Communications Providers Independent ADR Service

Early Neutral Evaluation

1 Introduction

1.1 Where any agreement, submission or reference provides for Early Neutral Evaluation (ENE), or where the parties opt voluntarily to use ENE as an alternative to litigation, the parties shall be taken to have agreed that ENE will be conducted in accordance with the Communication Providers ADR Scheme Rules for ENE (the procedure).

1.2 The procedure is administered independently by DRS-CIArb (the administrator), who has the exclusive right to appoint an evaluator under these rules. The administrator will appoint an evaluator from its panel of evaluators specifically created for the procedure. The evaluator will be legally qualified and of at least 10 years standing.

1.3 ENE is used as a method of producing an independent written advice on the questions referred to in 1.1 above after taking into account the representations made by parties. The ENE procedure is designed to minimise costs and encourage agreement between the parties as early as possible.

2 Making an application

2.1 An application under the procedure must be made on the designated application form, available from DRS-CIArb, The International Arbitration & Mediation Centre, 12 Bloomsbury Square, London, WC1A 2LP. Telephone 020-7421-7444; Fax 020-7404-4023; email info@drs-ciarb.com; www.drs-ciarb.com.

2.2 The application must be submitted to the administrator accompanied by the registration fee of £350 plus VAT (payable to the Chartered Institute of Arbitrators).

3 Appointment of an evaluator

3.1 The administrator will appoint an evaluator within 3 working days of receipt of a properly completed application form and the fee and will forthwith inform the parties.

3.2 The administrator may appoint a substitute evaluator in the event of the original evaluator becoming incapacitated, or for any reason being unable to attend competently and / or expeditiously to his / her duties.

4 Procedure

4.1 The proceedings commence on the date of the appointment of the evaluator.

4.2 The parties shall be responsible for submitting their written case statements and supporting documentation to the administrator and the other party within 3 working days of the commencement of the proceedings.

4.3 A case statement shall be no longer than 10 pages and may include anything the party believe would further the objectives of the evaluation. The statement must also identify any legal or factual issues the early resolution of which might reduce the scope of disagreement and / or contribute significantly to any potential agreement regarding the advice to be given by the evaluator.

4.4 When submitting documents to the evaluator either party may request that the application proceed on the basis of written submissions and documentary evidence only (which is designed to offer a quicker and more cost-effective procedure). Where no such request is made or if the other party does not agree then there will be an oral hearing.

4.5 Each party shall identify in their written case statements a unique contact point for communications about the proceedings.

4.6 A party may be represented or assisted at an oral hearing by no more than three persons. A party intending to be represented or assisted by such a person shall notify the other party of his or her name and role. The evaluator may require proof of a person’s authority to act for the party.

4.7 The evaluator may request a party to provide additional evidence on any relevant matter, in writing or orally, if he or she deems it necessary to do so in order to reach a view.

4.8 The evaluator will hold the hearing not later than the 6th working day following receipt of the written cases and documentary evidence. Under normal circumstances the hearing will last for no longer than one working day (7 hours). If the evaluator and the parties agree otherwise, the hearing may extend into one further working day subject to the evaluator and the applicant agreeing a fee for any additional hours (see section 5 below).

4.9 The administrator will consult with the parties and pick a venue for the evaluation based on the availability of appropriate facilities. If possible this will be on neutral ground. With the agreement of the parties the administrator’s facilities may be used. The administrator will advise on their availability and cost on request. However, if each party agrees, it may be more convenient and cost-effective to hold the evaluation at the premises of one of the parties.

4.10 The parties or their representatives must attend the hearing in person, however the evaluator will have the discretion to permit a party to participate remotely where attendance would be unduly onerous.

4.11 At the hearing the following procedure will typically be followed. However the evaluator will be able to allow a great deal of flexibility in the procedure, which can be amended with agreement of the parties. The evaluator will:

(a) Permit each party to present its evidence and submissions on the questions in issue. The parties may make their presentation through any media they feel fit (i.e. the parties may use written documentation, photographs, video evidence and so on. It is the responsibility of the party concerned to ensure that any relevant equipment is available. Notice of the presentation of videos etc should be contained in the party’s case statement);

(b) Help the parties identify areas of agreement;

(c) Assess the relative strengths and weaknesses of the parties’ evidence, and explain carefully the reasoning that supports these assessments;

(d) Where the evaluator identifies grounds for agreement on the questions he or she may explore the possibility with the parties. If the parties are agreeable, the evaluator may speak to the parties privately to see whether their positions are close enough to make an agreement feasible;

(e) Offer an informal evaluation of the submissions and evidence.

(f) The evaluator will provide his written advice to the parties no later than the 6th working day following the conclusion of the oral hearing or of any further periods allowed by these rules where further information or documents are requested or expert advice is sought.

4.12 The evaluator may if he or she requires in order to decide what advice to give request further information or documentation from either or both of the parties. Such further information or documentation shall be provided to the evaluator and the other party within 3 working days of the request or be disregarded.

4.13 Where further information or documentation is provided by a party within the time limit in the preceding paragraph then the other party shall have a further three days to submit comments on that material to the evaluator.

4.14 The evaluator may also if he or she so requires obtain the advice of an independent expert(s). The evaluator shall provide a copy of any advice received from the expert to the parties who may within three days of receiving that advice submit comments on it to the evaluator.

5 Costs

5.1 Evaluators and experts shall maintain sufficient records to enable the hours worked on any particular case to be established. These records will be supplied to any party with reasonable cause on request.

5.2 The evaluator’s fees for all work on the case will be £250 per hour plus VAT (where applicable), subject to a maximum equivalent to 16 hours work, except where the hearing extends into a second day in which case the maximum will be raised by the number of hours (up to a maximum of seven) taken up on the case on the second day. In addition, evaluators may charge their reasonable travel expenses at cost and reasonable incidental expenses.

5.3 If an evaluator seeks advice from an expert then the additional amount payable by the applicant shall not exceed £100 per hour plus VAT (if applicable), subject to a maximum of 8 hours work.

5.4 The parties shall be responsible for payment of all fees, costs and expenses of and related to the application and shall pay these immediately on demand to the administrator at the conclusion of the evaluation. Save that no payment will be due to any evaluator who is replaced by the administrator for any reason.

5.5 Otherwise the parties shall bear their own costs of the application regardless of the outcome.

6 Confidentiality

6.1 The written advice of the evaluator will not be provided to a court by either party. The proceedings should be kept confidential except as required or permitted by law.

6.2 The administrator may gather and retain details in summary form of individual cases and the assessments made while preserving the anonymity of the parties and may make the summaries available to other evaluators as a resource in order to encourage consistency of approach in the advice provided under these rules. The administrator may publish statistical and outline information on such disputes whilst preserving the anonymity of parties.

7 General

7.1 The scheme is subject to revision and amendment from time to time. The edition of the scheme in force at the time the dispute arises shall govern any evaluation under the scheme.
7.2 The administrator shall not be liable to any party for any act or omission in connection with the ENE conducted under these rules.

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