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General Product and Safety Regulations

ANNEX B: Advisory Scheme for Product Recall under the General Product Safety Regulations 2005

1 Introduction

1.1 The Advisory Scheme for Product Recall (the Scheme) under the General Product Safety Regulations 2005 applies where a business disputes the intention of an enforcement authority to serve a formal Recall Notice requiring the business to recall a product from consumers. In such circumstances the business (the applicant) may require the enforcement authority to seek independent written advice from an individual nominated by the Chartered Institute of Arbitrators (CIArb) on the questions of whether a product is dangerous and whether recall is appropriate and proportionate to the seriousness of the risk.

1.2 The CIArb administers the Scheme and has the exclusive right to appoint an evaluator under these rules. The CIArb will appoint an evaluator from its panel of evaluators specifically created for the Scheme. The evaluator will have a legal qualification of at least 10 years standing. 1.3 The scheme uses early neutral evaluation (ENE) as a method of producing an independent written advice on the questions referred to in paragraph 1.1 above after taking into account the representations made by the business and the enforcement authority. 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 Scheme must be made on the designated application form, available from: Dispute Resolution Services The Chartered Institute of Arbitrators The International Arbitration & Mediation Centre 12 Bloomsbury Square London WC1A 2LP. Telephone 020-7421-7444 Fax 020-7404-4023 Email Web

2.2 The application must be submitted to the relevant enforcement authority in accordance with regulation 15(4)(c) of the General Product Safety Regulations 2005 accompanied by the registration fee of £350 plus VAT payable to the Chartered Institute of Arbitrators. The enforcement authority shall forward the application and fee immediately to the CIArb.

2.3 Each party must advise the other and the CIArb of a unique contact point to receive all communications relating to the proceedings.

3 Appointment of an evaluator

3.1 The CIArb will appoint an evaluator no later than the 3rd working day following the date of receipt of a properly completed application form together with the fee and will forthwith inform the parties.

3.2 The CIArb 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 or 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 CIArb and the other party no later than the 3rd working day following the day the proceedings commenced.

4.3 A case statement shall be no longer than 10 pages and may include anything the party believes 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 A party may include in its documentation the views of the Local Authority where the relevant decision-making base of the applicant is located (the Home Authority). Where the home authority has stated a view it shall be presented to the evaluator and the other party complete and unedited.

4.5 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.

4.6 A party may be represented or assisted at an oral hearing by not 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 9th working day after the day on which the proceedings commenced. Under normal circumstances the hearing will last for no longer than one working day (7 hours). If the evaluator and the parties agree, the hearing may extend into one further working day subject to the evaluator and the applicant agreeing a fee for the additional hours (see section 5 below).

4.9 The CIArb 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 applicant facilities at the CIArb may be used. The CIArb 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 save that the evaluator will have the discretion to permit a party to participate remotely where attendance would be unduly onerous.

4.11 The following procedure will typically be followed at the hearing although the evaluator will be able to allow a great deal of flexibility in the procedure, with the agreement of the parties. The evaluator will: (a) give each party time to present its evidence and submissions on the questions in issue. A party may make its presentation through any media it feels fit (e.g. written documentation, photographs, video evidence etc). 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.

4.12 The evaluator will provide his or her 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.

4.13 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 no later than the 3rd working day following the date of the request or be disregarded.

4.14 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 working days from the date of submission to make comments on that material to the evaluator.

4.15 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 working days from the date of receipt of that advice submit comments on it to the evaluator.

5 Costs

5.1 As provided by regulation 15(6) of the General Product Safety Regulations 2005, the applicant 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 CIArb at the conclusion of the evaluation. Save that no payment will be due to any evaluator who is replaced by the CIArb for any reason.

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

5.3 The evaluator’s fees for all work on the case will be £200 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 taken up on the case on the second day (up to a maximum of 7 further hours giving a total maximum equivalent to 23 hours work). In addition, evaluators may charge their reasonable travel and incidental expenses at cost. Annex B: Advisory Scheme for Product Recall under the General Product Safety Regulation 2005 35

5.4 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.

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

6 Confidentiality

6.1 The written advice of the evaluator may be provided to a court by either party in the event of an appeal against a Recall Notice having been served. Subject to this the proceedings should be kept confidential except as required or permitted by law.

6.2 The CIArb may gather and retain details in summary form of individual cases and the assessments made and may publish statistical and outline information in respect of such cases whilst preserving the anonymity of parties. It 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.

7 General

7.1 All aspects of the scheme shall be subject to review after no more than 3 years from the date of entry into force and from time to time thereafter as determined by the Secretary of State for Trade and Industry. The edition of the scheme in force at the time the dispute arises shall govern any evaluation under the scheme.