Podcast
Questions and Answers
Which of the following is a disadvantage of arbitration?
Which of the following is a disadvantage of arbitration?
Third parties can be added as parties to the arbitration proceedings at a later stage.
Third parties can be added as parties to the arbitration proceedings at a later stage.
False
What must an arbitration clause be referred to in order to comply with the Arbitration Act?
What must an arbitration clause be referred to in order to comply with the Arbitration Act?
disputes
What must a defendant do within 14 days of deemed service of the particulars of claim to contest the court’s jurisdiction?
What must a defendant do within 14 days of deemed service of the particulars of claim to contest the court’s jurisdiction?
Signup and view all the answers
Arbitrators and venues must be paid for privately, which may make arbitration more ______ than litigation.
Arbitrators and venues must be paid for privately, which may make arbitration more ______ than litigation.
Signup and view all the answers
The law that governs the substance of a dispute is always the same as the law of the seat.
The law that governs the substance of a dispute is always the same as the law of the seat.
Signup and view all the answers
Match the following terms with their descriptions:
Match the following terms with their descriptions:
Signup and view all the answers
What is the implication of an arbitration clause being severed from the contract?
What is the implication of an arbitration clause being severed from the contract?
Signup and view all the answers
What type of jurisdiction is often chosen for arbitration in international disputes?
What type of jurisdiction is often chosen for arbitration in international disputes?
Signup and view all the answers
The defendant must file an application notice seeking a stay of legal proceedings under the Arbitration Act section ______.
The defendant must file an application notice seeking a stay of legal proceedings under the Arbitration Act section ______.
Signup and view all the answers
Arbitrators have broader powers than courts in legal proceedings.
Arbitrators have broader powers than courts in legal proceedings.
Signup and view all the answers
Match the following steps with their corresponding actions in contesting the court's jurisdiction:
Match the following steps with their corresponding actions in contesting the court's jurisdiction:
Signup and view all the answers
What does the 'seat' of arbitration determine?
What does the 'seat' of arbitration determine?
Signup and view all the answers
Which of the following is NOT required for a legitimate arbitration clause?
Which of the following is NOT required for a legitimate arbitration clause?
Signup and view all the answers
All provisions of the Arbitration Act are mandatory and must be followed.
All provisions of the Arbitration Act are mandatory and must be followed.
Signup and view all the answers
What should the defendant include in their application notice when contesting the court's jurisdiction?
What should the defendant include in their application notice when contesting the court's jurisdiction?
Signup and view all the answers
Which of the following parties can be involved in legal proceedings?
Which of the following parties can be involved in legal proceedings?
Signup and view all the answers
The wrong identification of parties can result in the claim being dismissed.
The wrong identification of parties can result in the claim being dismissed.
Signup and view all the answers
What may happen if the correct parties are not identified before the limitation period expires?
What may happen if the correct parties are not identified before the limitation period expires?
Signup and view all the answers
In legal claims, _______ and novations can change the party to whom rights are assigned.
In legal claims, _______ and novations can change the party to whom rights are assigned.
Signup and view all the answers
Match the following parties to their descriptions:
Match the following parties to their descriptions:
Signup and view all the answers
What can complicate the process of identifying the correct parties in a claim?
What can complicate the process of identifying the correct parties in a claim?
Signup and view all the answers
It is always obvious who the correct parties to a claim are.
It is always obvious who the correct parties to a claim are.
Signup and view all the answers
What could lead to a client being ordered to pay their opponent’s wasted costs?
What could lead to a client being ordered to pay their opponent’s wasted costs?
Signup and view all the answers
What must an acknowledgment by the defendant include to be effective?
What must an acknowledgment by the defendant include to be effective?
Signup and view all the answers
The limitation period can be restarted by a verbal acknowledgment of debt.
The limitation period can be restarted by a verbal acknowledgment of debt.
Signup and view all the answers
What is the maximum time period for claiming specific performance of a contract by analogy?
What is the maximum time period for claiming specific performance of a contract by analogy?
