By Group D The Law of Arbitration by Group D The Law of Arbitration

Objectives The Law of Arbitration by Group D Legal definition of Arbitration An introduction into Arbitration Alternative Dispute Resolution Process of Arbitration Difference between Litigation and Arbitration Advantages and Disadvantages of Arbitration Arbitration in Commerce Arbitration in Civil law vs Arbitration in Common Law International Court of Arbitration

Arbitration by Definition The Law of Arbitration by Group D Legal Definition The settling of disputes between two parties by an impartial third party, whose decision the contending parties agree to accept.

An Introduction into Arbitration cont. The Law of Arbitration by Group D  Arbitration in its simplest sense is a process that can be used to resolve disputes between parties without going through a formal court system. The most common use of international arbitration today is the resolution of commercial disputes. Some experts say arbitration was used as a means of settling disputes before the appearance of the court system.  The process of arbitration is employed to facilitate settlement of disputes without incurring the cost and time of formal legal process. Arbitration is now used by individuals, groups, companies and nations.

Introduction cont. The Law of Arbitration by Group D The arbitrator appointed may have a legal background, but this is not an essential requirement for acting as an arbitrator. Generally, arbitration process does not involve representation of a case by advocates or other legal professionals. However, it may be permitted in some cases depending upon nature of arbitration and decision of the arbitrators.

Alternative Dispute Resolution The Law of Arbitration by Group D Also known as ADR consists of Negotiation Conciliation Arbitration Mediation

Negotiation The Law of Arbitration by Group D Anyone who has a dispute with another person can always try to resolve it by negotiating directly with them. It is completely private and is the cheapest and quickest method of settling a dispute. If the parties cannot come to an agreement they may decide to use lawyers to negotiate on their behalf.

Mediation The Law of Arbitration by Group D  This is where there is a neutral mediator helps the parties reach a compromising solution. The mediator sees how much common ground is between them.  The mediator looks at the needs of both parties whilst keeping confidentiality, this is acting as a facilitator so that an agreement is reached by the parties. The ultimate decision belongs to parties in the dispute. The decision is strictly legal.

Concilliation The Law of Arbitration by Group D Similar to mediation, although the neutral third party plays a more active role. The neutral third party suggests grounds for compromise and the possible basis for a settlement. Concilliation does not necessarily lead to a conclusion and it may be neccesery to proceed with court action.

Processes of Arbitration The Law of Arbitration by Group D  Arbitration has 2 processes  Courts use a more significantly informal hearing when compared to their regular procedures, there are arbitration courts specifically for these types of hearings  The parties agree to submit their claim to a private arbitrator, it is a paper hearing and its strictly voluntary for both parties.  Both parties have to agree on the number of arbitrators on all hearings they may choose between 1 or 3 arbitrators, if they are not able to agree on the number of arbitrators, it is automatically 1 arbitrator if they cannot decide.

Differences between litigation and Arbitration The Law of Arbitration by Group D Public process Any party can institute Formal and inflexible Rules and procedures Private process Initiation of arbitration under an agreement Less formal and more flexible Simpler procedures, no formal rules of evidence

Advantages Of Arbitration The Law of Arbitration by Group D Supporters of arbitration hold that it has a multitude of advantages over court action. The following are a sample of these advantages.  Choice of Decision Maker – For example, parties can choose a technical person as arbitrator if the dispute is of a technical nature so that the evidence will be more readily understood.  Efficiency – Arbitration can usually be heard sooner than it takes for court proceedings to be heard. As well, the arbitration hearing should be shorter in length, and the preparation work less demanding.

Advantages cont. The Law of Arbitration by Group D  Privacy – Arbitration hearings are confidential, private meetings in which the media and members of the public are not able to attend. As well, final decisions are not published, nor are they directly accessible. This is particularly useful to the employer who does not want his ‘dirty laundry’ being aired.  Convenience – Hearings are arranged at times and places to suit the parties, arbitrators and witnesses.  Flexibility – The procedures can be segmented, streamlined or simplified, according to the circumstances.  Finality – There is in general, no right of appeal in arbitration. (Although, the court has limited powers to set aside or remit an award).

Disadvantages of Arbitration The Law of Arbitration by Group D final and binding – All decisions reached by an arbitrator are legally binding. less formal than litigation very limited appeal rights- Once an arbitrator reaches a decision it’s not as easy to appeal as in litigation. one party wins; one party loses

Commercial Arbitration The Law of Arbitration by Group D  Arbitration in Commerce is the process of bringing a business dispute before a disinterested third party for resolution. The third party, an arbitrator, hears the evidence brought by both sides and makes a decision. Sometimes that decision is binding on the parties.  In recent years, the arbitration process has become more widespread, and many retailers, credit card companies, and other businesses are using mandatory arbitration in their contracts, requiring that customers consent to arbitration instead of litigation.

Common Law Arbitration vs Civil Law Arbitration The Law of Arbitration by Group D  As you know the civil law system is codified, the judge’s role is to hear the facts of the case and apply the relevant code. Within the civil law system the judge has an active role in the trial, he will question the parties, witnesses and relevant experts.  In contrast the common law system is uncodified it’s based on case law. The judge here gives an opportunity for both parties to present their evidence and gives direction to a jury of laymen who will reach a verdict.

Arbitration Law The Law of Arbitration by Group D Civil Code – “one can arbitrate with respect to all rights of which one can dispose freely.” ”one cannot submit to arbitration questions of status and capacity of persons, questions relative to divorce and separation, or questions respecting controversies that concern public entities or public establishments and more generally any matter that concerns the public order. ”

International Court of Arbitration The Law of Arbitration by Group D The universal scope of the International Court of Arbitration, commonly known as "the Court", is evidenced by the fact that each year, numerous parties, arbitrators and lawyers from countries of every economic, political and social system are present in ICC arbitrations. The Court is one of the world's most experienced and renowned international arbitration institutions. Working closely with its Secretariat, the Court’s primary role is to administer ICC Arbitrations. It performs the functions entrusted to it under the ICC Rules of Arbitration and continually strives to assist parties and arbitrators to overcome any procedural obstacles that arise.

Summary The Law of Arbitration by Group D In Conclusion, arbitration is a probably one of the most significant progresses in law. It is now used in 3 different levels, local, commercial and international levels. It allows courts to not be made busy by easily resolvable disputes. ADR and especially arbitration is increasing in use every day and will become more common in less developed countries such as ours in the years to come.

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