Arbitration

Not to be confused with Arbitrage.
The London Court of International Arbitration.

Arbitration, a form of alternative dispute resolution (ADR), is a technique for the resolution of disputes outside the courts. The parties to a dispute refer it to arbitration by one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), and agree to be bound by the arbitration decision (the "award"). A third party reviews the evidence in the case and imposes a decision that is legally binding on both sides and enforceable in the courts.[1]

Arbitration is often used for the resolution of commercial disputes, particularly in the context of international commercial transactions. In certain countries such as the United States, arbitration is also frequently employed in consumer and employment matters, where arbitration may be mandated by the terms of employment or commercial contracts.

Arbitration can be either voluntary or mandatory (although mandatory arbitration can only come from a statute or from a contract that is voluntarily entered into, where the parties agree to hold all existing or future disputes to arbitration, without necessarily knowing, specifically, what disputes will ever occur) and can be either binding or non-binding. Non-binding arbitration is similar to mediation in that a decision cannot be imposed on the parties. However, the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable. By one definition arbitration is binding and non-binding arbitration is therefore technically not arbitration.

Arbitration is a proceeding in which a dispute is resolved by an impartial adjudicator whose decision the parties to the dispute have agreed, or legislation has decreed, will be final and binding. There are limited rights of review and appeal of arbitration awards. Arbitration is not the same as:

Advantages and disadvantages

Parties often seek to resolve disputes through arbitration because of a number of perceived potential advantages over judicial proceedings:

Some of the disadvantages include:

Arbitrability

By their nature, the subject matter of some disputes is not capable of arbitration. In general, two groups of legal procedures cannot be subjected to arbitration:

Arbitration agreement

Arbitration agreements are generally divided into two types:

The former is the far more prevalent type of arbitration agreement. Sometimes, legal significance attaches to the type of arbitration agreement. For example, in certain Commonwealth countries (not including England and Wales), it is possible to provide that each party should bear their own costs in a conventional arbitration clause, but not in a submission agreement.

In keeping with the informality of the arbitration process, the law is generally keen to uphold the validity of arbitration clauses even when they lack the normal formal language associated with legal contracts. Clauses which have been upheld include:

The courts have also upheld clauses which specify resolution of disputes other than in accordance with a specific legal system. These include provision indicating:

Agreements to refer disputes to arbitration generally have a special status in the eyes of the law. For example, in disputes on a contract, a common defence is to plead the contract is void and thus any claim based upon it fails. It follows that if a party successfully claims that a contract is void, then each clause contained within the contract, including the arbitration clause, would be void. However, in most countries, the courts have accepted that:

  1. A contract can only be declared void by a court or other tribunal; and
  2. If the contract (valid or otherwise) contains an arbitration clause, then the proper forum to determine whether the contract is void or not, is the arbitration tribunal.[18]

Arguably, either position is potentially unfair; if a person is made to sign a contract under duress, and the contract contains an arbitration clause highly favourable to the other party, the dispute may still referred to that arbitration tribunal. Conversely a court may be persuaded that the arbitration agreement itself is void having been signed under duress. However, most courts will be reluctant to interfere with the general rule which does allow for commercial expediency; any other solution (where one first had to go to court to decide whether one had to go to arbitration) would be self-defeating.

Comparative law

Nations regulate arbitration through a variety of laws. The main body of law applicable to arbitration is normally contained either in the national Private International Law Act (as is the case in Switzerland) or in a separate law on arbitration (as is the case in England and Jordan[19]). In addition to this, a number of national procedural laws may also contain provisions relating to arbitration.

United States

The Federal Arbitration Act (FAA) of 1925 established a public policy in favor of arbitration. For the first six decades of its existence, courts did not allow arbitration for "federal statutory claims" through a bright-line "nonarbitrability" doctrine, but in the 1980s the Supreme Court of the United States reversed and began to use the act to require arbitration if included in the contract for federal statutory claims.[20] Although some legal scholars believe that it was originally intended to apply to federal courts only, courts now routinely require arbitration due to the FAA regardless of state statutes or public policy unconscionability determinations by state courts.[20] In consumer law, standard form contracts often include mandatory predispute arbitration clauses which require consumer arbitration. Under these agreements the consumer may waive their right to a lawsuit and a class action. In 2011, one of these clauses was upheld in AT&T Mobility v. Concepcion.[20]

Several arbitration organizations exist, including the American Arbitration Association and JAMS. The National Arbitration Forum also conducts arbitrations, but it no longer conducts consumer arbitrations pursuant to a consent decree entered into in 2009 because of evidence that it had been biased toward, and had incentives that favored, credit card companies over cardholders. The AAA was also asked to exit the business.,[21] but has not done so.

