On one hand, the extension of the law of the contract to the arbitration agreement is at tension with the principle of separability , with the procedural nature of the arbitration agreement and its close connection with the arbitration proceedings rather than the fulfillment of contractual obligations of the main contract. On the other hand, the presumption that the parties impliedly chose the law of the seat to govern their agreement disregards the contractual nature of the arbitration agreement and its close connection, both textual and functional, with the underlying contract
Note that your students can find the answers to the even-numbered For Review questions in Appendix F at the end of the text. We repeat these answers here as a convenience to you.
Arbitrators should remind clients there should be no ex parte communication and must send all required documentation to the arbitrator. When there is no administering organization, counsel must submit their pleadings directly to the arbitrator, but those transmittals should not contain any communication that is not also provided to opposing counsel (Cooley & Lubet, 2003). Arbitrators should avoid ex parte communications altogether; however, if both parties are extended an equitable chance to appear, the arbitrator may continue an inquiry without the attendance of all the involved parties.
Finally, based on common law, the principle of comity and equity may oblige the courts to recognize foreign arbitral award, regardless where the arbitration was seated. The US Courts
“The concept of procedural fairness forms the basis for a ground of judicial review under the common law and the ADJR Act, requiring that certain standards and procedures be observed throughout the decision making process. In subjecting an administrative decision to judicial review, a Court will be restricted from looking at the substance of the decision maker’s assessment of facts, and can only examine the process by which that decision was made”.
Litigation is the process of engaging legal action in court for resolving a dispute. The court is then able to implement or determine one party’s rights or responsibilities. In construction industry litigation is not preferred to resolve disputes as it cost much more than alternative dispute resolution methods and also it takes more time than other methods but in case of Linklaters there was a disagreement between parties on
For instance, a violation of arbitral tribunals and arbitrators’ impartiality’s requirement and obligation as well as the impartiality itself are commonly understood and litigated as a violation of procedural public policy. Connection with the arbitral proceedings to some extent clarifies that the concept of procedural public policy derives from one of the fundamental arbitral principles - due process. Nevertheless, it is argued that the concept of procedural public policy somewhat overlaps with Article V (1) (b) of the New York Convention, thus, the discussions on the question whether procedural public policy deals with something more than a breach of due process is present. In the authors point of view it would be illogical to restrict the
The primary proposition in this regard is that the Arbitrator’s award is final in fact and law . Court’s interference is only in exceptional cases . The Courts have always been careful in
Alternative dispute resolution is by no means a recently adopted form of dispute resolution. Courts now yield a vast number alternative dispute resolution alternatives, with even some courts requiring that cases be taken to mediation before the court will allow the litigation process to begin. In many facets of industry, alternative dispute resolutions are much preferred alternatives to the litigation process. For example, the construction industry
Despite the fact, that the idea behind the procedural public policy concerns only arbitration proceedings itself, still the concept has to be scrutinized. Reference to the arbitral proceeding makes is understandable that procedural public policy deducts from the principle of due process . Though, there exist affirmation whether procedural public policy overlaps with the Article 1 of the New York Convention or whether this constitutes more than any breach of due process should not be a breach of public policy. According to the authors point of view, it has not sense to restrict the due process only to cases, such as lack of proper notification or lack of arbitrators’ qualification. Failure to present facts of the should not automatically form a breach of due process and also breach of procedural public policy.
The court’s power to require the attendance of witnesses can often be very important to the proper resolution of a dispute. The right to a jury also may be very valuable to one or more litigants. Finally, the existence of an appeals process can be critical. There is not much a party can do about an arbitration award that is unfavorable. But if a judge makes a mistake the decision can be appealed to a higher court.
Nevertheless, certain categories of ADR have been named and understood to involve the use of particular means and methods to produce the desired end result. These procedures include: negotiation, mediation, arbitration, med-arb, early neutral evaluation, settlement conference and conciliation to name a few. However this essay will concentrate on mediation as a form of alternative dispute resolution.
From this brief history of ADR provisions, it is easy to see the widespread acceptance of ADR in more recent times compared to the hostility that courts expressed toward it early on. The trend of acceptance spread, and in May of 1986, forty-five states had enacted statutes similar to the second Uniform Arbitration Act, enforcing agreements to arbitrate future disputes.
International commercial arbitration is one of the most important legal institutions in international private law. This conclusion follows from the fact that the nature of arbitration depends largely on autonomy of the parties, who choose arbitration procedure as the procedure in which the dispute will be settled; place where the arbitration is to be held; arbitral tribunal etc. Probably the most important and considerable expression of the autonomy is the right to choose the law, which is to be applied to merits of the dispute. The chosen applicable law guarantees in large measure predictability of the outcome of the case and allows parties to control the scope of interpretation and application of the international commercial
Disputes are a common occurrence when dealing with construction contracts, and can arise in a number of different areas. Some of the more common areas include; time for completion, quality of workmanship, payment, and contractual documentation. Section 13 in NZS3910:2013 sets out to resolve such disputes using the “Disputes Resolution Mechanism”, by attempting to fairly/equally resolve any dispute which is “not precluded by the previsions of 12.4, 12.6, 13.1.1 or 13.2” (NSZ3910:2013-13.1.2), whilst maintaining flexibility, and preservation of the disputants relationship. Section 13 of NZS 3910:2013 sets out to resolve any dispute/difference using a three step process, wherein after each stage if the dispute is not amicably resolved, the next step is taken.