...Arbitration as a mechanism for resolving disputes has an ancient history stretching back thousands of years and was primarily based upon the principles of fairness and common sense. The origins of arbitration go back to dispute settlements in Roman law, Asia and Greece and Aristotle is reported to say an arbitrator goes to the equity of the case but a judge decides strictly with the rule of law. Philip the Second, the father of Alexander the Great, was an arbitrator who used this method to settle territorial disputes with the Southern States of Greece dated to be around 337 BC In England the use of arbitration is older than the common law system upon which English law is based and was a functioning process in use to settle commercial disputes between merchants on market days in the Middle Ages. The Guilds of London and the “The Great Twelve Livery Companies” that date back to the 14th century demonstrated that this practice was of a great importance to resolve many disagreements that were brought within their halls. The English Courts did however perceive arbitration as a competitor to their authority and in particular as a disruption to the revenue that flowed into them as Judges were paid on the number of cases that they had to deal with. The Courts were also suspicious as to the standards being applied in these arbitrations at that time. It was not until the 20th Century that the courts began to recognise the decisions of arbitrators and the close control by the courts...
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...Introduction to Arbitration MBA 2013, Freeport Class Arbitration is one form of Alternative Dispute Resolution (ADR), ADR (Alternative Dispute Resolution) is a commonly used term for settling disputes by mutual agreement. ADR in its wider sense includes both arbitration (as an alternative to ordinary court proceedings) as well as mediation or conciliation of disputes (in all its variations). According to one English definition: “ADR is any method of resolving an issue susceptible to normal legal process by agreement rather than by imposed binding decision.” It is means to end disputes which provide parties to a controversy with a choice other than litigation. Conciliation/mediation undoubtedly constitutes the very oldest form of resolving disputes, whether in the form of direct negotiation between the parties themselves (mostly termed “conciliation”) or with the intervention of one or more third parties as mediators (then mostly termed “mediation”). Article 6 of Indonesian Law No. 30 of 1999 explained that, dispute or difference opinion of civil cases can be resolved by the parties through alternative dispute resolution based on good faith to the exclusion of the litigation settlement in the District Court. Resolution of dispute through alternative dispute resolution opinion referred to in paragraph is solved in a direct meeting by the party in the longest time 14 (fourteen) days and the results are set forth in a written agreement. In case of dispute or difference cannot...
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...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] Other forms of ADR include mediation[2] (a form of settlement negotiation facilitated by a neutral third party) and non-binding resolution by experts. Arbitration is often used for the resolution of commercial disputes, particularly in the context of international commercial transactions. The use of 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 can not be imposed on the parties. However, the principal distinction is that whereas a mediator will try to help the parties find a middle...
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...breaking judgment regarding the future implications of foreign award and foreign arbitration vis a vis jurisdiction of Indian Courts | | |was passed on 6 September 2012 by the Constitutional Bench of the Hon'ble Supreme Court comprising Hon'ble Chief Justice J.N. Patel, Justice | | |Surinder Singh Nijjar, Justice D.K. Jain, Justice Mrs. Ranjana Desai, Justice Jagdish Singh Khehar. This landmark judgment passed in Civil | | |Appeal No. 7019 of 2005 (Bharat Aluminium Co. vs. Kaiser Aluminium Technical Service, Inc.) along with 7 other Appeals lays down a new | | |foundation in India in respect of foreign arbitrations and foreign awards passed in respect thereof. | | |The Indian Arbitration Act, 1996 ("said Act") is divided into four Parts with Part I dealing with arbitration held in India and Part II | | |dealing with foreign awards. For the purposes of the above mentioned landmark judgment passed on 6 September 2012, we are concerned with Part | | |I and Part II of the said Act. | | |Previous decisions of the Supreme Court: | | |Section 2(2) of Part I of the said Act provides that "this Part shall apply where the place of arbitration is in India", It is pertinent to | | |note that Part I of the said Act contains...
