Arbitration

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

someone who has expertise in the particular field involved in the dispute

Question 20

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

Answer 20

in cases involving a dispute of a point of law

Question 21

As a last resort, who can appoint an arbitrator ?

Answer 21

the court

Question 22

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

Answer 22

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

Question 23

What will the arbitrator do when parties opt for paper arbitration?

Answer 23

The arbitrator will read all the documents and make a decision

Question 24

what may parties combine the paper arbitration with ?

Answer 24

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

Question 25

What happens if witnesses are called to give evidence? (2)

Answer 25

• 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

Question 26

What is the benefit of flexibility in arbitration ?

Answer 26

the parties can choose what is the most convenient for all the people concerned for hearing time and place

Question 27

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

Answer 27

the ‘award’

Question 28

How is the award of an arbitrator upheld?

Answer 28

it can be enforced by the courts if necessary

Question 29

How can the award of an arbitrator be challenged?

Answer 29

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

Question 30

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?

Answer 30

s.68 Arbitration Act 1996

Question 31

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

Answer 31

they decide whether the matter is best dealt with by a technical expert, a lawyer or a professional arbitrator

Question 32

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?

Answer 32

this saves the expense of calling expert witnesses and the time that would be used in explaining all the technicalities to a judge

Question 33

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

Answer 33

creates a more relaxed and informal hearing than in court

Question 34

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

Answer 34

there will be no publicity

Question 35

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

Answer 35

• quicker

- much cheaper

Question 36

What is the main disadvantage of arbitration ?

Answer 36

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

Question 37

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

Answer 37

an individual if against a business

Question 38

How might a court be more advantageous than arbitration for a person on low income?

Answer 38

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

Question 39

If an unexpected legal point may arise, how is this a disadvantage for those using arbitration?

Answer 39

the case may not therefore be suitable for a non-lawyer arbitrator

Question 40

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

Answer 40

professional arbitrators may have expensive fees

Question 41

What is a disadvantage of having witnesses giving evidence and lawyers representing both sides?

Answer 41

opting for a formal hearing will be expensive

Question 42

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

Answer 42

the rights to appeal are limited

Question 43

What may be a disadvantage for commercial and international arbitration?

Answer 43

the delays may be as great as those in the courts if a professional arbitrator and lawyers are used

Question 44

How has arbitration lost its popularity with companies as a method of dispute resolution ?

Answer 44

due to the problem of delay and expense

Question 45

Who are businesses turning too due to the disadvantages of arbitration ?

Answer 45

centres such as the Centre for Dispute Resolution or in the case of international disputes, resolved in another country

Question 46

What was the Arbitration Act 1996 an attempt to do?

Answer 46

to improve the complex process

Question 47

What cases are suitable for arbitration?

Answer 47

commercial disagreements between 2 businesses where the parties have little hope of finding sufficient common ground to make mediation a realistic prospect