In the last two instalments of this step-by step guide to conducting FA Rule K Arbitrations we have covered: pre-action matters, jurisdiction challenges and injunctive relief; and, how to bring a claim and how to approach speeding up or slowing down the process. In this instalment we consider the notice of response, and the preliminary issues of jurisdiction and disclosure that might arise.
Response to the Notice of Arbitration
Within 14 days of service of the Notice of Arbitration, the Respondent(s) must file their response. The response must be filed on all other parties and must set out:
It will be apparent from (i) and (ii) above that the more detailed the notice of arbitration the more detail will be required in the notice of response but under the standard directions the detailed points of defence would not be due until 42 days after the appointment of the chairman or sole arbitrator, Rule K4(b)(ii). It is therefore appropriate to limit the response to the legal claims and core facts relied upon at this stage.
It is important to note that willingness and availability of any proposed arbitrator need to have been confirmed prior to proposing them in any response.
The first thing to consider is whether or not to accept jurisdiction. This point has been addressed by Grahame Anderson in the first instalment of this series.To some extent a challenge to the jurisdiction on the basis that one or other party is not a participant under Rule A can be a helpful delay tactic and of course it could be determinative if successful however it is worth noting the word of caution raised by Grahame in his earlier web comment on the subject that these arguments are proving less effective than previously.
If a challenge is to be made to the jurisdiction of an arbitral tribunal it must be made from the outset and clearly articulated, see section 31 of the Arbitration Act 1996. It will be determined by the Tribunal under Rule K5(ii) so a Tribunal will need to be appointed in order to determine the issue.
Choice of Tribunal
The choice of the arbitral tribunal can lead to a swifter process or a slower process. A single arbitrator is likely to speed the process along, assuming that one can be agreed. A panel of three takes longer to appoint and generally takes longer to convene if a hearing is required due to the challenges of co-ordinating availability, decision making and delivery can also be slower with a panel of three.
If there is a desire to slow the process down, it may be possible to challenge the appointment of an arbitrator. Rule K3(d)(i) provides that an arbitrator can be challenged if ‘circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence’. A challenge must give reasons and must be made within 14 days of the notification of appointment, or, within 14 days of knowledge of the grounds for challenge if that comes after the date of notification. The objection must be made in writing with reasons and sent to the other parties and all the arbitrators including the one challenged. If the challenge is not agreed or the arbitrator does not step down then Rule K3(d)(ii) provides a mechanism to resolve the dispute.
For a Respondent looking to save time and cost the power for the dispute to be determined without a hearing may well be of interest. The power is found in Rule K4(f)(ii), where the parties are entitled to agree whether there should be a hearing or hearings before the Tribunal or whether the dispute should be determined on the basis of written submissions and documents alone. In more straight forward disputes such an approach may save time and money, but it is only really appropriate whether the dispute focuses on documentary evidence and its proper meaning. In many sporting disputes oral evidence is also relevant to consider oral agreements or representations which a party has relied upon.
If a paper determination is proposed it is advisable to include the reasons why it is considered appropriate within the response to the Notice of Arbitration
Disclosure is not provided within the standard directions and therefore if it is necessary or desirable specific provision will need to be agreed. If a Respondent holds key documents which are likely to be determinative of the dispute it may be appropriate to provide full disclosure with the Response in order to try to prompt an early resolution of the dispute. Alternatively, if a Respondent considers that disclosure will be costly, damaging or time consuming they may want to seek variations to the standard orders in order to ensure that disclosure is addressed prior to witness statements but some time after the points of defence.
As Ashley Cukier indicated in his contribution to this series there are a number of tools at the disposal of the parties to accelerate or slow the arbitral process. In this piece we have summarised some of those available to Respondents. In the next instalment we will consider standard directions, common variations and case management generally.
This article was written by Lydia Banerjee. Lydia has acted as a Rule K Arbitrator and represented parties in Rule K disputes – she is a member of the Littleton Sport Group, a member of WISLaw, on the Sports Resolutions panel and an editorial board member for LawInSport. For more information contact Philip Salisbury.