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...To: Maria From: Sarah Farrell Date: March 1st 2015 Dear Maria, I did some research regarding what we had discussed earlier and found two cases, that direct me on whether or not you should be adding in the arbitration clause. The first case was CB Richard Ellis, INC. v. American Envtl. Waste Mgmt. 1998 U.S. Dist. LEXIS 20064 (E.D.N.Y Dec. 4, 1998), the New York courts attitudes to arbitration and mediation clauses where the plaintiff contracted with the defendants company for waste removal services under a written contract with general mediation clause governing “any dispute”, claim or controversy arising out of or relating to this agreement or the work when the plaintiff sued for fraud, unjust enrichment, and breach of contract for overbilling and paying kickbacks, the defendant moved to stay the proceeding and compel mediation. The court found the Federal Arbitration Act applied to mediation under the parties’ contract as a process that would “settle” the controversy. The mediation clause was broadly worded, had no exclusions, and covered all disputes relating to the contract. It had a strong presumption favoring in arbitration and governed disputes that only touched the matters of the agreement. In the second case, Dean Witter Reynolds v. Byrd, 470 U.S. 213, 218, 84 L. Ed. 2d 158, 105 S. Ct. 1238 (1985). In 1981, respondent invested $160,000 in securities through petitioner broker-dealer. The parties had a written agreement to arbitrate any disputes that...
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...Enforcement of Arbitration Agreement ZITIMOTORS and PONCE ENRILI As the duly authorized representative Defendant x----------------------------------------x PETITION FOR JUDICIAL RELIEF AFTER ARBITRATION Plaintiff through Counsel unto this Honorable Court hereby depose and alleges that: 1. Plaintiff Corporation is a business organized under the laws of the Republic of the Philippines and with principal address located in 123 Leviste st. Salcedo Village Makati City and; 2. Defendant Corporation is business organized under the laws of the Republic of the Philippines and with principal address located by 2nd floor, Zitimotors Building, Pasong Tamo, Makati City, represented in this Act by its Senior; STIPULATION OF FACTS 1. That plaintiff corporation and defendant corporation entered into a contract with arbitration clause last march 22, 2000; 2. That on June 16, 2008 a dispute arose from a letter sent by hereby petitioner asking for the payment of the sum of 10,000,000Php representing the accounts payable for the collection, due for the petitioner as payment for the services rendered by the petitioner; 3. That on June 30, 2008, defendant wrote back a letter refusing to pay the said sum of money; 4. That despite repeated written and verbal demands, Defendant refused and continuously refused to pay the accounts payable; 5. On October 1, 2008, both parties agreed to enter into arbitration procedure...
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...Dispute Resolution: Arbitration Law in Nepal Anamol Bisht Kathmandu University School of Management In an event of the breach of any contract, legal remedy should be provided to the parties that are involved in the agreement. However, instead of going directly to the court of law, there are specific remedies that serve as an alternative dispute resolution and one such alternative is arbitration. In arbitration, an arbitrator (a neutral third party or experts) renders a decision based on the disputes they are presented with. Here, the third party’s decision is legally binding, as it is an alternative dispute resolution (ADR) to the judicial system of the nation. Except for a few special cases, the court of law will reject any disputes between contracting parties and refer to the parties to arbitration. This is why almost all contracts and agreements have arbitration clauses mentioned in so it has to be a collateral to the main contract so as not to end with the contract itself. “The other term of the contract fall but the arbitration clause survives” (Pathak, 2010). The procedures to arbitration are stringent laws that pertain to how justice should be served in case of a contractual breach. Since courts alone couldn’t resolve the question of arbitration, there had to be a law that referred to the powers invested to the parties as private legislation and the ousting of the jurisdiction of the court. Hence, the Arbitration Act, 2055 (1999) was enacted to provide such guidelines...
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...resolve disputes through mediation and arbitration to make a mutual decision between parties who are unable to resolve issues by themselves as well as avoid high cost legal fees. Mediation and arbitration may not work all the time but with the right mediator and arbitrator, at least eighty percent of the time they are able to work out an agreement that is acceptable to both parties (Cahn & Abigail, 2007, pg. 196). Once the case is acceptable, legal action may not be needed and the parties can move forward to an agreement. Cahn & Abigail (2007) defined the role of arbitration as a neutral third party considering both sides of a dispute and makes a decision, which is more binding than that of a judge in the legal system if both parties have agreed in advance to abide by the decision (no appeal)” (pg. 195). Depending on the situation and conflict, it can be beneficial going through arbitration so all parties will be able to express their side without having a judge or jurors make a final ruling. Cahn & Abigail (2007) defined the role of mediation as a neutral third party that facilitates communication between the conflicting parties so that they may work out their own mutually acceptable agreement” (pg. 195). Conflicts can be difficult to resolve because all parties feel that their way is the right way and no other way is right. This can get out of line especially when the conflict needs to be resolved. The function of mediation and arbitration is to resolve conflicts through...