Signup and view all the answers
An acknowledgment or part payment will not restart the limitation period if it has already __________.
An acknowledgment or part payment will not restart the limitation period if it has already __________.
Signup and view all the answers
Which of the following does the Limitation Act 1980 not apply to?
Which of the following does the Limitation Act 1980 not apply to?
Signup and view all the answers
A debtor can dispute the remaining amount even after making a part payment.
A debtor can dispute the remaining amount even after making a part payment.
Signup and view all the answers
What do courts adopt by analogy for claims seeking equitable remedies?
What do courts adopt by analogy for claims seeking equitable remedies?
Signup and view all the answers
What is the standard limitation period for personal injury claims?
What is the standard limitation period for personal injury claims?
Signup and view all the answers
The limitation period for a personal injury claim begins on the date the claim is filed.
The limitation period for a personal injury claim begins on the date the claim is filed.
Signup and view all the answers
Under what circumstances does the limitation period not start to run immediately?
Under what circumstances does the limitation period not start to run immediately?
Signup and view all the answers
Assessing whether _____ applies to a dispute is crucial in cross-border claims.
Assessing whether _____ applies to a dispute is crucial in cross-border claims.
Signup and view all the answers
Match the following terms related to cross-border claims with their descriptions:
Match the following terms related to cross-border claims with their descriptions:
Signup and view all the answers
What should a legal practitioner advise clients when foreign law is likely to apply?
What should a legal practitioner advise clients when foreign law is likely to apply?
Signup and view all the answers
English and Welsh law always takes precedence in cross-border claims.
English and Welsh law always takes precedence in cross-border claims.
Signup and view all the answers
What should be done to preserve evidence in case of a potential claim?
What should be done to preserve evidence in case of a potential claim?
Signup and view all the answers
Which of the following is NOT a potential advantage of arbitration over litigation?
Which of the following is NOT a potential advantage of arbitration over litigation?
Signup and view all the answers
A key benefit of litigation is the broader range of remedies available compared to arbitration.
A key benefit of litigation is the broader range of remedies available compared to arbitration.
Signup and view all the answers
What is the primary international agreement that makes arbitration awards enforceable in most jurisdictions?
What is the primary international agreement that makes arbitration awards enforceable in most jurisdictions?
Signup and view all the answers
In contrast to judges, arbitrators may not require ______ witnesses as they can be appointed with technical expertise.
In contrast to judges, arbitrators may not require ______ witnesses as they can be appointed with technical expertise.
Signup and view all the answers
Match the following features to their respective methods of dispute resolution:
Match the following features to their respective methods of dispute resolution:
Signup and view all the answers
The Jackson reforms have encouraged courts to promote early settlement between parties in litigation.
The Jackson reforms have encouraged courts to promote early settlement between parties in litigation.
Signup and view all the answers
Which of the following is NOT a factor that commonly influences the decision to choose arbitration over litigation?
Which of the following is NOT a factor that commonly influences the decision to choose arbitration over litigation?
Signup and view all the answers
What is the main reason why "boilerplate" terms in contracts should not be ignored?
What is the main reason why "boilerplate" terms in contracts should not be ignored?
Signup and view all the answers
Study Notes
Disadvantages of Arbitration
- Arbitrator's powers are narrower than a court's, e.g., cannot issue freezing orders.
- Arbitration, like litigation, can strain commercial relationships by pitting parties against each other.
- Arbitration procedures are often as time-consuming as court proceedings.
- Arbitration can be more expensive, as arbitrators and venues require payment unlike judges and courts.
- Third parties cannot be added to arbitration proceedings later, contrary to litigation.
Arbitration Clauses
-
Arbitration clauses in contracts must adhere to Arbitration Act sections 5 and 6.
-
The clause must be in writing or demonstrably evidenced in writing.
-
Must refer to present and future disputes, not claims or cases.
-
Using "disputes" avoids ambiguity and clarifies the scope of the clause.
-
The Arbitration Act defines "disputes".
