03:

COURT BASED
ADJUDICATION AND
ALTERNATIVE DISPUTE
RESOLUTION
MECHANISMS
1 court based adjudication

Court based adjudication depends on a system of courts which settle

disputes.
 Court of first instance- where a case is heard for the first time
 Appellate court/ court of appeal- higher court where a previous
decision of the lower court can be re-heard due to a dispute over a
point of law or point of fact in a decided case.

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 1.1 English system of courts
1.1.1 CIVIL COURT STRUCTURE
 Country Court- only has civil jurisdiction and delas with almost all types
of civil case at a local level. Manned by circuit judges, who must be
barristers of at least 10 years’ standing.
 High Court- deals with the most major cases at first instance and is
sometimes a court of appeal from the Country Court. Manned by Puisne
judges, who must also be barristers of 10 years standing. They hear cases
at first instance alone, but at least two judges must hear appeal cases.
 Court of Appeal- major appeal court in civil systems. Manned by Lord
Justices of Appeal, who are judges promoted from the High Court. Three
judges normally, sit together, and cases are decided by a majority.

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 1.1.2 criminal court structure
 The Magistrate’s Court and the Crown Court- local courts hearing the
bulk of criminal cases
 Lay magistrates- not legally qualified and sit part- time , deals with
non complicated cases
 District judges- are solicitors (legally qualified persons) or barristers
of at least 7 years standing.
Note:
Most magistrates are lay magistrates and two or three of them sit
together to hear a case. District judges sit alone. The Crown Court is
staffed by circuit judges, or sometimes, lay magistrates.
 The court of Appeal
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 Indictable offences- more serious offences that can be only heard in a
Crown Court
 Summary offences- are minor crimes, only triable summarily in
Magistrates’ courts.

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1.2 advantages and disadvantages of court based adjudication

Advantages:
 It can provide a helpful legal solution
Disadvantages:
 Expensive
 Time consuming
 Waiting period

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 2 role of international courts
2.1 EUROPEAN COURT OF JUSTICE ( ECJ)
The ECJ is the highest court in EU and is the result of the treaties
between the member states of the EU. It is the highest court of appeal
in each member state of the EU.

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2.2 international court of arbitration (ica)

The ICA is a body set up the International Chamber of Commerce to

oversee all aspects of the arbitration process when members refer
disputes between them to arbitration.
The ICA :
 Has a list of arbitrators that can be appointed to conduct the
arbitration proceedings
 Decides on challenges to arbitrator
 Approves arbitral awards
 Fixes arbitrators’ fees

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 3 alternative dispute resolution (adr)
ADR is a way of settling disputes without going through the courts, by
referring the issues to a third party for resolution.

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3.1 arbitration
Arbitration is a settlement of a dispute by an independent person, usually
chosen by the parties themselves. Arbitration can produce different solutions to
court based adjudication. For example, it could produce the following results:
 A change in the way a person or organization behaves
 A promise that a person or a company wont do something
 An apology
 A explanation of what happened
 A mistake corrected
 Compensation
An agreement between parties to submit any disputes that may arise to
arbitration is a contract, which is subject to the rules of contract law.
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UN’s model arbitration law is founded on the following principles:
 The need to obtain a fair resolution by means of an independent
tribunal without unnecessary delay or expense
 The fact that parties are free to agree how arbitration should work ,
subject to such safeguards as are necessary to protect the public
 The facts that court should not intervene except as necessary to
protect public interest

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3.1.1 arbitration in Islamic law

Islamic arbitration is known as takhim and arbitrators are called

Hakam.
The arbitrator must be Muslim, male , just, learned in Sharia and free
from any defects that could affect his ability to arbitrate.

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3.2 mediation and conciliation
Mediation and conciliation involve the use of an independent third party
to assist the parties in coming to their own solution of the problem.
In Islamic law: solh- conciliation
Wasta: mediation

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3.3 advantages and disadvantages of adr
 Privacy: Arbitration tends to be held in private. In contrast to proceedings
in a court which are public. This means that sensitive information can be
kept private a damaging publicity can be kept to a minimum.
 Informality: Proceedings can be less formal than a court case and can be
scheduled flexibly for the parties involved.
 Speed: generally a court case takes much longer than arbitration
 Cost: Partly due to speed, arbitration cane be cheaper than a court case.
 Expertise: When a case is arbitrated, it is heard before a third party who
may be an expert in the specific area under dispute and therefore the
expert forms the judgement in line with accepted practice in that area.
Parties are free to choose the arbitrator and decide on what expertise he or
she must possess.
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 4 uncitral model law on international commercial arbitration

Under Article 1 (3) arbitration is international if:

 The parties to arbitration have their places of business in different
states
 The place of arbitration is determined, in the arbitration agreement
 Or the place where an important part of the obligations of the
commercial relationship from which the dispute arises in a different
state from where the parties have their business
 Or the parties have expressly agreed that the subject matter of the
arbitration agreement relates to more than one country.

