Nearly all construction industry standard form contracts require mediation as part of their dispute resolution provisions. Often confused with arbitration, mediation is a negotiation facilitated by a neutral third party. Unlike arbitration — a proceeding like a trial — mediation does not result in a final binding decision. And the mediator typically does not have any decision-making authority in the context of the mediation.
Read moreArbitration and Summary Proceedings: What's the Rush?
In a judgment of 10 February 20211, the Luxembourg Court of Appeal revisited the relationship between arbitration and the role of the national courts in summary proceedings.
In this case, a debtor appealed an interim payment order (référé-provision) issued by a vice president of the Luxembourg District Court in the context of interlocutory (or summary) proceedings. The creditor's request for advance payment was approved despite the fact that the parties had concluded an arbitration agreement.
Read moreAre there limits to what can be discussed “Without Prejudice”?
Without prejudice discussions between parties to a legal dispute are one of the most effective ways to avoid full-blown litigation and the associated risk and expense. The specialist shipping and commercial litigation lawyersat Bahamas law firm ParrisWhittaker regularly advise clients on ways to avoid court through constructive settlement negotiations.
Read moreRevision of form requirements for an arbitration clause in Swiss international arbitration law
Switzerland has revised its international arbitration law during summer 2020. The revised provisions of the 12th Chapter of the Private International Law Act (“PILA”) entered into force on January 1, 2021. The article at hand offers a handy overview on the revised Art. 178 PILA[1] governing the form requirements from a thoroughly practical approach, focusing on its key changes and developments in international arbitration.
Read moreDisclosure of Binding Arbitration Not Required In Consumer Warranties, Says Florida Supreme Court
On February 18, the Florida Supreme Court ruled that a warrantor of a consumer product is not required to disclose a binding arbitration agreement as part of the warranty-related items that must be disclosed “in a single document.” In reaching its decision that the Federal Trade Commission’s “single document rule” does not require the disclosure of binding arbitration, the court resolved a conflict that had existed under Florida law since 2008 and departed from Eleventh Circuit authority.
Read moreHong Kong court stays proceedings for arbitration, honouring arbitration agreement in insurance policy
The Hong Kong Court of First Instance stays third party proceedings commenced by an insured against an insurer, on the basis that the parties are bound by the arbitration clause contained in the insurance policy. Despite the outcome being that the main action and the third party proceedings will ultimately be pursued in different forums, by upholding the parties’ contractual agreement to arbitrate, the Court reinforces its pro-arbitration credentials and the principle of party autonomy.
Read moreThe Importance of Pre-Arbitral Steps: The Latest English High Court Approach
International arbitration is facing continued (if not increased) problems stemming from multitier arbitration clauses. What should happen when one party has not complied with a pre-arbitral step but nonetheless commenced arbitral proceedings? Typically, the parties have a satellite dispute: on one side, whether the commencement of the arbitration is void thus depriving the arbitral tribunal of all jurisdiction due to the non-compliance and on the other side, whether such non-compliance is an issue of admissibility that falls within the arbitral tribunal’s remit to address by way of procedural modification (for example, by ordering a stay of proceedings pending completion of a negotiation period).
Read moreHow Does Personal Injury Mediation Work?
If you’ve filed a personal injury lawsuit or hired an attorney to file one for you, odds are good you are eventually going to be presented with the option, or perhaps even the obligation, to go to mediation. Mediation sounds intimidating. And it can be. But knowing what all the parts look like can make it a lot less so.
Read moreCOVID-19-Related Employment Litigation Affecting Manufacturing Industry
Manufacturing employers probably will continue to see an increase in COVID-19-related litigation affecting the industry. Keeping up with recent trends in COVID-19-related litigation can help manufacturers ensure compliance with the common bases of alleged violations.
Read moreHow Inclusive Language Can Help You To Negotiate, Lead And Communicate For Success
When people hear the term “inclusive language,” they automatically think about diversity, equity, and inclusion.
But it’s much more than that.
Inclusive Communication
In this quick article, you’ll learn how to use inclusive language in order to improve your negotiation, conflict resolution, and business skills.
