Decision Making in the Context of the Administrative Sanctions Procedure

1
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

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Award Writing in Arbitrations
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Preparing to Write The Award (Decision)

• Remember the Substantive Requirements
• Cogent
• Complete
• Certain
• Final
• Enforceable

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Summarising the Claims
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Status of the Decision

• Final?
• Interim on some heads of claim?
• Interim on Liability?
• Final?
• Suggestion that Specific Performance Awards
  should be interim?

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Presentation of the Case

• Formal Pleadings?
• Statement of Case?
• Scott Schedule?
• Correspondence?

7
Proof

• Burden of Proof
• he who asserts must prove
• Normally claimant
• Standard of Proof
• more likely than not.
• Equal, then fails.

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The Factual Evidence

• Documents and Witnesses
• Is witness testimony consistent and coherent?
• Is reaction under cross-examination convincing?

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Opinion Evidence

• Are experts qualified?
• What common ground is there?
• Has expert remained impartial?

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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?

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Closing Points

• Can provide a useful starting point and agenda
  for writing the award.

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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

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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 thats meant by reasoned award.
  -Bremer Handelsgesellschaft v. Westzucker (No. 2)
  1981 2 Lloyds, per Donaldson LJ.
• (In the Meadowsweet v. Bindweed handout)

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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.

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Reasoning
Issue
Fact or Law?
Fact
Law
Evidence
Law
Identification Evaluation
Submissions, Authorities, Application
Finding / Holding
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Legal Issues to be addressed in reasoning
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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 with?

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Drafting the Decision
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Remember the Formal Requirements, particularly

• Writing
• Reasons
• Recitals
• Date
• Signature

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Pointer

• There are nine and sixty ways of constructing
  tribal lays and every single one of them is
  right - Kipling.

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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

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Sub-Heading

• Final Award
• Interim Award
• Second Interim Award
• Final Consent Award

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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)

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Identify Procedure Adopted

• pleadings
• meetings
• discovery
• (Think Costs were they reserved or were costs
  awarded in any event?)

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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

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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.

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Giving your reasons

• State the Issue its Significance
• Mention the Evidence or Submissions
• Evaluate the evidence or apply the law
• State your decision.
• (Alternatives)

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Giving your reasons

• OReilly 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.

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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
• Time for Payment?

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Costs

• Of Reference, liability not quantum
• Of Award, liability and Quantum?

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Final Formalities

• Signature
• Date
• Witnesses
• Place