Arbitration is a flexible, consensual process for resolving business disputes in a binding, enforceable manner .Arbitration is a method for resolving disputes between parties in private as an alternative to litigation in the courts . Prior to the inception of the International arbitration Act, Ireland's arbitration system was governed by the 1954- 1980 Arbitration Acts which were similar to the English Legislation before the 1996 Arbitration Act in its jurisdiction .
The matters that can be referred to arbitration, referring to such cases as Roxburgh v. Dinardo. 1981. Also pointing out important things as arbitration clauses in some contracts. I will then go on to label characteristics of arbitration showing its important points and how it is of use. Most importantly will go on to outline the benefits which the use of arbitration.
Arbitration can be used in diverse circumstances, any matter which involves civil rights and obligations. Therefore, showing that arbitration can deal with any factors. Though it is vital to remember that the ‘words used must be wide enough’ to overcome the court’s jurisdiction, meaning it must be stated clearly that the case has good reason to avoid court. This point was highlighted in the case of Roxburgh v. Dinardo in 1981 .
In fact, arbitration cannot rule on all subject matters. Like criminal matters cannot be made the subject of arbitration and are strictly for the criminal justice system. Nevertheless in the case of Earl of Kintore v. Union Bank of Scotland (1863) it was suggested that the criminal matter such as fraud could be tackled by arbitration. However, it shown to be restricted to the civil aspects and could not be held up as an exemption to the fact that criminal matters are not allowed to be decided by arbitration.
Primarily, arbitration is the fact that once the parties have decided to go through with the arbitration process there is no going back. This therefore means that the parties are willing to take the risk that their arbiter ‘may get it wrong’, they have no real grounds to appeal to the courts against the final decision. Once the arbiter has given his answer it is considered as good as a decree of the court. More specifically this means that the parties have now bound themselves to abide by the arbiter’s award. Yet in some extreme cases the courts would be allowed to interfere with the arbiter’s decision, this is in cases where the decision was considered far too irrational and would therefore be reviewed by the courts. One of the main reasons which the courts could intervene in the case, is if the arbiter’s decision is thought to be dishonest or tainted in some way.
This could be through bribery or other means of corruption. Another point at which the decision could be held as unaccountable is if one of the parties discovers that the arbiter has a personal interest in the outcome. A good example of this is if the arbiter has shares in one of the companies.
We have numerous advantages through the use of arbitration, which pushes people to go more toward arbitration than the court. One of the most significant advantages would be its speed. Litigation takes time, this is due to the fact that a case must wait its turn in the court timetable. Contrary to arbitration which renders to be quicker due to its flexibly, therefore, decision is far quicker to obtain. Although it is very rare to happen, in the case of Crudens Ltd v. Tayside Health Board, process was quite lengthy.
Cost remains on those factors which encourages the participants to choose arbitration. We would be lying if we say that court fees and solicitor are not expensive. In fact, the mode of operation and the process being used for arbitration renders this process less expensive for the participants. However, it worth mentioning that in some particular case more cost could be included considering the way the parties which to proceed or be legally represented. Although different factors may influence the price of such, choosing arbitration will most of the time be less expensive compare to litigation.
Likewise, the informality of the process is not a factor to exclude when making a choice. In arbitration, it is up to the parties to agree to which extent they which to formalise their case. Although these are not the frequent and usual manner of operating it exist such flexibility. Rending this as obvious that the process of arbitration is a lot less strict than that of the court procedures. Considering such, it worth mentioning that this may bring to vagueness or uncertainty at certain level if proper guidelines are not set.
In addition, many litigants which for their image to stay away from media coverage. Court although might be at some stage ‘under camera’ remain open to the media coverage with the aim to allow access to information for public interest, thus, entails high probability of being highlighted and reported by media. If we compare this with arbitration, privacy is much more respect with the aim to protect the private information of the parties.
But without doubt the most important advantages, and probably the most influential point in deciding to use arbitration is the use of technical expertise, therefore it is here that arbitration is superior in a big way to the judicial system. The parties are able to pick their arbiter themselves therefore they can pick the ‘ideal man for the job’. Meaning that if a dispute is in a certain technical area, and therefore very complex, the parties are able to pick someone with more experience and understanding of the topic.
One of the big benefit of having an arbitration, is that the parties may choose their arbiter who pertains the technical expertise required to efficiently analyse the related matter and propose proper guidance. Therefore, having incorporated this flexibility, ensures a certain degree of certainty and consequently allow the parties to choose their arbiter, leading to efficient outcome throughout the arbitration, the chosen arbiter will obviously have reasonable expertise and skill in the concerned area compared to a judge thus the speed of comprehension of ‘jargon’ and analysis of the case scenario shall be faster and give better end results. However, a Judge might not have as such this particular expertise and ability to have a clear overview and give proper judgement to the parties. Thus, having a law court during highly technical matters, could be detrimental for the parties as ineffective or unfair result might emerge.
Eventually, we show that arbitration render to be very effective in different case matter. This effectiveness help the system to move faster and provide greater outcomes. The parties, remains affaires remain confidential and end result are in most of the case reliable. We should consider that using arbitration also contributes towards the judiciary as it avoid creating back-log of cases which would create further animosity for the parties and for the judiciary be rather expensive. Arbitration would never stand alike litigation for many reasons but some would believe that it does not matter as the end result shall prevail.