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...India) (Accredited by NAAC with ‘A’ Grade) ------------------------------------------------- Study of arbitration, dispute resolution and mitigation practices in Indian Infrastructure Sector MBA – Infrastructure Management Batch 2013-15 Semester III Thesis Guide: Dr. Ajit Patwardhan Prepared by: Name | Roll No. | Jasjeet Singh Gill | 2013D02 | Subhashini N. | 2013D17 | Acknowledgement We consider it our privilege to express a few words of gratitude and respect to all those who contributed and wished for the successful completion of our project. We express our deep felt gratitude to Prof. (Dr.) Pratima Sheorey - Director, SCMHRD and college management for providing us with all facilities for making this endeavour possible. We acknowledge with a deep sense of gratitude, the constant help and guidance provided by our thesis guide and faculty Prof. (Dr.) Ajit Patwardhan at all stages of our project work. He has been an eternal source of inspiration and knowledge, without him, this thesis, was impossible. We would like to express our thanks in no less measure to Prof. Vasundhara Sen for her constant help. Our sincere thanks to our friends and all the people who directly or indirectly helped us, without which completing the course of this study would have been difficult. Certificate This is to certify that the project entitled “Study of arbitration, dispute resolution and mitigation practices in Indian Infrastructure Sector” is the bonafide work of...
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...dispute resolving mechanism. That’s why “Arbitration Act” was provided with a view to give speedy justice to the people and also to avoid unnecessary court case expenses. It is an informal dispute settlement mechanism. Bangladesh has recently enacted a new arbitration law, known as “The Arbitration Act, 2001. The Act came into force on April 10, 2001. The Act has repealed The Arbitration (Protocol and Convention) Act, 1937 and The Arbitration Act, 1940. With this new enactment Bangladesh has kept pace with the recent trends in the field of international arbitration in the rest of the world. According to the topic of this assignment, I also agree that although arbitration was introduced for settling dispute but it is not serving it purpose entirely and precisely. Now I’m going to discuss about the reasons which are making difficulty for arbitration to serve its purpose completely. Meaning of Arbitration: Before discussing about the ineffectuality’s of arbitration, first we should briefly know what Arbitration really means. The word “Arbitration” means mediation, negotiation, adjudication etc. This means settlement of arguments, disagreement, and clash between two parties. It is a process in which a disagreement between two or more parties is resolved by impartial individuals, called arbitrators, in order to avoid costly and lengthy court case or legal actions. Arbitration is the most traditional form of dispute resolution. Arbitration is a binding procedure. It is often...
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...The arbitration clause This clause is related to the problem of the settlement of disputes arising from the non-performance or the improper performance of international trade contracts. Generally, in all systems of law the courts of law have jurisdiction to settle these disputes, especially the court of law from the place where the headquarters of the defendant are situated. However, there are some exceptions provided by the procedural law of the states. Thus, for example, the court of law from the place where immovable goods are situated has exclusive jurisdiction to hear disputes concerning these goods. The settlement of disputes by the courts of law has some disadvantages for the merchants, as follows: 1. the period of time until the dispute is settled is very long and impedes the existence of proper commercial relations between partners; 2. the procedural legal rules (rules concerning the proceedings before the court of law) are very complicated and the parties do not know them. As a consequence, they must be assisted by lawyers before the court of law and lawyers are very expensive. Due to these disadvantages, the merchants prefer alternative ways for the settlement of disputes, such as the arbitration. The commercial arbitration represents a jurisdictional way of settling commercial disputes. It means that the hearing and the settlement of the dispute between parties is performed by a person or persons chosen or agreed to by them. The parties to a commercial contract...
