Buch, Englisch, 430 Seiten, Format (B × H): 166 mm x 246 mm, Gewicht: 877 g
ISBN: 978-1-78068-125-2
Verlag: Intersentia
In two volumes Neil Andrews (University of Cambridge) examines civil processes in England and Wales. One of the leading legal jurisdictions in this area of law as many non-resident parties choose to conduct arbitration in London or bring proceedings before the English High Court, notably the Commercial Court. Written in a clear and well-ordered style, Andrews on Civil Processes therefore discusses the most important styles of civil dispute resolution: court proceedings (volume 1), mediation and arbitration (volume 2).
Neil Andrews guides the reader through the practice of dispute resolution in all its major forms: public and private, adjudicative and conciliatory. The subject-matter has been split into two volumes to provide specialists with a choice, but the two volumes are of course complementary. They provide a complete picture of the court and arbitration systems, and of the developing technique of mediation. Advisors seeking further leads are also assisted by detailed citation of primary sources and rich bibliographical references.
Volume.2: Arbitration and Mediation
Over the last decade, there has been greater resort to non-judicial modes of dispute resolution, notably mediation and arbitration. Mediation is now better understood by businesses and organisations. In England resort to mediation has increased, including within the heartland of commercial disputes. The Ministry of Justice for England and Wales (2010) reported ‘a doubling of mediation activity since 2007’. The main factors driving increased resort to mediation, not just in England, are: (i) the perception that court litigation is unpredictable; (ii) the court process is a source of expense, delay and anxiety; (iii) final judgment normally awards victory to only one winner; and (iv) trial is open-air justice, visible to mankind in general. Sir Rupert Jackson has also said that ‘ADR... is a tool which can be used to reduce costs... It is a sad fact that many cases settle at a late stage, when substantial costs have been run up’ (`The Role of Alternative Dispute Resolution...’, lecture, 8 March 2012). The European Directive 2008/52/EC on Mediation in Civil and Commercial Matters reflects the global rise of this technique. The English courts encourage resort to mediation, in appropriate contexts, by use of costs sanctions. Furthermore, many corporations now prefer to use international arbitration in combination with other ADR mechanisms, as specified in a ‘multi-tiered’ or ‘escalation’ dispute resolution clause. These prescribe a ‘step-by-step’ approach, negotiation and mediation, which must be exhausted before the parties can commence court or arbitral proceedings. The Court of Appeal in Sulamerica Cia Nacional de Seguros SA v. Enesa Engenharia SA (2012) made clear that a contractual reference to mediation as a desirable mechanism is not the same as a clear and binding contractual commitment to engage in mediation. The same court also noted that the agreement to mediate must be sufficiently certain.
Lawyers and experts in London have extensive experience of international commercial arbitration. However, London is also increasingly used by non-English parties. In volume II detailed discussion of arbitration places the English system in a global context. The subject is systematically arranged in 18 chapters devoted to this complex field. Chapter 3 is looking at the three pillars of commercial arbitration in particular. For non-English lawyers important points include the following two topics: First, English awards can be challenged before the English High Court on the basis of an error of English law (section 69, Arbitration Act 1996). But the High Court will grant permission for such an appeal only sparingly. Furthermore, a properly drafted arbitration clause can exclude this possibility of an appeal under section 69. Secondly, as for court enforcement of foreign awards, in Dallah Real Estate & Tourism Holding Co v. Pakistan (2010) the UK Supreme Court refused to enforce a Paris arbitral award because (in its view) the arbitral tribunal had incorrectly held that the Government of Pakistan was party to the arbitration agreement.
Andrews
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Neil Andrews guides the reader through the practice of dispute resolution in all its major forms: public and private, adjudicative and conciliatory. The subject-matter has been split into two volumes to provide specialists with a choice, but the two volumes are of course complementary. They provide a complete picture of the court and arbitration systems, and of the developing technique of mediation. Advisors seeking further leads are also assisted by detailed citation of primary sources and rich bibliographical references.
Volume.2: Arbitration and Mediation
Over the last decade, there has been greater resort to non-judicial modes of dispute resolution, notably mediation and arbitration. Mediation is now better understood by businesses and organisations. In England resort to mediation has increased, including within the heartland of commercial disputes. The Ministry of Justice for England and Wales (2010) reported ‘a doubling of mediation activity since 2007’. The main factors driving increased resort to mediation, not just in England, are: (i) the perception that court litigation is unpredictable; (ii) the court process is a source of expense, delay and anxiety; (iii) final judgment normally awards victory to only one winner; and (iv) trial is open-air justice, visible to mankind in general. Sir Rupert Jackson has also said that ‘ADR... is a tool which can be used to reduce costs... It is a sad fact that many cases settle at a late stage, when substantial costs have been run up’ (`The Role of Alternative Dispute Resolution...’, lecture, 8 March 2012). The European Directive 2008/52/EC on Mediation in Civil and Commercial Matters reflects the global rise of this technique. The English courts encourage resort to mediation, in appropriate contexts, by use of costs sanctions. Furthermore, many corporations now prefer to use international arbitration in combination with other ADR mechanisms, as specified in a ‘multi-tiered’ or ‘escalation’ dispute resolution clause. These prescribe a ‘step-by-step’ approach, negotiation and mediation, which must be exhausted before the parties can commence court or arbitral proceedings. The Court of Appeal in Sulamerica Cia Nacional de Seguros SA v. Enesa Engenharia SA (2012) made clear that a contractual reference to mediation as a desirable mechanism is not the same as a clear and binding contractual commitment to engage in mediation. The same court also noted that the agreement to mediate must be sufficiently certain.
Lawyers and experts in London have extensive experience of international commercial arbitration. However, London is also increasingly used by non-English parties. In volume II detailed discussion of arbitration places the English system in a global context. The subject is systematically arranged in 18 chapters devoted to this complex field. Chapter 3 is looking at the three pillars of commercial arbitration in particular. For non-English lawyers important points include the following two topics: First, English awards can be challenged before the English High Court on the basis of an error of English law (section 69, Arbitration Act 1996). But the High Court will grant permission for such an appeal only sparingly. Furthermore, a properly drafted arbitration clause can exclude this possibility of an appeal under section 69. Secondly, as for court enforcement of foreign awards, in Dallah Real Estate & Tourism Holding Co v. Pakistan (2010) the UK Supreme Court refused to enforce a Paris arbitral award because (in its view) the arbitral tribunal had incorrectly held that the Government of Pakistan was party to the arbitration agreement.
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