Transcript Document

Decision Making in the Context of the
Administrative Sanctions Procedure
A programme for Inquiry Members of the Financial
Service Regulatory Authority
19 and 26 May, 2007
G Brian Hutchinson, BCL LLM DAL FCIArb BL
Vice Dean, School of Law
UCD School of Law
An Scoil Dli, UCD
Award Writing in Arbitrations
Preparing to Write The Award (Decision)
• Remember the Substantive Requirements:
–
–
–
–
–
Cogent
Complete
Certain
Final
Enforceable
Summarising the Claims
Status of the Decision
• Final?
• Interim on some heads of claim?
• Interim on Liability?
• Final?
• Suggestion that Specific Performance Awards
should be interim?
Presentation of the Case
• Formal Pleadings?
• Statement of Case?
• Scott Schedule?
• Correspondence?
Proof:
• Burden of Proof:
– he who asserts must prove
– Normally claimant
• Standard of Proof
– more likely than not.
– Equal, then fails.
The Factual Evidence
• Documents and Witnesses
• Is witness testimony consistent and coherent?
• Is reaction under cross-examination convincing?
Opinion Evidence
• Are experts qualified?
• What common ground is there?
• Has expert remained impartial?
Points of Law
• Are relevant authorities cited?
• Are they biding or merely persuasive?
• Where there is conflict, which comes closest to
the case?
• Has a full report of each authority been
produced?
Closing Points
• Can provide a useful starting point and agenda
for writing the award.
Costs
• Do they follow the event
• What is the event?
– Offers? Nature of the offer?
• Are there any interlocutory matters which could
affect costs?
• Give reasons for unusual award of costs.
• Costs of the Reference
• Costs of the Award
Reasons
• All that is required is that arbitrators
should set out what, in their view of the
evidence, did or did not happen and
should explain succinctly why, in the
light of what happened, they have
reached their decision and what that
decision is. That is all that’s meant by
“reasoned award”. -Bremer
Handelsgesellschaft v. Westzucker (No.
2) [1981] 2 Lloyd’s, per Donaldson LJ.
• (In the Meadowsweet v. Bindweed
handout)
Reasoned Awards
• “ A reasoned award is one which states the
reasons for the award in sufficient detail for the
court to consider any question of law arising
therefrom” . “The Ninemia” [1986] QB 802
• Note context, however.
Reasoning
Issue
Fact
Fact or
Law?
Evidence
Law
Law
Submissions, Authorities,
Application
Identification
& Evaluation
Finding /
Holding
Legal Issues to be addressed in
reasoning:
Final Check (by analogy):
• Have all heads of claim been dealt with?
• Have all heads of counterclaim been
dealt with?
• Has anything which was not claimed
been awarded?
• Has interest been properly dealt with?
• Have the costs of the reference been
dealt with?
• Have the costs of the award been dealt
Drafting the Decision
Remember the Formal Requirements,
particularly:
• Writing
• Reasons
• Recitals
• Date
• Signature
Pointer:
• “There are nine and sixty ways of constructing
tribal lays and every single one of them is right” Kipling.
Heading:
In the matter of the Arbitration Acts 1954
to 1998,
and in the matter of an Arbitration
between:
A.B.
Claimants
and
C.D.
Respondents
Sub-Heading:
• Final Award
• Interim Award
• Second Interim Award
• Final Consent Award
Introduction
• Recitals: “Whereas…”
• Remember Christopher Brown v. Genossenschaft
Osterreichiser, particularly:
– Agreement (set-out, mention rules)
– Dispute within Scope (more to follow)
– Arbitrator Appointed (say how and when accepted)
Identify Procedure Adopted
• pleadings
• meetings
• discovery
• (Think Costs – were they reserved or were costs
awarded “in any event?”)
Outline of Dispute
• Could be taken from the pleadings.
• Short approach quite acceptable:
– “The claimant claims:
• £73,798 for loss and expense allegedly incurred
as a direct consequence of delay and disruption
to its work by the respondents
• £6,196.25 for reimbursement of monies
allegedly wrongfully deducted from valuation no
3.
• Interest
• Costs
– “The Respondent denies any of the relief
sought by the claimant and counterclaims:
• etc…”
Summarising the Evidence
• “First, even where a judge knows that the losing party
is almost bound to appeal, the prospect of appeal has
no effect on the contents of the judgment. Second, it
is not necessary – and probably not even desirable –
that an arbitrator should attempt, as a judge does, to
summarise the evidence given by the parties on each
disputed factual issue. Nor, save perhaps where the
arbitrator has been asked before making his award to
set out in his reasons the evidence upon which a
particular finding of fact is based, should the arbitrator
set out all the relevant evidence on a point.” – Lord
Justice Bingham, in an address to the CIArb.
Giving your reasons
1. State the Issue & its Significance
2. Mention the Evidence or Submissions
3. Evaluate the evidence or apply the law
4. State your decision.
5. (Alternatives…)
Giving your reasons
• O’Reilly & Sfaniaki 66 Arbitration 79
– Advise the parties:
• Why the winning party one AND
• Why the losing party lost (on what basis were their
contentions rejected?)
– Explain the legal reasons
• Normally requested to fuel appeal.
Award
• “having considered the evidence and the
submissions adduced by and on behalf of
the parties I HEREBY PUBLISH MY FINAL
AWARD:”
• Analytical approach to each claim and
counterclaim most useful.
• “I Hereby award and Direct that...”
• “Full and final satisfaction”
Costs
• Of Reference, liability not quantum
• Of Award, liability and Quantum?
Final Formalities:
• Signature
•
Date
•
Witnesses
•
Place