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Level 5 Diploma in Arbitration

© 2011 Royal Society for Public Health Ofqual Qualification Number 600/4303/9

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January 2012

Credit Value: 47

Guided Learning Hours: 157

Ofqual Qualification Number 600/4303/9

Description:

The Level 5 Diploma in Arbitration is a qualification that provides the knowledge and understanding for individuals who will be involved in resolving disputes by a process of arbitration, writing arbitration awards and determining the level of costs to be allocated. The qualification includes the type of dispute which might involve the use of arbitration for its resolution, the legal aspects of arbitration and the procedures and processes for writing valid arbitration awards. The qualification is based on the National Occupational Standards developed by the Construction Skills Council. Holders of this qualification will have demonstrated their knowledge and understanding of the role of arbitration in settling disputes and the processes and procedures that are used in arbitration. The qualification is suitable for persons of at least ‘A’ level standard or equivalent, whose work involves assisting in dispute resolution or who wish to undertake such work.



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Unit ONE

Arb 1: Introduction to Arbitration (H/503/6735)

Level 3 This unit has a Credit Value of 3 Guided Learning Hours: 12

Summary of Outcomes:

To achieve this unit a candidate must:

1. Know the situations that could occur that might result in arbitration being used to resolve disputes, by being able to:

1.1 distinguish between the different types of alternative dispute resolution that are commonly used

1.2 explain the circumstances and situations in which the use of arbitration to resolve disputes is appropriate or compulsory

1.3 describe three common scenarios where a dispute may arise that is suitable for alternative dispute resolution. One of the scenarios should be contractual, one tortious and one statutory

2. Understand the legal aspects of Arbitration by being able to:

2.1 explain, with the use of three examples, the key principles of the 1996 Act

2.2 explain, with the use of three examples, the relevant Rules that may apply to arbitration

2.3 explain the rights of the parties to a dispute to challenge an Arbitrator’s awards and the processes that should be adopted



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Content:

Unless stated otherwise, legislative and statutory requirements referred to in the content are those of the 1996 Arbitration Act or superseding legislation

1. Situations that might result in arbitration being used

1.1 Different types of alternative dispute resolution: Arbitration, mediation, independent expert determination and adjudication; the role, duties (specifically including statutory duties) and liabilities of the arbitrator (including the immunity or otherwise of an arbitrator in contrast to the liability of an independent expert); advantages and disadvantages of each method of dispute resolution including speed, costs, confidentiality, whether binding on the parties, inquisitorial powers and methods of appointment. 1.2 Circumstances and situations in which the use of arbitration to resolve disputes is appropriate or compulsory: Contractual, pre-existing (e.g. a lease); contractual (ad hoc) by agreement, statutory (e.g. 1986 Agricultural Holdings Act); jurisdiction of the courts, when courts can intervene, when courts must intervene (for example in some cases when requested by one of the parties), when courts can be asked to intervene, cost considerations of involving the courts. Appropriate use of arbitration, such as where technical expertise is needed for a just and fair resolution and international disputes. 1.3 Common Scenarios: Contractual (such as rent review, contract for sale, scheme arbitrations). Tortious (negligence). Statutory (Agricultural Holdings).

2. Legal aspects of arbitration

2.1 Key principles of the 1996 Act: Arbitration Act 1996 (Section 1 main principles, Section 4 mandatory and non-mandatory provisions Section 33 Duty of Tribunal, Section 40 Duty of Parties). 2.2 Relevant rules that apply to arbitration: UNCITRAL (Model Law), LCIA, ICC, CIMAR, CIARB, scheme rules 2.3 Rights of the parties to a dispute to challenge an Arbitrators award: when, how and where; jurisdiction (section 67 1996 Act); serious irregularity (section 68 1996 Act); point of law (section 69 1996 Act); time limits and constraints; role of the courts; Arbitration Act 1996 Sections 66-71, effect of order of the court.



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Essential Reading: Arbitration Act 1996 Recommended Reading: Arbitration Act 1996 Arbitration Act 1996: A Commentary 4th Edition by Harris, Planterose, Tecks Arbitration of Commercial Disputes: International and English Law & practice

by Andrew & Karen Tweedale

Assessment: Attainment of the Learning Outcomes for this unit may be assessed by coursework, task-based controlled assessment, or by a written examination. In order to be awarded a Pass, candidates must be able to recall / apply relevant knowledge and facts from all parts of the unit specification and demonstrate a satisfactory level of understanding of the principles and concepts used in arbitration such that the candidate will be able to satisfactorily work as a member of a dispute resolution team. Attainment of the Learning Outcomes and assessment criteria will be assessed by centres. Centres must obtain approval for their assessment methods from RSPH. Assessment will be subject to external verification by RSPH.



