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Arbitration Law


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Arbitrations are frequently triggered by clauses included in business contracts between businesses. This implies that if they disagree, they must resolve it through arbitration rather than conventional litigation in the courts, which is where a consumer lawyer comes in.


Various legal disputes can be handled outside of a court of law by a barrister advocate or a team of consumer rights solicitors, but they must be legally binding. Your consumer lawyer will advise on the best plan of action and negotiate the conditions of your resolution during arbitration. If the case must be heard in a courtroom, a barrister should represent you.


Recent research reveals that courts are hesitant to utilise streamlined methods to resolve disputes fast. Making summary judgement explicit may inspire arbitrators to be more daring in the interests of efficient case management.


International Arbitration Law

International arbitration law deals with any case or possible conflict involving parties who are typically located in different countries, and it is the most popular type of alternative dispute resolution (ADR).


International arbitration often hears cross-border economic disputes that arise in situations such as joint ventures or commercial transactions.



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What does an arbitration lawyer do?

One of the first things an arbitration lawyer would do is to establish whether an arbitration against an opposed party is worthwhile from a legal, as well as monetary, perspective, and to define a suitable strategy for the case.


In this regard, the arbitration lawyers’ job is to:

  • assess the strengths and weaknesses of the client’s legal case, including the claims and defences that can validly be made;
  • assess jurisdictional issues, as well as enforcement issues, that may arise;
  • envisage the opposing party’s likely or actual position, and assess its strengths and weaknesses in turn; and
  • advise the client on whether initiating an arbitration is recommended or not, as well as the potential risks of doing so.

Pre-arbitration case assessment is helpful in nearly all cases, both to ensure that a case can be made, or defended, and since many first-time users of arbitration do not understand the full costs of arbitration.


The costs of arbitration typically include a flat filing/registration fee payable along with the request for arbitration, administrative costs incurred for the services of the arbitration institution and arbitrators’ fees. Except for the filing fee, which is usually a lump sum, arbitration costs at many institutions are calculated based on the amount in dispute.


What are the Advantages and disadvantages or arbitration?


While much relies on how arbitration clauses are framed and what outcomes are reached during an arbitration, the following major benefits of arbitration are frequently applicable:


  • Greater certainty of rulings.
  • Confidentiality.
  • Tribunal expertise and neutrality are achieved by the appointment of arbitrators by parties.
  • Flexibility in procedure, for example, to allow for expedited processing or to limit document disclosure.
  • Finality: In most cases, there are just a few grounds for challenging an award.


Arbitration has the following major disadvantages:


  • Tribunals’ reluctance to rule on weak claims/defenses on a summary basis.
  • Tribunals’ reluctance to impose strict case management.
  • The time it can take from the start of the arbitration to the publishing of the final award.
  • Limited grounds for objections and appeals, which, along with the process’s confidentiality, might lead to a lack of intellectual rigour in the award unless arbitrators are well chosen.




Mishoura has a long list of pre-vetted international arbitration law firms that excel in the most prevalent business arbitration sectors. Share your point of contention with one of our business advisors, and we’ll provide you with a list of competent Arbitration lawyers within 90 minutes.


FAQ’s

Does the law prohibit any types of dispute from being resolved through arbitration?

AThe courts have held that the purpose of the Arbitration Act is to allow parties to agree to have disputes determined by arbitration rather than in court.

Most types of commercial disputes can be arbitrated. However, case law has also determined that certain claims may be non-arbitrable.


Claims may be non-arbitrable if:


  • The relief sought requires an order that only a court can make.
  • The relief sought engages third-party interests in a relevant sense.
  • The claim represents an attempt to delegate to the arbitrators a matter of public interest which cannot be determined within the limitations of a private contractual process.

The courts have been prepared to interpret arbitration agreements broadly to encompass non-contractual as well as contractual disputes


Also, where elements of a dispute raise issues which are not arbitrable, that does not mean that the dispute as a whole will not be subject to the parties’ arbitration agreement


The English courts have taken a similar approach to arbitration agreements in investment treaties. For example, in July 2018, the High Court upheld its jurisdiction to enforce an award under the Russia-Ukraine Bilateral Investment Treaty (BIT), rejecting the state’s arguments that it had not waived state immunity under the UK State Immunity Act 1978 in the BIT arbitration agreement, in respect of claims for breach of fair and equitable treatment (FET).


There are some very limited cases in which disputes are not arbitrable:

  • Where an employee has statutory rights, which entitles them to have their case heard before an employment tribunal, it is not possible to submit the dispute to arbitration as the sole means of deciding the dispute
  • Insolvency proceedings which are subject to the statutory regimes set out in the Insolvency Act 1986 (however, insolvency claims are not automatically deemed non-arbitrable)
  • Criminal matters.


What are the requirements for an arbitration agreement to be enforceable?

Substantive/formal requirements


A written arbitration agreement need not be signed, nor is there a requirement for the agreement to be contained within a single document, meaning that an agreement to arbitrate can comprise an exchange of communications in writing (section 5(2), Arbitration Act). However, the documents must be clear enough to evidence that the parties intended to incorporate an agreement to arbitrate


Part 1 of the Arbitration Act (sections 1 to 84) governs arbitration agreements that are made or evidenced in writing (section 5, Arbitration Act). An arbitration agreement does not, however, necessarily need to be made in writing. Common law rules apply when determining the effect of an oral arbitration agreement, unless that oral agreement is by reference to terms that are in writing (section 5(3), Arbitration Act). Oral arbitration agreements can be problematic for the following reasons:

  • Before an award is issued, any party can revoke the authority of an arbitrator, assuming it has not been validated by terms of reference (Lord v Lee [1868] LR 3 QB 404).
  • If the authority of the arbitrator is revoked, the dispute can then be referred to court
  • An award can only be enforced by commencing a full action in court, as opposed to the summary enforcement procedure provided under the Arbitration Act.


Separate arbitration agreement


Although arbitration agreements are typically included in the commercial contract to which they relate, it is possible for them to be set out in a separate document and incorporated into the commercial contract by reference (section 6(2), Arbitration Act).


Parties can incorporate an arbitration clause by reference to a standard form clause or to a set of trade terms. Such trade terms or standard form clause may in turn incorporate by reference external provisions requiring a dispute to be submitted to arbitration



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