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Under Article 3:
 Unless the parties have agreed otherwise, any written
communication is deemed to have been received if it is delivered
to the addressee personally or it is delivered at his place of
business, habitual residence or mailing address.
 The communication is deemed to have been received on the day it
is delivered.

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 4.2 role of the courts
 The Model Law specifies that courts shall not intervene in matters governed
by the Model Law, except where stated within the Model Law: Article 5.

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5 arbitration agreement
An arbitration agreement is an agreement by the parties to submit disputes arising
under a contract to arbitration.
Form of the arbitration agreement:
The Model Law requires that an arbitration agreement be in writing, but this may
be by written reference to a clause in another document. An arbitration agreement
may be a separate agreement, or may be a clause in another agreement. 
An agreement can be 'in writing' in three ways:
(a) It is contained in a document providing written evidence of the agreement.
(b) It is referred to by a party in documents relating to legal proceedings and the
other party does not deny its existence. (oru party document udakkuka matte party ath deny
cheyyunnilla)

(c) A written contract between the parties makes reference to another document 18

containing an arbitration agreement. (Document ilek oru reference kodukkuka)

6 arbitral tribunal
6.1 COMPOSITION OF THE ARBITRAL TRIBUNAL
 The number of arbitrators in the arbitral tribunal may be agreed by the parties but will
otherwise be three.
 If the parties do not agree on how to appoint the arbitrators, each shall appoint one and the
two so appointed will appoint a third arbitrator.
 However, even if the parties agree on their own method, there are a number of rules which
must be observed:
a. A person will not be stopped from being an arbitrator on the grounds of his nationality
b. If the parties fail to appoint arbitrators by the agreed procedure, any party may request
that the relevant authority to court , specified in their national law, appoint an arbitrator
c. If any of the arbitrators or relevant third parties to the agreement fails to perform
his functions properly, any party may apply to the relevant authorty or court to take
action
d. Any decision taken by the relevant authority or court in relation to (b) and (c) will
not subjected to appeal. (final decision) 19
Appointment of the arbitrator: article 11
 Arbitration with three arbitrators: Each party to the agreement will
appoint one arbitrator. This should be done within 30 days of the
request to do so. The two appointed arbitrators shall appoint a third
arbitrator. This should be done within 30 days of the appointment of
the first two arbitrators.
 Arbitration with sole arbitrator: If the parties have agreed that there
shall be a sole arbitrator, they shall agree on who that arbitrator will
be. If the parties cannot agree on the sole arbitrator, either party
may request that the relevant authority or court specified in their
national law shall appoint the arbitrator

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 6.2 independent and impartial arbitrators
The arbitrators should be independent and qualified. They should
disclose any relevant facts that might make them not independent or
impartial.
Under Article 12, a party may challenge the appointment of the
arbitrator if he feels the arbitrator:
a. Is not independent and impartial
b. Does not possess the qualifications required by the arbitration
agreement
(Arbitrators nu parties le aarelum aayt nthelum relation undel Arbitrators ath proper aayt
disclose cheythirikkanam)

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 6.2.1 challenging an arbitrator

 A person cannot challenge an arbitrator with something that they

knew at the time of appointment. (Appointment nte timil arinja enthelum karyam
vachitt pinneed Arbitrator ne question cheyyan paadilla)

 The parties may agree on the procedures for challenging an

arbitrator. If the challenge procedure agreed upon is not successful,
the challenging party may refer the matter to the relevant authority
or court within 30 days. The arbitral tribunal (including the
challenged arbitrator) may continue the arbitration while such
action is pending

