11 January, 2016
Legal System
The Australian legal system operates within a federal structure of government. In practical terms this means that Australia is governed at both Commonwealth and state levels. The Federal Parliament is empowered to legislate on specified areas, the residual areas being the responsibility of State Parliaments.
In both the federal and state systems (except Queensland) the Houses of Parliament are bicameral. The Lower House of Parliament has the role of drafting and developing new law; the Upper House is a house of review.
At the head of each parliament is the Queen of England and of Australia, who is represented in Australia by the Governor General at Commonwealth level and by Governors at state level. Despite having sweeping powers the Governor General and state Governors, by tradition, only act on the advice of government ministers. In practice, and although not specifically provided for in the Commonwealth Constitution, the Prime Minister is elected by the party which secures a majority vote at each federal election, and acts as the head of the executive.
As well as having a federal system of government, the doctrine of separation of powers also operates at the Commonwealth and (more loosely) at the state levels. In particular, the Commonwealth Constitution provides for a delineation of the functions of the judicial, legislative and executive branches of government.
The primary sources of law in Australia are statutory laws enacted by the Commonwealth and state parliaments. The common law, as inherited from the English courts and developed in Australia, is also an integral part of Australia’s legal system.
Courts
The courts are divided between state and Commonwealth jurisdictions.
At the state level, the court system is generally separated into three tiers: a Magistrates’ or Local Court, followed by a County or District Court, with the Supreme Court at the apex. In civil claims the jurisdiction of each of these courts is determined by, among other things, the amount of the claim. For example, in Victoria the Magistrates’ Court can decide disputes up to the value of AUD100,000 (and in some cases there is no upper monetary threshold). The Victorian County Court and New South Wales District Court each have jurisdiction in civil claims from AUD100,000 to AUD750,000 and can deal with matters exceeding this amount with the parties’ consent.
The Victorian and NSW Supreme Courts deal with claims over AUD750,000.
State-based tribunals also exist to determine civil disputes such as tenancy disputes and consumer law disputes. Tribunals typically have limited jurisdiction and are less formal in their dispute resolution procedures than courts.
At the Commonwealth level, the Federal Court of Australia primarily deals with matters that fall within the remit of Commonwealth
power under the Constitution, notably taxation, trade practices, bankruptcy, copyright, trademarks and patents. The Federal Circuit Court operates as a more accessible alternative to litigation in the Federal Court of Australia and the Family Court of Australia. Judges regularly travel to various regional locations to hear matters, and the jurisdiction of the court includes family law, administrative law, admiralty law, bankruptcy, copyright, human rights, industrial law, migration, privacy and trade practices.
On 16 February 2015, the Federal Court of Australia announced the National Court Framework. The reforms create a national court structure. The new structure organizes work along practice area lines rather than registry lines. There will be a central practice note supplemented by practice notes for each area. The court’s managed docket system and e-filing procedures are aiming to further create efficiencies. The National Operations Registrar will conduct allocation and reallocation of matters with senior judges and the Chief Justice, as well as manage the overall workload. Implementation of the remaining seven “National Courts” is expected during 2015.
Australia’s final appellate court on all questions of law, whether on appeal from the Federal Court or the State Supreme Courts, is the High Court of Australia. The High Court principally handles constitutional law matters and the scope and validity of Commonwealth laws, but also deals with issues of state and common law.
Australian courts employ the doctrine of stare decisis or precedent. Courts placed lower in the court hierarchy are required to follow prior decisions of superior courts when faced with a case based on similar facts.
Legal Profession
In order to complete a law degree, students must undertake a number of compulsory subjects at university. These subjects vary across states, but there is a growing focus on uniformity. The compulsory subjects generally include constitutional law, criminal law and procedure, administrative law, property law, contract law and tort law. In order to become a member of the legal profession and be admitted to practice as a legal practitioner, the Council of Legal Education in Victoria requires law students to also complete quasi-compulsory subjects including equity, trusts, corporations law, civil procedure, evidence and lawyers, ethics and society.
After satisfactory completion of their law degree, graduates are required to complete an approved practical legal training course to obtain a Graduate Diploma in Legal Practice or complete a supervised traineeship at a firm in order to be admitted to practice. In states such as Victoria this is referred to as a “graduate program” or “Supervised Workplace Training” during which law graduates are exposed to general practice for 12 months under the guidance of a senior lawyer.
