The Advantages And Disadvantages Of International Commercial Arbitration?

created for the Harvard Negotiation Project by Bruce M. Patton, based on an idea from the American Arbitration Association. Copies of the original

After carefully considering the situation in both plaintiff (Eunice) and defendant (RFYL), arbitration should be an effective Alternative Dispute Resolution in

Arbitration: This is an argumentative proceeding in which the parties choose an arbitrator or neutral third party to resolve the dispute. The process is less formal than the court room proceeding.

Arbitration can conclude in a binding or a non-binding form depending on the disputing parties. During arbitration, both parties’ representatives/attorneys present their cases before an independent arbiter who would decide on the matter. The decision can then become an official binding agreement between parties and resolve the dispute (United States Office of Personnel Management, n.d). One major advantage to arbitration is the ability to save time and have a decision in a short amount of time relative to litigation. Moreover, in arbitration, the arbiter can be selected to be an expert on the matter at hand and therefore create a more understanding environment (justice.govt.nz, nd). On the other hand, arbitration can bind both parties to the decision where there is no room for an appeal as well as the dependence on the arbiter’s competence at the

Business owners and managers familiar with the court litigation system understand that high litigation costs and long delays make it difficult and expensive to resolve business disputes in court. They also understand that most civil cases that go to court are settled before trial. They are solved after spending considerable amount of time and money in the complex pre-trial phase, but just in time to avoid the risk of trial. Mediation and commercial arbitration provide superior solutions that help in resolving business disputes. Mediation puts the parties immediately in control of the situation and helps them get desirable outcomes without expending vast resources on litigation procedures (Berg, Permanent Court of Arbitration. International

Arbitration is similar to a court trial. It includes a process of discovery and the presentation of evidence under simplified rules. Arbitrators are much like lawyers. The opposing parties can share one arbitrator or choose to have separate arbitrators who will then choose a third to sit on the arbitral panel. This ADR method is popular in construction and labor disputes, and it has been used in securities regulation; however, many modern

In the era of globalization which has witnessed countless disputes involving interests of multiple Countries and as such disputes become prominent, a profusion of international tribunals have been brought into existence in order to meet the demands of dispute settlement in a manner which is in accordance with the common principles of natural justice so as to deliver justice to the aggrieved party. However in reality such tribunals are at best seen as a work in progress.

However, eventually both parties are bound to disagree regarding a clause or the collective agreement as a whole, as some clauses can be written in vague language, and interpreting the agreement into a certain situation is not applicable in the full sense, which can also be due to uniqueness of the situation or act. These situation can be difficult to resolve simply between the two parties, and eventually the need for an unbiased and impartial body to decide to how to interpret the rights and clauses to the given situation, and prompt what can be as a fair yet a correct applicability of the clause, it is usually thought in order to get such ruling, the cases are directed toward the courts of law or governmental tribunals. Many organizations and unions will try and avoid to plea their cases to any government affiliated institution and opt out for an arbitrator. Arbitration is a technique used by most unions and organization, it is an option which provide a better benefits in regards to resolve disputes which may include factors such as the duration to which a court or tribunal may reach a verdict may over extend a reasonable time, as courts provide a system to which a judgment can be appealed, which may act as a burden on both unions and organization financially due to the proceeding of the petition, arbitration is a lot quicker regarding rendering a decision, as most of the decision evoked are binding and an appeal process is not available, in addition, some of the

The traditional litigation system and the nontraditional forms of the alternative dispute resolutions (ADR) have several similarities as well as differences. There are numerous legal processes available to companies to resolve disputes other than using the traditional litigation system such as arbitration, negotiation, mediation, conciliation, mini-trial, fact-finding, and a judicial referee. Even though there are differences between the traditional litigation system and the nontraditional forms of ADR there is situations that call

Arbitration is legal technique used to resolve any disputes outside of the courts. Arbitration allows for speedy and cheap resolution of any disputes, the parties involved in a dispute agree to appoint a third person (arbitrator) who will hear their testimonies, and look into the evidence they provide. The arbitrator's decision cannot be challenged in a law court as it is considered final and the parties involved have to accept the decision (Brams & Merrill, 1986). There are only very limited circumstances where the decision of an arbitrator can be challenged, and this is mostly if there can be proof from one of the parties showing that the arbitrator was biased in their decision or ruling. The chosen arbitrator will be an experienced person in the area of the dispute.

As arbitration is the product of contractual consent, there are built-in barriers with regard to obtaining evidence from non-parties. The ability to obtain such evidence varies depending on the governing rules, and also on the laws of both the situs of arbitration and the location of evidence. Arbitration against states frequently raises concerns of the public good and hence the third parties argue that they should have access to the decision making process so that the process becomes more transparent.

Parties may include alternate dispute resolution as a pre-condition to arbitration in a separate clause or as a part of the arbitration clause. The aim of including multistep dispute resolution is to allow party representatives to understand strengths of the opponent’s case and weaknesses of their own case to reach a compromise; however, a clear reference to arbitration must be made in case of failure of this approach . Many arbitral institutes now provide optional conciliation rules that may be incorporated by parties in their arbitration clause or as a separate clause . Parties must include time frames with flexibility of extension to prevent undue delay in cases where there is lack of genuine willingness to settle.

The World Trade Organization (“WTO”) Dispute Settlement System and the International Centre for the Settlement of Investment Disputes (“ICSID”) are two of the most widely used methods of international dispute settlement.

A necessary pre-requisite for any arbitration proceeding is an arbitration agreement which embodies the consent of the parties to submit their disputes to arbitration. This is because the choice of an effective alternative dispute resolution forum cannot be enforced unless it is contained in a legally enforceable contract. The enforceability of such arbitration agreements reached new heights with the coming of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the UNCITRAL Model Law (Model Law) which led to uniformity in the arbitration laws of various countries. It must be noted that the law of arbitration in India, which would be the focus of this essay, is also substantially based on the

The nature of international commercial arbitration has a close connection to the party autonomy, which is also expressed in the right of the parties to choose the law that is to be applied by the arbitrators to the dispute between them. The same right is given to the parties concerning the arbitration agreement.