Analysis of Arbitration and Court Proceedings Report

This report examines the process of arbitration as a method of dispute resolution, contrasting it with traditional court proceedings. It begins by defining an arbitrator and the enforceability of arbitration clauses, emphasizing the importance of understanding rights and the circumstances under which...Read More

Running head: COMMERCIAL LAW
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Arbitration
Name:
Institution:
Date:

COMMERCIAL LAW
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Question 1
An arbitrator is a person who is chosen to settle differences or disputes, and he should be
formally empowered to examine, evaluate facts and make a decision on the issue. Parties in a
dispute may waive statutory remedies in favor of arbitration. Arbitration clause is enforced by
the court when provisions of the contract satisfy the following ; First, it contains a language
that reflects a general understanding of the claim types represented in the waiver. Second,
provide that, by signing, the arbitrator agrees to mediate all statutory claims that arises out of
the relationship, or any dispute or claim based on state or federal statute (Willy & Willy,
2010).
A party does not relinquish substantive rights afforded by the statute when it agrees to
arbitrate statutory claim. It only presents to their resolution in an arbitral rather than judicial.
However, by agreeing to arbitrate the parties are not limited to pursue the statutory remedy of
cost and fees for attorneys or treble damages when available to prevailing parties.
A party claiming waiver should prove that the waiving party understood of the existing right
to arbitrate and based on the circumstances, they acted erratically with that known right.
There are factors that the court considers when determining if the totality of the
circumstances supports a finding of waiver (Bradgate, White & Llewelyn, 2012). The factors
are; first, whether a courts jurisdiction was invoked by placing a claim without requesting a
stay first or by filing a complaint. Second, whether there is delay by the party seeking
arbitration to request a stay. Third, the level of participation in a litigation by the party
seeking to participate in the litigation. Fourth, whether there has been previous inconsistent
acts the the party seeking arbitration. These are some of the reasons why one party in the
arbitration cannot waiver substantive rights during arbitration.

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Question 2
Agreement of Arbitration and Demand As Regards the Fund within A Court
In the written agreement, the parties must expressly establish the terms and conditions that
will govern the arbitration, in accordance with this Law. In the event that no specific rules are
established, it will be understood that this agreement may be subject to supplementation,
modification or revocation between the parties at any time, by special agreement. However;
in case they decide to leave without effect an arbitration process in process, they must assume
the corresponding costs, in accordance with this Law (Bradgate, White & Llewelyn, 2012).
The court to which a matter is submitted on which the parties have agreed in advance to air it
in an arbitral tribunal and under the arbitration procedure, shall refer the parties to that court
and proceeding at the latest, at the time of submitting the first written submission. The Fund
of the litigation, or when such circumstance comes to the knowledge of the court, unless it is
argued and demonstrates that said agreement is null, ineffective or of impossible execution.
Agreement of Arbitration and Adoption of Provisional Measures by the Court
It will not be incompatible with an arbitration agreement that any of the parties, either prior to
the arbitral proceedings or during proceeding, request a court to adopt provisional
precautionary measures or that the court grant such measures. The courts are therefore not
foreclosed to the parties for reasons such as fraud and collusion (Reddy & Canavan, n.d.).
Courts play a major role in arbitration and should be virtually foreclosed to the parties in the
arbitration process.
Question 3

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The court was previously hostile to the position of arbitration. However, things have changed
and the position has now changed on the courts hostile position on arbitration. The courts
have decided to embrace arbitration due to various reasons.
Arbitration has taken a permanent position in the part of dispute resolution. Due to concerns
on delays, congestions and rising litigation costs, arbitration has become the most preferred
and alternative form of litigation (Reddy & Canavan, n.d.). As an Alternative Dispute
Resolution (ADR) technique, it is faster and less costly than the normal court processes. It is
however important for someone seeking to use arbitration to understand how the process
works in comparison to the court process of litigation. It has become more efficient than the
court process because it is quicker and more efficient process. It also has a flexible process
than the normal court process and procedures (Rau, Sherman & Peppet, 2006). Parties
involved can choose the arbiter who has more expertise in specific field matters than the
court judges do. They also have a greater impact and flexibility in making decisions. Most
jurisdictions have an arbitration process that is similar to the trial in a court of law.

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References
Bradgate, R., White, F., & Llewelyn, M. (2012). Commercial law. Oxford: University Press.
Rau, A., Sherman, E., & Peppet, S. (2006). Arbitration. New York, NY: Foundation Press.
Reddy, J., & Canavan, R. Q & A commercial law.
Willy, A., & Willy, A. (2010). Arbitration. Wellington [N.Z.]: Brookers.