International

History

The United States and Great Britain were pioneers in the use of arbitration to resolve their differences. It was first used in the Jay Treaty of 1795, and played a major role in the Alabama Claims case of 1872 whereby major tensions regarding British support for the Confederacy during the American Civil War were resolved. At the First International Conference of American States in 1890, a plan for systematic arbitration was developed, but not excepted. The Hague Peace Conference of 1899, saw the major world powers agreed to a system of arbitration and the creation of a Permanent Court of Arbitration. President William Howard Taft was a major advocate. One important use came in the Newfoundland fisheries dispute between the United States and Britain in 1910. In 1911 the United States signed arbitration treaties with France and Britain.[22][23]

Arbitration was widely discussed among diplomats and elites in the 1890-1914 era. The 1895 dispute between the United States and Britain over Venezuela was peacefully resolved through arbitration. Both nations realized that a mechanism was desirable to avoid possible future conflicts. The Olney-Pauncefote Treaty of 1897 was a proposed treaty between the United States and Britain in 1897 that required arbitration of major disputes. The treaty was rejected by the U.S. Senate and never went into effect.[24]

American Secretary of State William Jennings Bryan (1913-1915) worked energetically to promote international arbitration agreements, but his efforts were frustrated by the outbreak of World War I. Bryan negotiated 28 treaties that promised arbitration of disputes before war broke out between the signatory countries and the United States. He made several attempts to negotiate a treaty with Germany, but ultimately was never able to succeed. The agreements, known officially as "Treaties for the Advancement of Peace," set up procedures for conciliation rather than for arbitration.[25] Arbitration treaties were negotiated after the war, but attracted much less attention than the negotiation mechanism created by the League of Nations.

International agreements

By far the most important international instrument on arbitration law is the 1958 New York Convention on Recognition and Enforcement of Foreign Arbitral Awards, usually simply referred to as the "New York Convention". Virtually every significant commercial country is a signatory, and only a handful of countries are not parties to the New York Convention.

Some other relevant international instruments are:

International enforcement

It is often easier to enforce arbitration awards in a foreign country than court judgments. Under the New York Convention 1958, an award issued in a contracting state can generally be freely enforced in any other contracting state, only subject to certain, limited defenses. Only foreign arbitration awards are enforced pursuant to the New York Convention. An arbitral decision is foreign where the award was made in a state other than the state of recognition or where foreign procedural law was used.[27] In most cases, these disputes are settled with no public record of their existence as the loser complies voluntarily,[28] although in 2014 UNCITRAL promulgated a rule for public disclosure of investor-state disputes.[28]

Virtually every significant commercial country in the world is a party to the Convention while relatively few countries have a comprehensive network for cross-border enforcement of judgments their courts. Additionally, the awards not limited to damages. Whereas typically only monetary judgments by national courts are enforceable in the cross-border context, it is theoretically possible (although unusual in practice) to obtain an enforceable order for specific performance in an arbitration proceeding under the New York Convention.

Article V of the New York Convention provides an exhaustive list of grounds on which enforcement can be challenged. These are generally narrowly construed to uphold the pro-enforcement bias of the Convention.

Government disputes

Certain international conventions exist in relation to the enforcement of awards against states.

Arbitral tribunal

Main article: Arbitral tribunal

The arbitrators which determine the outcome of the dispute are called the arbitral tribunal. The composition of the arbitral tribunal can vary enormously, with either a sole arbitrator sitting, two or more arbitrators, with or without a chairman or umpire, and various other combinations. In most jurisdictions, an arbitrator enjoys immunity from liability for anything done or omitted whilst acting as arbitrator unless the arbitrator acts in bad faith.

Arbitrations are usually divided into two types: ad hoc arbitrations and administered arbitrations.