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Unit TWO

Arb 2: The process of Arbitration (K/503/6736)




1. Understand the initial procedures of the arbitration process, by being able to:

1.1 Explain three of the main factors that an arbitrator should consider before accepting an appointment

1.2 Describe how an arbitrator should open communications with the parties to a dispute

1.3 Explain the legal aspects relevant to the initial proceedings in arbitration

2. Understand the process of arbitration subsequent to initial procedures; by being able to:

2.1 Outline the rights and duties of the arbitrator and the parties throughout the process

2.2 Explain how the arbitration process is managed during interlocutory matters, the hearing and publishing of the award

2.3 Summarise the process for producing an award that complies with legal requirements.



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Content:

Unless stated otherwise, legislative and statutory requirements referred to in the content are those of the 1996 Arbitration Act or superseding legislation

1. Initial procedures of the arbitration process

1.1 Factors that an arbitrator should consider before accepting an appointment: Conflict of interest; depth of inquiry required; what is or is not a conflict; when an involvement is a conflict; area of expertise within personal experience and within geographical area of knowledge (if applicable); complies with requirement of the contract; relevant qualifications; available time to be able to deal with the matter expediently.

1.2 How an arbitrator should open communications: initial correspondence; what to expect and how to reply; formality; copying of correspondence; outline of basic principles (such as terms of engagement, no privileged documents to be disclosed, each party to copy correspondence to Arbitrator to other party); need to understand extent and complexity of dispute from outset to determine if a settlement is likely and estimate the time required to negotiate. 1.3 Legal aspects relevant to the initial proceedings: Legal framework for dealing with preliminary issues, relevant sections of 1996 Act, (general principles under Section 1, own jurisdiction under Section 30 and Section 31, procedural and evidential matters under Section 34); how to deal with legal points or preliminary issues if they are raised; role of the Courts,

2. Process of arbitration subsequent to preliminary procedures

2.1 Duties of Arbitrator and Parties: Statutory background that imposes duties and gives rights to the parties and the arbitrator; (Section 33 and 40 of 1996 Act); how the legal framework should be used and applied appropriately with regard to overriding duties; types and rules of evidence; rights of discovery/disclosure (Section 34 of 1996 Act); how to deal with requests for disclosure and refusal to disclose. 2.2 How the arbitration process is managed: Effective communication with the parties. Advantages and content of: preliminary meetings, statement of agreed facts, statement of issues in dispute and not in dispute. Meetings of experts where relevant. Relevant sections of



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the 1996 Act to include: Section 34 (procedural and evidential matters, Section 35 (consolidation of proceedings and concurrent hearings), Section 37 (power to appoint experts, legal advisors or assessors) cost capping (proportionality Section 33 and Section 63), use of peremptory orders (Section 41 and 42). 2.3 Process for producing an award : Different types of award (such as partial, discrete issues, consent, substantive issue, costs, amount of costs); legal essentials required in award under 1996 Act (Section 52, signed, dated, seat of the arbitration, reasons, in writing, clarity, dealing with all matters put forward by parties); dealing with mistakes and errors with regard to rights and duties under 1996 Act (Section 57 applications); dealing with challenges to award (Section 57 and Sections 66 to 71); time limits; how to deal with award being appealed.

Essential Reading: Arbitration Act 1996 Recommended Reading: Arbitration Act 1996 Arbitration Act 1996: A Commentary 4th Edition by Harris, Planterose, Tecks Arbitration of Commercial Disputes: International and English Law & practice

by Andrew & Karen Tweedale




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Unit THREE

Arb3: The Application of English Law to Arbitration (M/503/6737)




1. Understand the different branches of English law, by being able to:

1.1 Distinguish between civil law and criminal law 1.2 Distinguish between administrative law and constitutional law 1.3 Explain what is meant by statutory duty within English law

2. Understand how English laws are developed, enforced and administered, by being able to:

2.1 Explain how laws are developed from common law, statutes and statutory instruments

2.2 Describe the processes for enforcement and administration of the law



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Content:

1. The different branches of English law

1.1 Distinguish between civil law and criminal law: disputes between individuals and/or organizations; Civil Procedure Rules: sanctions for defined crimes committed by individuals or businesses society

1.2 Distinguish between administrative law and constitutional law: Bureaucratic managerial procedures: the powers of administrative agencies: the relationship between the state and individual, the relationships between different branches of the state; written and unwritten Constitutions;

