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In two volumes Neil Andrews (University of Cambridge) examines civil processes in England and Wales. One of the leading legal jurisdictions in this area of law as many non-resident parties choose to conduct arbitration in London or bring proceedings before the English High Court, notably the Commercial Court. Written in a clear and well-ordered style, Andrews on Civil Processes therefore discusses the most important styles of civil dispute resolution: court proceedings (volume 1), mediation and arbitration (volume 2).
Neil Andrews guides the reader through the practice of dispute resolution in all its major forms: public and private, adjudicative and conciliatory. The subject-matter has been split into two volumes to provide specialists with a choice, but the two volumes are of course complementary. They provide a complete picture of the court and arbitration systems, and of the developing technique of mediation. Advisors seeking further leads are also assisted by detailed citation of primary sources and rich bibliographical references.
Volume 1: Court Proceedings
In England there has been a sustained effort to control court proceedings and render them more efficient. The author explores common legal principles and connections between the court system and the alternative techniques of arbitration and mediation. For example, there is discussion of: the four forms of civil justice (chapter 1: mediation, settlement without mediation, arbitration, and court proceedings); the six phases of court proceedings (chapter 4); the four forms of English multi-party litigation (chapter 22); and the five constellations of procedural principle - advice and access, empowering the parties, conditions for sound decision-making, an efficient process, a fair process, and upholding judgment (chapters 25 to 29).
Most recently, reform of costs was examined by Lord Justice Jackson’s inquiry in 2009-10. This 2013 publication takes the complex set of reforms and changes introduced in April 2013 into account and provides detailed discussion where relevant (inter alia. qualified one way cost shifting, damages-based agreements, and the changes to conditional fee agreements and the system of settlement offers). A convenient survey of these changes is also set out in the introductory chapter of volume 1.
Volume.2: Arbitration and Mediation
Over the last decade, there has been greater resort to non-judicial modes of dispute resolution, notably mediation and arbitration. Mediation is now better understood by businesses and organisations. In England resort to mediation has increased, including within the heartland of commercial disputes. The Ministry of Justice for England and Wales (2010) reported ‘a doubling of mediation activity since 2007’. The main factors driving increased resort to mediation, not just in England, are: (i) the perception that court litigation is unpredictable; (ii) the court process is a source of expense, delay and anxiety; (iii) final judgment normally awards victory to only one winner; and (iv) trial is open-air justice, visible to mankind in general. Sir Rupert Jackson has also said that ‘ADR... is a tool which can be used to reduce costs... It is a sad fact that many cases settle at a late stage, when substantial costs have been run up’ (`The Role of Alternative Dispute Resolution...’, lecture, 8 March 2012). The European Directive 2008/52/EC on Mediation in Civil and Commercial Matters reflects the global rise of this technique. The English courts encourage resort to mediation, in appropriate contexts, by use of costs sanctions. Furthermore, many corporations now prefer to use international arbitration in combination with other ADR mechanisms, as specified in a ‘multi-tiered’ or ‘escalation’ dispute resolution clause. These prescribe a ‘step-by-step’ approach, negotiation and mediation, which must be exhausted before the parties can commence court or arbitral proceedings. The Court of Appeal in Sulamerica Cia Nacional de Seguros SA v. Enesa Engenharia SA (2012) made clear that a contractual reference to mediation as a desirable mechanism is not the same as a clear and binding contractual commitment to engage in mediation. The same court also noted that the agreement to mediate must be sufficiently certain.
Lawyers and experts in London have extensive experience of international commercial arbitration. However, London is also increasingly used by non-English parties. In volume II detailed discussion of arbitration places the English system in a global context. The subject is systematically arranged in 18 chapters devoted to this complex field. Chapter 3 is looking at the three pillars of commercial arbitration in particular. For non-English lawyers important points include the following two topics: First, English awards can be challenged before the English High Court on the basis of an error of English law (section 69, Arbitration Act 1996). But the High Court will grant permission for such an appeal only sparingly. Furthermore, a properly drafted arbitration clause can exclude this possibility of an appeal under section 69. Secondly, as for court enforcement of foreign awards, in Dallah Real Estate & Tourism Holding Co v. Pakistan (2010) the UK Supreme Court refused to enforce a Paris arbitral award because (in its view) the arbitral tribunal had incorrectly held that the Government of Pakistan was party to the arbitration agreement.