Admission to practice generally occurs in the state where the particular lawyer has undertaken his or her practical training. Following admission there are no further examinations or training requirements to be admitted to practice in other states. An admitted lawyer can also apply for admission to the High Court of Australia.
While practitioners are admitted as “solicitors and barristers” of their respective supreme courts, in practice the profession remains divided between members of the bar and practicing solicitors. Generally speaking, barristers have retained the role of court appearance work while solicitors maintain stronger client relationships and assume responsibility for ongoing file management. Admitted solicitors wishing to practice as a barrister need to complete further training including a bar entrance exam and readers’ course, which differs from state to state.
On 1 July 2015, the Legal Profession Uniform Law Application Act 2014 (Vic and NSW) came into force. It applies to all lawyers in Victoria and New South Wales. It seeks to streamline regulatory obligations while maintaining each state’s regulatory functions. All matters relating to the legal profession are now governed by the Uniform Law, including admission, practicing certificates, continuing professional development, costs and disclosure, trust accounting, complaints and professional disciplinary issues. The Uniform Law creates a Legal Services Council and the Office of Commissioner for Uniform Legal Services Regulation, which will help regulate the profession.
Procedure for Claims
Rules of procedure and evidence exist for the purpose of establishing an orderly process for the conduct of litigation. By engaging the assistance of the courts in resolving a dispute, the parties submit to the procedural requirements set out in the rules of the court, such as timelines for pleadings, discovery or disclosure of documents, interrogatories and production of witness statements and affidavits. Each state and each court in Australia has its own particular rules governing the procedural aspects of litigation. While there may be subtle differences between the various jurisdictions, litigants tend to be subject to similar rules and regulations.
The Civil Dispute Resolution Act 2011 (Cth) requires that parties take “genuine steps” to resolve disputes or explain why no such steps were taken before certain civil proceedings are instituted in federal courts. Similarly, the Civil Procedure Act 2010 (Vic) imposes pre-litigation requirements on parties involved in a civil dispute to take “reasonable steps” to resolve the dispute by agreement, or clarify and narrow the issues in dispute prior to commencing proceedings. Other similar laws exist in other states. Precise steps to be taken seeking to resolve the dispute are not prescribed by legislation. For this reason, parties should be strongly encouraged to explore whether an amicable resolution is possible before resorting to litigation.
Court-ordered pre-trial mediations are also an important part of the court process. These aim to bring together parties in an attempt to resolve their differences and arrive at a mutually agreeable settlement.
There are wide variations in the time taken to bring a dispute to a final hearing, ordinarily a trial. With urgent cases in some jurisdictions, a final hearing weeks or even days after the commencement of proceedings is possible. More commonly in the federal and supreme courts, it often takes a period of a year or more from the filing of pleadings to trial.
Depending on the size, complexity and urgency of the matter before the court, the time it takes for a judgment to be delivered varies widely. In some instances an ex tempore judgment may be delivered contemporaneously. However, it is more common for judges to reserve their decision and sometimes spend a number of months drafting reasons for judgment, which are published at or after the determination of the matter.
Remedies
Equitable or legal relief may be sought in any action before a court. The ability of courts to order the full range of either equitable or legal remedies depends on the particular rules and legislation governing their jurisdiction.
In the case of the High Court of Australia and the State Supreme Courts, the full range of legal and equitable remedies are available and may be sought by the applicant.
While equitable remedies such as injunctions or specific performance are discretionary, legal remedies, such as a claim for damages arising from a breach of contract or a tortious action will be available as of right following determination of the substantive legal issues.
Interlocutory Injunctions
A plaintiff may seek an interlocutory (interim) injunction to preserve the status quo pending final determination of the rights of the parties in the action. An interlocutory injunction can be mandatory or prohibitive. The grant of an interlocutory injunction is temporary and discretionary.
A party may apply for an injunction before or at trial. In urgent cases (and/or where it can be shown that a forewarned defendant might take steps to negate or frustrate the efficacy of a final court order) the application can be made ex parte (i.e., without notice to the other party) and even before, but conditional upon, the issue of the originating process; in other words, before the substantive legal proceeding is commenced.
The jurisdiction of the courts to grant an injunction is wide. To obtain an interlocutory injunction, the plaintiff must move quickly to bring proceedings as soon as it finds out about the defendant’s activities.
