CORRESPONDENCE
The Remedial Damp Proofing Business and Guarantees
I am currently writing a dissertation concerning remedial damp proofing and the value of guarantees. I would be very pleased to hear from any individual or organisation whom may have acted in disputes or participated in arbitrations concerning the aforementioned. I would further be interested in any relevant case studies or from any member who wishes to pass on the benefit of their experience. Naturally all replies would be fully acknowledged. I thank you in anticipation.
Kevin M Trash 35 Valley Road, Newhaven,East Sussex BN9 9XB
Re: Letters from-
Francis Miller (Issue No 40: September 1999, p22))
Roderick O'Driscoll & Partners (Issue No 39: May 1999, p20)
I sense some friendly banter concerning the powers vested in the Tribunal and am minded to enter the fray! At the risk of being terribly repetitive, it is perhaps worth placing the subject in context and chronological order.
Francis' article, Arbitration: Future in the Past Sense raises the issue of the Tribunal's powers:
"If of course, we are talking about arbitration as opposed to State litigation…?.. then presumably the tribunal has only the powers given to it by the parties"
Roderick responds in his letter, that:
"This [comment] is not strictly correct because [section 34] of the [Arbitration] Act 1996 provides that the Tribunal has the right to decide all procedural and evidential matters (subject to the right of the parties to agree otherwise) including [sub-section 34(g)] whether and to what extent the Tribunal should itself take the initiative in ascertaining the facts and the law."
Francis responds further:
"…we know, by section 4 and schedule 1, that [section 34] is a non-mandatory section and, therefore, if the parties so choose they can delete it in its entirety….or amend all or any of the sub-sections."
Francis goes on to stress the clause "subject to the right..." and therefore appears to be "at a loss to know why Roderick reaches his conclusion". I take it that he reaffirms his views from his originating article?
Perhaps I may be presumptuous enough to arbitrate? Surely this boils down to whether the non-mandatory section 34 requires the parties to agree not to implement or amend the clause, or whether the objection by one party alone is enough to allow the Tribunal to decide its powers. I believe that the clause is quite clear – the parties must agree to otherwise give the Tribunal power to decide all procedural and evidential matters. If the parties do not agree, surely the Tribunal's powers under section 34 apply, unless of course the parties have agreed that the whole of section 34 should not apply!
I concur with Roderick – the default setting is that, despite section 34 being non-mandatory, the Tribunal does have the power to decide on procedural and evidential matters, particularly if the parties are unable to agree otherwise, unless section 34 is struck out totally. It therefore has greater powers, in this case, than those specifically given to it by the parties. May I also suggest that this clause is one which must be discussed in some detail at the preliminary meeting – if ever there was a clause which could hijack proceedings, this is it.
Let battle commence!
Richard Swan