Arbitration is an alternative to litigation in the courts and is
commonly used to determine complex commercial disputes. Here, one
or more independent third parties are appointed as arbitrators to
resolve a dispute in place of a court. Arbitrators must apply the
law but the rules as to admissibility of evidence are significantly
relaxed.
Arbitration is frequently commenced where a dispute arises
between parties to a contract which itself provides for arbitration
as the forum for dispute resolution. Where such a clause is
included in a contract, the parties must arbitrate any dispute
accordingly, unless they unanimously agree to determine the dispute
in another way. Often, parties nominate, in advance, in the
arbitration clause or agreement who the arbitrator will be in the
event of a dispute (for example, in a dispute concerning land, a
member of the Royal Institute of
Chartered Surveyors' Panel of Commercial Arbitrators and
Independent Experts). Arbitrators may also be
appointed by a court. Naturally, parties may also agree, after a
given dispute has arisen, to determine it using arbitration rather
than traditional court proceedings.
The most obvious advantage of arbitration is that the parties
know their dispute is being handled by a specialist in the
particular area concerned. Thus in highly technical, complex or
niche areas of disagreement, arbitration may be more attractive
than formal court proceedings.
In most cases, arbitrations in England and Wales are run in a
similar way to court-based litigation. Disclosure and exchange of
witness statements take place in a similar way and while the rules
of evidence may be relaxed, they can also be applied strictly in
this forum.
Clear benefits of arbitration include more party autonomy, input
and flexibility as to the conduct of the arbitration proceedings.
While the Arbitration Act 1996 and the common law usually set the
'rules' for arbitration, parties may exclude or modify many of
these. Speed is also often an advantage; it is frequently quicker
to have a matter determined by an arbitrator than to wait for a
court appointment, in proceedings, where a judgment is given.
Arbitration proceedings are private and are therefore not a matter
of public record which may be a preference in some commercial
matters.
International arbitrations may be subject to different rules, in
accordance with both the arbitration clause and the jurisdiction in
which the dispute is to be determined.
Where an arbitrator presides over a dispute, but has no legal
background, he or she may refer certain matters of law to the court
for determination.
The judgment of an arbitrator is called an award. In England and
Wales this may be appealed in the High Court on a question of law
but is otherwise usually binding. Arbitrators also have powers to
make costs orders at the determination of a dispute in a similar
way to judges.
In some commercial cases, in the High Court, it is possible to
ask a judge to sit as an arbitrator. The benefits of this approach
are clearly that the parties get the benefit of expert judicial
input and skills, as well as commercial input.
our international arbitration experience
Examples of arbitration and international dispute
resolution cases the team have dealt with include:
- successfully acting for Alcatel Telecom in the
London Court of International Arbitration, a case
involving nine European defendants
- acting for a claimant in arbitration proceedings in Singapore
relating to the provision of sub-sea oil field equipment for use in
oil fields off the Philippines. This involved the use of creative
dispute resolution techniques including mediations and
conciliation
- acting in an international arbitration in a £12 million dispute
for a shipping company.
