ARBITRATION IS BECOMING INCREASINGLY POPULAR

#86Arbitration is becoming increasingly popular

Arbitration, or otherwise known as arbitration, has recently been increasingly prioritised over court proceedings. This is happening for a number of reasons, but the long-awaited boom of this procedure, which is conducted by an arbitrator or a group of arbitrators, has not yet arrived in our republic. But what are the fundamental differences that distinguish arbitration proceedings from those of a judge?

While in ordinary courts a judge, who must have the requisite legal training, issues judgments, in arbitration courts a single arbitrator or several arbitrators may decide the case. There is no requirement for a law degree or any legal experience, but the only exception is in consumer disputes, where there is a requirement for the qualifications of the arbitrator or arbitrators. Arbitrators must always be in odd numbers to avoid a so-called tie in the independent voting and adjudication of the dispute. However, it should be noted that, by law, arbitration is placed on an equal footing with proceedings before any general court, and there is no right of appeal against the outcome of the arbitration.

Arbitration primarily focuses on the resolution of commercial and civil disputes in international law. Such arbitration disputes are mostly decided by arbitrators, who guarantee professionalism, quasi-swift handling of the dispute and a fair decision on the merits. You can opt for this type of litigation for almost any type of dispute, but of course, as is usually the case, there are some exceptions where you cannot resolve an international dispute through arbitration. In particular, the change, creation or extinction of a property right, the subject of the dispute may not be, for example, the deprivation of a person's capacity or the custody of children by one of the parents after a divorce, or an execution.

In practical terms, the specific proceedings are much more consistent and the conduct of the proceedings is simpler than those in the ordinary courts. Arbitration proceedings begin with the filing of the statement of claim, and the parties to the dispute do not have to be represented by a lawyer. The proceedings do not necessarily have to include an oral hearing, but it is possible for the arbitration to take place in writing only, all depending on the agreement between the parties to the dispute in question.

Arbitration is frequently used, particularly in the sports sector. For example, the NHL uses this type of procedure if a protected free agent, that is, one to whom his club has a right of first refusal, is unable to agree on a new contract. Subsequently, the arbitrator in the arbitration procedure decides, according to all the circumstances, for example, the amount of the salary for the following season that will be paid to that player.

But are there any negatives that could be attributed to arbitration? Probably as with any type of proceeding, we could always mention at least one. The first is the lower level of independence and impartiality of arbitrators in making decisions. Anyone can have an arbitral tribunal set up, and this can be done at the instance of one of the parties to the arbitration, and the arbitration could therefore be decided in favour of the party setting it up. On the negative side, as mentioned above, the arbitrator's decision is final, and if you consider it unfair or otherwise incorrect, you will have to accept it.

But in practice, how does the ordinary mortal imagine such an arbitration dispute and proceeding to take place? On average, these proceedings last between one and three months, which is a very good result compared to the length of proceedings in the general courts, which makes it tempting to choose this type of proceedings. Of course, it is not always possible to generalise and the length of the proceedings depends mainly on the complexity of the individual disputes. The parties can practically agree that their dispute will be heard in any arbitral tribunal in the world, all that is needed is the agreement of the parties. This makes it particularly attractive for entrepreneurs who do business with foreign companies across the globe.