arbitration

Litigation & Disputes / Parties to legal proceedings
; Updated: 26 March 2015

Arbitration
Arbitration is a form of alternative dispute resolution, in the sense that it is an alternative to litigation. Arbitration is most often set up as the chosen method of dispute resolution in business contracts, but arbitration as a method of dispute resolution may be agreed by the parties at a later date. There is virtually no limit to the types of disputes that arbitration can be applied, provided it is justiciable.

Similarities with Litigation

The procedures and processes of arbitration mirror that of litigation, however there are differences. The parties are expected to cooperate during the course of arbitration but there is no guarantee that they will do so. Such is the similarity between traditional court based dispute resolution, many lawyers which conduct arbitration have a background in commercial litigation, and may well also conduct court based litigation as part of their practice.


The legal skills required for a properly conducted arbitration are directly transferrable from litigation, such as preparation of statements of case, preparation of evidence, preparation of lists of documents and disclosure, advocacy at the final hearing and drafting of awards.

A rough and ready comparison of arbitration with litigation:


Factor

Advantage

Disadvantage

Both

Neutral

Comment

Faster than litigation

Yes

 

 

 

Depends on the nature and complexity of the dispute, extent of agreement between the parties and wide variety of other factors

Privacy and confidentiality of proceedings

Yes

 

 

 

The proceedings are usually conducted in private, where the parties. This is the exception to the rule in litigation.

Cost-effective

 

 

 

Yes

While there are possibilities for real savings in arbitration, the difference between the costs incurred in litigation are usually not as great as they once were. In many arbitrations, costs exceed those in litigation

Ability for parties to appoint Tribunal

Yes

 

 

 

In litigation, a party cannot select the judge that will hear its case

Location or seat

 

 

 

Yes

The parties are able to select the place of the arbitration in the same way as a jurisdiction clause.

Enforceability

 

 

Yes

 

Decisions are readily enforced with the New York Convention 1958.
More difficult to enforce court judgments in some countries, and so the jurisdiction of the location of assets of the parties can be all important.

Appeals / Binding Arbitration

 

 

 

Yes

Appeals to Court to challenge the correctness of decisions are usually limited to a few grounds, such as fraud and irregularity. This is an advantage and disadvantage, depending upon whether you are successful or not in the first instance.

Imbalance of representation

Yes

 

 

 

It is said by some that powerful law firms give the party represented by them an advantage. While an imbalance of equality of arms may be a factor, there are highly skilled law firms which are not large firms more than capable of handling such disputes for a fraction of the cost.
There is a segment of the commercial businesses are trapped in the thinking of use brand name firms. It is the solicitor which represents the party which matters, and not the brand of law firm.

Cost of Arbitrator

 

Yes

 

 

These are usually shared by the parties in the first instance and paid by the losing party.

Recovery of legal fees

 

Yes

 

 

Recovery may be restricted. Again, your perspective depends upon whether you are successful or not.

Informality

 

 

 

Yes

All things being relative, arbitration is less formal than litigation. That said, it is a formal dispute resolution process that does not require attendance at Court.

Injunctions

 

Yes

 

 

Not available in arbitration, but there are avenues to obtain injunctive relief if it is urgent or required.

Procedural Rules

 

 

 

Yes

Procedural rules differ, however they are in substance the same in effect.

Different bodies publish different rules of procedure for arbitration, including:

  1. International Chamber of Commerce Rules of Arbitration;
  2. LCIA Arbitration Rules;
  3. UNICITRAL Arbitration Rules.

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Usage: The parties proceeded to arbitration after mediation was partially successful.

Related Terms

litigation; alternative dispute resolution; mediation; arbitration clause.


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