Well, I have never written a blog before so please forgive me if I'm not doing this "correctly," as I have no idea what I'm doing exactly.
As I was reading for our class on Wednesday I was noticing many things about arbitration that I didn't know about before the class. It could be that I do not have any experience in the area of arbitration, or simply the fact that I have never had a class that has discussed arbitration as even a sub-topic, but there are a few facts that have really stood out to me.
First of all, and maybe most impressively to me, I was not aware that the international arbitration process required so many different sets of rules to be determined for the arbitration. The Redfern & Hunter reading says that 4 different rules of law can all be involved in one international arbitration case, which I think is crazy, and maybe a little excessive (not to mention confusing for those involved, I'm sure).
Another very important thing that I was not aware of was the fact that there is no appellate review for the international arbitration process. I can imagine that this would make some parties reluctant to agree to an arbitration clause, simply because of the uncertainty of some cases and the fear of losing the disagreement.
Lastly, I was not aware of the fact that there was so much flexibility in the arbitration process. The fact that the parties have the opportunity to make such important decisions, such as who the arbitrator(s) is/are going to be and what rules will be applied, makes it clear to see why arbitration is such an attractive alternative to legal courts (despite the limitations).
Once again, I do not know if I did this correctly, so forgive me if I did not, but I hope you enjoyed reading my first blog entry :)
Agreed. It's confusing.
ReplyDeleteInteresting that you think that the lack of appellate review would make parties reluctant to agree to an arbitration clause. It can also be viewed as a reason to want an arbitration clause. If I'm a business owner and know that I do my very best to fulfill Ks and follow the law, I'd prefer arbitration over a trial. That way, if someone tries to cheat me, I know that I have a better shot of being compensated. (I hope that makes sense.)
As Jeremy said, I think the lack of appellate review is probably really attractive to many parties: it offers the parties much more finality than litigation can. On the other hand, I think you're right, Denise, that perhaps some parties may be weary of being unable to appeal and therefore would prefer litigation to arbitration. Additionally, a desire to set precedent may give a party reason to back away from an arbitration agreement.
ReplyDeleteI was equally confused by the idea of having different sets of rules available for any given international arbitration. I think it actually reflects on another aspect that you mentioned, which is that it seems the whole arbitration process has a degree of flexibility. I think this is one of the elements that makes this form of dispute resolution more attractive than say a trial. If you are able to pick who the arbitrator is, where the arbitration will take place, etc., their is a level of predictability that I'm sure attracts a lot of people.
ReplyDeleteLooking forward to the discussion of "why arbitrate". Y'all have planted some seeds which hopefully will get some sunlight and water over the entire semester.
ReplyDeleteI may have mentioned this elsewhere, but I have heard from practitioners that they think arbitration is becoming increasingly similar to litigation (in that it's expensive, there's just as much discovery - as Prof. Bayer said, etc.). Obviously the element of keeping the dispute private and having a final judgment are appealing to some parties, but it will be interesting to see what regulations are imposed on arbitration in the future.
ReplyDeleteI noticed that Belgium started out with absolutely no way to appeal an arbitration decision - and as a result businesses didn't choose Belgium as an arbitration forum! They had to enact a minimum measure of judicial review to attract arbitration cases. So at least some judicial review is seen as necessary - but not too much!
ReplyDeleteI'd be interested to pursue the reasons for the "Goldilocks" amount of judicial review (not too little, not too much, just right!).