The essence of Arbitration: A Private Dispute Resolution Mechanism
Arbitration is a dispute resolution method where parties agree to have a neutral third party make a binding decision. It offers privacy, flexibility, and control over the process, allowing for a fair resolution without unnecessary delay. The process is initiated by mutual consent, and the parties can tailor the procedure based on their needs, ensuring a swift and efficient resolution outside of traditional courts.
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The submission of a dispute to an unbiased third person designated by the parties to the controversy, who agree in advance to comply with the award a decison to be issued after a hearing at which both parties have an opportunity to be heard. The submission for determination of disputed matter to private unofficial persons selected in manner provided by law or agreement.
J. Paulson thinks that arbitration represents a political philosophy based on the assumption that citizens private they do not offend public policy or mandatory law (ius cogens). citizens should private relations should be as they be free they see free to see fit to shape fit, provided that shape their their relations as
When dispute their by a tribunal they have chosen in a neutral location and with neutral arbitrators in privacy speedily and efficiently with light but efficient supervison by the courts When parties dispute to their dispute parties have to arbitration dispute decided have agreed arbitration, , that decided: : agreed to that implies to refer implies, , they refer their their they want want
Privacy Confidentiality Autonomy and control over the process Neutral forum Flexibility of being able to tailor the dispute resolution process to the needs of the parties The oportunity to select arbitrators who are knowledgable in the subject matter of the dispute
Arbitration is a private initiative. Arbitration takes place by mutual and free consent of the parties who trust in chosen decision makers. It is based on an agreement between the parties to refer their dispute to arbitration, so called arbitration arbitrate arbitration agreement arbitrate. agreement or agreement agreement to to
1) The object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense 2) The parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest 3) The court should not intervene except as provided by national law
The appointment, challenge and dismissal of arbitrators The jurisdiction of an arbitral tribunal The annulment of an arbitral award The provision of aid by the court in the course of examining evidence The assessment of an arbitration contract The recognition and enforcement of interim measures awarded by an arbitral tribunal The award of interim measures prior to the commencement of arbitration proceedings or in the course thereof The recognition and enforcement of arbitration awards 1. 2. 3. 4. 5. 6. 7. 8.
1) Agreement to arbitrate 2) The arbitral process 3) Post-award proceedings (recognition and enforcement of the arbitral award)
Usually must be in writing Parties must have legal capacity to enter into arbitration agreement May be entered into before as well as after the dispute arises
If arbitration agreement is entered into before the dispute has arisen, it usually is a separate clause clause. before separate clause in in a a contract contract, so called arbitration It is separable from the rest of the substantive contract and so continues to apply even if the substantive contract is avoided.
Arbitration agreement may also be made after made after the dispute has arisen the dispute has arisen. This is so called submission submission agreement agreement.
Arbitration clause must specify the disputes that are to be referred to arbitration. The parties cannot validly agree to refer any dispute arising between them to arbitration. Arbitration clause may concern all or certain disputes that have arisen or which may arise between parties of the agreement relationship. to arbitrate in respect of defined legal Arbitration clause should specify arbitrators, or arbitration tribunal arbitration) or way of appointing arbitrators. (usually institution that administers the
If paries choose to have ad hoc arbitration they need to spell out more specifics in their arbitration clause.
the law governing the contract; the number of arbitrators; the place of arbitration; and/or the language of the arbitration.
Arbitration under or relating to this Agreement are to be settled by binding arbitration in the state of [insert state in which parties agree to arbitrate] or another location mutually agreeable to the parties. An award of arbitration may be confirmed in a court of competent jurisdiction. Arbitration. All claims and disputes arising
Arbitration this Agreement are to be settled by binding arbitration in the state of [insert state in which parties agree to arbitrate] or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees. Any such arbitration shall be conducted by an arbitrator experienced in [insert industry or legal experience required for arbitrator] and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction. Arbitration. All claims and disputes arising under or relating to
All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.
The dispute between parties must be arbitrable arbitrable . . Arbitrability which determines whether the dispute in question may be resolved by an arbitral tribunal. Arbitrability is the feature of a given dispute
There needs to be a private law dispute than a dispute relating to public law or legal status. private law dispute rather According to the Model Law if a dispute is commercial entrepreneurs) arbitration, regardless whether it arises from contract or not. commercial in it in nature can nature be (between referred to
The limitation of the scope of arbitrability is left at the discretion of individual states. There is no general international rule as regards which disputes are arbitrable and which are not. Model Law states that the countries may define categories of issues which shall not be arbitrable, i.e. shall be placed beyond the jurisdiction arbitral tribunals.
the is at the discretion of the parties, it can be referred to arbitration the settleability settleability of the dispute of the dispute if the dispute the case does not involve maintenance or alimony claims the case is not excluded form arbitration under specific provisions
Both disputes pertaining to property rights and disputes pertaining to non-property rights are considered to be arbitrable. Labour law disputes and consumer disputes are also arbitrable, but in order to ensure protection of the weaker party there is a requirement that an arbitration agreement in such cases must be made in writing and may only be made after the dispute in question has arisen.