-
Arbitration clauses have a presumption of validity separate from the broader contract's validity.
-
The "seat" of arbitration isn't necessarily the location of proceedings but the place of legal jurisdiction agreed upon by the parties.
-
The seat's legal jurisdiction oversees arbitration procedures and determines the applicable law, particularly when external court rulings are required.
-
Often chosen as a neutral location, crucial for international disputes.
-
Governing law is typically different from the seat of the arbitration (e.g., English law governing a contract with British and American parties with a Swiss arbitration seat).
Enforcing an Arbitration Clause
- To challenge court jurisdiction in favor of arbitration, the defendant can follow these steps:
- Verify the arbitration clause's validity against Arbitration Act sections 5 and 6.
- Acknowledge receipt of the claim within 14 days and contest jurisdiction.
- File an application to stay proceedings (CPR r 62.8 & Arbitration Act s 9(1)). Provide evidence (contract & witness statement).
Arbitration Procedure
- Arbitration Act schedule 1 provisions are mandatory.
- Other provisions are optional, applying if the parties haven't agreed on alternative measures.
Litigation vs. Arbitration
- Speed and Cost: Arbitration can be faster and cheaper than litigation if procedures are streamlined.
- Legal Correctness: Litigation aims for legal correctness with established statutes and precedents.
- Confidentiality: Arbitration allows for confidentiality as opposed to public proceedings in litigation.
- Third Parties: Courts can add third parties without consent in litigation, but not arbitration.
- Remedies: Courts offer wider remedies (freezing orders, specific performance) than arbitration.
- Appeals: Litigation provides more opportunities for appeals, potentially reducing bias risk.
- Experts: Arbitration allows parties to appoint experts as arbitrators, useful for technical disputes.
- Settlement Promotion: Courts increasingly promote settlement via reforms.
Parties to Legal Proceedings
-
Individuals (personal capacity)
-
Companies
-
Limited Liability Partnerships
-
General Partnerships/Firms
-
The Crown
-
Individuals as office holders (liquidators, trustees)
-
Individual and corporate trustees (not a trust itself)
-
Identifying correct parties crucial; complexities arise with multiple corporate entities.
-
Wrongly identifying parties can lead to claims being struck out or being barred by limitation periods.
-
Assignments and novations can transfer parties' rights.
Resetting Limitation Periods
- Limitation periods for property rights and debt claims can be extended through a written acknowledgment or payment from the defendant.
- This written acknowledgement often involves signing, even if typed.
- Starting from the acknowledgment or partial payment, the limitation period restarts. This can happen multiple times.
- Expired periods cannot be restarted. An admission with reservation of dispute does not restart the clock.
Limitation Periods (Specific Cases)
- Limitation Act 1980 doesn't set time limits for equitable remedies (injunctions, specific performance).
- Courts often apply Limitation Act 1980 time limits by analogy to equitable claims.
- Equitable doctrine of 'laches' requires timely claims to avoid prejudice to the defendant.
Remedies (Damages)
- Damages in contract aims to restore the injured party to their pre-breach position.
- Establishing causation, loss, and the validity of a liquidated damages clause is vital.
Limitation Periods (Calculations)
- Personal injury claims have a three-year limitation period, potentially extendible by a court.
- Fraud, concealment, or mistake can delay the limitation period's commencement until the claimant is aware or should be aware of the facts.
Cross-Border Claims
- Applicable law and jurisdiction mechanisms for contractual/tortious disputes outside of England & Wales' jurisdiction must be considered.
- English and Welsh law isn't always supreme and foreign law may need to be considered.
- Advise clients to seek specialized advice for foreign law matters.
Studying That Suits You
Use AI to generate personalized quizzes and flashcards to suit your learning preferences.
Related Documents
Description
This quiz explores the disadvantages of arbitration compared to traditional litigation, highlighting issues such as costs and relationship strains. Additionally, it covers essential elements of arbitration clauses, including their requirements under the Arbitration Act. Test your understanding of these crucial aspects of arbitration law.
