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BSS 411
What is arbitration?
a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, where a third party neutral (arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard. It is a resolution technique in which a third party reviews the evidence in the case and imposes a decision that is legally binding for both sides and enforcable.
ARBITRATION
An alternative to litigation as a method of dispute resolution. The parties must agree that the third partys decision is final and binding.
WHEN TO ARBITRATE
Arbitration Act 1952 (Revised 1972) A matter may be referred to arbitration by agreement before the dispute or after the dispute or operation of the law (by order of court or requirements of astatute) All standard forms of building contract contain an arbitration clause.
DISADVANTAGES
Rules of evidence do not apply and failure to rely on past cases because there is no collection of precedents available from completed arbitrations. Arbitrator may be knowledgeable in his field but may lack detailed understanding of the law Fees can be expensive Point of law may appeal in court Third parties- more flexible in HC, if arbitration needs to have separate proceedings.
ARBITRATOR
Must be impartial- must act in judicial manner Someone with appropriate technical expertise, basic knowledge of contract and tort, preferably experienced in arbitration Personally liable for fraudulent or corrupt conduct Appointment : by mutual agreement of parties
POWERS OF ARBITRATOR
S13(1) have powers to order parties to appear before him and examine them on oath, produce all relevant documents, and do all things required for the conduct of proceedings S13(2)- has powers to order witnesses to be examined on oath.
ARBITRATION PROCEDURES
1. Commenced only with the appointment of arbitrator 2. Arbitrator calls a preliminary meeting to decide on procedure and to set a timetable and the formal steps to be taken before the hearing 3. Delivery of pleadings. By each party. 4. Discover of documents
5. Exchange of reports of expert witnesses in appropriate cases. 6. Hearing ; calls witnesses- examined, cross examined and re-examined. Sum up. 7. Award decision by arbitrator which is final and binding on the parties.
AWARD
Non speaking award- simply who the successful party is and if there are damages to be awarded. A reasoned award an award where the arbitrator prvides reasons for his decision.
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