‘English civil procedure has undergone significant changes over the past few years. The Jackson reforms were the final piece in the jigsaw in what had already been a significantly changed procedural landscape. Against this background it is of a paramount importance to keep reference works up-to-date in order to give one a clear picture of where we stand. The new book, Andrews on Civil Processes, published in 2013, was designed to fill in the gap between recent developments and scholarly works in the field. This goal was squarely achieved. The book consists of two volumes, the first devoted to court proceedings while the second one deals exclusively with Arbitration & Mediation. It is a one-stop book for all those who want to resolve their disputes in England, be it through courts or ADR. Last but not least, Professor Neil Andrews is a respected authority in the realm of civil procedure and contract law, and his book should be warmly received by all contentious lawyers. ‘
Dr Roman Khodykin, partner in the law firm Berwin Leighton Paisner LLP (London)
‘It is a very rich book, full of insights, elegantly written, and a major contribution to global procedural scholarship that should be present in every law library around the world. It is a treatise on civil justice in England addressed not only to the English legal profession and other specialists, but also to non-English lawyers. It enters into detail, without neglecting the systematic framework in each and every chapter. Andrews manages to counter-balance the tendency of the English procedural system (just like many other national systems) towards a proliferation of rules by a firm grasp of central and fundamental principles of civil procedures […].’
Remo Caponi in CJQ 2014, 33(3), 351-353 (351)
‘The author addresses [the subject] with his characteristic thoroughness, intelligence and intellectual honesty. This is, in sum, an essential work for all those who wish to understand the reality of civil justice in England and Wales, a book that provides answers to practically all the questions one can pose in relation to it and which, at least for this writer and, I believe, my potential readers, seems likely to soon become a standard work of reference.’
Carlos Esplugues in Arbitraje: Revista de arbitraje comercial y de inversiones (2014) 619-623.
‘[…T]he book enables readers to get a full understanding of civil processes and civil justice in England & Wales. […] Andrews on Civil Processes will prove popular with practitioners, academics and students in Hong Kong, Asia at large and worldwide.’
Fan Yang in Asian Dispute Review (2014) 150-151
‘In summary, one can say that reading the work justifies the enthusiastic statement in the preface that “one has no right to expect a legal subject to be as much fun as Civil Justice”. Congratulations to the author and publisher for publishing this excellent work!’
Teresa Arruda Alvim Wambier in Revista de Processo (2014) 234
‘Firstly, it is an important contribution to understanding English civil justice and even one’s own. […] Secondly, as is always the case with the author, it is written in a clear, systematic, easy-to-read and strongly argued way, looking “inwards” but also outwards to consider, criticise and propose comparative solutions. Thirdly, it is a new and stimulating examination of civil justice that looks at court proceedings as integrated rather than separate, or even antagonistic, as they are often presented. […] The work, published in two volumes, will be of help to lawyers in England, Europe and the rest of the world. Although it focuses on English law, it is of interest to lawyers throughout the world […] The author achieves his goal of transforming a subject as dry as civil procedure and civil justice into an enormously interesting topic, enriched by quotations and transcripts of doctrine and judgments, which are as precise and relevant as the language in which this veritable treatise is written.’
Alvaro Pérez Ragone in Ius et Praxis (2014) 419-426
‘Andrews conveys his message, in his usual manner, in a form easily understood by also the continental lawyer, with a clear and sleek, yet very unique style. Thus building a bridge between the European continent and the British Isles.’
Prof. Dr. Viktória Harsági in Magyar Jog (2015) 254