Parties agree to arbitrate because they consider that to be the most appropriate method for finally resolving disputes that might arise out of their legal relationship. A positive choice to include an arbitration agreement in your contract will (in most cases) bring with it a further choice, namely to exclude the substantive jurisdiction of the national courts which would otherwise be able to hear claims between the parties. As you know, arbitration agreements are construed widely. English law takes the view that businessmen want all claims arising from one contract to be resolved before one tribunal.
Read moreThink before you arbitrate - practical considerations to make the most of arbitration
Arbitration is a common alternative to litigation in insurance contracts' dispute resolution clauses, but what are the practical implications of choosing arbitration over litigation? And what do insurers need to think about when electing to resolve a dispute by way of arbitration? There are a number of considerations to take into account when looking at the commonly referenced pros and cons of arbitration and the key differences with litigation. This article provides an overview.
Read moreCOVID sparks more job protection for workers
One of the few bright spots shining through the coronavirus pandemic for employees is the attention directed to greater job security, particularly for lower-level employees who have suffered the brunt of economic hardship due to COVID-19.
Read moreWhat happens if I am unhappy with an adjudicator's decision?
When a party is unhappy with an adjudicator's decision they really have two options:
Challenge Enforcement of an Adjudicator's Decision - When a Decision is issued, if the paying party does not pay, then enforcement proceedings require to be raised. These proceedings will be in court. If the court enforces the decision then the paying party will require to make payment. If the court does not enforce the decision, the decision will become void.
Final Determination - when either party are unhappy with the decision, and there are no grounds to challenge enforcement the only option is to seek to have the matter finally determined by the court (or if the contract provides, arbitration). These proceedings are not an appeal but instead a full rehearing of the claim. In the interim the adjudicator's decision is unfortunately binding and the adjudicator's decision requires to be paid pending the outcome of any final determination proceedings.
Care should be taken to review contract terms as some contracts require a party who is unhappy with an adjudicator's decision to issue what is known as a Notice of Dissatisfaction. This is a notice which sets out that the party is dissatisfied with the decision and intends to raise proceedings to have the dispute finally determined. This requirement is most commonly found in the NEC form of contract, which requires a Notice of Dissatisfaction to be issued within 4 weeks of the decision, but even if the contract does not require it, it is good practice to issue such a notice.
Lastly, where a party does not agree with a decision they require to reject the decision in full. They should not accept and reject the decision at the same time. For example if a party wishes to ask an adjudicator to correct an issue with the decision under the slip rule but also challenge the enforcement of the decision, they should sufficiently reserve their rights to challenge the decision when making the request for the correction to be made. If they do not do so it could be argued that they have accepted the decision as valid. This is known as the doctrine of approbation and reprobation.
Next week we will look at issues surrounding enforcement of the adjudicator's decision in more detail. If you haven’t read our previous adjudication blogs they can be found here. Our commonly used terms glossary for adjudication can be found in our week two blog.
Time for actions not words
With global attitudes to race under scrutiny like never before, a practitioner, an academic and the director general of an arbitral institution look at how to improve ethnic diversity in arbitration.
The death of George Floyd in May and subsequent Black Lives Matter protests brought race to the forefront in all walks of life and in the intervening months, lawyers around the world have spoken out about discrimination and the lack of representation in the profession.
Read moreWhat happens if the Respondent doesn't participate in the adjudication?
There are very few, if any, reasons why a Respondent should refuse to participate in proceedings.
The most common basis for a Respondent's failure to participate in an adjudication is that it considers the adjudicator does not have jurisdiction to decide the dispute. In these circumstances the Respondent should state their position, and explain the grounds of any jurisdictional challenge in correspondence. If the Respondent's position is properly reserved and it then withdraws from the adjudication, it may raise its jurisdictional arguments in enforcement proceedings.
Read moreA Rare Occurrence: California Court Overturns Arbitrator’s Award
California’s statutory ban on post-employment covenants, which are enforceable in most other states, has bedeviled employers trying to protect confidential information and trade secrets. The state’s Business and Professions Code section 16600 provides that “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” Due to this prohibition, employers in California have few options in terms of preventing post-employment competition and solicitation.
Read morePosture Away, You May Still Get Your Way
The Sixth Circuit recently reversed a decision from an Ohio federal court related to whether a party waived its arbitration rights through posturing correspondence written prior to the filing of litigation or arbitration. In Borror Property Management, LLC v. Oro Karric North, LLC (No. 2:19-cv-04375), the Sixth Circuit upheld the defendant’s contractual right to arbitration by concluding that no waiver of such right had occurred.