1.3 Explain what is meant by statutory duty within English law: Duties imposed by Statute; liabilities arising

2. How English laws are developed, enforced and administered

2.1 How laws are developed from common law, statutes and statutory instruments: Common Law; statutes and Statutory Instruments; case law; learned texts. 2.2 Processes for enforcement and administration: the court system; hierarchy of courts in civil and criminal cases; court jurisdiction; the courts and Alternative Dispute Resolution (ADR); penalties in criminal cases; remedies in civil cases; damages; court orders and injunctions

Essential Reading: The English Legal System – Slapper and Kelly

Recommended Reading: Legal Method 6th Edition (2007) McLeod - Palgrave MacMillan Law Masters

Assessment: Attainment of the Learning Outcomes for this unit may be assessed by coursework, task-based controlled assessment, or by a written examination. In order to be awarded a Pass, candidates must be able to recall / apply relevant knowledge and facts from all parts of the unit specification and demonstrate a satisfactory level of understanding of the principles and concepts used in arbitration such that the candidate will be able to satisfactorily work as a member of a dispute resolution team.



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Attainment of the Learning Outcomes and assessment criteria will be assessed by centres. Centres must obtain approval for their assessment methods from RSPH. Assessment will be subject to external verification by RSPH.



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Unit FOUR

Arb 4: The Application of the Law of Contract to Arbitration (T/503/6738)




1. Know the principles that apply to the formation of contracts, by being able to:

1.1 Distinguish between the different types of contract 1.2 Explain the essential prerequisites necessary for contract

formation 1.3 Explain the position of third parties and agents in regard to

contract formation 1.4 Specify the duration of rights and obligations under a contract

once formed.

2. Know the rights and obligations of the parties to a contract, by being able to:

2.1 Explain the parties rights and obligations conferred under a contract

2.2 Explain the consequences of non-performance of obligations

3. Understand how terms may be incorporated into contracts by being able to:

3.1 Explain the potential sources of contract terms 3.2 Explain the difference between express and implied terms 3.3 Explain the difference between conditions, warranties and

innominate terms

4. Know the circumstances which can lead to termination of contracts by being able to:

4.1 Distinguish between the various ways in which a contract can be regarded to be at an end

4.2 Explain the consequences to the parties of termination



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Content:

1. Principles that apply to the formation of contracts

1.1 Different types of contract: formal, informal, oral; dependent on party status 1.2 Prerequisites for contract formation: offer and acceptance; capacity and party identity; consideration; intention to be legally bound; certainty 1.3 Third Parties and Agents: juridical relationship (privity); third party rights; impediments; agency; collateral arrangements 1.4 Duration of Rights and obligations: duration of legal liability, limitation.

2. The rights and obligations of parties 2.1 Rights and obligations: the obligations taken on by each party; exchange of rights; the roles of participants 2.2 Consequences of non-performance: remedies for non-performance; administrative features; liquidated and unliquidated damages.

3. Incorporation of terms into contracts 3.1 Sources of applicable terms; written, oral, by reference, statute 3.2 Express and implied terms: incorporation, commonly implied terms; exemption and exclusion clauses 3.3 Conditions, warranties and innominate terms: the attitude of the law; express and implied terms; representations; remedies for failure.

4. Termination of contracts:

4.1 Bringing a Contract to an end: breach; performance; frustration; agreement;

4.2 Consequences of termination: application of contractual terms; common law: damages



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Essential Reading: Contract Law - Elliott& Quinn (7th Edition)

OR The Law of Contract 12th Edition (2007) – Peel – Sweet & Maxwell

Recommended Reading: Cheshire, Fiffot and Furmston’s Law of Contract 15th Edition (2006)–

Furmston – Oxford University Press

A Nutshells Contract Law 7th Edition (2006) Duxbury – Sweet & Maxwell

Nutcases Contract Law 5th Edition (2008) Ruff – Sweet & Maxwell





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Unit FIVE

Arb 5: The Application of the Law of Tort to Arbitration (A/503/6739)


Summary of Outcomes: To achieve this unit a candidate must:

1. Understand the range of torts recognised by law, by being able to:

1.1 Outline five common torts recognised by law 1.2 Compare and contrast the outlined torts

2. Understand the legal defences available for relevant tortious actions, by being able to:

2.1 Explain the different defences available in regard to negligence 2.2 Explain the different defences available in regard to nuisance 2.3 Explain the different defences available in regard to trespass 2.4 Explain the different defences available in regard to Employer’s