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Challenging the appointment of an arbitrator:
 Any party who intends to challenge the appointment of an arbitrator must
send a written statement of their challenge to the arbitral tribunal within 15
days of becoming aware of the grounds for a challenge.
 The challenged arbitrator may withdraw from office as a result of the
challenge.
 The other party may agree to the challenge, in which case the challenged
arbitrator must withdraw.
 If the arbitrator does not withdraw and the other party does not agree with
the challenge, the arbitral tribunal must decide on the challenge.
 If a challenge is unsuccessful, the challenger has a further 30 days to ask the
court to decide on the challenge.
 Once the court has decided on the challenge, no further appeal may be
made.
 While the challenge is proceeding the original arbitral tribunal, including the
challenged arbitrator, may continue the arbitral proceedings and make 23
an
award.
 6.2.2 ARBITRATOR UNABLE TO ACT

 If it becomes impossible for the arbitrator to act, his appointment is

terminated if he withdraws from office or if the parties agree that it is
terminated: Article 14. If there is any controversy about whether an
arbitrator is still validly appointed, any party may refer the matter to
the relevant authority or court.
 Where an arbitrator has withdrawn, a substitute arbitrator can be
appointed on the same basis that the original arbitrators were
appointed: Article 15.

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 7 conduct of arbitral proceedings
The parties may agree on the procedure to be followed. If they do not,
the tribunal shall conduct proceedings as they see fit.
According to the Model Law (UN, 2008), the following general rules
apply to arbitration tribunal proceedings:
(a) The parties shall be treated with equality and each party shall be
given a full opportunity to present his case: Article 18
(b) The parties are free to agree on the procedure to be followed,
subject to the requirements of the Model Law: Article 19 (Mutually agree
cheythirikkanam)

(c )If the parties do not agree on a procedure, the arbitral tribunal shall
conduct the arbitration in a manner which it considers fit: Article 19

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Arbitration proceedings: General points
 Place (Art 20):
a) The parties shall agree on the place of arbitration.
b) If the parties do not agree, the arbitral tribunal shall determine where the
arbitration takes place. They shall consider the circumstances of the case
and the convenience for the parties
 Commencement (Art 21): (Eppo thott Arbitration start cheyyanam)

a) The parties shall agree upon when arbitral proceedings commence.

b) If the parties do not agree on when arbitral proceedings commence, then
they commence when the request for referral to arbitration is received by
the respondent. (Arbitration ne kurichulla communication opposite party kk kittunna ann muthal)
 Language (Art 22):
(a) The parties may agree what language proceedings are to be conducted in.
(b) If they do not so agree, the arbitral tribunal may determine the language
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that will be used.

The arbitral tribunal may order that documentary evidence be
accompanied by translations into the language being used for the
proceedings.
 Experts (Art 26): Unless the parties agree not to, the arbitral tribunal
may appoint one or more experts to report to it on relevant, specific
issues determined by the tribunal. If the tribunal considers it
necessary, the expert may be questioned by the parties, and expert
witnesses may testify.
 Court assistance(Art 27): The arbitral tribunal itself, or one of the
parties, with permission from the arbitral tribunal may request
assistance in taking evidence from a competent court

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 7.1 statements of claim and in defence
 The claimant must make a statement of claim and the defendant
shall make a statement in defense.
 The claimant (person referring the matter to arbitration) shall state,
under Article 23:
 The facts supporting his claim
 The points at issue
 Any remedy sought
The defendant shall state their defence on the basis of this.

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7.1.1 timing

 The statements of both claim and in defence shall be made within

the period of time agreed by the parties
Other documents:
 The parties may include documents that they consider to be relevant
with their claims, or make reference to them
 If the claimant fails to provide a statement of claim within the time
period, the arbitral tribunal shall terminate proceedings

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 7.2 hearings and written proceedings
The arbitral tribunal shall decide under Article 24 whether:
 To hold oral hearings for the presentation of evidence; or
 To conduct proceedings on the basis of documents.

If the parties have not agreed otherwise, the arbitral tribunal shall
carry out oral hearings if requested by one of the parties.
✓ Advance warnings of hearings or any inspection of goods or
documents
✓ Statement from one party shall be publicized to the other

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7.3 challenging the jurisdiction of the arbitral tribunal

There are rules on when and how the jurisdiction of the arbitral tribunal may
be challenged.
 If a party wants to challenge the jurisdiction of the tribunal to conduct
proceedings, such a plea must be raised before the statement of defense is
submitted: Article 16(2).
 Any party may challenge the jurisdiction of the tribunal, regardless of
whether they have participated in appointing an arbitrator.
 If the arbitral tribunal concludes that it does have jurisdiction, any party
may apply to the relevant authority or court to decide whether this decision
is valid. However, it must do so within 30 days of hearing the tribunal's
decision concerning its jurisdiction: Article 16(3).

