CIARB MANIFESTO 2015. A coordinated legal education and business engagement strategy to promote the benefits of alternat
Innovate CIARB MANIFESTO 2015
Innovate CIARB MANIFESTO 2015
Actions A coordinated legal education and business engagement strategy to promote the benefits of alternative dispute resolution (ADR)
Government to play a leading role in international trade negotiations and use its influence in the European Commission to promote private dispute resolution
A review of the role ADR has to play in the wider economy and the establishment of an ADR Commissioner appointed by BIS
The use of Dispute Boards to manage and avoid construction and infrastructure disputes
An ADR skills framework to ensure citizens and businesses can be confident of the quality of practice across the UK
CIArb calls on the next government to
Innovate
It has been a challenging period over recent years for all of those involved in the civil justice arena. However, with challenges come opportunities and we believe now is the time for a radical approach to the problems facing our courts. The Chartered Institute of Arbitrators (CIArb) believes that the debate about civil justice reform has to move beyond a focus on systems and process to reflect the increasing complexity of the legal services and dispute resolution landscape. Instead, practitioners and policy makers should put the citizen at the heart of a discussion on how to mould a wider civil justice environment to ensure access to justice at a time of significant budgetary restraint. We call on the next government to rise to the challenge and be bold, identifying four key areas for action:
1 Civil justice reform
2 Investment
3 Construction and infrastructure
4 Innovation in ADR
I hope that you enjoy reading our proposals and that they stimulate some much needed debate about the future of dispute settlement in the United Kingdom. The next government will face a variety of challenges but we hope they will heed our call: it is time to innovate.
Anthony Abrahams CIArb Director General
1 Foreword
Foreword
2 The Challenge
The Challenge The civil justice system is under tremendous pressure across England and Wales. Much controversy has surrounded the reforms to legal aid and an influx of people appearing in courts without lawyers (referred to as litigants in person) has led to substantial delays and security problems. Whilst areas of public spending such as health have been ring-fenced as the government deals with the economic deficit, the Ministry of Justice has seen a substantial reduction of over £2 billion in its budget. Since 2010, the justice budget has been reduced from approximately £9 billion in 2010 to £6.8 billion in the 2014/15 financial year. In the resultant environment of court closures and staff cuts, it is imperative that new ways of delivering redress are developed to ensure that the government both provides access to justice and meets its budgetary obligations. Her Majesty’s Courts and Tribunals Service has never generated such strong emotions in the popular psyche as other public institutions such as the National Health Service (NHS). This may well be because the citizen feels healthcare will be necessary at some point but would rather not contemplate a day in court. However, it is more likely because justice has been taken for granted. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LAPSO), which set out a new approach to legal aid, continues to be the topic of much debate. With the major political parties committed to current spending plans for the foreseeable future, it must be accepted that radical action is required to ensure we do not face a justice crisis. Citizens and businesses need to be equipped with the knowledge required to navigate a changing system but more importantly have access to and the ability to operate appropriate mechanisms for redress. Citizens are no longer passive users of a civil justice system; they are now more than ever actors within a civil justice environment. A future government has to accept this fundamental shift and that if it is to uphold the rule of law against a stark financial backdrop it must be bold, it must be innovative and it must adapt. The further integration of alternative dispute resolution (ADR) mechanisms as a formal and institutionalised part of the civil justice system, as well as the acknowledgment of the role ADR has to play in the wider economy, would be an important first step in that journey.
What is ADR? A range of procedures that serve to resolve disputes generally involving the intercessions and assistance of a neutral third party, ADR mechanisms include arbitration, mediation, adjudication, expert determination, Dispute Boards and online dispute resolution (ODR).
• A coordinated legal education and business engagement strategy to promote the benefits of alternative dispute resolution (ADR) • A review of the role ADR has to play in the wider economy and the establishment of an ADR Commissioner appointed by BIS
Founded in 1915, CIArb has a duty in the public interest to promote and facilitate ADR
ADR has long been discussed as a cost-effective and faster alternative to costly and time-consuming court process. However, the potential of ADR as a means of repairing an over loaded, under pressure courts system has not been realised. The much publicised problems with a fall in family mediation demonstrate that government needs to take ownership of this issue and think again.
CIArb welcomes the continued discussion about the role of Ombudsman and consumer ADR schemes stimulated by the EU Regulation on Online Dispute Resolution (ODR) (524/2013) and the government’s forthcoming transposition of the EU ADR Directive (2013/11/EU). However, there also needs to be a debate about the use of ADR for commercial disputes. There needs to be a coordinated legal education and business engagement strategy to promote the benefits of ADR, driven by the Department of Business, Innovation and Skills (BIS) as much as by the Ministry of Justice. An ADR Commissioner appointed by BIS, and working with other bodies such as the Civil Justice Council, could make a real impact in this area. There is scope for a significant expansion of the use of commercial ADR schemes, such as the Mayor’s & City of London Court Mediation Scheme, to reduce the case load in the courts and the current strain on resources. The European Commission estimates that there are 10,000 civil and commercial mediation cases in the UK per annum. In the most recent quarter for which statistics are available, between April and June 2014, a total of 370,700 claims were issued and there were 11,100 hearings or trials in the civil (excluding family) courts system in England and Wales. CIArb calls for a review of the role ADR has to play in the civil justice environment, as well a coordinated legal education and business engagement strategy to promote ADR. An ADR Commissioner should be appointed to support the existing work of the Civil Justice Council as well as champion ADR across government and the private sector to situate ADR as a viable alternative to the courts.
