중재 및 ADR
중재, 조정, 재정 및 대체적 분쟁해결 메커니즘.
소개
Alternative Dispute Resolution (ADR) provides mechanisms for resolving disputes without court litigation. The Arbitration Act 1996 is the principal statute governing arbitration in England & Wales, making London one of the world's leading arbitration seats. Mediation is voluntary and facilitative. Adjudication is a rapid interim process used primarily in construction disputes. The courts actively encourage ADR and may impose costs sanctions on parties who unreasonably refuse to engage in it.
In Brief
Any party to a construction contract can refer a dispute to adjudication at any time; in other commercial contexts, arbitration under the Arbitration Act 1996 is a common alternative to litigation. Mediation is voluntary but courts can now order parties to attempt it and can impose costs sanctions for unreasonable refusal. Arbitral awards are binding and enforceable as court judgments.
핵심 원칙
Arbitration — A private, binding dispute resolution process where the parties agree to submit disputes to one or more arbitrators. The Arbitration Act 1996 gives the tribunal wide powers and limits court intervention.
Party Autonomy — The parties are free to agree how their disputes are resolved, subject to mandatory provisions of the Arbitration Act 1996 (s.1).
Arbitral Awards — Awards are binding and enforceable as if they were court judgments. International awards are enforceable under the New York Convention 1958.
Mediation — A voluntary, non-binding process where an independent mediator helps parties reach a negotiated settlement. Any settlement agreement is contractually binding once signed.
Court Encouragement of ADR — The court considers whether parties have engaged in ADR when making costs orders. Unreasonable refusal to mediate may result in adverse costs consequences (Halsey v Milton Keynes NHS Trust [2004]).
Adjudication — A rapid interim dispute resolution mechanism (28 days) used primarily in construction, providing a decision that is binding until finally determined by arbitration, litigation, or agreement.
핵심 법령
Arbitration Act 1996
주요 판례
Halsey v Milton Keynes General NHS Trust
[2004] EWCA Civ 576
Enka v Chubb
[2020] UKSC 38
일반적인 시나리오
Commercial contract with an arbitration clause
If the contract contains an arbitration clause, disputes must be referred to arbitration rather than court. The court will stay proceedings in favour of arbitration (Arbitration Act 1996, s.9) unless the agreement is null and void.
Other party refuses to mediate
While mediation cannot be forced, unreasonable refusal may result in adverse costs consequences. The court considers factors including the nature of the dispute, merits, costs of mediation, and whether mediation had a reasonable prospect of success.
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Frequently Asked Questions
What is the difference between arbitration and mediation?
Arbitration is a private, binding adjudication by an independent arbitrator — the decision (award) is enforceable like a court judgment. Mediation is a voluntary, non-binding process in which a neutral mediator facilitates negotiation — any settlement is only binding once a written agreement is signed by both parties. Arbitration is adversarial; mediation is facilitative.
Can a party challenge an arbitration award in court?
Grounds for challenging an arbitral award are very limited under the Arbitration Act 1996: substantive jurisdiction (s.67), serious irregularity causing injustice (s.68), and appeal on a point of law (s.69, which requires permission and is limited to English law). The policy of the 1996 Act is to support finality and party autonomy, so challenges are rarely successful.
Does my contract have to have an arbitration clause?
No — parties choose arbitration by agreement. An arbitration agreement can be included in the main contract (as a dispute resolution clause) or agreed after a dispute arises (a submission agreement). Without an arbitration agreement, parties default to court litigation. If an arbitration agreement exists and one party tries to litigate, the other can apply to stay proceedings under s.9 Arbitration Act 1996.
Can courts compel parties to mediate?
Following the Court of Appeal's decision in Churchill v Merthyr Tydfil [2023], courts can order parties to engage in mediation or another ADR process as a case management step, even without the parties' consent. Previously, Halsey v Milton Keynes [2004] had suggested courts could not compel mediation. Courts can impose costs sanctions for unreasonable refusal to engage in ADR.
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