Current issues in arbitration were thoroughly aired at a London Shipping Law Centre seminar on March 25th, held under the patronage of Reed Smith. There were four speakers on the panel, which was chaired by the Hon Mr Justice Hamblen.
The nature and structure of tiered dispute resolution clauses were the subject of a presentation by Alexander Sandiforth, a senior associate with Reed Smith, who hosted proceedings.
Tiered dispute resolution “obliges” the parties to engage in a form of ADR process, usually by mediation, negotiation and/or by taking expert advice prior to the commencement of formal proceedings. Whilst it is axiomatic that the parties should aim for an amicable resolution if possible, difficulties may arise in the enforcement of such agreements in the absence of certainty of wording, with a well-defined process to take place within a set time-table.
Mr Sandiforth traced the recent development of dispute procedures through such reported cases as Walford v Miles, Cable & Wireless v IBM UK, Petromec v Petroleo Brasileiro, Emirates Trading v Prime Mineral Exports, and others.
In the absence of any established doctrine of “good faith” in English law, successive judges have stressed the public interest in giving effect to dispute resolution clauses within the frame-work of a clear resolution procedure, recognising “a well developed process of dispute resolution, involving sophisticated mediation techniques”.
Karen Maxwell of Stone Chambers considered recent challenges to arbitral awards under sections 67 & 68 of the Arbitration Act 1996, against the background of a policy of judicial non-intervention.
A challenge under s. 67 as to a tribunal’s jurisdiction will involve a complete rehearing, with scope for further evidence to be adduced. Section 68 challenges, intended to be limited to “exceptional” cases, are concerned with procedural lapses rather than the correctness of an award. The courts have no free-standing jurisdiction to control arbitral procedure. Although s. 68 is concerned with the fairness of the process, the ultimate question is one of substantial justice.
Clare Ambrose of 20 Essex Street dealt with, inter alia, the recovery of costs of in-house non-lawyers and legally qualified staff, and the costs of lawyers employed by a party’s P & I Club.
She concluded that, as established by such cases as Tate & Lyle v GLC, time spent by in-house staff in litigation is not usually recoverable unless a party was using its own expert or acting as a litigant in person. There were also circumstances in which costs may be recoverable as damages. The recovery of costs in arbitration was more liberal, where the costs of a party’s own in-house lawyers, or those of external lawyers instructed by a P & I Club on a member’s behalf, would generally be allowed. Where a P & I Club instructs its in-house lawyers, the indemnity principle will continue to apply, and recoverability will depend on the different club approaches and the wording of their Rules.
Clive Aston, the President of the LMAA (London Maritime Arbitration Association), provided an overview of the London arbitration scene against the background of increased competition from foreign jurisdictions, and he stressed the need for London not to rest on its laurels – to maintain its position as the world leader in maritime arbitration.
As said in the beginning the event took place at Reed Smith’s auditorium at the 33rd floor from were the entire City and beyond could be seen; unique views. A Drinks reception took place afterwards with networking to the fore!
The Centre’s next event on “Unsafe Ports” which will take place at the offices of Thomas Miller on the 15th of April at 17:30. Viewers can log on the LSLC webpage and book for this event.