The plaintiff must be able to show that there is a prima facie (arguable) case, that it will suffer irreparable injury for which damages will not be an adequate remedy, and that the balance of convenience favors the grant of an injunction.
Freezing Orders
A freezing order can be sought to restrain a defendant from removing assets from the jurisdiction or dissipating them pending trial.
Strong evidence is required before a court will be prepared to make such an order, as its effect on a defendant can be severe. The court will need to be satisfied that there is a good arguable case, that the defendant has assets within Australia and that there is a real risk of their dissipation in the absence of an order being made. The applicant is obliged to make full and frank disclosure of all material facts and is required to give an undertaking as to damages to the defendant and an undertaking to third parties, such as banks, to pay any expenses reasonably incurred as a result of the injunction if later the applicant is unsuccessful at trial. An ancillary order requiring the provision of information about the defendant’s assets may also be made.
Search Orders
A search order may be granted to prevent a defendant from destroying evidence in his or her possession before trial. The search order may require the defendant to permit the plaintiff to enter his or her premises to search for goods or documents belonging to the plaintiff or which are relevant to the plaintiff’s claim (e.g., counterfeit goods) and to remove, inspect or make copies of relevant material. The order may also compel the disclosure of names and addresses of suppliers or customers.
Other Interlocutory Orders
Other interlocutory orders may be available for the detention or preservation of the subject matter of the action, the sale of perishable
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property, recovery of personal property claimed in the action but subject to a lien, or the appointment of a receiver of property.
Costs
In Australia it is usual for an unsuccessful litigant to be ordered to pay a portion of the costs of the successful party, i.e., costs “follow the event.” The amount allowed is usually a reasonable amount for costs necessarily and reasonably incurred to bring or defend the case (party/party costs). The successful party rarely obtains full reimbursement for all costs; the proportion is generally about one-half to two-thirds of the actual costs. In some circumstances a court may award “indemnity costs.” This does not extend to all costs but is greater than party/party costs.
In many cases costs are agreed between the parties after negotiation. If not, they are determined by the court “taxing” (assessing) a bill of costs. Fees and expenses due by a client to their lawyer are the subject of a contractual arrangement. Dispute resolution procedures in relation to costs differ between the states.
Payment into Court
A defendant may at any stage in the action pay into court a sum that he or she would be prepared to pay to dispose of the action. If the plaintiff rejects the offer and obtains no more than that amount upon judgment at trial, he or she will be liable for all of their own legal costs and the defendant’s legal costs from the date of the payment into court. The payment into court is not brought to the attention of the court until after its decision is pronounced and the question of the award of costs is considered.
Security for Costs
A foreign plaintiff without assets in Australia may be required to give security for the proportion of the defendant’s costs that he or she may have to pay if he or she is unsuccessful in the action. Security can be given by a payment into court or by bond. There is ordinarily no order made that a defendant give security, except where a counterclaim is made by a foreign defendant without assets in the jurisdiction or where the defendant is an appellant in an appeal.
Appeals
Following a decision of a judge at first instance, application for an appeal to a higher court may exist either as of right, or after consent for leave to appeal has been granted. There is a general rule that only issues of law may be raised on appeal, with determinations of fact being unreviewable by the higher court. There are three possible outcomes after having a rehearing by way of appeal. The decision of the lower court can either be affirmed, overturned, or altered in some way. Depending upon the facts of the particular case, the matter may be remitted to the court in which the case was first heard to have the matter finally determined in accordance with the law.
The High Court of Australia is the court of final appeal in Australia. In the federal court structure, appeals proceed from a single judge to a full bench of the court, commonly consisting of either three, or in special cases, five judges. In the state system, both Victoria and New South Wales have permanent courts of appeal. However, in the other States a rotating system of Judges appear on a full bench.
In cases where an appeal succeeds on a question of law, courts may have power under statute to grant the respondent indemnification against costs incurred in opposing the appeal. Maximum limits on the amount of costs that the respondent can receive are set down in the relevant legislation governing the appeal process in each State.
