Construction Industry dispute resolution and project management. Legally qualified independent chartered engineer providing contract advice, adjudication and arbitration services.
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Arbitration involves an independent tribunal settling in private a dispute between the parties to a contract. The tribunal is usually just one person, the Arbitrator. The Arbitrator's Award is binding upon the parties. Only rarely can it be challenged in the courts for procedural irregularity or on a point of law.
The agreement to Arbitrate can be made before or after the dispute arises and must be in writing. Agreements in writing are subject to the Arbitration Act 1996. Many standard forms of construction contract contain an agreement that disputes will be settled by Arbitration. However, the latest JCT 1998 and ICE NEC provide the choice of Litigation and Arbitration.
Parties to contracts may have available three 'judicial' means of settling disputes, Adjudication, Arbitration and Litigation in the courts. Adjudication is always available in the case of a relevant construction contract. Only in very rare cases would a court prevent an Adjudication taking place. However, the Decision of an Adjudicator is not final and subsequent Arbitration or Litigation may arrive at a different result. It follows that where a party is not satisfied with the adjudicator's Decision, or where the matter is particularly complicated, Arbitration or Litigation may follow.
If there is an Arbitration agreement in place and one party starts court action, the other party may seek a 'stay' to allow Arbitration to take place. The parties agreed to arbitrate their disputes and the court will enforce that agreement. However, if the responding party takes a 'step in the action' in court, the right to a stay to Arbitration will be lost.
Arbitration is usually cited as benefiting from simplicity, flexibility, speed, low cost, privacy and the advantage of having a qualified professional deciding the issue. Proponents of litigation would argue that the costs are not necessarily lower and that Arbitration is not always quicker. It is certainly the case that a competent Arbitrator can adopt methods most suited to the dispute and guide the parties towards a settlement.
A party should consider the options carefully before taking any action. An unwise or badly prepared Adjudication reference can mean that further, expensive action in Arbitration or Litigation to achieve a satisfactory outcome. Similarly, it may unnecessary or unwise to commence Arbitration or Litigation when other options are available.
A proper assessment of the options must take account of the strength of the technical argument, the legal position, the sums involved and the relationship between the parties. I aim to give independent advice based solely on what is best for my client. If the decision is made to proceed I can manage the case and represent the client in Arbitration proceedings, calling upon extra resources as required.