THE COLLEGE OF - - . - " POSTAL COURSE ESTATE MANAGEMENT ICALUS

I PUBLICATIONS I RESEARCH

Incorporated by Royal Charter Patron : HM The Queen

President : HRH The Prince of Wales

CEM Diploma in Arbitration 1994

Notes for A ward Writing Exercise

To go out to Students before they begin Assignment 6

You will shortly be doing Assignments 6, 7 and 8 which cover the technique of Award Writing, and the following notes should help you to get the best out of the tuition which we give.

1 Read the study material very thoroughly indeed before beginning the first of these assignments.

2 In all cases a Reasoned Award is required, unless otherwise stated. This will also apply to the examination.

3 Remember the following principles, the importance of which has emerged from the study of past students' work. Experience has also shown that a great many students neglect these, even when they have had these Notes. You are advised to re-read them.

The Arbitrator's task

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a It is essential to realise that the task of the Arbitrator is to decide the issues put to him on the law and the evidence.

b You are not appointed to investigate the truth of the matter, but to say who has adduced the heavier evidence and/or the most convincing arguments as to iaw.

David Taylor & Son Ltd v Barnett Trading Co (1953) CA lWLR p. 563

'The duty of an arbitrator is to decide the question submitted to him according to the ri_ghts . of the parues and not according to wh;I! he consider fair and reasonable under the circumstances'. per Singleton LJ.

c Do not introduce your own ideas, whether by way of'secretevidence ' or 'own knowledge ' or consideration of legal points or Acts of Parliament which have not been put forward by the Parties or mentioned in the assignment/examination. There may well be gaps in the information. Do not attempt to fill them, but decide on what you are given. You will almost certainly be given far more than you need. This is a common experience in real life Arbitrations and assignments/ examination may well reflect it

d You may in your profession have written reports, carried out investigations, and had to get to the root of many matters. By now you may well be very good at it. The skills and attitudes required for such work must now be entirely dismissed from your mind.

©The College of Estate Management 1994 2612

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f

Remember that your Award should be wholly comprehensible within itself without reference to any other documents (except Assignment 6 which is limited to parts of the Award).

Avoid complexities. The assignments (and indeed the examination) will be very simple little cases, shorn of many of the details which would inevitably occur in real life. There will be very few issues on which Findings/Boldings will be. needed. However, to give you practice, a gooo deal ot intormauon 1s mcmded which you will not need. In real life arbitrations there will be much, much morel

A void falling into the trap of making Findings/Holdings on that which has not been contested, and do not go looking for problems which are not there.

Do not go for Performance Awards or anything complex- the exercises will not require these for their resolution.

Do not attempt to tax costs, except your own! Any apportionment ofyour costs, or indeed of costs generally, must be explained.

g Your stvle and choice of words will indicate your approach to the matter. Make sure that it does so correct! y. A void censorious comment or prejudicial remarks and maintain a stricti y impartial and objective stance until you come to a decision. Then give it in plain simple terms, without further comment. Avoid jargon and 'legalese' .

h In every issue which you decide, your first task is to take the evidence which you are given and deal with it meticulously. Some of the evidence will be agreed, and some not contested. Tills must be taken without question and requires no Finding. Some will be contested, and with this you must carefully weigh the evidence adduced by each side and decide the matter on the weight of the evidence alone. even if, with another side of your brain you think it a ·wrong' resulL Your feelings are unreliable: the evidence must prevail. Your own judgement of what is right is not required, but rather your assessment of the weight of the evidence.

Thus you do not have to be convinced of a point: you must record what the evidence has produced.

4 There is no set form for an Arbitrators' Award, but we require you to follow the scheme set out below:

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•

Because it is a simple system which enables the writer to proceed swiftly and without continual reference back and forth, and it is to some extent self-checking.

In order to provide a consistent method of marking and assess The marks to be allocated are given below.

It is reasonably 'judge proof .

5 The Scheme to be followed is thus:

a Recitals. After the Heading, the Recitals are signalled by the word 'WHEREAS'.

They contain, and contain only, the story of the Arbitration procedure- not of the subject of the dispute- and they begin with a v_ery brief outline of the contract. Follow this with the fact that it was a term of the Agreement that disputes and differences were to be settled by arbitration. Explain the mechanics of it.

Set out all incidents: the application for the appointment by an appointing body, and the appointment. Alternatively, if you are appointed by agreement, give the details. Also give Preliminary and Interlocutory Meetings, interim Directions, and everything up to and including the Hearing. The dramatis personae of the Hearing can go in here, if you think it helps.

20 marks

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b The A ward. Tilis is signalled by something like: ·r, HAVING HEARD AND SJ;:EN _THE EVIDENCE AND CONSIDERED THE SUBMISSIONS, PUBLISH THIS MY FINAL (or INTERIM) AWARD.'

A dramatis personae of the people and firms concerned in the matter can go in here if (but only if) you think it would help and you have not put it into the recitals. You can give the abbreviations which you intend to use.