Liability 2.5 Explain the different defences available in regard to Occupier’s

Liability

3. Know the remedies available for tortious actions, by being able to:

3.1 Explain the circumstances in which damages may be an appropriate remedy for tortious actions 3.2 Explain the circumstances in which an injunction would be an appropriate remedy for a tortious action



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Content:

1. Range of Torts recognised by law

1.1 Common torts recognised by law: negligence, nuisance, trespass, employer’s liability, occupier’s liability. 1.2 Compare and contrast common torts: Negligence: duty of care, breach of duty, causation and remoteness. Nuisance: private nuisance, unreasonable interference, public nuisance; Trespass: to the person, battery, assault, false imprisonment, intentional harm. Employer’s Liability: personal, vicarious, statutory. Occupier’s Liability: duty; premises; visitors

2. Legal defences available 2.1 Defences available in regard to negligence: No duty of care: establishing a duty, forseeability and proximity. No breach. No damage: causation; remoteness. Contributory negligence: causation; standard of care; apportionment. Voluntary assumption of risk: Volenti Non Fit Injuria; knowledge of risk; agreement. 2.2 Defences available in regard to nuisance: prescription; statutory authority; coming to nuisance; necessity; act of God, act of a stranger; consent. 2.3 Defences available in regard to trespass: consent, contributory negligence, necessity, self-defence, lawful arrest.

2.4 Defences available in regard to employer’s liability: duty discharged, reasonable care, no master-servant relationship; no liability for economic loss

2.5 Defences available in regard to occupier’s liability: Volenti Non Fit Injuria, reasonable steps, warnings, ex turpi causa

3. Remedies available for tortious actions

3.1 Circumstances in which damages may be an appropriate remedy: kinds, measure, mitigation 3.2 Circumstances in which injunctions may be an appropriate remedy: when and how they can be obtained; breach of injunction



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Essential Reading: Tort Law – Elliott & Quinn (7th Edition) OR Tort 3rd Edition (2008) – Giliker & Beckwith – Sweet & Maxwell Recommended Reading: Winfield and Jolowicz – W V H Rogers Nutshells Tort Edition 8th Edition (2008) Bermingham – Sweet & Maxwell Nutcases Tort Edition 5th Edition (2008) Bermingham – Sweet & Maxwell





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Unit SIX

Arb 6: The Application of the Law of Evidence to Arbitration (M/503/6740)



To achieve this unit a candidate must: 1. Understand the underpinning principles of evidence, by being able

to:

1.1 Distinguish between different types of evidence that could be submitted during the course of an arbitration process, giving three suitable examples of each

1.2 Explain the difference between the burden and standard of proof 1.3 Explain the admissibility of evidence during arbitration proceedings

2. Understand how the rules of evidence are applied to contested proceedings by being able to:

2.1 Explain the rules of evidence which apply to contested procedures.

2.2 Distinguish between the rules of evidence which apply to factual evidence and to evidence of opinion, giving an example of each.



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Content:

1. The underpinning principles of the rules of evidence

1.1 Types of evidence; fact, opinion, hearsay; oral written, documentary 1.2 Burden and standard of proof: burden of proof; with whom burden lies, standard of proof; differencing standards of proof 1.3 Admissibility: applicable statutes; hearsay evidence; competence; the best evidence rule; privilege.

2. The application of rules of evidence 2.1 Explain rules of evidence: relevance, weight, competence, corroboration, similar fact evidence, evidence illegally obtained. 2.2 Distinguish between rules of evidence relating to factual and opinion evidence: observed facts, expertise, scope of evidence, probative value, confidentiality, objective independence, compliance with applicable protocols

Essential Reading: Murphy on Evidence (2009) – Peter Murphy – Oxford University Press Recommended Reading: Cross & Tapper on Evidence 11th Edition (2007) - Tapper – Oxford University Press Nutshells Evidence 5th Edition (2008) – Stockdale – Sweet & Maxwell


Attainment of the Learning Outcomes and assessment criteria will be assessed by centres. Centres must obtain approval for their assessment



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methods from RSPH. Assessment will be subject to external verification by RSPH.



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Unit SEVEN

Arb 7: Arbitration agreement and appointment (A/503/6742)



1. Know the requirements of an arbitration agreement, by being able to:

1.1 Explain the main features of an arbitration agreement 1.2 State the grounds by which parties can object to an arbitration

agreement 1.3 Explain with the use of two suitable examples how the Arbitration

Act 1996 and common law are applied with regard to arbitration agreements

2. Understand appointment procedures relating to arbitration, by being able to:

2.1 Explain the appointment procedures for arbitrators and the validity of these procedures

2.2 Explain the grounds by which a party to a dispute can terminate the arbitration

3. Understand the jurisdiction, powers and duties of an arbitrator, by

being able to:

3.1 Explain the jurisdiction of an arbitrator 3.2 Explain the powers of an arbitrator 3.3 Explain the duties of an arbitrator



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Content:

1. Requirements of an arbitration agreement:

1.1 Main features: Definition, seat of and drafting of an arbitration agreement, 'in writing'; parties; authorised representative; assignee; Incorporation; separability; discharge and stay of legal proceedings.

