“Arbitration is a method for resolving disputes between parties in private as an alternative to litigation in the courts” Critically evaluate the statement.


Arbitration is a method for resolving disputes between parties in private as an alternative to litigation in the courts. It may be agreed by the parties before or after the dispute arises. The arbitration agreement is usually incorporated as part of the contract from which the dispute arose. However, even when there is no arbitration clause in the contract in dispute, an arbitration agreement can also be made after a dispute has arisen if the parties prefer not to go to Court. If there is no arbitration agreement, mutual agreement is necessary, as one cannot force another party to “arbitrate” a dispute if there is no arbitration clause. In order to be an effective advocate in Alternative Dispute Resolution (ADR), a lawyer must understand the system, its strengths and its weaknesses. As with a court, there may be jurisdictional limits that have an impact on how a case proceeds. Knowing those limits is crucial for effective of use of any form of ADR. Parties must agree to resolve disputes by arbitration. Absent such an agreement, there is no basis to compel arbitration of any issue.

This should allow choice of a lawyer is under a clause in the contract. To obtain the area of disputes clause, shall be excluded if the clause. In another way, there is a judgment can be defined as all the controversy will be able to judge. Provision will but according to the law ought to be evident that the treaty was concluded between the question and define what it is. In other parts of the contract, the parts of a great liberty to form a clause in the will of a man in a similar fashion. Once a clause is enforceable.

The contracts for foreign investment in China is to provide that all disputes will be settled through friendly negotiations between the spring, failing which the arbitrator in the dispute must. The resolution of disputes by arbitration is also known in other laws to China. Foreign to elections to the Republic of China International Economic and Trade Arbitration Commission in China are the most discussed (CIETAC).

As the number of international trade grows in China, arbitration is becoming more and more common. The China International Economic and Trade Arbitration Commission (CIETAC) handled 850 cases in 2004 and 979 cases in 2005. Out of the cases it handled in 2004, 462 were

foreign related. It is commonly believed that CIETAC is now the busiest arbitration institution in the world.


The arbitration clause is a clause in the contract, which generally requires the parties to resolve their disputes through the arbitration process. Even if that does not specify that the arbitration clause or that occur within the jurisdiction of the species, still binds to the type of resolution outside the courts and is therefore regarded as an opening clause reading.[1] In addition, arbitration clauses are often combined with the world market closes, selection and choice of law clauses, which are fully in place. Comes to pass that it is necessary to the plaintiff to arbitrate or to a private forum thousands of miles from the house of a stranger, and at the whim of the nation, according to the law must be made that goes to the public, which will never ask.[2]

The legal limit or exclude the possibility of arbitration for the protection of weaker members of the public, eg consumers. For German law excludes disputes rent living space to the form of arbitration, and arbitration agreements were signed, and if he’s able to be considered if the document is sealed, wrapped, not content with the compromise. Restriction does not apply to agreements with the notary, as he claims that the attorney will be more properly informed of the content and implications.[3]

Principal objective of the Institute refers to the education and training and seek to establish global standards for the long term is intended to promote confidence among users that make use of arbitration and ADR, and you have the skills and experience to help resolve the dispute.[4]

For arbitrators, there are three levels of members:

  • Associates
  • Members
  • Fellows

  Arbitration without emergency arbitrator
From the fact that all their disputes about the contract or under the Rules of this, will the judgment of the chamber of commerce of one or more arbitrators appointed according to this page. The time that they did not apply.

It may also be desirable for the parties to stipulate in the arbitration clause itself:

  • the law governing the contract;
  • the number of arbitrators;
  • the place of arbitration; and
  • the language of the arbitration.

– In principle, parties should also always ensure that the arbitration agreement is:

  • in writing
  • carefully drafted

The parts into consideration the possible need for special provisions in the case in which the arbitration is provided rather than the parts. If the two parties want to be in the order of Arbitration of the ICC and the ICC Pre-Arbitral Referee, in the right place for you. ICC offers a standard clause to that effect.

