Arbitration can be an ideal to resolve a wide range of disputes. Our brilliant team at FWJ can help find the right dispute resolution process for you - call us today.
It is an unfortunate fact of life that everyone argues from time to time. Whether in family or business life, often the smallest of issues can quickly spiral into something neither side intended at the outset. In business – if you add in the complexities of different corporations, countries, cultures and political systems, it can become very difficult to resolve these issues unless there is access to a proven dispute resolution mechanism.
Arbitration can provide the answer for many businesses facing these types of complex issues.
And our team at FWJ can provide the advice you need to help you resolve your commercial or business dispute – whether as alleged wrongdoer or the wronged – and in any forum.
Resolving disputes by arbitration
Ideally, in a perfect world, everyone would sit down together and find a solution to their disputes.
When the disputes arise between businesses, early resolution is positively encouraged in the English & Welsh legal system by reference to
- Alternate Dispute Resolution (“ADR”) and
- the Pre-Action Protocols embedded into the Civil Procedure Rules 1998 (as amended), which is the main procedural guidance book for navigating our legal system of litigation in the Courts to resolve business disputes.
However, for many parties neither negotiation (which often reaches a stalemate) nor court proceedings (which are lengthy are expensive, although just) are satisfactory options.
In these circumstances, and especially for large companies and companies involved in international trade and international disputes, the best option (by pre-existing agreement or alternatively by agreement when the dispute arises) is Arbitration.
Can I arbitrate?
Arbitration is technically available for all.
However, in order for a dispute to be capable of settlement through arbitration, it must be ‘arbitrable’.
Some disputes can only be settled by a court, or the remedies requested granted by a court. For example
- in England and Wales, under the Arbitration Act 1996, an arbitral tribunal does not have the power to order specific performance of a contract if it relates to land.
- specific statutory remedies or basis of a cause of action cannot be subject to Arbitration. The reason for this is because the opponents are of a very different standing – one may be passive and unresponsive, whilst one has suffered a loss or wants reparation for a wrong. In these circumstances the passive party benefits as s/he has no incentive to enter into negotiations or arbitrate, as they currently have the best result.
- an Arbitration Tribunal cannot make orders under statutory provisions as they do not have the jurisdiction vested in the courts to make such awards. This is in part because they are not part of the court process but also because they are not subject to the Civil Procedure Rules or human rights and other related obligations that are adopted in England and Wales (and many other international jurisdictions.
Rights to Arbitration
However, if you are in dispute with another party, and either you have an agreement to arbitrate disputes or it is more cost effective (and better for business) to get matters resolved quickly, then Arbitration is the perfect forum to resolve disputes which the parties must accept as having been independently resolved.
Generally speaking, most disputes are arbitrable and national laws will determine what may or may not be capable of settlement by arbitration.
Each dispute will therefore have to be analysed on a case by case basis, as it may be affected by a state’s public policy at the time. For that reason, some types of claims need to be looked at in greater detail to determine if they are arbitrable. These types of disputes often concern
- the grant of patents, trade marks or copyright;
- antitrust or competition laws;
- securities transactions;
- bribery and corruption;
- natural resources; and
- corporate governance;
For example, in the Netherlands, a dispute that dealt with the validity of a shareholders’ meeting was not held to be arbitrable by the Dutch courts, whereas the laws of England and Wales have affirmed the opposite.
Specific instances of Arbitration – commercial & business agreements
If there is a business agreement, especially an international business agreement in respect of a commercial venture, then it will almost certainly have an Arbitration clause which the parties will be required to abide by.
If this applies to your dispute, then arbitration must be adopted. In England & Wales, if parties ignore this obligation then the other party can apply to the Court to stay the legal proceedings pending the conclusion of the Arbitration.
Arguably, in such instances the wasted costs of the legal proceedings can be sought by the defending party in such circumstances.
At FWJ we can advise and assist you on any matter related to Arbitration. If you have concerns as to whether or not a dispute may be subject to arbitration, please contact us for a confidential discussion, and we would be delighted to assist.