Arbitration Flashcards
What is the second meaning of the word ‘arbitration’?
where the parties agree to submit their claims to private arbitration
What is private arbitration governed by ?
Arbitration Act 1996
What section of the Arbitration Act 1996 sets out the principle behind private arbitration?
s.1
What does s.1 of the Arbitration Act 1996 state is the purpose of private arbitration? (2)
- to obtain a fair resolution of disputes by an impartial tribunal
- that parties should be free to agree how their disputes are resolved
What is arbitration?
the voluntary submission by the parties of their dispute to the judgement of some person other than a judge
How is an arbitration agreement recorded?
usually in writing as the Arbitration Act 1996 applies only to written arbitration agreements
When can an agreement to go to arbitration be made?
can be made by the parties at any time
What do many commercial contracts include ?
a Scott v Avery clause
What is the Scott V Avery clause?
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
If there is an arbitration agreement in a contract, what does the Arbitration Act 1996 state?
that the court will normally refuse to deal with the dispute , the matter must go to arbitration as agreed by both parties
What is the exception to an arbitration agreement where it may not be used when agreed?
If it is for a consumer claim where the dispute is for an amount which can be dealt with in the small claims track
What can a consumer claimant do ?
They can abide by the agreement to go to private arbitration or insist that the case be heard at the small claims track
In what type of cases is arbitration becoming increasingly popular?
commercial cases
What power states that the parties are free to agree on the number of arbitrators whether it be 2,3 or 1 ?
s.15 of the Arbitration Act 1996
What will happen as specified in the Arbitration Act if the parties cannot agree on a number of arbitrators?
the Act provides that only one arbitrator should be appointed
What does the Arbitration Act 1996 say on the appointment of an arbitrator?
parties are free to agree on the procedure for appointing an arbitrator
In commercial contracts who is responsible for appointing an arbitrator?
usually the president of the appropriate trade organisation will appoint the arbitrator
What is the institute of arbitrators ?
this provides trained arbitrators for major disputes
In many cases, who will the arbitrator be?
someone who has expertise in the particular field involved in the dispute
In what cases will a lawyer need to be appointed as the arbitrator?
in cases involving a dispute of a point of law
As a last resort, who can appoint an arbitrator ?
the court
In many cases the parties may opt for a paper arbitration, what is this?
this is where the two sides put all the points they wish to raise into writing and submit this together with any relevant documents to the arbitrator
What will the arbitrator do when parties opt for paper arbitration?
The arbitrator will read all the documents and make a decision
what may parties combine the paper arbitration with ?
the parties may submit documents but before they make their decision, both parties will make oral submissions to the arbitrator in support of their case
What happens if witnesses are called to give evidence? (2)
- witnesses are asked to give evidence orally not usually on oath
- if the parties wish, then the witness can be asked to give evidence on oath making the procedure very formal
What is the benefit of flexibility in arbitration ?
the parties can choose what is the most convenient for all the people concerned for hearing time and place
What is the decision made by the arbitrator called which is binding on the parties?
the ‘award’
How is the award of an arbitrator upheld?
it can be enforced by the courts if necessary
How can the award of an arbitrator be challenged?
can be challenged in the courts on the grounds of serious irregularity in the proceedings or on a point of law through s.68 Arbitration Act 1996
under what power can a party challenge an arbitrators award in court on the grounds of serious irregularity in the proceedings or on a point of law?
s.68 Arbitration Act 1996
Why is it an advantage that parties can chose their own arbitrator ?
they decide whether the matter is best dealt with by a technical expert, a lawyer or a professional arbitrator
If there is a question of quality this can be decided by an expert in the particular field, how is this an advantage of arbitration?
this saves the expense of calling expert witnesses and the time that would be used in explaining all the technicalities to a judge
How is the fact that parties can choose the place of the procedure an advantage of arbitration?
creates a more relaxed and informal hearing than in court
How is the fact that arbitration cases are dealt with privately an advantage ?
there will be no publicity
How are the time and costs of arbitration more advantageous than the Courts? (2)
- quicker
- much cheaper
What is the main disadvantage of arbitration ?
if the parties are not on equal legal footing in regards to their ability to present their case they could be at a disadvantage as legal aid is not available
In what situation would an individual be at a disadvantage due to an unequal financial footing?
an individual if against a business
How might a court be more advantageous than arbitration for a person on low income?
a person on low income at court will be qualified for leal aid and so has the benefit of a lawyer to present their case
If an unexpected legal point may arise, how is this a disadvantage for those using arbitration?
the case may not therefore be suitable for a non-lawyer arbitrator
What might be a disadvantage for some parties using a professional arbitrator?
professional arbitrators may have expensive fees
What is a disadvantage of having witnesses giving evidence and lawyers representing both sides?
opting for a formal hearing will be expensive
What is a disadvantage about the binding of parties to an arbitrators ‘award’ ?
the rights to appeal are limited
What may be a disadvantage for commercial and international arbitration?
the delays may be as great as those in the courts if a professional arbitrator and lawyers are used
How has arbitration lost its popularity with companies as a method of dispute resolution ?
due to the problem of delay and expense
Who are businesses turning too due to the disadvantages of arbitration ?
centres such as the Centre for Dispute Resolution or in the case of international disputes, resolved in another country
What was the Arbitration Act 1996 an attempt to do?
to improve the complex process
What cases are suitable for arbitration?
commercial disagreements between 2 businesses where the parties have little hope of finding sufficient common ground to make mediation a realistic prospect
