ARBITRATION

BSS 411

What is arbitration?
a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, where a third party neutral (arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard. It is a resolution technique in which a third party reviews the evidence in the case and imposes a decision that is legally binding for both sides and enforcable.

ARBITRATION
An alternative to litigation as a method of dispute resolution. The parties must agree that the third partys decision is final and binding.

EXAMPLE OF ARBITRATION CLAUSE IN AGREEMENT

"Any dispute or difference arising out of or in connection with this contract shall be determined by the appointment of a single arbitrator to be agreed between the parties, or failing agreement within fourteen days, after either party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by the President or a Vice President of the Chartered Institute of Arbitrators."

WHEN TO ARBITRATE
Arbitration Act 1952 (Revised 1972) A matter may be referred to arbitration by agreement before the dispute or after the dispute or operation of the law (by order of court or requirements of astatute) All standard forms of building contract contain an arbitration clause.

WHY USE ARBITRATION? (ADVANTAGES)

Privacy Convinience Speed and expense Conduct less formal Matters of compromise not combative approach Expertise of the arbitrator The award is final and binding unless can be sown that the arbitrator has erred in law

DISADVANTAGES
Rules of evidence do not apply and failure to rely on past cases because there is no collection of precedents available from completed arbitrations. Arbitrator may be knowledgeable in his field but may lack detailed understanding of the law Fees can be expensive Point of law may appeal in court Third parties- more flexible in HC, if arbitration needs to have separate proceedings.

ARBITRATOR
Must be impartial- must act in judicial manner Someone with appropriate technical expertise, basic knowledge of contract and tort, preferably experienced in arbitration Personally liable for fraudulent or corrupt conduct Appointment : by mutual agreement of parties

POWERS OF ARBITRATOR
S13(1) have powers to order parties to appear before him and examine them on oath, produce all relevant documents, and do all things required for the conduct of proceedings S13(2)- has powers to order witnesses to be examined on oath.

ARBITRATION PROCEDURES
1. Commenced only with the appointment of arbitrator 2. Arbitrator calls a preliminary meeting to decide on procedure and to set a timetable and the formal steps to be taken before the hearing 3. Delivery of pleadings. By each party. 4. Discover of documents

5. Exchange of reports of expert witnesses in appropriate cases. 6. Hearing ; calls witnesses- examined, cross examined and re-examined. Sum up. 7. Award decision by arbitrator which is final and binding on the parties.

AWARD
Non speaking award- simply who the successful party is and if there are damages to be awarded. A reasoned award an award where the arbitrator prvides reasons for his decision.

THE END