Read moreIf You Want A Right To Appeal An Arbitration Award, Build It Into Your Arbitration Agreement
Many people opt for binding arbitration because it is supposedly faster and cheaper, and binding – thus final. Some people have to arbitrate their matters that they cannot settle amongst themselves, because there are issues that they cannot try before a court given the court’s mandatory obligation to report certain matters to the proper authorities (e.g. taxing authorities). While many people seek the finality of a binding result, many others are concerned that because an arbitrator is human, she/he could make a mistake.
Read moreForeign investors harmed by trade measures may find relief by bringing investment arbitration claims →
A recent investor-state arbitration decision under the investment chapter of the North American Free Trade Agreement (NAFTA Chapter 11), Vento v. Mexico, demonstrates that foreign investors protected by an international investment agreement may submit arbitration claims that international trade regulatory and tariff measures breach the state's international obligations.
Read moreSCOTX to Hear Reinstated Petition in Oil & Gas Arbitration Dispute
On Friday, the Supreme Court of Texas agreed to hear oral argument following reinstatement of a petition for review regarding whether a non-signatory assignee may be compelled to arbitration following an indemnity dispute. The facts of the case were discussed in a previous Disputing blog post:
Read moreWhy Alternative Dispute Resolution Is Useful For Business Conflicts
Vice President Yemi Osinbajo has said the current administration is promoting the adoption of Alternative Dispute Resolution (ADR) and creating the necessary infrastructure to enhance speedy resolution of business related disputes.
Read moreGovt pushes for dispute resolution panel to resolve oil, gas wrangles
New Delhi, Nov 15 (PTI) With an overhang of disputes choking investments in the oil and gas sector, the government is pushing for contractual wrangles being sent to an expert committee for time-bound resolution but the move has found few takers due to inherent conflict of interest in such a process, sources said.
Read moreNova Scotia’s eCourt platform is first online judicial dispute resolution service in Canada
Nova Scotia’s eCourt recently launched online dispute resolution pilot program enables counsel for both parties and the judge to communicate in real time.
The pilot program, which went live in July, aims to allow those with simple family legal issues, such as divorce, child custody, spousal support or child support, to more simply, safely, easily and affordably access the courts to resolve these matters, stated the news release from the Nova Scotia government.
Read moreSuccessfully arbitrating disputes
While the UAE provides some of the best and the most lucrative business opportunities to entrepreneurs all over the world, such opportunities come with their own set of disputes between employees, competitors and other corporate entities. Usually, mediation and negotiation techniques help in such matters. However, in disputes where mediation and negotiation techniques do not work, arbitration is often the most effective option being one of the less expensive ways to settle a dispute between parties.
Read moreCommercial Contracts and ADR Clauses - Who said they were optional?
Most Commercial Contracts will have an ADR (Alternative Dispute Resolution) clause that requires the parties to engage in non-Court methods to resolve a dispute rather than launching straight into Court action.
The Courts have been taking a more robust approach in making it clear to parties that such clauses should be followed and are not optional.
Read moreQuotient Limited and Ortho Clinical Diagnostics Settle Arbitration and Sign Binding Letter of Intent Covering Patient Transfusion Diagnostics
JERSEY, Channel Islands, Sept. 08, 2020 (GLOBE NEWSWIRE) -- Quotient Limited (NASDAQ:QTNT), headquartered in Eysins, Switzerland, today announced that the Company and Ortho Clinical Diagnostics (Ortho) have signed a binding letter of intent that confirms the termination of their former distribution agreement and related contracts and resolves all their disputes over the former distribution agreement. In addition, this ends the pending arbitration between the two companies and establishes a new distributor relationship focused solely on patient transfusion diagnostics.
Read moreConservative justices embrace delegation to arbitration panels while questioning administrative process
1984 was a dramatic year for literature and law. George Orwell’s classic novel came of age, with its four Ministries of Peace, Love, Plenty, and Truth that brilliantly described their opposites. Less observed that year—except by administrative lawyers—was the U.S. Supreme Court’s decision in Chevron v. Natural Resources Defense Council, the case that was to recalibrate judicial review of agency decisions. Also decided that same year was Southland Corp. v. Keating, a case preempting state arbitration laws that even administrative lawyers may have ignored.
Read moreArbitration Agreements Lacking Employer’s Signature Can Be Enforceable, Says Texas Appellate Court (US)
…a three-judge panel of the Court of Appeals for the First District Court of Texas held that an employer could compel a former employee to arbitrate her wrongful termination case, even though it had not signed the arbitration agreement, because the evidence demonstrated that the employer intended to be bound by the agreement and there was no evidence that the parties intended for the employer’s signature to be a condition precedent to the contract’s enforcement.
Read more