Domestic Arbitration
Overview
Domestically, legislation in all States clearly recognises, supports and facilitates flexible arbitration processes.
Parties often express their appreciation for arbitration by reference to its:
Our high calibre team:
Domestically, legislation in all States clearly recognises, supports and facilitates flexible arbitration processes.
Parties often express their appreciation for arbitration by reference to its:
- cost: expeditious arbitral process provides an opportunity for costs savings, even taking into account administrative and arbitrator costs
- enforceability: legislative recognition of arbitration and arbitral awards enables the outcome to be enforced, effectively as if the decision was an order of the court
- flexibility: procedures can generally be tailored to best suit the needs of the parties and/or the nature of the dispute (short form, abridged and/or 'stop watch' processes can be used for potential strategic advantage)
- privacy: subject to appropriate drafting, parties are able to resolve their disputes in a private and confidential forum, without media presence or a published court decision
- speed: relative control is within the grasp of the parties who can select arbitrators having regard to availability, and again, tailored processes can be used in appropriate circumstances to reduce or control timing
- technical relevance: arbitrators may be selected on the basis of industry knowledge and expertise, which promotes an efficient and commercial understanding of the issues in dispute.
- appeal rights: parties have rights of appeal to the courts in certain circumstances, so the boundaries of appeal entitlement need to be understood and taken into account during the arbitration process
- arbitrator selection: parties often underestimate the importance that the background, experience and attitudes of an arbitrator can play in how the process proceeds and is managed, as well as the outcome
- enforceability: it is surprisingly common for parties to find that their intended arbitration agreement is unenforceable or does not operate as expected
- multiple proceedings: problems in drafting arbitration agreements can lead to jurisdictional issues that trigger multiple proceedings, which apart from practical difficulties and the duplication of costs, can also lead to inconsistent findings
- multi-tiered clauses: arbitration clauses are often accompanied by preliminary dispute resolution processes, the steps of which can be binding (technical defects in drafting can completely undermine the arbitration agreement)
- third parties: arbitration processes arise through contract, so parties need to understand the scope and limitations of arbitration in so far as third party interests may be concerned.
- Are you familiar with the range of alternative ways in which arbitral processes can be flexibly structured?
- Do you understand the circumstances in which options within an arbitration process will lead to significant strategic advantage or disadvantage for either party?
- When entering into contracts, does your organisation ensure that any agreed arbitration process will be binding and enforceable?
Our high calibre team:
- provides detailed advice on alternative arbitration structures, including relevant considerations, requirements, suitability, advantages and disadvantages
- assists in the negotiation and drafting of enforceable arbitration processes, including multi-tiered, hybrid and tailored processes
- works with clients to strategically and cost effectively implement arbitration processes to achieve superior outcomes.