What is arbitration? Should you arbitrate a dispute? How is domestic arbitration different from international arbitration?
Arbitration is a form of alternative dispute resolution—a way to resolve a personal or business dispute outside of a court of law. Arbitration is a creature of contract—before you can be required to arbitrate a dispute instead of resolving it in court, you must agree to waive your right to a jury trial and to arbitrate instead.
Unlike resolving a dispute in court, arbitration is supposed to be faster, less expensive, and more efficient. An arbitrator, who is like a judge, hears the dispute and makes a decision called an “award,” but the arbitrator is not bound by the same evidentiary and procedural rules that are applicable in a court of law. This is why arbitration is supposed to be faster, less expensive, and more efficient than court.
However, that is not always the case. Unlike a court proceeding which is for the most part, available to the public, an arbitration is confidential. Arbitration is final and binding. You cannot go through an arbitration and then go to court to have your dispute heard again. And unlike a court’s judgment, an arbitrator’s award is subject to very limited appellate review. A court can get the law and the facts wrong and you can appeal the court’s decision, but getting the law and the facts wrong is not enough to appeal an arbitrator’s award.
Before an arbitration award can be effective against the losing party, it must be “confirmed” by a court of law. Similarly, an arbitration award can be “vacated,” which means it is not effective against the losing party.
Arbitration is a very specialized area of the law; therefore, if you have agreed to resolve your dispute through arbitration, you should hire an arbitration attorney who is very familiar with the ins and outs of arbitration.
The single most important part of the arbitration process is picking the arbitrator. The arbitrator should be fair, impartial and independent, meaning the arbitrator should have no financial, personal or other ties to the parties, their employees or representatives, their attorneys, or the other arbitrators, if there is more than one arbitrator.
If you are going through an arbitration, you also should pick an experienced arbitrator and arbitration counsel who are very knowledgeable in the area of arbitration. BFS Law Group lawyers have that expertise.
Richard Faulkner has a diploma in International Arbitration and a Master of Laws in Admiralty Law. Both diplomas are concentrated in international and domestic arbitration. Richard has served as an arbitrator and as counsel in multi-million dollar domestic and international arbitrations for over twenty-five years. Richard is also a frequent speaker, teacher, and author on arbitration issues. James D. Blume has handled also multi-million dollar arbitrations as counsel for nearly as long.
Shelly Skeen has also earned her diploma in International Arbitration, is a member and Fellow of the Chartered Institute of International Arbitrators, and has served as counsel in hundreds of multi-million dollar arbitrations. She is a member of Arbitral Women, an international organization of women arbitrators. She is also a frequent speaker and author on arbitration issues.
International arbitration is markedly different from domestic arbitration. Most lawyers who handle domestic arbitrations believe they are the same as international arbitrations but the differences are glaring. If you have not hired the right arbitration lawyer to draft your arbitration agreement or to act as your counsel in an international arbitration or if you have not chosen the right arbitrator for your international dispute, you will be severely handicapped. For example, an arbitrator and arbitration attorneys must consider:
- the substantive law of the contract
- the substantive law of the arbitration agreement
- the seat of the arbitration
- the procedural laws governing the arbitration
- the arbitration rules governing the arbitration
- whether the arbitration is an ad hoc arbitration or an administered arbitration
- the substantive laws of the country where the award will likely be enforced
- the procedural laws the country where the award will likely be enforced
BFS Law Group arbitration attorneys and arbitrators can guide you through the arbitration process from the drafting on an arbitration agreement that works for you and/or your business, through the arbitration proceeding, through the final hearing, and through confirmation or vacatur of the arbitrator’s award. BFS Law Group attorneys are consulted by other lawyers and attorneys who want the experience and knowledge necessary to handle arbitration disputes.