3.2 Investment • G overnment to play a leading role in international trade negotiations and use its influence in the European Commission to promote private dispute resolution • U K policymakers to continue to demonstrate global leadership and support the development of international markets for professional services ADR supports international investment and economic growth in the global economy, giving investors much needed confidence that they will have access to redress when entering new markets. London remains the international centre for commercial dispute resolution, with TheCityUK estimating the value of UK legal services exports to be some £3.1billion per annum.
3 Our Calls to Government
3 Our Calls to Governmentt 3.1 Civil justice reform
3 Our Calls to Government
The spotlight has been thrown onto investment arbitration by the ongoing controversy surrounding the inclusion of investor-to-state dispute settlement (ISDS) mechanisms in the free trade deal currently being negotiated between the EU and US, the Transatlantic Trade and Investment Partnership (TTIP). TTIP will be the largest free trade deal in history, worth approximately €300 billion a year to the global economy and £10 billion per year to the UK. The next government should not let the opportunity presented by TTIP to slip by or let significant European regulations for investment arbitration have a knockon impact on the UK’s leading position in commercial dispute resolution. CIArb calls on the next government to take a leading role in international trade negotiations within the framework of the European institutions and defend a robust international investment protection system. Arbitration has been swept up in the high profile criticism of TTIP by assorted civil society organisations. The UK is signed up to more than 90 ISDS clauses across the bilateral investment treaties (BITs) it has agreed in the past, and lost no cases pertaining to ISDS.
TTIP could be worth up to £10 billion per year to the UK
A future government must continue to highlight the value of ADR and work with the European Commission to ensure any legislation developed for domestic and international arbitration is proportionate and evidence based. CIArb also calls on the next government to continue to support the development of international markets for professional services. With our on-going work to support the development of ADR infrastructure in jurisdictions such as Sierra Leone, CIArb believes more could be done to champion the role of ADR in supporting the rule of law and economic growth as an integral part of a future UK approach to development.
3.3 Construction and infrastructure • The use of Dispute Boards to manage and avoid construction and infrastructure disputes
CIArb represents over 5,000 ADR practitioners across the UK
Housing and infrastructure development are set to be major issues at the next election. CIArb believes that there needs to be a strategic approach to contract management to ensure that national infrastructure projects such as HS2 support economic growth and are completed on time and on budget. The avoidance and management of disputes must be a fundamental part of this approach to encourage further investment and support the recovery.
CIArb believes there should be a greater use of ADR procedures in addition to proposed planning courts to fast-track development disputes that impede construction projects, as well as for all major, multi-party contracts. Dispute Boards would be one way in which a future government could effectively and efficiently avoid and manage disputes, enabling it to keep costs down when embarking on long-term, multi-party projects across all sectors. Dispute Boards have been used with great success for international projects such as the Copenhagen Metro, as well as the London Olympics at home, determining disagreements that may arise before the completion of the contractual arrangements throughout the duration of a contract. CIArb calls for a full review of contract management, including the management and avoidance of disputes, across government. An ADR Commissioner, as well as driving civil justice reform, could support the Law Officers and government departments in establishing a network of Dispute Boards. This would allow a future government to save millions of pounds by retaining Dispute Boards to avoid disputes and keep them out of court.
• A n ADR skills framework to ensure citizens and businesses can be confident of the quality of practice across the UK, including a Dispute Resolution profession network as part of the Civil Service Competency Framework for government resolvers
CIArb: the voice of ADR
The ADR sector is fragmented and confusing, which only serves to add to the lack of public awareness. A common framework is required to ensure sets standards across the ADR spectrum and serve as the foundation for the future development of the ADR profession. The Legal Education and Training Review (LETR) identified that there would be the further need for 250,000 jobs in the legal sector by 2020. With the continued growth of the use of Ombudsman and ADR schemes, alongside further reform of the courts system, CIArb believes ADR will become a high street profession in the next 15 years. It is vital that government starts to look at the UK’s ADR infrastructure now to ensure we avoid problems in the years ahead as citizens adjust to the role of intermediate justice in an evolving civil justice environment. The transposition of the EU ADR Directive offers a valuable opportunity for the next government to take action in this area to encourage innovation and the long-term development of ADR for both civil and administrative justice.
CIArb calls on the next government to develop an ADR skills framework, composing common standards and an ADR quality mark, as well as recognise Dispute Resolution as a profession as part of the Civil Service Competency Framework.
3 Our Calls to Government
3.4 Innovation in ADR
About CIArb The Chartered Institute of Arbitrators (CIArb) is a leading professional membership organisation representing the interest of alternative dispute resolution (ADR) practitioners worldwide. With 13,000 members located in over 120 countries, CIArb supports the global promotion, facilitation and development of all forms of private dispute resolution.
Further information
Keywords:
Chris Wilford
Civil Justice Reform; Administrative Justice Reform; Alternative Dispute Resolution (ADR); Arbitration; Mediation; Adjudication; Infrastructure; Housing; Dispute Review Boards; Transatlantic Trade and Investment Partnership (TTIP); Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LAPSO); Rolls Building; Access to Justice; ADR for Business
Head of Policy and Public Affairs E:
[email protected] W: www.ciarb.org © Chartered Institute of Arbitrators 2015
