LECTURE #4- By Naima Ahmed

PART –1

  1. Separability of Arbitration agreement (A.A)
  2. Discuss cases-Fiona trust ,
  3. C v D,
  4. Dallah v GOP
  5. Mediation

PART -2

  1. Draft an arbitration clause and justify the points included and give reasons for those left out.
  2. What major defects can you spot in the following clauses and how would you amend them:
  1. “Any differences between the parties, including with respect to interpretation, which they cannot resolve by agreement, shall be amicably resolved by arbitration under the English Supreme Court. There shall be three arbitrators, one each to be nominated by the parties and the chairman to be agreed. If the parties and the party nominated arbitrators cannot agree on the chairman, the appointment shall be made by the president of the court of international arbitration in London or Paris. The venue of the arbitration shall be in the city where the chairman lives and the arbitration shall be conducted in accordance with internationally accepted rules.”
  1. “Any dispute or claim by one party against the other, or any difference relating to the interpretation of this agreement, shall be amicably resolved by arbitration under the rules of the international arbitration court. The arbitration shall be held in London or Shanghai at the exclusive choice of the defendant. The sole arbitrator shall be Dr (Mrs) Plant of the School of Law, University of Lagos, Nigeria.

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MEDIATION

Why do we mediate

  • Advantages of mediation
  • -free
  • Fair and neutral
  • High rate of compliance
  • Comprehensive and customized agreements
  • Confidentiality
  • Avoid a litigation
  • Foster cooperation
  • Improves communication
  • Personal empowerment
  • Everyone wins

Essential characteristics of mediation process

  • Voluntary
  • Collaborative
  • Controlled
  • Confidential
  • Informed
  • Impartial, neutral, balanced and safe
  • Self-responsible and satisfying

Essential characters of mediator

  • Convener
  • Educator
  • Communication facilitator
  • Translator
  • Questioner and clarifier
  • Process advisor
  • Counselor
  • Catalyst
  • Responsible record holder

ADR in UK

  • CEDR-centre for dispute resolution- offers services in UK
  • Settled international disputes
  • Universal Agreement to mediate
  • Individual agreement
  • Between employer and employee
  • Is it enforceable?- Under US it is via equal employment opportunity commission.

Mediation boards in Srilanka

Recent Initiatives regarding ADR in Pakistan

a. Code Of Civil Procedure (CPC) which is the primary procedural law for civil matters in Pakistan , has been amended (under AJP) for providing enabling mechanism for Court Annexed ADR in Pakistan (Section 89-A)

b. Small Claims and Minor Offences Ordinance 2002 has been promulgated for providing exclusive forum (at the district level) for facilitating the resolution of smaller disputes. This law also provides ADR mechanism for facilitating the resolution and settlement of disputes within the framework of the formal court system. This could be transformed into an excellent forum for addressing disputes in the emerging justice sector in Pakistan;

c. Under the Access to Justice Program, the review of Arbitration Act represents a significant policy action. This review needs to be undertaken and capacity building initiatives put in place to promote effective arbitration regime in Pakistan.

d. A new local government system has been introduced in Pakistan, establishing elected local governments at the level of Union Council, Tehsil (Sub District Level) and the District level. The institution of MusalihatAnjuman (literally meaning conciliation forums) has been provided at the level of Union Councils for dispute resolution through ADR (including conciliation, mediation and arbitration). The finalization of the rules of Business for these bodies is essential to popularize the use of ADR.

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Drafting Exercise

  • agree to arbitrate
  • scope of the agreement
  • finality of award
  • institution or rules
  • seat of arbitration
  • arbitrators: number, method of appointment & qualification, appointing authority
  • language of arbitration
  • time
  • costs
  • confidentiality
  • waiver of sovereign immunity

Defective arbitration clause

  • Inconsistency
  • Uncertainty
  • Relevance of court attitude – see: Lucky Goldstar Int’l (HK) Ltd v Ng Moo KeeEngr Ltd [1993] 2 HKLR 73