In ad hoc arbitrations, the arbitral tribunals are appointed by the parties or by an appointing authority chosen by the parties. After the tribunal has been formed, the appointing authority will normally have no other role and the arbitation will be managed by the tribunal.

In administered arbitration, the arbitration will be administered by a professional arbitration institution providing arbitration services, such as the LCIA in London, or the ICC in Paris, or the American Arbitration Association in the United States. Normally the arbitration institution also will be the appointing authority. Arbitration institutions tend to have their own rules and procedures, and may be more formal. They also tend to be more expensive, and, for procedural reasons, slower.[31]

Duties of the tribunal

The duties of a tribunal will be determined by a combination of the provisions of the arbitration agreement and by the procedural laws which apply in the seat of the arbitration. The extent to which the laws of the seat of the arbitration permit "party autonomy" (the ability of the parties to set out their own procedures and regulations) determines the interplay between the two.

However, in almost all countries the tribunal owes several non-derogable duties. These will normally be:

Arbitral awards

Main article: Arbitration award

Although arbitration awards are characteristically an award of damages against a party, in many jurisdictions tribunals have a range of remedies that can form a part of the award. These may include:

  1. payment of a sum of money (conventional damages)
  2. the making of a "declaration" as to any matter to be determined in the proceedings
  3. in some jurisdictions, the tribunal may have the same power as a court to:
    1. order a party to do or refrain from doing something ("injunctive relief")
    2. to order specific performance of a contract
    3. to order the rectification, setting aside or cancellation of a deed or other document.
  4. In other jurisdictions, however, unless the parties have expressly granted the arbitrators the right to decide such matters, the tribunal's powers may be limited to deciding whether a party is entitled to damages. It may not have the legal authority to order injunctive relief, issue a declaration, or rectify a contract, such powers being reserved to the exclusive jurisdiction of the courts.

Challenge

Generally speaking, by their nature, arbitration proceedings tend not to be subject to appeal, in the ordinary sense of the word. However, in most countries, the court maintains a supervisory role to set aside awards in extreme cases, such as fraud or in the case of some serious legal irregularity on the part of the tribunal. Only domestic arbitral awards are subject to set aside procedure.

In American arbitration law there exists a small but significant body of case law which deals with the power of the courts to intervene where the decision of an arbitrator is in fundamental disaccord with the applicable principles of law or the contract.[33] However, this body of case law has been called into question by recent decisions of the Supreme Court.[34]

Unfortunately there is little agreement amongst the different American judgments and textbooks as to whether such a separate doctrine exists at all, or the circumstances in which it would apply. There does not appear to be any recorded judicial decision in which it has been applied. However, conceptually, to the extent it exists, the doctrine would be an important derogation from the general principle that awards are not subject to review by the courts.

Costs

The overall costs of arbitration can be estimated on the websites of international arbitration institutions, such as that of the ICC,[35] the website of the SIAC [36] and the website of the International Arbitration Attorney Network.[37] The overall cost of administrative and arbitrator fees is, on average, less than 20% of the total cost of international arbitration.[38]

In many legal systems - both common law and civil law - it is normal practice for the courts to award legal costs against a losing party, with the winner becoming entitled to recover an approximation of what it spent in pursuing its claim (or in defense of a claim). The United States is a notable exception to this rule, as except for certain extreme cases, a prevailing party in a US legal proceeding does not become entitled to recoup its legal fees from the losing party.[39]

Like the courts, arbitral tribunals generally have the same power to award costs in relation to the determination of the dispute. In international arbitration as well as domestic arbitrations governed by the laws of countries in which courts may award costs against a losing party, the arbitral tribunal will also determine the portion of the arbitrators' fees that the losing party is required to bear.

Nomenclature

As methods of dispute resolution, arbitration procedure can be varied to suit the needs of the parties. Certain specific "types" of arbitration procedure have developed, particularly in North America.