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7.4 termination of proceedings

The proceedings are terminated under Article 32 when:

 An award is made
 An order of the arbitral tribunal is made to terminate proceedings

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7.4.1 termination by order
The arbitral tribunal makes an order to terminate proceedings when:
 The claimant withdraws their claim (unless the defendant with a
legitimate interest in continuing with proceedings objects)
 The parties agree to terminate proceedings
 The arbitration has become unnecessary or impossible

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 8 award enforcement
INTERIM MEASURES OF PROTECTION: (INTERIM AWARDS)
Interim measures of protection may be ordered from either party while
the arbitration proceeds. (Article 17)

Arbitration nte vidhi varunnath vare athinu munne undavan chance ulla issues il ninn parties ne protect
cheyyan vendi Tribunals edukkunna measures.

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8.1 DECIDING THE DISPUTE

 The arbitral tribunal shall make its decision according to the rules of law
chosen by the parties : Article 28(1)
 If the parties do not specify the appropriate laws, the arbitral tribunal
may make its decision according to the law that it sees fit to apply:
Article 28(2).
 The decision shall be concluded by a majority of the arbitrators:
Article 29.
 If the parties settle the dispute before the arbitrators take their
decision, the arbitral tribunal shall end the arbitration and record
the settlement as if it had been an arbitral award: Article 30.

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 8.2 form and content of the arbitral award
Under Article 31 the arbitral award shall:
 Be in writing
 Be signed by the arbitrators (or a majority of them if there are three or
more)
 State the reasons behind the award
 State the date of the award and the place of arbitration
 Be copied and these copies sent to each party

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 8.3 additional award
A party may request that the arbitral tribunal make an additional
award that has been referred to during proceedings, but not
included within the final award: Article 33. This must also be
requested within 30 days of the receipt of the award. The tribunal
may make the additional award within 60 days, if it considers the
request to be justified.

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8.4 setting aside/recourse against arbitral award
Under Article 34, parties may apply to the relevant court or authority (as
previously specified) to have the arbitral award set aside if:
 A party to the arbitration agreement was under some incapacity or the
agreement is not valid under the laws to which the parties have subjected it
 A party was not given proper notice of an arbitrator's appointment or of the
proceedings or that party was otherwise unable to present his case
 The award deals with a matter not contemplated by the parties or not falling
within the terms of the arbitration agreement
 The composition of the tribunal was incorrect
 The subject matter of the dispute is not capable of being settled by arbitration
under the law of the State
 The award conflicts with public policy in that State. However an application
must be made within three months after the award was made, or a request
under Article 33 to amend the award was rejected. 38
8.5 recognition/ enforcement of an arbitral award
Regardless of which country an arbitral award was made in, it shall be recognized as
binding: Article 35. To enforce an award, a party should make written application to the
court specified under Article 36. They should supply the court with the original award
made by the arbitral court or with a certified copy. If the award was not made in the
official language of the state, they should provide a certified translation
Under Article 36, the court may only refuse an application for recognition or
enforcement if:
 At the request of the party against whom it is invoked, if that party furnishes to the
competent court where recognition or enforcement is sought, proof that:A party to
the arbitration agreement referred to in article 7 was under some incapacity; or the
said agreement is not valid under the law to which the parties have subjected it or,
failing any indication thereon, under the law of the country where the award was
made;
 The party against whom the award is invoked was not given proper notice of the
appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to
present his case; 39
 The award deals with a dispute not contemplated by or not falling within the terms
of the submission to arbitration, or it contains decisions on matters beyond the
scope of the submission to arbitration, provided that, if the decisions on matters
submitted to arbitration can be separated from those not so submitted, that part
of the award which contains decisions on matters submitted to arbitration may be
recognized and enforced;
 The composition of the arbitral tribunal or the arbitral procedure was not in
accordance with the agreement of the parties or, failing such agreement, was not
in accordance with the law of the country where the arbitration took place; or
 The award has not yet become binding on the parties or has been set aside or
suspended by a court of the country in which, or under the law of which, that
award was made; or
 If the court finds that:
a. The subject-matter of the dispute is not capable of settlement by arbitration
under the law of this state; or
b. The recognition or enforcement of the award would be contrary to the public
policy of this state. 40