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Solving commercial problems

Solving commercial problems

By Steve White

Dispute Resolution Practice & Procedure 


In a real example the use of arbitration was successful in resolving a dispute. In November last year I was approached by a party who had executed a sale for their business some months before and was having problems finalising the adjustments. That party informed me that the counterparty was also interested in resolving the problem quickly and efficiently. The challenge for me was to present a solution that could resolve all matters in dispute before Christmas. The agreement did not provide for arbitration so it was important that I satisfied the requirements of the Commercial Arbitration Act to obtain agreement in writing to arbitration including the place. The place is not be confused with venue. The place determines the procedural law which is to apply to the dispute. The venue is where the actual hearing, if any, is heard. After the first call with the party that approached me, I asked them to email me (and copy the counterparty) with the inquiry. They did so and asked for an indication of cost. I asked by reply email for the parties to provide a summary of the dispute (not to exceed one page) and details of how each party said I should determine the dispute. I said further that, subject to receipt of same, I would advise a cost or call a telephone conference to determine the cost. The originating party provided a summary and the other party did not. I called a telephone conference to agree to my appointment and determine a timetable. Before the conference the counterparty confirmed that the summary of the dispute provided to date was accurate. At the conference the parties agreed to exchange evidence, submissions and evidence and submissions in reply by various dates and for me to determine the matters on the papers. The parties did not agree to a third round of submissions despite my suggestion that it would be useful. In short, the timetable did not permit same. I made it clear to the parties that in order to meet the time frames I would be working on the determination as soon as each set of evidence or submissions was received. I also advised the parties to only contact me by email. I agreed to provide a non-binding estimate of my fees after receipt of the material in reply and that I would work towards a decision being made before Christmas. Shortly before the first date for exchanging evidence and submissions, the counterparty emailed and asked for an extension of time. I replied by email and granted all parties a one day extension of time. The party not seeking an extension of time called to ask whether or not to submit its submissions as proposed by the earlier timetable. I advised that party not to call me. I emailed the parties and advised them to comply with my revised timetable and not to contact me by phone. Once the first round of papers was received it became apparent that the parties were seeking to expand the scope of the dispute beyond the original summary. I emailed the parties and asked them to confirm that I had jurisdiction to determine all the matters as submitted in their submissions. They did so the following day. I also issued invoices for work done to date and they were promptly paid. Before the next exchange date for submissions and evidence, the party who did not seek the first extension of time emailed and gave a brief explanation of why they needed a 24 hour extension of time. I emailed the parties adjusting the orders to suit, including pushing back the date for the determination by one day myself. One party emailed (copied all) and asked what recourse they may have if inaccurate information was provided. I emailed in reply that each party should seek their own legal advice. The parties filed their evidence and submissions in reply, at which stage credibility evidence was sought to be relied on and jurisdiction was challenged in relation to one of the matters on which I had already sought confirmation of jurisdiction. I indicated a non-binding estimate of costs and confirmed that a decision would be made as proposed. I also asked that various documents referred to in the submissions be provided in addition to copies of each authority and standard upon which the parties sought to rely. Those documents were promptly supplied. The party against whom credibility evidence was sought to be led emailed me (copied all) and asked to know whether the rules of evidence were to apply to the arbitration or not. I issued procedural orders requiring further submissions in reply the following day including any submissions they proposed to put in relation to evidence and any submissions they proposed to put in relation to whether or not the wording used in the schedules was relevant or not. I also referred the parties to s19 of the Commercial Arbitration Act so they could seek legal advice in relation to same. Further submissions were so received. I advised the parties my original estimate was correct and required payment into my trust account of same. Those moneys were paid. Five days later I issued my decision as promised. It was interesting to note that much of the evidence sought to be relied on by the parties was not relevant. This is not unusual for a contractual interpretation dispute. What was important was that the method chosen by the parties, determination on the papers, enabled the parties to move forward and make such adjustments as were necessary to resolve the dispute. It is difficult to see a court based solution achieving this objective. Nor indeed would a mediation necessarily have resolved the dispute, which the parties had already tried to resolve and failed to do, in the time frame available. Steve White is principal of White SW Computer Law.

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