Such forms of "Last Offer Arbitration" can also be combined with mediation to create MEDALOA hybrid processes (Mediation followed by Last Offer Arbitration).[42]

History

England

Arbitration in its common law form developed in England; in the Middle Ages, tribunals such as the Courts of the Boroughs, of the Fair and of the Staple arose as the Royal Courts were not designed for trade disputes, and trade with foreigners was otherwise unenforceable.[43] In the mid-16th century, common law courts developed contract law and the Admiralty court became accessible for disputes with foreign merchants, broadening the venues for trade disputes.[43] Courts became suspicious of arbitration; for example, in Kill v. Hollister (1746), an English court ruled that the arbitration agreement could 'oust' courts of law and equity of jurisdiction.[44] Merchants, however, retained provisions to settle disputes among themselves, but tension between the arbitration proceedings and courts eventually resulted in the Common Law Procedure Act 1854 which provided for the appointment of arbitrators and umpires, allowed courts to 'stay proceedings' when a disputant filed a suit despite an agreement to arbitrate, and provided a process for arbitrators to submit questions to a court.[43] Later, the Arbitration Act 1889 was passed, followed by other Arbitration Acts in 1950, 1975, 1979 and 1996. Arbitration Act 1979 in particular limited judicial review for arbitration awards.[43]

United States

Arbitration was common in the early United States, with George Washington serving as an arbiter on an occasion.[43] The United States had a notable difference from England, however, in that unlike England, its courts generally did not enforce executory agreements (binding predispute agreements) to arbitrate.[45] This meant that prior to an award, a claimant could sue in court even if they had contractually agreed to settle disputes by arbitration. After the award, courts reviewed the judgment, but generally deferred to the arbitration,[45] although the practice was not consistent.[44]

The lack of enforcement of predispose agreements led to the Federal Arbitration Act of 1925,[44][45] with New York leading with a state law enforcing predispose agreements.[43] In 1921, the American Bar Association drafted the Federal Arbitration Act based on the New York law, which was passed in 1925 with minor changes.[43] In the next decade, the American Arbitration Association promoted rules and facilitated arbitrations through appointments.[43]