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...INDIAN BARE ACTS THE ARBITRATION AND CONCILIATION ACT, 1996 No.26 of 1996 [16th August, 1996] An Act to consolidate and amend the law relating to domestic arbitration, international commercial arbitration and enforcement of foreign arbitral awards as also to define the law relating to conciliation and for matters connected therewith or incidental thereto. WHEREAS the United Nations Commission on International Trade Law (UNCITRAL) has adopted the UNCITRAL Model Law on International Commercial Arbitration in 1985: AND WHEREAS the General Assembly of the United Nations has recommended that all countries give due consideration to the said Model Law, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice; AND WHEREAS the UNCITRAL has adopted the UNCITRAL Conciliation Rules in 1980; AND WHEREAS the General Assembly of the United Nations has recommended the use of the said Rules in cases where a dispute arises in the context of international commercial relations and the parties seek an amicable settlement of that dispute by recourse to conciliation; AND WHEREAS the said Model Law and Rules make significant contribution to the establishment of a unified legal framework for the fair and efficient settlement of disputes arising in international commercial relations; AND WHEREAS it is expedient to make law respecting arbitration and conciliation, taking into account the aforesaid Model Law and Rules;...
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...Mediation and Arbitration Agreement Dear [Name of ABC Company Employee]: Although ABC Company hopes that employment disputes with its employees will not occur, ABC believes that when these disputes do arise, it is in the mutual interest of all concerned to handle them promptly and with a minimum of disturbance to the operations of ABC's businesses and the lives of its employees. Accordingly, to provide for more expeditious resolution of certain employment-related disputes that may arise between ABC Company and its employees, ABC has instituted a mandatory mediation and arbitration procedure (the ABC Mediation and Arbitration Procedure or the Procedure) for all employees [indicate eligibility restriction, if any]. Under the Procedure, certain disputes that may arise from your employment with ABC or the termination of your employment must (after appropriate attempts to resolve your dispute internally through ABC management channels) be submitted for resolution by non-binding mediation and, if necessary, mandatory arbitration. In agreeing to submit certain employment disputes for resolution by private mediation and (if necessary) arbitration, you acknowledge that this Agreement is given in exchange for rights to which you are not otherwise entitled--namely, your employment as an ABC Company employee and the more expeditious resolution of employment disputes. In exchange for your agreement to submit these disputes to mediation and (if necessary) binding arbitration, ABC Company...
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...1. Jackson filed the lawsuit instead of going to arbitration because he claimed "that the Agreement to arbitrate is unconscionable under Nevada law and is unenforceable" (Reed, Pagnattaro, Cahoy, Shedd & Morehead, 2012, pg.140). 2. Rent-A-Center wants to dismiss the lawsuit, ultimately because they don't want to have to pay Mr. Jackson anything. But their reasoning is that "the issue of unconscionability and unenforceability are matters for the arbitrator, not the courts, to decide" (Reed, Pagnattaro, Cahoy, Shedd & Morehead, 2012, pg.140). 3. The Supreme Court used The Federal Arbitration Act, Section 4 to decide the proper roles of a judge and an arbitrator. Section 4 states that if either party decides they aren't going to comply with the Arbitration agreement, the other party has the right to petition the court "for an order directing that such arbitration proceed in the manner provided for in such an agreement" (Reed, Pagnattaro, Cahoy, Shedd & Morehead, 2012, pg.140). Jackson's lawsuit never specifically called out Section 2, which says "a written provision in...a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of suck contract...shall be valid, irrevocable, and enforceable, save upon such grounds as exist a low or in equity for the revocation of any contract" (Reed, Pagnattaro, Cahoy, Shedd & Morehead, 2012, pg.140). Because Jackson never specifically challenged "the delegation...
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...Foundation of International Commercial Arbitrations Shaimaa Nasr Eldin ESLSCA Business School International Business law Foundation of the International Commercial Arbitrations Abstract. This paper analyzes the foundation of the international commercial arbitration, as a phenomenon widely used by most of the corporations among the world as a dispute settlement mechanism. You will see that it is one of many possible procedures for the settlement of disputes in regard to economic transactions. You will learn about the essential features of arbitration; that it is for the settlement of a dispute, consensual based on the agreement of the parties, private and not part of the State system of justice and leads to a final and binding decision that will be given execution by the court. This paper also identifies the selection by the parties of the place in which their international commercial arbitration is to take place will have a fundamental impact on the determination of those rights. Equally fundamental is the parties' selection of the law, both substantive and procedural, which will apply to the determination of those rights. This paper examines both of those choices, the forum and the law applicable to the arbitration. It also identifies the three sources of rules for international commercial arbitrations. Key words: Arbitration, applicable law, source of rules for international commercial arbitrations. What is "International Commercial Arbitration" ? This term is divided into three...
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