Enforcement of Domestic Judgments
Domestic judgments may be enforced against parties resident in the same state where the judgment was issued (i.e., intrastate) or against parties resident in another state (i.e., interstate). There are statutory provisions that enable the enforcement of judgments and compel the compliance of an unsuccessful party. The principal methods of enforcement of judgment debts or the carrying out of orders of the court are as follows:
(a) a warrant of seizure and sale (to seize and sell the defendant’s goods to satisfy the judgment debt);
(b) a petition to wind up a company or to declare bankrupt an individual defendant;
(c) examination of the judgment debtor (or where a company, one of its officers) by oral cross-examination as to their assets or means of satisfying the judgment. The judgment debtor can be required to produce relevant books or other documents;
(d) a garnishee order, where debts owed to the judgment debtor (i.e., defendant) are ordered to be paid directly to the judgment creditor (i.e., plaintiff) (e.g., bank accounts, wages, rent and other moneys may be subject to such order);
(e) a charging order, by which a charge in favor of the plaintiff is imposed on an interest in land or on securities owned by the defendant; and
(f) appointmentofareceiveroverthedefendant’sinterest.
Recognition and Enforcement of Foreign Judgments
Australian courts can recognize and enforce a foreign judgment under statute or at common law, subject to a number of conditions and possible defenses.
At both the Federal level (Foreign Judgments Act 1991) and, in some States (e.g., Foreign Judgments Act 1962 [Vic]) legislation provides for the direct execution of foreign judgments. If the enforcement legislation applies, it must be used in preference to any common-law action.
Under the enforcement legislation, the foreign judgment will be initially “registered” in the Federal Court of Australia or the appropriate state supreme court. Registration requires proof that the foreign judgment
(a) is one to which the relevant act applies. Each federal or state legislation lists the countries and courts to which it extends. The lists are based on reciprocal enforcement treaties between Australia and that country. The lists include most of the Commonwealth countries and a few other countries where Australia and that country have agreed to provide reciprocal enforcement of each other’s judgments;
(b) is final and conclusive (an appeal pending is not conclusive, but may be sufficient to justify an adjournment of the registration proceedings);
(c) generally must be for a money sum and not be in respect of taxes, a fine or penalty; and
(d) is enforceable in the foreign country by execution.
The courts may also enforce foreign judgments at common law. This applies to judgments of countries (such as the United States) that are not parties to reciprocal enforcement of judgment arrangements with Australia and thus not listed in the Foreign Judgments Act 1991 (or the applicable state legislation). The key conditions for common-law enforcement of judgments in Australia are as follows:
(a) the foreign court must have exercised a jurisdiction that the Australian court will recognize under its own conflicts of law rules;
(b) the foreign judgment must be final and conclusive. This does not mean it cannot be subject to appeal. If an appeal is pending, this may give grounds for an application to stay or adjourn the enforcement proceeding in Australia;
(c) the judgment must be for a fixed debt or a definite sum of money. For example, an order for specific performance contained in a foreign judgment will not be enforced by the Australian courts; and
(d) the parties to the foreign judgment and to the enforcement proceedings must be identical.
Once the Australian court confirms it has jurisdiction, the merits of the case cannot be reopened. However, certain defenses against enforcement may be raised. These defenses include the following:
(a) the foreign judgment was obtained by fraud or by duress; (b) the foreign court acted contrary to natural justice; and
(c) the foreign judgment is contrary to public policy.
Arbitration Law International Arbitration
International arbitration is governed by the International Arbitration Act 1974 (Cth) (IAA). The IAA applies to arbitrations between an Australian party and a foreign party. The IAA
(a) addresses the enforcement of foreign arbitration agreements and foreign awards, thereby giving force to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention);
(b) adopts the UNCITRAL Model Law on International Commercial Arbitration (Model Law) (with some modifications), providing a framework for international arbitrations held in Australia; and
(c) gives force of law to the International Convention on the Settlement of Investment Disputes 1965 (ICSID Convention) (Chapters II to VII).
Australia also has a number of bilateral investment treaties and free trade agreements providing for the resolution of disputes via international arbitration, including ICSID arbitration.
In Australia, parties are able to choose their own arbitral rules, such as those of the Australian Centre for International Commercial Arbitration (ACICA), the International Chamber of Commerce (ICC), Singapore International Arbitration Centre (SIAC), Hong Kong International Arbitration Centre (HKIAC) or the London Court of International Arbitration (LCIA), to govern their international arbitration.
Domestic Arbitration
Each Australian state has adopted the Commercial Arbitration Act in similar, though not identical, form, that applies to domestic arbitrations, i.e., arbitrations between two Australian parties. Each act is based on the Model Law (with some modifications) thereby introducing uniformity into the field of arbitration law.
