Arb

Question 1

What is the second meaning of the word ‘arbitration’?

Answer 1

where the parties agree to submit their claims to private arbitration

Question 2

What is private arbitration governed by ?

Answer 2

Arbitration Act 1996

Question 3

What section of the Arbitration Act 1996 sets out the principle behind private arbitration?

Answer 3

s.1

Question 4

What does s.1 of the Arbitration Act 1996 state is the purpose of private arbitration? (2)

Answer 4

• to obtain a fair resolution of disputes by an impartial tribunal
• that parties should be free to agree how their disputes are resolved

Question 5

What is arbitration?

Answer 5

the voluntary submission by the parties of their dispute to the judgement of some person other than a judge

Question 6

How is an arbitration agreement recorded?

Answer 6

usually in writing as the Arbitration Act 1996 applies only to written arbitration agreements

Question 7

When can an agreement to go to arbitration be made?

Answer 7

can be made by the parties at any time

Question 8

What do many commercial contracts include ?

Answer 8

a Scott v Avery clause

Question 9

What is the Scott V Avery clause?

Answer 9

where the parties in their original contract agree that in the event of a dispute arising between them , they will have that dispute settled by arbitration

Question 10

If there is an arbitration agreement in a contract, what does the Arbitration Act 1996 state?

Answer 10

that the court will normally refuse to deal with the dispute , the matter must go to arbitration as agreed by both parties

Question 11

What is the exception to an arbitration agreement where it may not be used when agreed?

Answer 11

If it is for a consumer claim where the dispute is for an amount which can be dealt with in the small claims track

Question 12

What can a consumer claimant do ?

Answer 12

They can abide by the agreement to go to private arbitration or insist that the case be heard at the small claims track

Question 13

In what type of cases is arbitration becoming increasingly popular?

Answer 13

commercial cases

Question 14

What power states that the parties are free to agree on the number of arbitrators whether it be 2,3 or 1 ?

Answer 14

s.15 of the Arbitration Act 1996

Question 15

What will happen as specified in the Arbitration Act if the parties cannot agree on a number of arbitrators?

Answer 15

the Act provides that only one arbitrator should be appointed

Question 16

What does the Arbitration Act 1996 say on the appointment of an arbitrator?

Answer 16

parties are free to agree on the procedure for appointing an arbitrator

Question 17

In commercial contracts who is responsible for appointing an arbitrator?

Answer 17

usually the president of the appropriate trade organisation will appoint the arbitrator

Question 18

What is the institute of arbitrators ?

Answer 18

this provides trained arbitrators for major disputes

Question 19

In many cases, who will the arbitrator be?

Answer 19

trained professionals who have expertise in specific areas of arbitration

Question 20

In what cases will a lawyer need to be appointed as the arbitrator?

Answer 20

In complex disputes, for example high profile shareholder disputes or construction disputes involving public works or infrastructure projects, it is preferred for a law firm to be on board at an early stage.

Question 21

As a last resort, who can appoint an arbitrator ?

Answer 21

Default mechanism

If no agreement on the number of arbitrators and the method of their appointment is reached within 60 days after registration of the request for arbitration, either party may request the application of ICSID’s default formula under Article 6(1) and Article 9 of the Arbitration (Additional Facility) Rules. The formula provides that:
The Tribunal consists of three arbitrators.
Each party appoints one co-arbitrator.
The parties attempt to agree on the third arbitrator, the President of the Tribunal.

Question 22

In many cases the parties may opt for a paper arbitration, what is this?

Answer 22

A paper Arbitration is similar to a binding arbitration in that the parties submit their dispute to an arbitrator who will render a binding decision. However, in a paper Arbitration, no testimony is presented and there is no hearing.

Question 23

What is the benefit of flexibility in arbitration ?

Answer 23

allows the parties to tailor procedures to the needs of a particular dispute and is generally thought to allow the parties more freedom to agree a suitable procedure, and have a greater influence over procedure than is possible in court proceeding

Question 24

What is the decision made by the arbitrator called which is binding on the parties?

Answer 24

Binding arbitration

Question 25

How is the award of an arbitrator upheld?

Answer 25

An arbitral award is analogous to a judgment in a court of law

Question 26

How can the award of an arbitrator be challenged?

Answer 26

- what may be broadly described as procedural grounds, such as failure to give proper notice of the appointment of an arbitrator - substantive grounds, on the basis that the arbitral tribunal made a mistake of law or on the grounds of a mistake of fact.

Question 27

Why is it an advantage that parties can chose their own arbitrator ?

Answer 27

- Control of the process and the degree of formality. - to meet the needs of the individual parties and their issues. - Flexibility. An arbitration does not require the same level of formality as a Court hearing.

Question 28

How is the fact that parties can choose the place of the procedure an advantage of arbitration?

Answer 28

- Different playing fields | - Confidence/comfortability

Question 29

How is the fact that arbitration cases are dealt with privately an advantage ?

Answer 29

Both of these safeguards can be a boon if the subject matter of the dispute might cause some embarrassment or reveal private information, such as a company's client list.

Question 30

How are the time and costs of arbitration more advantageous than the Courts? (2)

Answer 30

resolving a case through arbitration is usually far less costly than proceeding through litigation because the process is quicker and generally less complicated than a court proceeding.

Question 31

What is the main disadvantage of arbitration ?

Answer 31

- Limited recourse. A final decision is hard to shake. If the arbitrator's award is unfair or illogical, a consumer may well be stuck with it and barred forever from airing the underlying claim in court. - uneven playing field

Question 32

In what situation would an individual be at a disadvantage due to an unequal financial footing?

Answer 32

in the consumer credit area.

Question 33

What might be a disadvantage for some parties using a professional arbitrator?

Answer 33

Another concern is that the process of choosing an arbitrator is not an objective one, particularly when the decision-maker is picked by an agency from a pool list, where those who become favorites may get assigned cases more often.

Question 34

What is a disadvantage about the binding of parties to an arbitrators 'award' ?

Answer 34

The decision cannot be appealed in court as it is binding.

Question 35

What was the Arbitration Act 1996 an attempt to do?

Answer 35

to reduce the Arbitration Court's formalism and judicial approach in favour of 'round table' conciliation.

Question 36

What cases are suitable for arbitration?

Answer 36

- Child arrangements – how much time a child spends with each parent. - The involvement of new partners and other family members in contact arrangements. - Change of surname. - Change of school/decisions on education. - A parent moving from one part of the country to another.