International arbitration (with Tessa-Jade Heise: barrister)

Arbitration is another process used by parties to settle disputes. An impartial arbitrator (which may be a tribunal or panel) is nominated who may, if the parties so choose, be an expert in the field of the relevant conflict. Unlike any decision or resolutions reached during mediation, decisions reached following arbitration proceedings will be final and binding on the parties (subject to limited exceptions). This method of resolving disputes is therefore more contentious and adversarial than, for instance, mediation.

Advantages                                                                                                              

  • Confidentiality: arbitration offers a more confidential dispute resolution process than litigation, as arbitration documents and hearings are private.
  • Final solution: a decision made by an arbitrator is generally not subject to an appeal procedure.
  • International aspect: the New York Convention ensures that decisions made by an arbitrator can be more easily enforced abroad.
  • Flexibility: parties can choose their arbitrators (e.g. experts in the field) and to some extent the rules governing the procedure (parties to litigation must adhere to the Civil Procedure Rules). They can also stipulate that the arbitrator should make commercial (rather than legal) decisions.

Disadvantages

  • Expensive: recent research suggests that arbitration can be more expensive than litigation, as the parties have to pay for the arbitrator and the venue (as well as legal advisers). 
  • Adversarial: unlike mediation, the arbitration process is not focused on finding a compromise and may therefore strain business relationships. 
  • No precedent: decisions made by an arbitrator do not provide legal precedent for future disputes. 
  • Third parties: the use of arbitration derives from an agreement between two parties. Unlike litigation, there is no power to join third parties to the dispute unless they agree. 

Arbitration could be a more effective means of resolving the dispute, as the parties could nominate an expert who is able to fully understand the subject matter, and the arbitrator's decision will (generally) be binding and enforceable. However, it is unlikely that arbitration will help to restore the parties' fractured professional relationship, given its adversarial nature.