The Commercial Arbitration Act 2010 (NSW) is based on the Model Law. It deals with the appointment of arbitrators, the conduct of arbitration proceedings, the enforcement of arbitration awards and the powers of the court with respect to arbitration proceedings. The act gives the court certain powers to enable it to supervise and support the arbitration process without unnecessarily intervening. For example, the NSW Act provides that the court must (rather than may) stay court proceedings if there is a valid arbitration agreement. It also limits the parties’ right to appeal. As discussed below, a party may only appeal on a question of law if all parties have agreed that an appeal may be brought and the court grants leave to appeal. The NSW Act also imposes a duty on parties to do all things necessary for the proper and expeditious conduct of the arbitral proceedings.
Role of Courts in Arbitration
Under both the IAA and the State Commercial Arbitration Acts, the courts have certain powers to supervise and support the arbitration process. For example, the courts will enforce arbitration agreements by compelling parties to arbitrate where the parties have agreed to do so and will stay court proceedings to allow the arbitration to take place.
Courts generally have no inherent power to intervene in interlocutory orders made by an arbitrator. However, the courts may assist the arbitration process in one of two ways: first, the courts themselves have the power to make some interlocutory or interim orders in support of arbitration proceedings; and second, the courts have the power under the IAA to enforce interim orders issued by a tribunal in an international arbitration. Australia is one of the few countries that have adopted Articles 17A-17J of the Model Law, which include additional provisions relating to interim measures, including the enforcement of interim measures by the Australian courts. The courts may also assist the arbitration process by, for example:
(a) assisting with the taking of evidence, including (with the consent of the Tribunal) issuing a subpoena requiring a person to attend for examination before the Tribunal or to produce to the Tribunal certain documents; and
(b) preserving the goods or property in dispute.
Under the IAA, the federal and the state courts have concurrent jurisdiction over various issues arising in international arbitrations, including applications for a stay of court proceedings, enforcement of foreign awards and applications under the Model Law for the appointment or termination of an arbitrator. Under the State Commercial Arbitration Acts, the relevant state courts have jurisdiction with respect to the act of that state.
Institutional and Ad Hoc Arbitration
International arbitrations may be conducted under the rules of an institution, such as the ICC, or as an ad hoc arbitration in Australia. Similarly, domestic arbitrations may be administered by an institution or conducted on an ad hoc basis. There are several arbitral institutions in Australia that can assist with international and domestic arbitrations.
The Australian Centre for International Commercial Arbitration (ACICA) has a set of Arbitration Rules that can be used for international or domestic arbitrations. ACICA will administer the arbitration. The ACICA Rules provide for expedited arbitration and the appointment of emergency arbitrators. ACICA also administers a panel of arbitrators.
The Australian Disputes Centre (ADC) was recently formed following the merger of the Australian International Disputes Centre (AIDC) and the Australian Commercial Disputes Centre (ACDC). It provides independent dispute resolution procedures nationally. It is an independent, not-for-profit organization staffed by qualified members of the business and legal professions who are experts in the resolution of disputes. ADC may draw on a panel of mediators, experts and arbitrators in various areas of specialization (including construction, accounting and franchising). The ADC also offers modern tribunal facilities, conference rooms, state-of-the-art communication, audiovisual and video conferencing facilities, and access to translation and transcription services.
The Institute of Arbitrators & Mediators of Australia (IAMA) provides arbitration rules and standard contractual clauses for facilitating arbitration. It has a panel of experienced arbitrators covering many commercial areas and professional disciplines, which include construction and engineering, accounting, industrial, real estate and information technology. Parties often refer domestic arbitrations to IAMA.
Asia Pacific Dispute Resolution Guide 2016 Power to Appeal and/or Set Aside Award
An award issued in an international arbitration cannot be appealed to the courts for an error of fact or law. There are limited grounds on which the award can be challenged and set aside by the courts. These grounds reflect the grounds for challenging enforcement of an award under the New York Convention. The grounds relate to procedural issues and public policy. For example, an award may be challenged where the following conditions apply:
(a) a party to the arbitration was under some incapacity;
(b) the arbitration agreement was not valid;
(c) a party was not given proper notice of the arbitration or of the appointment of an arbitrator or was otherwise unable to present its case;
(d) the award deals with an issue that was not referred to arbitration or is beyond the scope of the tribunal’s mandate;
(e) the composition of the tribunal or the arbitral procedure was not in accordance with the agreement of the parties;
(f) the subject matter of the arbitration is not capable of being settled by arbitration (i.e., it is not arbitrable); and
(g) the award is in conflict with public policy of the State where the challenge is sought.