There follows an outline of the events which gave rise to the Dispute, and it can conveniently begin with details of what the contract was for, so that everything which follows can be set against this factual and legal background. (This we call the 'Narra!Jve' or 'Precis of events' ).

In appropriate cases a chronology of events might go in here if necessary to understanding the case. (Again, only if it does so; many cases will not require it.)

When you come to some debated point - such as whether A did or did not do something -explain the poles of the debate and set them aside for future consideration. Do not decide them now.

At this point the Claim and Counterclaim can be briefly explained. These points may be referred to as 'The Issues' and there is no harm in identifying them as such. It is convenient to say what is common ground- that is, what you have been told was agreed; and this, of course, is not an 'issue'.

Beware ofidentifying too many 'issues '. You should treat in this way only those debated points whose solution is vital to the logic of your Award.

You now have explained what points are in issue, and they will be very fe"l. Do not fall into the trap of reciting the pleaded cases verbatim as the issues. You should be able to ascertain the matters in contention by the points pleaded. Often a critical point arises in the Points of Defence which, if found to be true, destroys the validity of the Claimant's Points of Claim.

In real life, of course, this will have to be written up from a masss of evidence, but in exercises it will have been digested into a very brief form. The task is already more than half performed for you. Do not copy the material verbatifil.J but precis what is needed to explain the matter thoroughlv for your purpose .. There will be plenty or irrelevancies. Judges say that this is the most difficult part of an Award to write, and if you are out of practice, you should polish up your precis writing skill.

Bremer Handelgesellschaft mbH v Westzucker GmbH (No. 2) (1981) 2 LI.130 at p.l32.

'Much of the art of giving a judgement lies in telling a story logically. coherently and This is something which requires skill, but it is not a legal skill and it is not

necessarily advanced by legal training. It is certainly a judicial skill , but arbitrators for this purpose are Judges and will have no difficulty in acquiring it'. per. Donaldson LJ.

You will find that the task itself greatly assists your thinking, and lays the foundation for a sound Award.

Having identified the issues you can now deal with them. 20 marks

c Issues. Sort them out into logical order from your analysis of the Award. They will not usually go in the same order as the chronology. For example, a critical issue which could take out all the rest. may come up at the end of the story. You would obviously wish to take this one first. To do this you must devise the system oflogic which will take you to your overall decision. Each issue will be a step in that logic which has to be decided.

Most, but not all, issues which arise can best be dealt with in 3 steps.

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Step 1:

Evidence. Now, for each of the issues you have set aside for decision, you need to recite the evidence pro and con and make a decision. _1)1ere is no need to waste time setting up a separate list of these issues in such small matters as the exercises, and a heading at the beginning of each issue will suffice.

At this point go to your notes and set out the evidence pro and con on each of the factual issues in order. Do this whether or not Notes are asked for in the assignment/exam.

Develop the evidence on each issue and write it up in such a way as to compel the answer you will be coming to. You will be extending the points set aside in your narrative described in 5 (b) above, and need not repeat what you have said there. You will have left 'hooks' in that stage on which to hang these developed treatments. Say w110 said what and indicate that you are considering both sides of the question. That will of course be obvious from your private Notes.

You now have filled in the debated gaps in your narrative and the facts , whether agreed or found, and Step 1 is complete. They now have to be applied to the appropriate proposition of law.

Step 2:

Law. Like the factual analysis, this may be an agreed matter or it may be debateo. In the latter case you must set out the poles of the debate and come to a Holding oflaw. This must: be based upon Authority and argument. -

Step 3:

Conclusion. Apply the decided law to the facts, as agreed or found and that gives you the resultant decision on the issue.

This process constitutes your 'reason' for firulirzg as you do.

It is therefore not enough to-say:

'A says this ' .

'B says this'.

'I Find for A'.

You must explain why.

For example, you might say that the weight of evidence (which yo_u have. of course. above) is with the Claimant. Or it rnigp.t be that Respondent had shown no reason

why Claimanrs_?fgument should not prevail.

lnHayn Romanand Co SA v Cominter(UK) Ltd (1982) 2LI 458 at464, Mr Justice Robert Goff said: ' Anyway, as a matter of commonsense, they [the Parties] are entitled to know why their contentions have been rejected.' · ·

You must fit the now-decided issues intr !he logical system which you devised at the beginning of the exercise. ·

In exams and assignments, you should also decide those issues which. as it turns out, you do not reqwre for the log!s:: of "\.ll_timate_decision. TI1ese can go in a separate section. "lhey are neeaea to operate a marking system. In real life, you will also do this when you may possibly be appealed successfully on your primary Holdings.

20 marks

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d Summ.ary. Carry your findings to a Summary as appropriate.

Deal with VAT and Interest, having revised the Study Material. Do not omit this section even if it turns out to be a very simple one.

