A practical alphabet

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Clare Arthurs & Richard Marshall share an (almost) A-Z guide to arbitration

Arbitrators

Independent third parties, chosen either by the parties or the arbitration body, preferably also a specialist in the relevant area of dispute.

Binding

Arbitration awards are binding and final, with very limited grounds of appeal.

Confidentiality

Proceedings are conducted in private, and parties may not disclose any information received for the purposes of the arbitration.

Delay

It can take time to appoint an arbitrator, agree the process and co-ordinate diaries.

Enforcement

If you need to enforce an arbitration award, you may need to do so through the courts – at which stage the outcome of the arbitration award will come into the public domain.

Flexibility

Parties have more flexibility to choose: you may be able to choose your arbitrators and agree the procedure to be adopted. Fine as long as you can agree…

Get talking

The more you can agree in advance with the other side, the better (and more cheaply, easily and quickly the arbitration can be concluded).

How many arbitrators?

The arbitration body may set the number of arbitrators required; usually one or three. The more arbitrators, the more the cost (and potential delay).

International

Arbitration is well suited to disputes involving international parties and issues, because it can avoid jurisdictional issues.

Jurisdiction

The first of only three ways of challenging an arbitration award, on the basis that the tribunal lacked jurisdiction to make the award.

Keep it simple

Do you need oral evidence? Do you need disclosure? Do you need expert evidence?

Legal framework

Parties can choose which law applies to the arbitration agreement.

Multi-party disputes

Arbitration may not be available or suitable where there are multiple parties to a dispute, or you need to join additional or third parties.

Neutrality

Arbitration offers neutrality as to choice or arbitrator, law and location, and may be preferable where a party doesn’t wish to submit to the jurisdiction of the courts in a particular country.

Outcome

The outcome of an arbitration is not publicised (unless challenged or enforced), making it easier to contain commercially or reputationally sensitive matters.

Powers

An arbitrator has few powers to force parties to comply with his or her orders, or to require third parties to comply with requests for disclosure or to give evidence.

Quick(er)

Arbitration should be easier to organise (not subject to the vagaries of court timetabling) and run (fewer procedural requirements). In theory.

Rules

The rules governing the arbitral procedure vary depending on the arbitration body chosen – read them carefully before agreeing!

Serious irregularity

The second of three possible route s of challenge to an arbitration award, aimed at defeating procedural irregularity or impropriety.

The 1958 New York Convention

…requires 156 countries (at the last count) to enforce foreign arbitral awards. Often easier than enforcing a UK court judgment abroad.

UK courts

Their powers to intervene are prescribed by the Arbitration Act 1996. In the main, they will seek to uphold the integrity of the arbitral process.

Venue

Parties can choose the venue for the arbitration—but they must also pay for it.

Written submissions

Written submissions often form the basis of arbitral proceedings, dispensing with the need for oral evidence, and its attendant costs (and unpredictability).

eXpense

Arbitration may be cheaper than litigation, particularly since the court fees for commencing a claim have increased.

You may be wondering…

what happened to the third ground of appeal: mistake on a point of law. Not an easy ground of challenge to succeed on.

Zzzz…

It may take some time for the arbitral award to be handed down.

 

Richard Marshall is a partner & Clare Arthurs is a knowledge lawyer at Penningtons Manches

This article was first published in the New Law Journal

Filed Under: Arbitration , News

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