Disadvantages Of Commercial Arbitration

Disputes between individuals can be resolved through mediation, tribunals and courts are sought depending on the complexity and nature of the dispute. Their effectiveness in achieving justice for and between individuals to varying extents will be assessed by their ability to uphold notions of fairness, equality, access, timeliness, enforceability and resource efficiency.

Through the materials in this research, it can be concluded that ADR and precisely International Commercial Arbitration can be more efficient than litigation and any means of ADR, as saves time, coasts and preserves relationships between the parties. Furthermore shares the features of the other ADR methods; such neutrality, confidentiality, and speed. But it has one more advantage over other ADR methods, that by the end of the arbitral process the arbitrator will make an award which can be internationally enforced under New York Convention 1958.

Since the establishment of the ICSID Convention in 1965, investor-state arbitration has emerged as the primary mechanism by which capital-exporting countries seek to protect overseas investments against the interventionist policies of capital importing states. There has been an “unexpectedly large wave of litigation” between investors and host developing countries. To date, the vast majority of these arbitrations are claims against developing states. Claimants from Europe initiated 65% of all ICSID arbitrations against African states. In total, African states have been called

Most of these cases are usually handled by International Arbitration or International Court. ASEAN rarely gets involved due to their non-involvement principles. Many had seen this as a failure within the region and had even labelled ASEAN as toothless and lacking of clear mandate (Gil, 2014).

International commercial arbitration has evolved, primarily, against the background of two unifying international traditions: the private international legal tradition, directed at the harmonization of laws; and the public international law tradition, committed to reducing global barriers to trade. International Commercial arbitration is the most widely used tool for resolution of trade or commercial disputes. The effort should be made to tackle the problems which will benefit commercial transaction activities. Most of the domestic courts were very slow in dealing with Arbitration cases. Therefore, parties now resort to Arbitration in order to avoid lengthy and complex litigation procedure.

This arbitration process is preferred by many due to various reasons; the litigation in a court that is foreign is times very expensive ,time consuming and can lead to the development of adversarial relationships between the parties, the arbitration awards by the tribunal are recognized internationally for about 140 countries worldwide abide to the terms of Convention on Recognition and enforcement of Foreign Arbitral Awards of 1958 also known as the New York convention and the arbitration panel is composed of arbitrators who are chosen by the parties involved. The arbitration is also a highly confidential process with the arbitral awards issued being final and binding hence leaving no chance for appeals ( Bennett S 2002).

International Dispute Resolution is currently a hot topic due to the important changes happening by early next year. This report contains an analysis of the current regulations and contrasting it with the updated one to examine its effectiveness.

It can be argued that arbitration represents a privatization of the judicial process. It may be assumed, therefore, that of all its virtues, perhaps the greatest, at least as far as the government is concerned, is the potential reduction in costs for the State in providing the legal framework within which disputes are resolved.

On systematic classification, aviation disputes are either commercial or non-commercial. Whereas the former requires interpretation of bilateral arrangements, the latter concerns the Chicago convention. In any case, ADR methods are unique to aviation disputes. A careful reading of Article 84 and 85 of the Chicago convention portray the importance of arbitration while appealing a decision of the ICAO. Furthermore, the fact that commercial disputes are increasingly resorting to international arbitration cannot be disputed.

Examples of non-pecuniary relief are particularly rare in investor state arbitration. In the vast majority of cases, investors request damages, as opposed to non-pecuniary relief. This preference for damages often reflects practical considerations, such as the difficulty of obtaining restitution of property that has already been liquidated. Moreover, the filing of an investor-state arbitration often signals the end of the relationship between the parties; investors may fear that they can no longer operate in what is perceived to be a hostile environment. In many cases, restoring the status quo ante by ordering a State to rescind a tax regulation or restore confiscated property may be of little use.

Being an alternative dispute resolution mechanism, arbitration is not bound by conventional legal precedents and is therefore prone to inconsistent decisions. The existence of a mechanism to challenge a foreign arbitral award or in other words, review an arbitral award is essential to the system of arbitration. It is due to these reasons that a party has the option to challenge a foreign arbitral award. In most cases, the courts where an award can be challenged would be the courts of the seat of arbitration. However, it is also possible that the award can be challenged in a country different from the seat of arbitration. This can be done if the law under which the award was made is different to the law of the seat of arbitration. Under the

Some items relating to arbitration are found in the Iraqi law. This means that the Iraqi law has considered arbitration as an important method for resolving trade and investment disputes. Because it has found that arbitration has many advantages in resolving the disputes outside the national courts. For instance : Code of Civil Procedures articles (251-276) No. 83 of 1969, amended, and the Foreign Investment Law No. 13 of 2006, and the Terms of Reference approved by the Law of Specialized Commercial and Industrial Chambers And other legal texts in Iraqi law about arbitration Indicate the importance of arbitration.

Arbitration in local and international roles is present in the Islamic Middle-East. Nowadays, the countries in Islamic Middle-Eastern countries like the United Arab Emirates, Bahrain is a reflection of centuries-old practices where individuals and companies relied on arbitration within to solve disputes. The history of commercial arbitration in the region is replete with a shaky history. Currently, the model of arbitration used in the region does not incline toward the western arbitral system. The main reasons for this are due to the role played by religion in shaping both political and legal structure. To this regard, it has a high influence in influencing the conceptualization of the process of arbitration in the region. In the context of resolving disputes in the Islam sharia law recognizes such and tahkim as the primary methods of resolving the dispute. Sulh can be compared with the Western concept of addressing disputes where the parties reach an agreement without seeking help from a third party. Contrary, within

In the current India legal system, where court proceedings take a lifetime to decide upon an issue, the mechanism of Online Dispute Resolution (ODR) may prove to be fruitful. ODR refers to the use of methods like arbitration, mediation, negotiation, med-arb, etc. over the internet as opposed to the normal or traditional way of litigation.

In order to unify the rules of the implementation of foreign arbitral awards, many attempts has been held at the international level. Several international conventions show how the recognition and implementation of those decisions is the most