SAS Open Journals
Not a member yet
4299 research outputs found
Sort by
Developments in the History of Arbitration: A Past for the Present?
Get PDFIt is not always easy to see the relevance of history to current practice, a complaint that might be levelled at the history of arbitration. Yet the uses made of history in work about the present state of arbitration show that some fascinating interventions have been made by both eminent academics and practitioners, with some important differences emerging in their interpretations. This article gives a brief overview of the history of legislation relating to arbitration, which predominantly relates to the relationship of arbitration with commerce and the courts. It also suggests that recent developments in studies of the history of arbitration challenge some of the assumptions made by those using it to illuminate the present. One particular difficulty with the way history has been used is the tendency to focus exclusively on commercial arbitration. Two detailed examples are given of areas that have received less attention; arbitration in the early railway industry and its use settling disputes for working-class friendly societies. These point the way to exploring a more diverse history, that looks beyond London, lawyers and commerce.
Keywords: arbitration; dispute resolution; history; Georgian; Victorian; railways; friendly societies; legislation
Alternative Dispute Resolution and the Civil Courts: A Very British Type of Justice—The Legacy of the Woolf Reforms in 2022
Get PDFIn 1996, Lord Woolf described a vision for civil English and Welsh justice, culminating in his culture-changing reforms (the Woolf Reforms) and the Civil Procedure Rules of April 1999. These impose a continuing duty on litigants to consider alternative dispute resolution (ADR) in preference to litigation, even after it has commenced, and on the courts, to encourage ADR. These duties are a central method for the delivery of justice. They required a radical new way of thinking about disputes from litigants, their advisors and the courts.
This article focuses on Lord Woolf’s vision and his Reforms, and their impact on the approach to ADR taken by the courts since 1999. It seeks to identify how that approach informs a concept of justice within the practice of modern litigation. The approach, supported by relevant case law, presents a broader and arguably more sophisticated view of justice that involves party autonomy, dialogue, settlement, creativity, flexibility of outcome, compromise, satisfaction and saving costs, as well as the more conventional approach to determining rights at trial after due process.
Keywords: ADR; mediation; justice; civil justice; court reforms; overriding objective; Halsey
Scandal at the Post Office: The Intersection of law, ethics and politics
Get PDFThe Post Office Horizon scandal in the United Kingdom, possibly the most extensive miscarriage of justice in English legal history, was caused by a number of interrelated factors. These include: the legal presumption that computers are reliable; the unwillingness and failure of judges to order appropriate and necessary disclosure of documents by the Post Office, where required to ensure fairness at trial; the unethical conduct by the board and management of the Post Office; failure by government – the Post Office’s owner, and questionable litigation strategies adopted by the Post Office’s lawyers.
Index words: Post Office; Horizon IT system; disclosure; discovery; electronic evidence; ethics; politic
Reflections on the Judicial Case Management Experiments of Sir Francis Newbolt
Get PDFIn two earlier articles published in Amicus Curiae, a pioneering form of case management was reviewed. Essentially these essays revealed that Sir Francis Newbolt, an Official Referee, was the pioneer in this processual innovation, in his work between 1920 and 1936. His procedural experiments and advances laid the foundation for a distinctive process adopted by the Official Referees’ Court which survives to this day, albeit enhanced and adapted to meet the challenges of the digital age. In many respects, and as suggested in the earlier contributions, Newbolt was far ahead of his times, although it is important to appreciate also that he was driven largely by the impact of post-World War I austerity and the economic pressures of the Great Depression which stretched judicial resources. In some respects, there may be an almost historical correlation between his times and today—a period of austerity followed by an unexpected pandemic, exacerbated by interruptions to trading relationships. The pandemic of 1918 is said to have had greater consequences than the World War, imperial preference, protectionism and the depression. The experience of those times may have some relevance to our own. In this article, however, a comparison is drawn between Newbolt’s ‘Scheme’ and the subsequent access to justice reforms in England and Wales, demonstrating in many respects a certain degree of equivalence in the objectives of Lord Woolf and Sir Francis. This may be equated with my experience as a solicitor who practised in the Official Referees Court, which then became the Technology and Construction Court. That court inherited the practice derived from Newbolt’s experiments and enabled a more efficient form of case management broadly conforming to the objectives of access to justice.
Keywords: case management; official referees; innovative procedure
Conflict Avoidance and Alternative Dispute Resolution in the UK Construction Industry
Get PDFThis article focuses on conflict avoidance and alternative dispute resolution (ADR) in the United Kingdom (UK) construction industry. It seeks to place the use of ADR in the UK in context and to analyse the dispute prevention techniques in standard form contracts. The article also considers the importance of, and processes involved in, mediation and statutory adjudication in construction disputes. It also discusses the key feature of dispute boards and their use in the UK.
Keywords: United Kingdom; conflict avoidance; ADR; adjudication; mediation; dispute boards; DABs; Construction Act; HGRA; HGCRA; NEC3; NEC4; BE Collaborative Contract; PPC2000
Sleep-Facilitated Sexual Assault: An Analysis of Case Data Featuring Female and Male Victims of Rape
Get PDFThis note addresses a form of rape that is neglected in the scholarly literature. This form of offending occurs when a male uses his penis to vaginally, orally or anally penetrate a female or male who is sleeping at the time of the penetration. The data on which this note is based is gathered from a total sample of 441 police rape investigation case files, from which 39 of these sleep cases are identified. The note examines some of the characteristics of these cases, investigative trajectories through the criminal justice process and the behaviour of suspects. Given the neglect with which this issue has been treated, it is argued that further research would be beneficial so as to improve our understanding of the rape of those who are sleeping and the criminal justice and police response to this problem.
Keywords: rape; victims; suspects; sleep; police investigations