The nature of the dispute must come within the terms of the arbitration agreement. The dispute must come within the terms of the particular reference to arbitration.
Phase I before the constitution (formation) of the tribunal Phase II after the constitution (formation) of the tribunal
up to the parties notice of arbitration statement of claim proceedings generally commence when the respondent receives plaintiff s submission of claim for arbitration. appointing the arbitrators
The parties are free to agree the procedure for appointing the arbitrator including the procedure for appointing any chairman or umpire (if they agreed on panel of arbitrators). procedure for appointing the arbitrator or arbitrators, Party autonomy in relation to arbitration dictates that an arbitral tribunal is lawfully constituted only when the person of the arbitrators has been approved by parties.
Party-chosen-arbitrators Arbitrators chosen by appointing authority Arbitrators chosen by court
Usually there is an odd number of arbitrators adjudicating the case - one or three in order situations arbitrators to avoid of unnecessary disagreement impasses in between
Parties may rely on the appointment rules of their chosen arbitral institution Parties may condition their appointment to specific criteria such as expertise, nationality, etc.
If parties decided to have three arbitrators the most common method of selection is for each party to select one arbitrator and for the two party-selected arbitrators to pick a third arbitrator, who will be the chair of the tribunal In general, if any party fails to appoint an arbitrator within the time frame agreed to by the parties or set forth in the arbitral rules, the institution selected by the parties in their arbitration clause has the authority to choose the arbitrators
In ad hoc arbitration parties need to be particularly careful to specify their method of arbitrator selection because there is no institution to intervene. The selection method should be therefore clear. It is recommended to set a time frame for making the selection Statement of how the issue will be resolved if parties cannot agree on a sole arbitrator or if they do not make their choice of a party selected arbitrator within the alloted timeframe Usually parties choose an appoiting authority who will select the arbitrator if the parties were unable to do so
bright and knowledgeable impartial common sense communication skills ability to listen carefully thoughtful (hesitates), but is able to decide
Obligation to be impartial and independent If an arbitrator has a serious conflict he or she should not accept an appointment as arbitrator If there is some possible conflict, which may not be serious, the arbitrator is supposed to disclose this to the parties, so that they can decide whether they wish to challenge the arbitrators appointment
The UNCITRAL Model Law and a number of arbitration rules require that an arbitrator disclose without delay any circumstances likely to give rise to justifiable doubts as to his/her impartiality or independence
IMPARTIALITY because of any preconceived notions about the issues and has no reason to favour one party over another arbitrator is not biased INDEPENDENCE arbitrator has no financial interest in the case or its outcomel arbitrator is not dependent on one of the parties for any benefit, such as employent or client referral arbitrator does not have a close business or professional relationship with
Arbitrator has a duty to make best efforts to render an award that is enforceable. Parties may impose on arbitrators specific obligations. Obligation to decide ex aequo et bono
A party can challenge the appointment of an arbitrator and seek his removal at the time the tribunal is constituted or later, if new facts come to light. Conflict of interest Improper conduct
If challenge is not successful, in many jurisdictions the party that brought the challenge may take issue to a court If the particular jurisdiction does not provide for review of a rejected challenge to an arbitrator, a party may have to wait until final award to obtain court review of the decision
If an arbitrator is successfully challenged, or if one resigns or withdraws for any reason, it will be necessary to choose a replacement. Therefore parties need to specify the method for replacement
Criminal liability Tortious liability, usually for gross negligence and intentional wrongdoing Contract liability, only in some jurisdictions Arbitrator is having a contract of services with the parties
Right to arbitrators fee (remuneration) Right to reimbursement for expenses
1) The substantive contract on which the dispute is based 2) The agreement to arbitrate 3) The agreement between the parties and arbitral institution the parties are reffering thei dipute to. Often the parties agree that the institution s arbitration rules will apply to the arbitral proceedings 4) Agreement appointing the arbitrators, made between the parties and/or the arbitral institution and the individual arbitrators.
1) notice of arbitration 2) response to notice of arbitration 3) appointment of arbitrators 4) organizational meeting 5) further written submissions 6) pre-hearing disclosure including exchange of documentary evidence and witness statements 7) oral hearings 8) post-hearing submissions 9) deliberation and rendering the decision in the form of final award
motion to secure claim can be filed in both arbitral tribunal and national court interim award or interim court order have effect only for the time the case is being heard
The rules state that the statement of claim should include the following: A demand for arbitration Contact information for the parties Reference to the arbitration agreement Reference to the contract which gave rise to the dispute A description of the claim, as well as the facts which support it The relief sought
Optionally, the statement may also include a proposal arbitrators, the number of arbitrators, the place of arbitration, and the language of arbitration, if those issues have not been decided earlier about the method of choosing