Without limiting the meaning of “public policy,” the IAA provides that for the purposes of enforcement of a foreign award in Australia, the award would be contrary to public policy if:
(a) the making of the award was induced or affected by fraud or corruption; or
(b) a breach of the rules of natural justice occurred in connection with the making of the award.
These “public policy” grounds will also be considered in an application to set aside an award.
Similarly, an award issued in a domestic arbitration cannot, in general, be appealed to the courts for an error of fact or law but can be challenged on limited procedural grounds or public policy.
However, the State Commercial Arbitration Acts do provide an exception: a party may appeal on a point of law if the parties have agreed to the appeal and leave is granted by the court. The grounds on which leave may be granted are consistent across the states and territories. For example, the grounds on which the court will grant leave under the NSW include the following:
(a) the determination of the question will substantially affect the rights of one or more of the parties; and
(b) the question is one that the tribunal was asked to determine; and
(c) on the basis of the findings of fact on the award (i) the decision of the tribunal on the question is obviously wrong, or (ii) the question is one of general public importance and the decision of the tribunal is at least open to serious doubt; and
(d) despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the court to determine the question.
The grounds on which a court may set aside a domestic arbitration award under the State Commercial Arbitration Acts are the same as the grounds for international arbitrations under the IAA.
Asia Pacific Dispute Resolution Guide 2016 Enforcement of Arbitration Awards
An award that has been issued in international arbitrations may be enforced by the Australian courts irrespective of whether the award was made in Australia or in another state.
Australia is a party to the New York Convention. The IAA provides that an award made in a state that is party to the New York Convention may be enforced in the Australian Courts. As there are more than 150 states to the New York Convention, it is likely that the award will be enforceable under these provisions.
The IAA also provides that an award made in non-Convention countries may be enforced where the person seeking enforcement is domiciled or ordinarily resident in Australia or a Convention country (or is the government of a Convention country).
Further, an award may be enforceable under the Federal Foreign Judgments Act 1991 or State Foreign Judgments legislation or under the common law if the IAA does not apply.
If the application to enforce the award is made under the IAA on the basis of the New York Convention, the enforcement application may be challenged on limited procedural grounds or public policy set out in the New York Convention. The grounds for challenge are the same grounds for setting aside an award, as explained above.
Awards issued in domestic arbitrations are enforceable under the State Commercial Arbitration Acts. Each act contains a provision which allows an award made in any state or territory under an “arbitration agreement” to be enforced in the same manner as a judgment or order of the court to the same effect, by leave of the court. As with international arbitrations, there are limited grounds for challenging enforcement, which are focused on procedural issues and public policy.
Alternative Dispute Resolution
The general trend is for companies to avoid litigation where they can. Court proceedings may be prolonged, expensive, costly and public, making it difficult for commercial confidentiality to be maintained.
Alternative Dispute Resolution (ADR) refers to the different methods of dispute resolution available apart from traditional court proceedings. The most popular type of ADR is mediation as it is inexpensive, private and can be arranged quickly.
Broadly, mediation involves a skilled independent third party (usually an experienced lawyer) acting as the mediator who assists the parties to reach a voluntary settlement. The mediator helps the parties examine the dispute issues, possible outcomes and settlement options. Often the parties will be represented by lawyers who are involved in settlement discussions. The mediator cannot force the parties to settle the dispute or compel them to do anything. If the mediation is successful, the parties usually sign a document formally recording the settlement.
A mediation can be arranged as soon as a commercial dispute arises. Many courts now oblige parties to participate in a mediation before a court hearing can take place.
Another method of ADR is expert determination (either binding or non-binding). This involves the parties agreeing to be bound by the decision of an independent third party, the expert who must act fairly. Usually the expert accepts written submissions. The expert may only take limited evidence, if any. This is a quick and relatively inexpensive method of ADR, best confined to cases of a technical nature (such as single-issue engineering disputes), which do not involve large amounts of money.
For further information, please contact:
Wynn Pakdeejit, Partner, Baker & McKenzie
milton.cheng@bakermckenzie.com
