Loading...

Excerpt

Content

Introduction

History of Arbitration

What is Arbitration?

Types and forms of Arbitration

Features and Characteristics of Arbitration

Relevance of Arbitration skills to Human rights and the human rights officer

Conclusion

REFERENCES

Introduction

Conflicts and disputes are normal and natural in everyday life. Conflict is not an event; it is a process. Human beings face conflicts always and everywhere, at all levels (Galtung 1996). How conflicts are managed is what makes the difference. A common way disputes the world over are resolved is through litigation. Litigation however is often characterized by delays and other debilitating activities which adversely affect the conflict resolution process and accentuates the popular legal maxim ‘justice delayed is justice denied’. Litigation is also thought to be relatively expensive and too elitist. These undoubted flaws that surround litigation led to other means of conflicts resolution collectively termed Alternative Dispute Resolution or (ADR). The Legal Information Institute (LII, 2014) defines Alternative Dispute Resolution as any method of resolving disputes other than by litigation. Courts of competence jurisdiction could be directed to review the validity of Alternative Dispute Resolution methods, but they will hardly overturn decisions and awards proposed by ADR if the disputing parties formed a valid contract to abide by them. ADR methods or types include mediation, negotiation, conciliation, collaborative law and arbitration. ADR is arguably a much better option as all stakeholders in a conflict can resolve their own differences by working together to come up with an agreement that satisfies all parties involved.

This write-up will however focus on one of the popular modes of ADR, called Arbitration. The write-up will look at a brief history of arbitration, the meaning of the term arbitration, its features and characteristics, types and forms, merits and demerits and most importantly how arbitration skills could be utilized to address human rights-related disputes, conflicts and matters.

History of Arbitration

Arbitration perhaps has been in practice for a very long time. King Solomon of Ancient Israel delivered the popular ‘divide the baby’ award as a sole arbitrator (1 Kings chapter 3) of the holy Bible. In ancient times, however, an arbitrator was usually a person known and trusted by all parties.

When the British parliament enacted the act for determining differences by arbitration, the method was formalized in 1697. In his work ‘Troilus’, renowned writer William Shakespeare used the word “arbitration” as early as the year 1602.

Contemporary development of arbitration can be traced to the Jay Treaty (1794) between Great Britain and the United States of America. The Jay treaty established three arbitral commissions to settle questions and claims arising out of the American Revolution. Several arbitration agreements were concluded around the 19th century through which ad hoc ad hoc arbitration tribunals were established to do with numerous special cases. Noteworthy was the “Alabama claims” arbitration under the treaty of Washington (1871). Through this, the United States of America and the Great Britain agreed to settle claims arising from the failure of the Great Britain to maintain its neutrality during the American civil war.

International Arbitration was given a more permanent basis by the Hague Conference of 1899 which adopted the Hague Convention on the pacific settlement of International disputes, revised by a conference in 1907. Top of it all was the United Nations “ Convention on the Recognition and Enforcement of Foreign Arbitral Awards” also called the “New York treaty” adopted by the UN on 10th June 1958 and entered into force on 7th June 1959 which Ghana ratified on 9th April 1968.

What is Arbitration?

Black’s Law Dictionary (6th edition, 1991) a renowned law dictionary in the US defines arbitration as a process of dispute resolution in which a neutral third party (arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard. The famous Arbitration Act of Ireland (2010) defines arbitration as a process whereby parties agree to refer their disputes to an arbitrator instead of the courts. The arbitrator in this method acts like a judge and his decisions and awards are binding upon the parties.” Arbitration is basically an alternative to resolving disputes in court. The arbitration process allows the parties to select an individual or several individuals with expertise in the subject matter of the dispute to listen to the evidence and render a binding decision (Goodman, 2004). Arbitration is one of the forms of Alternative Dispute Resolution (ADR) and is a technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons usually called arbiters, arbitrators or an arbitral tribunal. The arbiter, arbitrators or arbitral tribunal would render a verdict called ‘the award’ and the parties to a dispute agree to be bound.

The definitions of “Arbitration” by the various authorities above all contain the words and phrases “neutral”, “resolution or resolving”, “third party or arbitrator(s)”, either “instead of the courts” or “outside the courts”, “ alternative” and either “ binding” or “bound”. These key words and phrases that cut across all the definitions above sum up the general meaning of the term. Arbitration is thus a form of Alternative Dispute Resolution where parties to a dispute together select an individual (an arbiter) or individuals (arbiters) who are often experts regarding the exact dispute to hear from both parties and render a decision that is binding, instead of litigating. Arbitration is a widely used alternative to litigation before the courts. It is a private means of dispute resolution whereby the parties agree to be bound by the decision of an arbitrator of their choice whose decision is final and whose award has the legal force of a high court judgment or order. It is just like resolving a dispute at the court, but faster and less-bureaucratic. The advantages of arbitration include privacy and confidentiality of proceedings, procedural flexibility, and high rates of enforceability of arbitral awards.

Types and forms of Arbitration

There are two basic types of arbitration: ad hoc arbitration and institutional arbitration. Ad hoc Arbitration is the type that is specifically designed by the parties for a particular dispute. There are predetermined rules for the arbitrators to rely on when conducting the proceedings although sometimes the United Nations Commission on International Trade Law (UNCITRAL) arbitration rules are used. It is however up to the parties to determine the proceedings and to the arbitrators to fill any gaps.

