Alternative Dispute Resolution: Use and Abuse of Information and Specialized Knowledge
AbstractThe authors examine the subject of Alternative Dispute Resolution ("ADR") with a focus on the issue of specialized knowledge and its use in two particular spheres of ADR: regulatory tribunals and arbitration. The authors define "specialized knowledge" and compare it to the concept of evidence in order to determine whether it is evidence which can be relied upon by regulators and arbitrators in the context of their ADR decision-making. The relationship between specialized knowledge and the rules of natural justice is explored — in particular, the audi alteram pattern rule and the rule against bias. The authors conclude by suggesting guidelines to be used by arbitrators and regulatory tribunals in adjudicating on matters before them in order to avoid challenges, by judicial review, to their decisions on the basis of misuse or "abuse" of their specialized knowledge.
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