The 'must know' guide to construction contract principles
04/06/13 - This 1 DAY COURSE will consider the principles of contract law in practice and their application to construction contracts and administration.Read More
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Arbitration is arguably a form of Alternative Dispute Resolution or 'ADR' since it is a procedure for the resolution of disputes other than through the Court.
Arbitration is a procedure Parties enter into by consensus only, i.e. by the incorporation of an arbitration procedure within the Construction Contract or, where appropriate, by reference to arbitration giving rise to a right to arbitrate under the Arbitration Act 1996. Alternatively the Parties may agree that the best way to resolve a dispute is by the procedure of Arbitration and the rules of that procedure are entered into post contract. By commencing arbitration you are engaging a third party to resolve the dispute, i.e. the tribunal.
Indeed the Oxford English Dictionary defines an arbitrator as "Arbitrator: an independent person or body officially appointed to settle a dispute."
A key advantage to arbitration is that it is a procedure held in Private. Of course this may be seen as a disadvantage if a Party wants the matter aired in the public arena that litigation in Court may offer. Moreover, arbitration is not confined to matters that the Courts of England and Wales only have jurisdiction to deal with. The procedure is international and at Silver Shemmings we have the experts to deal with both national and international arbitrations. The New York Convention enjoins signatory states to observe arbitral award made in other countries and as such the Parties do not have to be domiciled in any particular country or state to enjoy the arbitral procedure. The only grounds upon which such enforcement may be refused are common-sense grounds such as:
- No agreement to arbitrate exists; or
- The procedure was conducted unfairly by the arbitrator;
- The procedure was not appropriate; or
- The procedure is contrary to public policy.
Arbitration is importantly recognised by the legal system of almost every country. Consequently the arbitral process is more or less integrated into the systems of nation states by legislation of various kinds.
In construction contracts including the provision of main and sub-contract obligations and professional services, it has been the custom for a long time that standard form contracts should include arbitration clauses. Arbitration no longer remains the first point of decision in many forms of contract, since the Parties more often than not have the Statutory Right to adjudicate, or mediation / conciliation have become pre-requisites for reference of a matter to arbitration.
The process that follows is akin to litigation, or it may be, since the Parties are free to agree by consensus how the proceedings flow. For example oral hearings may be held with witness undergoing examination in chief and cross examination, expert witness may appear, or the matter may be dealt with at arm's length by documents only.
A difference to other proceedings is that the Arbitrator is empowered, save where the Parties agree otherwise to deal with their own jurisdiction and the Parties' and tribunals' costs.
At Silver Shemmings we have individuals to advise you on how to commence and run a claim utilising the arbitral procedure both nationally and internationally. Indeed at Silver Shemmings we have individuals who are nominated and act as Arbitrators both in England and Wales and within other jurisdictions.
Should you require arbitral procedures drafted, assistance in bringing or defending a claim in arbitration or the services of an Arbitrator then please contact any of the following experts in the field of ADR and particularly arbitration:
For more information and initial advice please contact us on:
Sarah Shemmings or Richard Silver
Tel.: 0845 345 1244
Robert Shawyer – Cardiff
Tel.: 02920 474 570
Don’t forget that you can also make initial contact through our free helpline 08455 1 92 92 1