In addition, the law in some countries may lay down certain requirements in respect of arbitration clauses.[5]

 Advantages and disadvantages

Parties often seek to resolve their disputes through arbitration because of a number of perceived potential advantages over judicial proceedings:

  • “when the question was more, with an appropriate degree of expertise can be appointed  arbiters, to “take the judge” of the argument
  • arbitration is often faster than litigation in court
  • arbitration can be cheaper and more flexible for businesses
  • arbitration proceedings and an arbitral award are generally non-public, confidential and may be done
  • in arbitral proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the country of the competent court will be automatically applied”.[6]

 Some of the disadvantages include:

  • “arbitration may become highly complex
  • that will be under pressure from powerful law represent the most powerful and richest
  • if arbitration is compulsory and binding, the parties waive their rights of access to the courts and the judge or jury to decide the case
  •  if an arbitrator or arbitration forum in the company depends on repeat business, there may be inherent incentive to control the pain or the workers
  •  an appeal is a very few, that is to say it can easily be the opposite of evil is not to be judged
  •  while generally considered faster than when they are multiple arbitrators on the panel, to perform their schedule to hear the case for long times in order to delay”.[7]


By their nature, the subject matter of some disputes is not capable of arbitration. In general, two groups of legal procedures cannot be subjected to arbitration:

  • Procedures which necessarily lead to a determination that the parties to the dispute fail to reach an agreement to make some judgments[8] that are binding on all members of the public, public authorities in their capacity as such, or third, or which are conducted in the public interest. For example, before 1980, the antitrust issues are not subject to arbitration in the United States.[9]Issues relating to crimes, status and family law are generally not considered to be subject to arbitration, because the power of the parties to reach agreement on these issues is less restricted. However, most other conflicts involving private rights between two parties can be resolved by arbitration. In some cases, some applications may be submitted to arbitration and others not. For example, in a dispute over a patent infringement.
    • Some legal orders exclude or restrict the possibility of arbitration for reasons of the protection of weaker members of the public, e.g. consumers. Examples: German law excludes disputes over the rental of living space from any form of arbitration,[10] while arbitration agreements with consumers are only considered valid if they are signed by either party,[11] and if the signed document does not bear any other content than the arbitration agreement.[12]

Arbitration agreement

In theory, arbitration is a consensual process, a party may be compelled to arbitrate a dispute unless it belongs to. In practice, however, many arbitration agreements are not stipulated in the conditions in which consumers and more power. In addition, arbitration clauses are often put in the manuals of the products in sealed packages in a click -through agreements on websites and in other cases in which consent cannot be held. Agreements are usually divided into two types.

According to the informality of the decision process, the law is generally inclined to confirm the validity of arbitration clauses, even without the normal formal language associated with legal contracts. The      conditions have been confirmed. The courts have also upheld clauses which specify resolution of disputes other than in accordance with a specific legal system. These include provision.[13]

 Arbitral tribunal

 The arbitral tribunal is the term to designate the arbitrator or arbitrators sitting to decide the dispute. The composition of an arbitral tribunal can vary greatly, he sat down, and an arbiter of one, two or more of free will, or without the governor or a judge, and other things more.[14]

In most jurisdictions, an arbitrator enjoys immunity from liability for anything done or omitted whilst acting as arbitrator unless the arbitrator acts in bad faith.

Arbitrations are usually divided into two types:

  • ad hoc arbitrations and administered arbitrations.

Arbitration institutions tend to have their own rules and procedures, and may be more formal. They also tend to be more expensive, and, for procedural reasons, slower.

 Enforcement of arbitration awards

One thing that is so popular in the international arbitration of trade disputes, I mean, it is often easier to enforce the arbitration award in a foreign country rather than face a court judgment.

Under the New York Convention 1958

Convention on the Recognition and Enforcement of Foreign Arbitral AwardsThe Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention, was adopted by a United Nations diplomatic conference on 10 June 1958 and entered into force on 7 June 1959…
, a reward from the contracting state for the most part free to be enforced in another contracting state, that under certain, limited defenses.

Virtually every significant commercial country in the world is part of the Convention, but relatively few countries on the global network for cross-border enforcement of judgments.[15]

Arbitration with sovereign governments

Certain international conventions exist in relation to the enforcement of awards against states.[16]


In general, by nature, tends to freedom of action left was called as usual. But most of all the world to put aside judgment of court supervision in extreme cases, such decisions of courts of irregularities or fraud. Only the national arbitration awards are subject to the prescribed procedure. Arbitration Law in America, the body is weak, but significant case law on the power of courts to interfere with the arbitration decision is essential, at variance with the principles of law or contract.[17]


“The reason of choice. Procedure is informal. If the arbitration agreement contains the rules, the referee. If this page not be known to follow gives us pleasure. National arbitration, arbitrators are often advised to adopt the internal rules of HKIAC arbitration.

