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Arbitration moves into the fast lane

Arbitration moves into the fast lane

FLEXIBILITY, speed and cost savings are some of the major advantages of the Fast Track Arbitration rules launched by the Institute of Arbitrators and Mediators Australia (IAMA) on…

FLEXIBILITY, speed and cost savings are some of the major advantages of the Fast Track Arbitration rules launched by the Institute of Arbitrators and Mediators Australia (IAMA) on Monday.

Although the new Fast Track rules are not compulsory and won’t be suited to all cases, IAMA president Laurie James believes they offer a good platform from which the arbitration process can be improved. Under these rules a 150-day limit is suggested for the entire process with the possibility of 10-day extensions.

“The overriding objective is to conduct the arbitration fairly, expeditiously, cost-effectively and proportionate to the amount of money, the complexity of issues and any other relevant matter,” James told Lawyers Weekly.

The Fast Track system is just one part of the overall reforms which have been made to the arbitration rules. James said he does not expect that every case will warrant the use of fast-tracking — matters which are too large or complex may be better suited to a more orthodox system — but the important point is that it is there to be used if required.

“This idea of lining up the whole system to the case we’re running — a ‘horses for courses’ type situation — is the key to all of our rules, not just the Fast Track,” he said. “It’s a situation where there is a lot of flexibility to it. I think experienced construction lawyers will say: ‘I can tinker with that. We can treat it like a concertina: we can either stretch it out or tighten it up’.”

Schedule 2 under the new arbitration rules, dealing with fast-tracking, has been designed as a template that can be modified by experienced parties, or relied upon more strictly by inexperienced or unrepresented parties, as they see fit.

“Schedule 2 shouldn’t be taken as tram lines that you have to go along. It is a suggested outline of a way in which you could do it,” James said

“We basically envisage that this could be used in very big arbitrations [such as] massive infrastructure-type cases, where parties are likely to be represented by lawyers with arbitration know-how, who might say ‘we think we could treat this procedure in a different way’ and they are entirely free to do that.”

Importantly though, James stressed that no party would be compelled to enter the Fast Track system if they had not contracted into it.

Another feature of the system is a 20-day limit on the claimant to provide documents including a written statement and evidence to be presented. The rules further stipulate that the arbitrator will be expected to deliver an award within 30 days of the end of the hearing.

There will also be a new approach to the awards given by arbitrators, in that the extent to which they should be expected to provide detailed written reasons must be proportionate to the time available, James said.

“Where for example judges in court write voluminous reasons, it usually takes them many months, and the Fast Track can’t allow for that,” he said.

“The parties [should] acknowledge that in 30 days an arbitrator would probably give a fairly comprehensive award. But if the parties reduce that to 14 days, then obviously they would still have to get an outline, but [not every] detail about what was said in the case.”

James expects, however, that judges will accept a less than comprehensive award if the upside is a faster, cheaper process. “We believe judges will understand that if you are going to compact the timeframe, you can’t expect as much detail in the arbitrators award as you might have done in other cases,” he said.

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