Herbert Smith Freehills’ ADR in Asia Pacific Guide available online

We are pleased to launch online our ADR in Asia Pacific Guide, building on a publication we launched last year.  Please click here to download a copy.

While focusing on the use of ADR in Asia Pacific, the guide will assist organisations wherever they operate to deploy ADR more effectively in the resolution of their disputes.

We focus on mediation in Hong Kong and distil the results of an exclusive client survey involving personal interviews and voting via a bespoke HSF App. The outputs of our client research will help organisations benchmark themselves against their peers when assessing their dispute resolution options.  In addition, the guide:

  • summarises seven common ADR processes and their use in Asia Pacific; and
  • contains a practical guide to help you get the most out of mediation (with an emphasis on the procedures in Hong Kong)

Our research in Hong Kong foreshadows an exciting global initiative commencing this year which Herbert Smith Freehills is sponsoring, the Global Pound Conference (GPC) series GPC will canvass thousands of stakeholders worldwide at events in 36 locations over an 18-month period, on their use of ADR and other dispute resolution processes (see www.globalpoundconference.org for more details).

European Mediation and ADR Guide published

The International Institute for Conflict Prevention & Resolution (CPR) has released its new European Mediation & ADR Guide, designed to assist corporates operating in Europe and beyond in taking full advantage of the range of ADR processes available to them.

Herbert Smith Freehills partner and Head of ADR Alexander Oddy led on the production of the Guide, in conjunction with Isabelle Robinet-Muguet of Orange (both members of the Executive Council of CPR's European Advisory Board)

As well as providing a valuable overview of the most widely used ADR processes in Europe, the Guide provides links to an extensive range of additional materials and practical resources for access to more in-depth information.  It will be translated into several languages over the next few months.

 

 

Updated CEDR model mediation documents

The Centre for Effective Dispute Resolution (CEDR) has for the first time simultaneously updated all of its main model mediation documents and rules.

The updated documents, available on the CEDR website here, include:

  • Model ADR contract clauses
  • Model Mediation Agreement
  • Model Mediation Procedure
  • Code of Conduct for Mediators
  • Model Settlement Agreement
  • Model Expert Determination Agreement

The key changes are summarised in the accompanying Notes, here.

In addition, CEDR’s international ADR contract clause has now been published in an additional four languages –  adding Portuguese, Japanese, Arabic and Russian to the existing Mandarin, French, German, Spanish, Italian and English.

In launching the updated documents, CEDR stated that the revisions reflect the changing use of mediation, including its increasing use prior to commencement of court proceedings as well as a trend for many mediations to be set up at short notice.

Significant changes include more robust language around the confidentiality and without prejudice nature of the process and the inclusion of firmer timelines for mediators to be appointed and for mediations to take place.  Specifically, in all of the mediation clauses there is now reference to a specific number of days (14) from notice of the dispute for the mediator to be nominated by CEDR if no agreement has been reached.  Further, in the clauses referring to an ADR Notice, there is now reference to a specific number of days (28) from the date of the ADR Notice within which the mediation will start.

CEDR has indicated that the new 2014 updates foreshadow a change to its approach to revising the documents. Whereas previously the documents would only be updated when necessary, they will now be updated and reissued annually going forward.

 

Jan O'NeillJan O’Neill

Professional Support Lawyer,
dispute resolution, London
Email
+44 20746 62202

 

ADR Practical Guide No.1 : Common ADR processes – a snapshot

Herbert Smith Freehills has launched the first in our series of ADR Practical Guides, designed to provide practical insights into various processes falling under the banner of ADR, with a particular focus on mediation.

The first guide provides a snapshot of some of the more commonly used ADR processes, highlighting the main advantages and disadvantages of each.  The processes covered include:

1.  Mediation
2.  MedArb / ArbMed
3.  Early neutral evaluation
4.  Expert determination
5.  Adjudication
6.  Baseball arbitration

Read ‘Common ADR processes – a snapshot‘.

UK: High Court refuses to set aside expert determination for ‘manifest error’

Where parties have contractually agreed to submit a dispute for expert determination, one of the the limited bases on which they may challenge the determination and have it set aside by the court is that it contains a manifest error.  However, the scope of that exception is very narrow, as illustrated by a recent High Court decision: Walton Homes Ltd v Staffordshire County Council [2013] EWCH 2554 (Ch).

In particular, the decision highlights that it will be difficult to establish a manifest error where the alleged error relates to a question of law. Continue reading

CIArb launches specialist property disputes service in the UK

The Chartered Institute of Arbitrators (CIArb) has launched its Property Disputes Appointments Service (PDS) in the UK.  This service builds upon its dispute resolver service and presidential panels appointment scheme, and provides specialists to assist disputing parties in resolving property disputes by way of arbitration, expert determination, mediation and adjudication.  The PDS has been launched in response to user need, as well as encouragement by the courts in an attempt to reduce the number of property disputes contributing to the back log of cases before the UK courts.  The PDS comprises five panels covering:

  • Landlord and tenant disputes including alterations, change of use and rent reviews
  • Professional disputes, typically involving architects and solicitors including professional negligence
  • Utilities disputes between adjacent properties
  • Rights to light, easements, and rights of way disputes
  • Property ownership including nuisance, noise and boundary disputes

CIArb is appointing legal and surveying specialists to each of the panels to provide arbitration and/or ADR assistance to resolve disputes outside of the courts.  CIArb anticipates the greatest take up in relation to arbitration and expert determination.  CIArb offers appointment, supervision and monitoring of the process but will not oblige parties to use their procedural rules; typically the arbitrator/expert/mediator/adjudicator appointed will govern the process.  However, CIArb will scrutinise it to ensure that the procedure is conducted in a timely and cost-effective way.

ICC to revise ADR, Expert Determination and Dispute Board Rules

Earlier this year, the ICC Commission on Arbitration set up a Consultative Task Force comprising experts in the field of international ADR to review and revise their ADR Rules, Rules for Expertise and Dispute Board Rules. These ICC rules are available for parties to adopt, either in their commercial contracts or at the point of dispute, to resolve their dispute through ADR (for information click here), expert determination (for information click here), or a dispute board (for information click here).  To view the ICC’s current rules, click here.

The guiding principle for the Task Force is that changes or additions to the above rules should only be made when it is genuinely useful or genuinely necessary to do so. The Task Force is currently amending the various rules, and meetings are taking place to discuss their drafts. It is the ICC’s expectation that the revised ADR rules will be submitted to the ICC Commission members at a meeting in November 2012, and approved in the spring of 2013.

Herbert Smith Freehills are on the Consultative Task Force and have advised the ICC on the revision of their ADR Rules.

Two recent cases consider Barclays Bank PLC v Nylon Capital LLP [2011] EWCA Civ 826

We previously reported on the Court of Appeal decision in Barclays v Nylon. In that case, the Court of Appeal considered whether there should be a stay of court proceedings pending expert determination under an agreement between the parties. It ruled that the expert in the case did not have jurisdiction to decide the dispute, and so there should be no stay of the proceedings. Two recent cases have considered Barclays. Continue reading

Application of the Limitation Act 1980 to expert determination proceedings

In Braceforce Warehousing Limited v Mediterranean Shopping Company (UK) Limited [2009] EWHC 3839 (a judgment dated June 2009 but only recently made available) Mr Justice Ramsey considered, obiter, whether the Limitation Act 1980 applies to expert determination proceedings. The court held that an expert appointed under a contractual expert determination clause had jurisdiction to determine a contractual dispute between the parties. The limitation period was not applicable to the expert determination and, even if it was, a request had been made for expert determination before the expiry of any limitation period. Continue reading