1.2 Grounds for objection: no agreement; dispute not arisen; substance of arbitration agreement; commencement of arbitration; matters submitted.

1.3 Application of arbitration act and common law: Applicability of Arbitration Act 1996 and common law to arbitration agreement's meaning and effect.

2. Appointment procedures:

2.1 Appointment procedures and validity: Valid appointment; qualification(s) of arbitrator; conflict of interest; time limits for objection; fee basis and liability; communications.

2.2 Grounds for termination: Revocation of authority, removal, resignation and non-liability; immunity.

3. Jurisdiction, powers and duties:

3.1 Jurisdiction of an arbitrator: Grounds of and resolution of objection to jurisdiction; consolidated proceedings; concurrent hearings; contractual time limits and extension of them; S.51(5) continuing jurisdiction on costs. 3.2 Powers of an arbitrator: General powers, specific powers and parties' rights; settlement of dispute, agreed award. 3.3 Duties of an arbitrator: General duties, specific duties (obligations); relationship between ss.1(b), 4(1), 33 and 34(1).



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Essential Reading: Arbitration Act 1996: A Commentary 4th Edition by Harris, Planterose, Tecks Recommended Reading: Robert Merkin Arbitration Law




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Unit EIGHT

Arb 8: Interlocutory applications and arbitration process (F/503/6743)


To achieve this unit a candidate must: 1. Understand how the arbitrator's powers and duties in procedural

directions are applied in practice and communications with the parties, by being able to:

1.1 Explain procedures relating to procedural directions 1.2 Provide directions on issues relating to interlocutory applications 1.3 Explain how to ensure the disputing parties and the arbitrator are

aware of, and understand, each other's expectations

2. Understand how the arbitrator's powers and duties in interlocutory

applications are applied in practice and communications with the parties, by being able to:

2.1 Explain, with the use of three specific examples, the different types of interlocutory applications that may be made during the arbitration process

2.2 Make a decision on an interlocutory application(s) 2.3 Identify, with the use of three examples, how the arbitrator's powers

relating to costs may be applied in interlocutory rulings



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Content:

1. Arbitrator's powers and duties in procedural directions:

1.1 Procedures relating to procedural directions: Authorised representatives; commencing and detailing the procedure; Initiation pf appropriate enquiry(ies); avoidance of inappropriate enquiry(ies); agreement, in writing, to all procedural and evidential matters; procedural and evidential powers if non-agreement. The strict rules of evidence, their [non-]applicability. Ascertaining the facts and law. 1.2 Directions on issues: meeting agendas; explanation of the arbitrator's powers; provision of directions on the substantive issue(s) for procedures with and without an oral hearing; provision of directions on discrete partial issue(s) (including issues within the substantive dispute); allocation and amount of recoverable costs (global sum or itemised bill) for procedures with and without an oral hearing; resolution of legal issues with/without court intervention; representation; provision for sequential/simultaneous service of factual evidence intended to be relied on and agreed facts; statements/replies; witness statements; expert witness reports; statements of truth; advocate/expert; skeleton arguments/defining issues; mensuration; issues/propositions of law; venue; time estimate; communications.

1.3 Ensure parties and arbitrator understand expectations of others: need to avoid ambiguity and lacunae; how to ensure parties' confidence in the arbitrator; duty of consistency with accepted law; understanding secret evidence and principles of unchallenged evidence falling short of the contention in support of which it is given; expectation that unchallenged evidence will have as little adverse effect as possible.

2. Application of arbitrator's powers and duties in interlocutory applications:

2.1 Types of interlocutory applications: adjournment(s); extension(s) of time (with and without sufficient cause); disclosure/specific disclosure; production; inspection; privilege; confidentiality; redacting; peremptory orders; proceeding ex parte; debarring orders; common law limitations on s.41(3) 'dismissal'. 2.2 Decisions on interlocutory applications: make decisions with reasons on objections to jurisdiction; appointment of legal adviser; fees; capping costs; costs occasioned generally; reserving costs. 2.3 Application of arbitrator’s powers relating to costs to interlocutory rulings: provision for costs occasioned by pre-award ruling/order eg reserved, in any event, in the cause.



