Sources of Arbitration Rules

Question: Discuss about theSources of Arbitration Rules. Answer: Introduction The Chartered Institute of Arbitrators defines arbitration as settlement of disputes outside of court by a third party whose decision is binding.[1] Arbitration is a legal method of seeking redress in the sense that it is provided for by the law. The only difference is that awards are decided by arbitrators and not a court of law. There are also rules that regulate arbitration to ensure that it is just, fair and bears positive results. These rules dictate how parties relate and how the third parties interact with them. Sources of Arbitral Rules Arbitral rules are constructed in accordance with arbitrary law. Celik highlights that arbitrary law is characterized by confidentiality, freedom of choice and flexibility. Furthermore, she notes down sources of these laws[2] The Arbitration Act 1996[3] gives arbitration procedures independence from the courts. These means that the court only comes in to appointing arbitrators, enforce awards or when either party seeks to dispute the award given. Civil Procedure Rules[4] further dictate how courts handle civil cases. These rules, however, also provide guidelines on the involvement of courts in arbitrary cases. [5] UNCITRAL Model Rules for Arbitration[6] which the United Kingdom is party to. However, there are reservations on certain clauses. However, the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards provides that awards be enforceable by High Courts of member countries. The UK is a party to this treaty hence these rules applies to arbitration. In further discussing these rules, Latham and Watkins introduce three institutions that are factored in a while choosing which rules to apply.[7] ICC[8], LCIA[9], and ICDR[10] are most favorable to apply since they are internationally recognized and also merge well with local laws. These institutions supervise arbitrary cases by receiving submissions, supervising appointment of the arbitrator/ tribunal and also addressing any upcoming issues with regards to the effectivity of the arbitrator. However, ICC has additional provisions[11] such as preparation of terms of reference inclusive of the claims, defenses, and relief being sought and an analysis of draft awards by their court before they can be awarded. These provisions protect the interests of both parties by ensuring that their tights are upheld. This, however, comes at an added cost. Bargaining Power of Parties In accessing fairness in arbitration, the parties are at liberty to decide together on their arbitrator, the rules they will apply, the place of arbitration and the language of arbitration. This ensures that each party is content and believes that their best interests have been considered. Equity and its principles factor in. For example, a court can remove an arbitrator that is deemed to be biased to one party.[12] In Copeley Ltd vs. Bingham Another[13] Cofely acted as an arbitrator on severally in proceedings where Knowles was one of the parties. These cases contributed to 25% of Cofelys incomes and where found in favor of the claimant. The court held that indeed there were doubts as to the independence of the arbitrator. This is because it seems that he could be in cahoots with the claimant to earn unfairly. Brazell and Paranavitane[14] highlight that principles of equity were applied to ensure confidentiality of information is upheld. This means that parties were able to hold arbitrators accountable if at all they breached any of the terms. Torts and equitable remedies provide the channel to seek redress even in arbitration. In arbitration, even he who has the superior bargaining advantage must act in the required manner if he stands a chance to win the case. This means that whether they can afford the best legal representation or the arbitration laws favour them, they must act in clean hands.[15] Conclusion In assessing which rules protect the minority from that which has higher bargaining power, there is no specific set of rules that directly speak to this. What is best is that both parties analyze which rules apply best to the issue in question, cater to their geographical mobility and financial constraints. This way, they will have knowledgeable and experienced arbitrators that understand their field and terminologies that apply. Ultimately, even the awards granted will be fair. Bibliography Brazell, L. and Paranavitane, V,.(May 2015) Protecting trade secrets under English law. Retrieved from https://www.osborneclarke.com/insights/Protecting-trade-secrets-under-English-law/ Celik, Michelle. Legal Information Management; Cambridge (Sep 2009): Sources of Arbitration Law. 199. Retrieved from https://www.cambridge.org/core/article/div-class-title-sources-of-arbitration-law-div/B3D1E4C8BCAA171A909381D37132AB45 Chartered Institute of Arbitrators. What is Arbitration? (2016). Retrieved from https://www.ciarb.org/dispute-appointment-service/arbitration/what-is-arbitration Chartered Institute of Arbitrators. CIArb Arbitration Rules. Practice and Standards Committee. 1 December 2015. Retrieved from https://www.ciarb.org/docs/default-source/das/ciarb-arbitration-rules.pdf?sfvrsn=2 Latham Watkins. International Arbitration Practice: Guide to International Arbitration. Williams J, Lal, H Gump, H, R. Arbitration Procedures and Practices in the UK (England and Wales): overview. Global Practical Guide 2016/2017. Retrieved from global.practicallaw.com/arbitration-guide