Arbitration

image5

Note: The parties may attempt mediation before entering into arbitration.


  

Arbitration provides the opportunity for parties involved in a dispute to agree to the selection of a third party, an arbitrator, who decides the outcome of the dispute based on the evidence presented by both parties. The party who initiates the claim is referred to as the claimant, and the party against whom the claim is made is referred to as the respondent. Arbitration is initiated when the claimant files a claim, along with relevant information regarding the claim, and the respondent files a response containing his or her relevant information in defence of the claimant’s arbitration demand and the respondent may file a counter claim against the claimant.


Arbitration may be carried out by an individual arbitrator or by a panel of as many as three arbitrators selected by agreement between disputing parties for cases of greater complexity. Any award that results from the arbitration process is decided upon by the arbitrator or the arbitrator panel. The major difference between mediation and arbitration is that the mediator has no authority to decide for one party or the other. The Mediation Settlement Agreement (MSA) between the parties in mediation is completely decided by the parties who present their case without input from the mediator. In arbitration the arbitrator makes an award to one party or the other, or to both parties, based on the arbitrator’s decision (binding or non-binding) regarding the evidence presented by both parties.


In binding arbitration the parties agree to the arbitrator’s decision as if the decision was made in court by a jury or a judge. In non-binding arbitration (not accepting the arbitrator’s decision) the parties utilize the arbitration process to determine what the likely outcome of their claim might be if they pursue binding arbitration.


Typical Arbitration Dispute Areas Include:

  • Contracts
  • Commercial construction
  • Housing construction
  • Real estate
  • Financial agreements
  • Hospital and healthcare providers
  • Medical services
  • Labor disputes
  • Intellectual property 
  • Insurance claims 
  • Human Resources


Benefits of Arbitration

 A review of the advantages of arbitration as shown below provide the basis for inclusion of an arbitration agreement in domestic and international commercial contracts:

  • Impartial arbitration creates a written agreement to resolve disputes.


  • Such an agreement may be inserted in a contract for resolution of future disputes or may be an agreement to submit to arbitration of an existing dispute. 


  • Arbitration gets businesses back to business quickly and efficiently, avoiding court delays and lengthy, costly pre-hearing procedures. 


  • The confidentiality offered by arbitration—as opposed to the public nature of litigation—is vital. 


  • Arbitrators with subject-matter expertise—as opposed to judges and/or juries without—are particularly important.


  • Under the AAA rules, the arbitration procedure is efficient and straightforward: courtroom rules of evidence are not strictly applicable; there usually is no motion practice or formal discovery; and there is no requirement for transcripts of the proceedings or for written opinions of the arbitrators. The AAA’s rules are flexible and may be varied by mutual agreement of the parties. 


  • Impartial and knowledgeable neutrals can serve as arbitrators. Arbitrators can be selected for specific cases because of their knowledge of the subject matter and they can render an award grounded on thoughtful and informed analysis. 


  • Final and binding awards are determined that are enforceable in a Court. 



Advantages that apply with particular force to international transactions


International Institutions listed below provide the rules under which court challenges are administered:


AAA – American Arbitration Association/ ICDR – International Centre for Dispute Resolution

ICC – International Chamber of Commerce

JAMS – (formerly Judicial Arbitration and Mediation Services)

CPR – International Centre for Conflict Prevention and Resolution

WIPO and UNCITRAL (United Nations Commission on International Trade Law) – Ad Hoc International Resolution

LCIA - London Court of International ArbitrationThe procedure for international arbitration challenges is determined by the law of the seat. The seat can be determined by selecting a member country from the New York Convention List, e.g. Paris (France), London (UK) and New York (USA).



Further information can be provided by CCMT at a preliminary conference to discuss your mediation or arbitration claim and costs for our services.