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Essential Reading: John Tackaberry QC and Arthur Marriott QC (2003), Berstein's Handbook of Arbitration and Dispute Resolution Practice (4th Edn) Sweet and Maxwell Recommended Reading: Robert Merkin Arbitration Law Relevant non-prescriptive guidance from the Civil Procedure Rules D Mark Cato (2002) Arbitration Practice and Procedure, Interlocutory and Hearing Problems (3rd Edn) Lloyds of London Press Michael O'Reilly Costs in Arbitration Proceedings (2nd Edn) Lloyds of London Press




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Unit NINE

Arb 9: Requirements for preparation of a valid arbitration award (L/503/6745)


To achieve this unit a candidate must: 1. Understand the legal requirements of a valid arbitration award by

being able to:

1.1 Explain the use of the different types of award 1.2 Explain the essential contents of a valid award 1.3 Explain the requirements of the Arbitration Act 1996 with regard to

enforceability and challenges

2. Understand the requirements involved in interpreting the parties’

cases, by being able to:

2.1 Identify the issues in dispute 2.2 Determine the findings for each issue 2.3 Explain when and how further enquiries prior to the award might be

helpful and permissible under the Arbitration Act 1996



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Content:

1. Legal requirements of a valid arbitration award: 1.1 Different types of award: Final; partial (save as to costs); award on jurisdiction; award in the alternative; consolidated arbitration award and award by consent (agreement) awards; circumstances in which each type of award might be issued; requirements of Arbitration Act 1996 in particular with regard to the award by reference to S.35 (consolidated proceedings), S39 (Provisional Awards), S46 – 58 (the Award itself). In addition S61 Award of costs and S66 -68 Powers of the Court in relation to an Award).

1.2 Essential contents: Valid awards must be in writing; contain reasons

(unless agreed otherwise by the parties under S52 (4)); be clear and

unambiguous; deal with all matters in the reference; be final; be dated

and must state the seat of the arbitration.

1.3 Requirements of the Arbitration Act: Powers of the Court (S.66-71 of

the Arbitration Act 1996) with regard to enforceability of the award and

the reasons and procedures for challenges to the award.

2. Requirements involved in interpreting the Parties’ cases:

2.1 Issues in dispute: Consideration and interpretation of the Expert Reports and Points of Reply; listing of all identified issues in dispute; need to consider the Statement of Agreed Facts; identification of discrepancies arising out of the cases of the parties.

2.2 Determination of findings: Consideration of the identified issue or issues; persuasiveness of the evidence, rebuttals and expert opinions; additional evidence such as notes from any formal or informal hearing; importance of credibility of the expert witnesses (Ikerian Reefer case); determination of the findings for each identified issue.

2.3 Further enquiries: When and by what means (S34(g) of the Arbitration Act 1996) the use of further enquiries of the parties or others might be permissible and helpful in assisting to resolve any of the issues.



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Essential Reading: Arbitration Awards: A practical approach” by Ray Turner. John Tackaberry QC and Arthur Marriott QC (2003), Berstein's Handbook of Arbitration and Dispute Resolution Practice (4th Edn) Sweet and Maxwell

Recommended Reading: Robert Merkin Arbitration LawArbitral Awards; Contents, Requirements and Layout (Meadowsweet –v- Bindweed x 5 awards – CIArb Journal 2000 Vol66 Issue 2 RICS Guidance Notes for Surveyors acting as Arbitrators and Independent Experts in Construction Related Disputes. RICS Guidance Notes for Surveyors acting as Arbitrators and Independent Experts in Commercial Property Disputes (Revisions due to be published in 2011) RICS Arbitrators Training Manual




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Unit TEN

Arb 10: Write a valid arbitration award (R/503/6746)


To achieve this unit a candidate must: 1. Be able to write a valid award on the substantive issue, by being

able to:

1.1 Produce the award in an appropriately structured format. 1.2 Record and resolve the issues requiring resolution. 1.3 Write the Award to include a reasoned judgement on the expert

reports, points of reply and evidence. 1.4 Determine an appropriate procedure with regard to the treatment

of costs

2. Be able to write an award on the allocation of costs, by being able to:

2.1 Produce the award in an appropriately structured format. 2.2 Record and resolve the issues requiring resolution. 2.3 Determine the allocation of costs. 2.4 Write an Award on Costs with clear reasoned decisions to

include the liability of each party with regard to Quantum matters and a Direction as to payment.