Institutional arbitration on the other hand is conducted under the auspices of a particular arbitration institution and in accordance with the rules of that institution. Institutional Arbitration is more popular among International parties because the parties feel more comfortable with experienced institutional administrators known as “ case managers “ who are willing to take care of any issue that might arise during the proceedings. Parties are also attracted by the reputation and the strong brand name of many established arbitration institutions which many parties believe, increases the enforceability of an arbitration award. The most popular arbitration institutions are the International Chambers of Commerce (ICC), the London Court of International Arbitration (LCIA), the American Arbitration Association (AAA) and the Stockholm Chamber of Commerce.

Arbitration can also be categorized into mandatory arbitration and voluntary Arbitration. Mandatory Arbitration is required by law for some court cases. Various states laws require that, cases filed in courts go to mandatory arbitration.

Voluntary Arbitration on the other hand is the one that has the parties agree to arbitration before or after filing a court case, or may have a contract that requires them to arbitrate disputes (Brekoulakis, 2007).

However, Gage (2005) has his own devised four types of Arbitration. They are: Binding Arbitration, Non-binding Arbitration, Court Appointed Arbitration, and Independent Arbitration.

Binding Arbitration is the type that has the parties agree to waive their right to go to court for a judicial decision which is binding by the arbitrators ruling.

The Non-binding Arbitration is on the other hand the type that has the parties have the discretion to abide by the arbitrator’s decision or seek other venues.

Court appointed Arbitration is just an Arbitration that is ordered by a court. The judge elects an arbitrator of their choice to hear and render a ruling which is binding.

Finally, Independent Arbitration is the type that an arbitrator represents only one party (usually the defendant), where the arbitrator does not stay neutral in the dispute but rather stays as a fiduciary representing his client to achieve out of court settlement.

Features and Characteristics of Arbitration

Arbitration is characterized by the following: It is consensual, arbitrators are selected by the parties, it is neutral, arbitration is confidential, decision is easy to enforce and decision is binding. It is consensual means that, both parties agree to the arbitration, and in the case of a future dispute arising under a contract, the parties insert an arbitration clause in the relevant contract. An existing dispute can be referred to arbitration by means of a submission agreement between the parties. In contrast to mediation, a party cannot unilaterally withdraw from arbitration.

Again, the Parties choose the arbitrators. Under the World Intellectual Property Organization (WIPO ) arbitration rules, the parties can select a sole arbitrator together. If they choose to have a three-member arbitral tribunal, each party appoints one of the arbitrators and the two arbitrators will agree on a presiding arbitrator.

Arbitration is also a neutral means that, in addition to their selection of neutrals of appropriate nationality, parties are able to choose such important elements as the applicable law, language and venue of the arbitration as this allows them to ensure that, no party enjoys a home court advantage.

Further, arbitration is confidential. The WIPO rules specifically protect the confidentiality of the existence of the arbitration, any disclosures made during that procedure and the award. In certain circumstances, the WIPO rules allow a party to restrict access to trade secrets or other confidential information that is submitted to the arbitral tribunal or to a confidential advisor to the tribunal.

The decision of the arbitral tribunal is also final and easy to enforce. Under the WIPO rules, the parties agree to carry out the decision of the arbitral tribunal without delay. International awards are enforced by national courts under the New York Convention of 1958, which permits them to be set aside only in limited circumstances, and over 140 states are party to this convention.

Finally, there is also a difference in the form of outcome. The form of outcome is called an award to be issued by the arbitrator. The award is in effect the arbitrator’s determination of the dispute, which is binding legally and enforceable in law. There is a distinction between a domestic and international (foreign) award in terms of its enforcements. The domestic award is to be enforced in the local country, while the foreign award is sought to be enforced in a country other than the one where it is made. Enforcement of arbitral awards in another country depends on whether that country in which the enforcement is sought is a signatory state to the United Nations Convention of the Recognition and Enforcement of Foreign Arbitral awards of 1958. The New York Convention of 1958 requires a court whose country is the contracting state to recognize the arbitral award as binding and to enforce it in accordance with the relevant conditions laid down in the convention and its own rules of procedures. Foreign awards could be refused recognition based on the provisions of the New York convention of 1958.

Relevance of Arbitration skills to Human rights and the human rights officer

With the literature of Arbitration skills discussed above, it is undoubted that the technique is of great relevance to the human rights, human rights activists and students.

First of all, the technique’s affordability and the fact that it is cheaper at least as compared to litigation is of great benefits to human rights. Human rights being an evolving concept naturally will have its own funding issues, therefore arbitration will provide a relief or a cheaper option in dealing with human rights related matters, especially since most victims of human rights violations are often deprived and needy.

Again, a human rights personnel’s knowledge of the fact that much complex human rights related issues could be expensive to resolve with arbitration as a results of parties having to pay for the arbitrators will influence their choice of technique in this case a comparatively cheaper technique like negotiation, mediation or even litigation.

[...]

Details

Pages
9
Year
2016
ISBN (eBook)
9783668289901
ISBN (Book)
9783668289918
File size
491 KB
Language
English
Catalog Number
v338883
Grade
Tags
conflict disputes human rights conflict management

Author

Share

Previous

Title: Relevance of Arbitration to Human Rights