10 marks

e Dir ections. Here you say who shall pay what to whom, and when, and how much interest is included, and if damages for VAT are included, state the amount. Interest should be awarded as a sum of money so as to create a debt. (In exams and assignments just put '(£x)' and do not waste time calculating.)

Revise study material on VAT and Interest

Costs are also to be dealt with:

• Costs of the Reference. State the scale and what happens if there is failure to agree.

• Costs of the Award (ie your own fees) .

The Directions should be unambiguous. Note that the Directions should exclude any explanation for your decisions except in the case of an 'unusual' award of cost or interest.

If for any reason you have to apportion your own fees, you must say why and how this is done. 10 marks

f Attestation is usually signalled by: MADE AND PUBLISHED .................... ....... .. .... ....... .. .

day of ......................................... ....... 19 ........ ............ Appropriate signature and witnessing.

The Assignments

6 a Assignment 6 is for practising only the most difficult parts of the above Scheme, in order to help you with these we require:

The precis of events identifying debated issues in an explanatory way.

ii The written up evidence pro and con on each of the factual issues you have identified. The reasons why you decide as you do.

iii Private notes on (ii) only, showing how you have weighed evidence. (See below.)

iv Similar treatment of any point of law.

v No recitals or directions are required.

Remember to get this assignment returned in good time so that we can help you before you do the next one.

Marking scheme adjusted

b Assignments 7 and 8 are to follow the full scheme.

Notes on 'Notes'

7 a Some assignments (and examinations) require you to submit your Notes. Even if they do not, they are always welcome with assignments. If you submit Notes, do not waste time writing these up in literary style (no one w1ll read them if you do !). Keep the notes very brief, using key words only, and set them out so as to demonstrate your thinking:

First you need to demonstrate the logic of the Award; the order in which you see the issues should be arranged so as to reach a conclusion.

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Secondly, notes on the Evidence on each issue, pro and con. These are essential ._ Without them it is easy to miss the featherweight of evidence which so often makes the difference between win or lose.

' Notes' are ' you talking to yourself . The Award is 'you talking to the Judge· .

b Finally, do not make the exercise too labour-intensive, Identify the issues at the second or third reading_ and, having done so..._builg yoll! thinkiru; arollild them.

Style

8 Give great attention to your style and make it authoritative and convincing. Beware of appearing to be 'inquisitorial ' because you are merely there to work upon the evidence and not upon what you think. Good plain English is required, without jargon, 'legalese' or 'passive voice' , split infinitives and other blemishes. Marks will be allocated for this aspect of the Award. Study the judicial style in reported cases and observe how it is adapted to the matters in hand.

Do not go in for 'over itemisation' , but only use it where it aids comprehension. Too 'jumpy' a style is difficult to read and makes for a less than authoritative Award. Some students do not appreciate that Pleadings and other such documents adopt an 'itemised style' in order to take the case apart into its components, whilst an Award is the re-assembly into an entire decision.

Above all , remember that the readers will only know what you tell them. Keep the readers in mind all the time and make their tasks as eas_y_ as you can. On the Course your readers will be Tutors and Examiners; in practice, High Court Judges, who are being asked to remove you.

You should remember that every case is different, and will require its own treatment, but this will give you an idea of the sort of task which you may expect to encounter.

20 marks

The Examination

9 The examination will not necessarily follow the same format as the examples we have given, and you must be prepared to encounter information given in various ways.

It maybe that a package of information will be sent to you before the examination date, with the final package of Arbitrator's notes and Submissions to be issued at the examination itself- simulating the Hearing.

To prepare for such a format, you should master the technique of writing up the story and the issues first, (memorise this for the exam!) following up with dealing with evidence and issues, and then amending your 'draft' in the light of the examination information. Revise any legal points. Check cases.

Finally, remember that the marking scheme may not be the same as we have used for tutorial purposes. Do all that is required in order to obtain marks, according to the Examination marking scheme.

Drafting

10 Follow these Notes carefully and you will avoid the most frequently observed errors.

Having concluded your draft you may benefit from comparing it " i th these Notes before writing the fi nal version. Many who have lost marks could have benefited had they done so!

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Time

11 Some students have problems with time. You should establish your own method and stick to that which suits you. The folio wing is just one scheme which may be of help.

a Read the papers through quite quickly without pausing to note anything. This will give you a general conspectus of the matter.

b Read them again, and yet again, looking for the debated issues and marking them up. Use 'post-it' tabs rather then 'highlight', so that you can move them or remove them.

c Devise the system oflogic for the whole Award selecting which issues are needed to carry you through to your goal. Notes on tllis.

d Read again, checking that you have got the issues clear. Do Notes as briefly as possible indicating evidence pro and con on each issue, decide who wins. Plan the structure of the Award.

e Write up Issues and Findings.

f Write narrative to encompass the issues and add it into your draft before the Issues and Findings/ Holdings.

g Do Summary.

h Do Recitals and Directions, which are easy.

Check result against these Notes.

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