Read moreDon’t be late - the risk of arbitral awards becoming unenforceable due to limitation periods
Arbitral awards benefit from being widely enforceable. This is the case particularly in jurisdictions that are members of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958 (New York Convention). Recognition and enforcement of a foreign arbitral award under the New York Convention is rejected only on narrow grounds (Article V). There is, however, an additional ground for an award to become unenforceable in a specific jurisdiction that is often overlooked: limitation periods.
Read moreHong Kong court stays proceedings for arbitration, honouring arbitration agreement in insurance policy
The Hong Kong Court of First Instance stays third party proceedings commenced by an insured against an insurer, on the basis that the parties are bound by the arbitration clause contained in the insurance policy. Despite the outcome being that the main action and the third party proceedings will ultimately be pursued in different forums, by upholding the parties’ contractual agreement to arbitrate, the Court reinforces its pro-arbitration credentials and the principle of party autonomy.
Read moreCharity disputes and ADR
The recent case of Hussain v Chowdhury [2020] EWHC 790 (Ch) makes clear that, before giving permission to commence charity proceedings, the courts expect the parties to actively engage with alternative dispute resolution (ADR) procedures in trying to resolve their dispute.
Read moreCanada: Mediator Selection: Skills Often More Important Than Expertise
As per Rule 24.1 of Ontario's Rules of Civil Procedure, certain court proceedings in Ontario are subject to mandatory mediation. Even if it is not mandatory in a particular proceeding, mediation is a form of alternate dispute resolution that parties may want to consider to avoid a full trial, reduce the costs of litigation, and hopefully arrive at a settlement that is agreeable to everyone involved. Whether or not a mediation is successful is, in large part, dependant on the choice of mediator.
Read moreAustralia: Contract says Arbitrate? So arbitrate! Kenneth Martin J. sets out broad arbitral powers in Tensioned Concrete case
Property developers, construction contractors and others involved in the construction industry are frequent users of arbitration. The only limits to the nature and complexity of commercial disputes that can be referred to arbitration are the limits set by the arbitration agreement from which arbitrators (with help from both statute and judge-made law) derive their powers.
Arbitrators' powers are defined broadly in both statutes and contracts
Read moreThe Federal Arbitration Act Precludes New York from Exempting Claims from Arbitration
When parties to a contract agree to settle any claims that may arise between them through arbitration, the Federal Arbitration Act (the FAA) sets forth a national policy favoring arbitration. As a matter of public policy, however, New York has sought—through the 2018 enactment of §7515 of the New York Civil Practice Law and Rules—to exempt certain types of claims from arbitration, including claims alleging discrimination under the New York State Human Rights Law. Through §7515, New York seeks to provide those who claim to have been victimized by sexual assault a public forum in which to air their grievances.
Read moreExpert Determination Clauses: A Tailored Alternative for Construction Projects?
In Short
The Situation: Construction disputes face unique challenges in addition to those faced in other types of commercial disputes. Parties often agree to adopt independent expert determination as a means of managing these challenges.
The Concern: Many boiler-plate independent expert determination clauses are not sufficiently tailored to the nature of construction projects or the particular circumstances of the project.
Read moreWashington Senate passes police arbitration bill
SEATTLE (AP) — The Washington state Senate has overwhelmingly passed a bill to create a panel of arbitrators to review police discipline decisions and to better track law enforcement arbitration cases statewide.
The measure is part of an ambitious package of police reform legislation that lawmakers are considering this session following Black Lives Matter protests that erupted in the wake of the police killing of George Floyd in Minneapolis.
Read moreBVI International Arbitration Centre Expands Global Representation with Addition of 10 New Arbitrators
The British Virgin Islands International Arbitration Centre (BVI IAC), an independent not-for-profit institution serving the demands for dispute resolution in the international business community, today announced the addition of 10 members to its arbitration panel.
The 10 new arbitrators represent nine countries, further expanding the skillset and diversity of the BVI International Arbitration Centre Panel. Now composed of more than 200 international arbitrators, the panel represents common law and civil law jurisdictions, and the arbitrators speak a broad range of languages, including Cantonese, English, French, German, Greek, Italian, Mandarin, Portuguese, Russian and Spanish.
Read moreFederal Labor Authority Restores Dispute Resolution Office
The Federal Labor Relations Authority on Wednesday announced that it is re-establishing an office that historically has been used to help settle disputes between unions and federal agencies before they result in costly litigation, a further sign of the Biden administration’s more collaborative approach to labor groups.
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