbitration; and the rising costs of international commercial arbitration.

The President spoke on the growth of arbitration in Asia and related issues. In his speech, he expressed his belief that: “Litigants’ interests are often best served by both local and foreign lawyers working cohesively on a case.”

After speeches were concluded, the conference was formally opened by the Chief Justice of Malaysia in a ceremony which saw the Chief Justice and the President jointly beating a large drum in a brief but spirited rhythmic display (pictured below).

Of the many thought-provoking

Spirited display: Vinayak Pradhan and the Rt Hon Tun Arifin Zakaria

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CIArb NEWS 6TH MEDIATION SYMPOSIUM Ar Around 100 delegates attended the CIArb 6th Mediation Symposium on 31 October in London M to consider the proposition: ‘Mediators: fit for purpose’. The two keynote speakers were Peter p J Rees R QC FCIArb, Legal Director of Royal Dutch Shell and Sir Bernard Rix FCIArb, retired Lord S Justice of Appeal.

Ju Delegates were invited to attend a variety of workshops during the course of the afternoon w with the final address given by Kathy Bryan, w CEO of the CPR Institute. A key part of the C ssuccess of the symposium was the support and ssponsorship from Linklaters. CIArb is grateful tto them for their hospitality.

Kathy Bryan, CEO, CPR Institute

Anthony Abrahams MCIArb, Director General of CIArb, Peter J Rees QC and Sir Bernard Rix, retired Lord Justice of Appeal

Sir Bernard Rix

Peter J Rees QC, Legal Director, Royal Dutch Shell

Tony Marks FCIArb, Wolf von Kumberg FCIArb, Katie Bradford FCIArb, Debbie De Girolamo, Elizabeth Birch FCIArb, Tim Hardy FCIArb

November 2013 | THERESOLVER

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WHAT’S ON

ONLINE

Further information on all professional training courses can be found at: → www.ciarb.org/course-finder Education Team • T + 44 (0)20 7421 7439 • F + 44 (0)20 7404 4023 • E education@ciarb.org

TRAINING COURSE

DATE

LOCATION

CPD POINTS

TOTAL FEE (incl. VAT)

25 November 2013

UK

5

£420

ALTERNATIVE DISPUTE RESOLUTION Introduction to ADR Introduction to ADR

18 March 2014

UK

5

£480

Introduction to ADR

13 May 2014

UK

5

£480

MEDIATION Introduction to Mediation

12 February 2014

UK

5

£480

Module 1 Mediation

10–14 March 2014

UK

30

£2,400

Module 2 Mediation

17 March 2014

UK

6

£1,560

Module 4 Mediation

Open entry

UK

0

£660

CONSTRUCTION ADJUDICATION Introduction to Construction Adjudication

5 March 2014

UK

5

£480

Module 1 Law of Obligations and Civil Evidence

3 March 2014

UK

25

£1,320

Module 2 Construction Adjudication

10 March 2014

UK

18

£1,320

Accelerated Route to Membership

18–19 June 2014

UK

6

£1,320

Accelerated Route to Fellowship

9 –10 April 2014

UK

15.5

£1,860

Introduction to Domestic Arbitration

3 April 2014

UK

5

£480

Module 1 Law of Obligations and Civil Evidence

3 March 2014

UK

25

£1,320

Module 4 Domestic Arbitration

31 March 2014

UK

12

£1,320

DOMESTIC ARBITRATION

Accelerated Route to Membership

28–29 November 2013

UK

6

£1,320

Accelerated Route to Membership

24–25 February 2014

UK

6

£1,320

Accelerated Route to Fellowship

18–19 November 2013

UK

15.5

£1,860

Accelerated Route to Fellowship

26–27 March 2014

UK

15.5

£1,860

Introduction to International Arbitration

25 March 2014

UK

5

£480

Introduction to International Arbitration

26 June 2014

UK

5

£480

Module 1 Law of Obligations and Civil Evidence

3 March 2014

UK

25

£1,320

Module 2 International Arbitration

10 March 2014

UK

18

£1,320

Module 3 International Arbitration

10 March 2014

UK

17.5

£1,860

Module 4 International Arbitration

31 March 2014

UK

12

£1,320

Accelerated Route to Membership

28–29 November 2013

UK

6

£1,320

Accelerated Route to Membership

24–25 February 2014

UK

6

£1,320

Accelerated Route to Fellowship

18–19 November 2013

UK

15.5

£1,860

Accelerated Route to Fellowship

26–27 March 2014

UK

15.5

£1,860

Basic, Better, Best – The Expert Witness

19 November 2013

UK

5

£240

Conflict Avoidance – How to Avoid Disputes (see also ‘featured course’)

21 November 2013

UK

5

£300

INTERNATIONAL ARBITRATION

CAREER DEVELOPMENT COURSES

CIArb FLAGSHIP EVENTS

Alexander Lecture 21 November 2013 Fee: free More details can be found at: → www.ciarb.org/conferences/ alexander-lecture-2013

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FEATURED COURSE Conflict Avoidance – How to Avoid Disputes 21 November 2013 This course is aimed at candidates who would like to: • understand the principles of conflict and collaboration • help maintain better relationships with clients and colleagues

• recognise and respond to typical conflict behaviour • create effective dialogue that leads to collaboration.

The training not only gives candidates the right skills, but will enable them to capture the energy and dynamism that different personalities and approaches bring, as opposed to clashes and conflicts that often cost time, productivity and money.

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Victor P. Leginsky, Chartered Arbitrator Accepting appointments as Chairman, sole arbitrator or co-arbitrator.

Construction, energy & general contractual.

Email: vleginsky@arbitralis.com TEL:

M I D D L E

E A S T

|

L O N D O N

|

+971 50 4573770

P A R I S

|

S I N G A P O R E

The Dispute Appointment Service (DAS) Convention is proudly sponsored by:

Event: The Dispute Appointment Service (DAS) Convention Date: 15 November 2013 Venue: Radisson Blu Edwardian, London

Arbitration / Adjudication / Mediation / International Arbitration / Expert Determination Chartered Institute of Arbitrators, 12 Bloomsbury Square, London, WC1A 2LP, UK T: +44 (0)20 7421 7444 F: +44 (0)20 7900 2899 E: wkhan@ciarb.org W: www.ciarb.org/das

@CIARBDAS

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CIArb-Dispute Appointment Service (DAS)

05/11/2013 12:54

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