Content:

1. Write a valid award on the substantive issue

1.1Format of award: Format is appropriate for the component parts of an award; structure developed can accommodate a range of cases; components to include headings, title, recitals, background, identification of issues, resolution of issues, reasons, overall decision and concluding formalities. 1.2 Record and resolve issues: Issues, sub-issues, applicable law and contract provisions are established with reference to the documentation and other evidence submitted by the parties; use of relevant case law in establishing issues etc.; additional information and evidence obtained if required; recording of issues; resolution of issues by establishment of



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common ground, weighing of admissible evidence, legal precedent and applicable law.

1.3 Write the award: Award to include a reasoned judgement on all of the issues including reference to expert reports, points of reply and evidence; Award should, take into account relevant legislation, provide unambiguous reasons, be final on the substantive issue, capable of performance, be signed and dated. 1.4 Determine an appropriate procedure with regard to the treatment of costs: How costs will be treated after release of the award; agreement of parties; procedure for receipt of additional evidence relating to costs.

2. Write an award on the allocation of costs

2.1Format of Award: Award produced in a recognisable format; format allows for provision of all components of the award

2.2 Record and resolve the issues requiring resolution: Issues relating to costs are established with reference to the documentation and other evidence submitted by the parties; use of relevant case law in establishing issues etc.; additional information and evidence obtained if required; recording of issues; resolution of issues relating to costs by weighing of admissible evidence, legal precedent and applicable law

2.3: Determine the allocation of costs: Use of relevant legislation to determine whether costs should follow the event; evaluation of evidence to determine a ‘near miss’ with regard to costs or a winning offer to settle; other factors to consider when awarding costs such as conduct and witness credibility during arbitration proceedings. 2.4 Write an Award on Costs: Award links to the substantive Award/s and gives clear unambiguous reasons for award of costs; finality; determination of liability of each party with regard to costs; factors affecting liability; determination of quantum matters; directions to payment



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Essential Reading: Arbitration Awards: A practical approach” by Ray Turner

John Tackaberry QC and Arthur Marriott QC (2003), Berstein's Handbook of Arbitration and Dispute Resolution Practice (4th Edn) Sweet and Maxwell Recommended Reading: Robert Merkin Arbitration Law Arbitral Awards; Contents, Requirements and Layout (Meadowsweet –v- Bindweed x 5 awards – CIArb Journal 2000 Vol66 Issue 2 RICS Guidance Notes for Surveyors acting as Arbitrators and Independent Experts in Construction Related Disputes. RICS Guidance Notes for Surveyors acting as Arbitrators and Independent Experts in Commercial Property Disputes (Revisions due to be published in 2011) RICS Arbitrators Training Manual





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Guidance: Key Skills: It is expected that the delivery of this qualification should provide opportunities for the development of the following key skills: Application of Number Level 3 Communication Level 3 Improving own Learning and Performance Levels 3 and 4 Information and Communications Technology Level 3 Problem Solving Levels 3 and 4 Working with Others Levels 3 and 4 Guidelines for key skills are shown in Appendix 1. General Higher Level Skills: It is expected that the delivery of this qualification should provide opportunities for the development of the following higher level skills: Analysis Evaluation Integration Guidelines for higher level skills are shown in Appendix 2. Other Issues: The delivery of this qualification could provide opportunities for contributing to an understanding of Ethical, Economic and International issues and an awareness of Legislation, Health and Safety considerations and Equal Opportunities. Possible areas for discussion are shown below.

Ethical

Ethical issues can be discussed in the context of contracts and complying with requests from arbitrators and arbitrator Decisions

Economic Economic issues can be raised by discussion of the costs involved in parties seeking arbitration and the economic benefit to the parties of arbitration as a dispute resolution process.

International European legislation could be discussed with respect to how EC law affects UK legislation

Legislative The role of UK legislation in the arbitration process is explicit



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in this qualification.

Health, Safety and Welfare

The need for health and safety during visits to business premises to obtain evidence and interview witnesses should be stressed

Equal Opportunities, Diversity and Respect for People

The importance of effective communication with minority groups and speakers of other languages and awareness of cultural sensibilities could be discussed in relation to obtaining evidence from witnesses. Equal opportunities could be discussed with reference to the roles, rights and obligations of parties and ensuring that access to arbitration is available to all.

National Occupational Standards

The qualification has been mapped to the following National Occupational Standards of the Construction Skills Council:

D41 Evaluate and resolve disputes D42 Prepare and present evidence on disputes Restrictions on Candidate Entry: There are no restrictions on candidate entry. Special Needs: Centres that have candidates with special needs should consult The Society's Regulations and Guidance for Candidates with Special Assessment Needs; this is available from The Society and The Society's web site (www.rsph.org). Recommended Qualifications and Experience of Tutors: Tutors should have verifiable relevant current industry experience and knowledge of the arbitration process at or above the level being taught. This experience and knowledge must be of sufficient depth to be effective and reliable when discussing problem issues and possible solutions with candidates.