See also

Notes

  1. ↑ Sullivan, Arthur; Steven M. Sheffrin (2003). Economics: Principles in action. Upper Saddle River, New Jersey 07458: Pearson Prentice Hall. p. 324. ISBN 0-13-063085-3.
  2. 1 2 In the United Kingdom, small claims in the county court are dealt with by a procedure called "small claims arbitration", although the proceedings are held in front of a district judge, paid for by the state. In Russia, the courts dealing with commercial disputes are referred to as the Supreme Court of Arbitration of the Russian Federation, although it is not an arbitral tribunal in the true sense of the word.
  3. ↑ Although all attempts to determine disputes outside of the courts are "alternative dispute resolution" in the literal sense, ADR in the technical legal sense, is the process whereby an attempt is made to reach a common middle ground through an independent mediator as a basis for a binding settlement. In direct contrast, arbitration is an adversarial process to determine a winner and a loser in relation to the rights and wrongs of a dispute.
  4. 1 2 "The Supreme Court's retired, but hardly retiring, Ian Binnie". The Globe and Mail (Toronto). 15 June 2012.
  5. ↑ See for example the arbitration service offered by Falcon Chambers, the specialist property barristers chambers - www.falcon-chambersarbitration.com.
  6. ↑ Trans-Lex.org: Confidentiality
  7. ↑ Cf. e.g. Section 1030 subsection 1 of the German Zivilprozessordnung.
  8. ↑ Larkden Pty Limited v Lloyd Energy Systems Pty Limited [2011] NSWSC 268 (1 April 2011) AustLII
  9. ↑ Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985)
  10. ↑ Section 1030 subsection 2 Zivilprozessordnung
  11. ↑ To be correct: certain form, as defined by statute, of an electronic signature using a chip card and a PIN code is also sufficient
  12. ↑ Section 1031 subesction 5 of the Zivilprozessordnung. The restriction does not apply to notarized agreements, as it is presumed that the notary public will have well informed the consumer about the content and its implications.
  13. ↑ Swiss Bank Corporation v Novrissiysk Shipping [1995] 1 Lloyd's Rep 202
  14. ↑ Hobbs Padgett & Co v J C Kirkland (1969) 113 SJ 832
  15. ↑ Mangistaumunaigaz Oil Production v United Kingdom World Trade [1995] 1 Lloyd's Rep 617
  16. ↑ Norske Atlas Insurance Co v London General Insurance Co (1927) 28 Lloyds List Rep 104
  17. ↑ Deutsche Schachtbau v R'As al-Khaimah National Oil Co [1990] 1 AC 295
  18. ↑ For example, under English law see Heyman v Darwins Ltd. [1942] AC 356
  19. ↑ Tariq Hammouri, Dima A. Khleifat, and Qais A. Mahafzah, Arbitration and Mediation in the Southern Mediterranean Countries: Jordan, Kluwer Law International, Wolters Kluwer - Netherlands, Volume 2, Number 1, January 2007, pp. 69-88.
  20. 1 2 3 Horton D. (2012). Federal Arbitration Act Preemption, Purposivism, and State Public Policy. Forthcoming in Georgetown Law Journal.
  21. ↑ Berner, Robert (2009-07-19). "Big Arbitration Firm Pulls Out of Credit Card Business". Business Week. Retrieved 3 March 2013.
  22. ↑ John P. Campbell, "Taft, Roosevelt, and the Arbitration Treaties of 1911," Journal of American History (1966) 53#2 pp: 279-298 in JSTOR.
  23. ↑ Bruce W. Jentleson and Thomas G Paterson, eds. Encyclopedia of U.S. Foreign Relations (1997) 1: pp 87-88
  24. ↑ Nelson M. Blake, "The Olney-Pauncefote Treaty of 1897," American Historical Review, (1945) 50#2 pp. 228-243 in JSTOR
  25. ↑ Genevieve Forbes Herrick; John Origen Herrick (2005) [1925]. The Life of William Jennings Bryan. Kessinger Publishing. p. 280.
  26. ↑ Cordero-Moss, Giuditta (2014). International Commercial Contracts.
  27. ↑ Article 1 of the 1958 New York Convention
  28. 1 2 Argen, Robert (2015-01-01). "Ending Blind Spot Justice: Broadening the Transparency Trend in International Arbitration". Rochester, NY: Social Science Research Network.
  29. ↑ Tupman, "Case Studies in the Jurisdiction of the International Centre for Settlement of Investment Disputes" (1986) 35 ICLQ 813
  30. ↑ Dallal v Bank Mellat [1986] 1 QB 441
  31. ↑ For example, all arbitral awards issued by the ICC have to be reviewed internally before being handed down, which helps certainty and improves the quality of awards, but leads to delay and expense.
  32. ↑ For example, in England these are codified in section 33 of the Arbitration Act 1996
  33. ↑ The expression appears in the majority judgment in the U.S. Supreme Court decision in Wilko v Swan 346 US 427 (1953)
  34. ↑ "Guide to Arbitration in New York" (PDF). CMS Legal. Retrieved 8 May 2012.
  35. ↑ http://www.iccwbo.org/products-and-services/arbitration-and-adr/arbitration/cost-and-payment/cost-calculator/
  36. ↑ http://www.siac.org.sg/index.php?option=com_siaccalculator&view=siaccalculator&Itemid=102
  37. ↑ https://www.international-arbitration-attorney.com/
  38. ↑ https://www.international-arbitration-attorney.com/full-international-arbitration-cost-calculators/
  39. ↑ "Arbitration in New York" (PDF). CMS Legal. Retrieved 10 May 2012.
  40. ↑ R. Morek "The Regulatory Framework for Online Dispute Resolution: A Critical View" (2006) 38 Tol. L. Rev. 165.
  41. ↑ E.g., Section 44.103, Florida Statutes.
  42. ↑ http://www.altenburger.ch/uploads/tx_altenburger/jl_2007_The_Interaction_Between_Arbitration_and_Mediation.pdf.
  43. 1 2 3 4 5 6 7 8 Noussia, Dr Kyriaki (2010-01-01). The History, Importance and Modern Use of Arbitration. Springer Berlin Heidelberg. pp. 11–17. doi:10.1007/978-3-642-10224-0_2. ISBN 9783642102233.
  44. 1 2 3 "Judicial Enforcement of Pre-Dispute Arbitration Agreements: Back to the Future". ResearchGate. Retrieved 2016-03-21.
  45. 1 2 3 "State regulation of arbitration proceedings: judicial review of Arbitration Awards by State Courts". ResearchGate. Retrieved 2016-03-21.

References

International Arbitration

External links

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