ADR - Arbitration

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  • ADR - Arbitration
    • parties agree to let third party make a BINDING decision without use of courts
    • commercial contracts contain a SCOTT v AVERY CLAUSE
      • stating that any disputes between parties will be resolved through arbitration
      • Arbitration Act 1996 - if action is started in court other party can apply to court to enforce clause
    • Arbitration Act 1996
      • allows parties to reach a fair way of disputes in an impartial way without delay or expense
      • parties can agree on no. of arbitrators
        • one if they cannot chose under s.15
      • agree procedure to appoint one
        • Institute for Arbitrators provides them
        • last resort court will provide lawyer
    • The Arbitration Hearing
      • parties decide on hearing they want
        • "paper" or oral or mix
        • can be on an oath
      • often used by construction, shipping, re-insurance industries
      • arbitrator supposed to conduct proceedings in judicial manner
    • The Award
      • decision made by arbitrator binding parties
      • can be enforced through courts if needed
      • can be challenged if serious irregularity
        • under s.68 of Arbitration Act 1996
    • Advantages
      • experts understand problems - saving time
      • chose time and place to suit both parties
      • informal, private, no publicity, quicker and cheaper
      • binding award
      • suited to business disputes where they have little hope in finding common ground to make mediation realistic
      • parties chose arbitrator
        • chose whether they want a lawyer, technical expert or professional arbitrator
    • Disadvantages
      • no legal aid
      • unexpected legal point may occur
        • not suitable for non-lawyer arbitrator
      • limited rights to appeals
      • can be expensive for professional arbitrator
        • if they decide on formal hearing costs of witnesses and lawyers representing both sides
      • can be delays if professional if used in commercial + international arbitration
        • decreased popularity

Comments

J Drabble

Thorough and detailed mind map specific to arbitration - great tool to use along side similar mind map on mediation with practise writing describe or discuss questions as part of revision.

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