Centres should be registered with The Society



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Any enquiries about this qualification should be made to: The Qualifications Department, Royal Society for Public Health, John Snow House, 59, Mansell Street, London, E1 8AN

Tel +44(0)20 7635 7350 Fax +44(0)20 7635 7351 E.mail [email protected] www.rsph.org.uk

mailto:[email protected]



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Appendix One: Key Skills Guidelines

This qualification provides a number of opportunities for candidates to develop competence in key skills and to produce evidence towards attainment of key skills. Successful completion of the qualification does not in itself imply attainment of the listed key skills; this is dependent on the candidate producing a portfolio of evidence and the teaching and learning methods adopted by the tutor(s) and candidate in the delivery of the qualification. The specification content, which provides the most appropriate opportunity for key skill development, is signposted below. Application of Number

Skill Specification Content

N3.1 Plan an activity and get relevant

information from relevant sources.

Graphical, tabular and statistical data can be used to obtain information relating to the number of disputes that use arbitration services per year. Candidates can use information such as number of people involved in arbitration processes, their professions, time involved, number of meetings, cost of formal hearings etc to estimate the likely cost of a company proceeding with different stages of arbitration.

N3.2

Use this information to carry out multi-stage calculations to do with: a amounts or sizes b scales or proportion c handling statistics d using formulae.

N3.3

Interpret the results of your calculations, present your findings and justify your methods.



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Communication


C3.1a Take part in a group discussion.

Any part of the content could be used as the basis for a discussion.

C3.2 Read and synthesise information

from at least two documents about the same subject. Each document must be a minimum of 1,000 words long.

Any part of the content could be researched from textbooks and specialist journals

Improving own Learning and Performance


LP3.1 Set targets using information from

appropriate people and plan how these will be met.

The manner in which candidates plan and carry out their programme of learning for this qualification, in consultation with their tutors/trainers, could provide evidence for this key skill or some elements of this key skill.

LP3.2 Take responsibility for your

learning, using your plan to help meet targets and improve your performance.

LP3.3 Review progress and establish

evidence of your achievements. LP4.1 Develop a strategy for improving

your own learning and performance.

LP4.2 Monitor progress and adapt your

strategy to improve your performance.

LP4.3 Evaluate your strategy and

present the outcomes of your learning.



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Information and Communications Technology


ICT3.1 Search for information, using

different sources, and multiple search criteria in at least one case.

Information about any part of the content could be obtained from web-sites dealing with food safety. Books and articles can be accessed by on-line searches.

ICT3.2 Enter and develop the

information and derive new information.

Candidates can obtain information about a specified part of the content and present this to their peers using packages such as Power Point or other AV techniques.

ICT3.3 Present combined information

such as text with image, text with number, image with number.

Problem Solving


PS3.1 Explore a problem and identify different ways of tackling it.

A number of areas within the specification can be delivered by using a problem-based approach to teaching and learning. Candidates can use mini scenarios to determine what advice would be given to clients concerning whether or not to proceed to arbitration, and highlight any risks involved or strategies to consider.

PS3.2 Plan and implement at least one

way of solving the problem.

PS4.2

Develop a strategy for Problem solving.

PS4.2

Monitor progress and adapt your strategy for solving the problem.

PS4.2

Evaluate your strategy and present the outcomes of your problem solving skills.

Working with Others




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WO3.1 Plan work with others. The manner in which candidates work with others in carrying out their programme of learning for this qualification, in consultation with their tutors and trainers, could provide evidence for this key skill or some elements of this key skill.

WO3.2 Seek to develop co-operation

and check progress towards your agreed objectives.

WO3.3 Review work with others and

agree ways of improving collaborative work in the future.

WO4.1

Develop a strategy for working with others.

WO4.2

Monitor progress and adapt your strategy to achieve agreed objectives.

WO4.3 Evaluate your strategy and

present the outcomes from your work with others.



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Appendix Two: Higher Level Skills Guidelines

This qualification provides a number of opportunities to promote the development of general higher level skills and abilities. Successful completion of the qualification does not in itself imply attainment of the listed skills. Promotion of the skills is dependent on the teaching and learning methods adopted by the tutor(s) and candidate in the delivery of the qualification. The specification content, which provides the most appropriate opportunity for higher level skill development, is signposted below. Analysis

Content providing opportunity for skill development

Evaluation


Integration


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