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.
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 |
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| 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 |
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| The proceedings are usually conducted in private, where the parties. This is the exception to the rule in litigation. |
Cost-effective |
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| 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 |
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| In litigation, a party cannot select the judge that will hear its case |
Location or seat |
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| Yes | The parties are able to select the place of the arbitration in the same way as a jurisdiction clause. |
Enforceability |
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| Yes |
| Decisions are readily enforced with the New York Convention 1958. |
Appeals / Binding Arbitration |
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| 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 |
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| 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. |
Cost of Arbitrator |
| Yes |
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| These are usually shared by the parties in the first instance and paid by the losing party. |
Recovery of legal fees |
| Yes |
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| Recovery may be restricted. Again, your perspective depends upon whether you are successful or not. |
Informality |
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| 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 |
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| Not available in arbitration, but there are avenues to obtain injunctive relief if it is urgent or required. |
Procedural Rules |
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| Yes | Procedural rules differ, however they are in substance the same in effect. |
Different bodies publish different rules of procedure for arbitration, including:
For legal advice and more information on our dispute resolution solicitors and options for arbitration in business contracts, contact us online or call 020 7353 1770.