The usual procedures are as follows:

  • The Claimant will ask the arbitrator to hold a preliminary meeting with the parties.
  • Exchange lists of documents can be restricted to certain types of documents, or completely removed, especially when the parts are all attached supporting documents to their briefs.
  • Party may request the arbitrator or a special day set a hearing at any time. It may be fixed at the directions hearing before the arbitrator.
    • And most of all in the custom of the weight of the testimony of (and is now, and was quite at home) to be changed in the course of hearing. And the experts to see if it can be a referee, is a suitable or does not belong to belongs to things which are common facts
    • Decision of the judge, after considering the evidence and arguments of the parties to be done, which has been come to pass, to the request of the parties before it. The referee also address the issue of arbitration costs from both before and after.
    • Arbitration award is final and binding with limited rights of appeal to the Court under Article 23 of the judgment of the award procedure.

Known to the court against the court process to other parts of the judge or the provision of the right to ask the judges to take it more often in hours. Back in Hong Kong to convince the leaders of HK $ 5000 or more by the hour and the average we have seen is between HK $ 3,000 and HK $ 4,000. Until the award of costs, both usually pay half the expenses of the provisional proposals in the ‘arbitrator”.[18]


“The following is a comparison of the time limits[19]:

Domestic Arbitration Procedures
Appointment of the parties’ arbitrator 15 days from the date of receipt of the arbitration notice from CIETAC 15 days
Filing of Defence 30 days from the date of receipt of the arbitration notice from CIETAC 20 days
Filing of Counterclaim 45 days from the date of receipt of the arbitration notice from CIETAC 20 days
Notice of the 1st hearing 20 days before the date of 1st hearing 15 days
Award 6 months from the formation of the arbitration tribunal 4 months.

 Dispute resolution– Dispute resolution is the process of resolving disputes between parties.

Methods of dispute resolution include:

  • lawsuit

Lawsuit The controversy of, or “from the order of” is in the judgment of the civil, by which the nature of a part to the actions so that the order himself or herself aggrieved against a criminal, or of equal rights, the treatment require it. Answer to the complaint of the petitioner guilty. APPLICANT if you will, for the sentence was delivered to the plaintiff to exercise the judgment of the law are a series of injuries, whether temporary or permanent rules impose or prohibit an act of force. The declaration that there may be disputes or the future. Although in general, and to process a charge of criminal investigation or criminal complaint.

  • Arbitration

Arbitration A form of alternative dispute resolution (ADR) is a technique for resolving legal disputes outside the courts, where the suitors, refer to one or more persons (the “arbitrators”, “arbiters” or “arbitral tribunal”), by whose decision (the “Prize”) agree to be bound. This is a regulatory technique in which a third part examines the case and imposes a legally binding for both parties.

Arbitration, a form of alternative dispute resolution , is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons , by whose decision they agree to be bound…

  • Collaborative law

The law is on the couple allows them to judge who they work for the      lawyers and not to end the marriage once the uncertain outcome of the royal artists, which is the best solution to meet the needs of their children without the threat of litigation is subject to dispute.

  • Mediation– Mediation, as used in law, is a form of alternative dispute resolution (ADR), a way of resolving disputes between two or more parties. A third party, the mediator, assists the parties to negotiate their own settlement (facilitative mediation). In some cases, mediators may express a view on what might be a fair or reasonable settlement, generally where all the parties agree that the mediator may do so.

Alternative dispute resolutiAlternative Dispute Resolution includes dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation. ADR basically is an alternative to a formal court hearing or litigation.

  • Conciliation Conciliation- Conciliation is an alternative dispute resolution (ADR) process whereby the parties to a dispute (including future interest disputes) agree to utilize   the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential solutions and bringing about a negotiated settlement.Conciliation is an alternative dispute resolution process whereby the parties to a dispute agree to utilize the services of a conciliator, who then meets with the parties separately in an attempt to resolve their differences…
  • Many types of negotiation

NegotiationNegotiation is a dialogue between two or more people or parties, intended to reach an understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce an agreement upon courses of action, to bargain for individual or collective advantageCollective bargaCollective bargaining is a process of negotiations between employers and the representatives of a unit of employees aimed at reaching agreements that regulate working conditions…
, to craft outcomes to satisfy various interests of two people/parties involved in negotiation process. Negotiation is a process where each party involved in negotiating tries to gain an advantage for themselves by the end of the process. Negotiation is intended to aim at compromise.

Negotiation is a dialogue between two or more people or parties, intended to reach an understanding, resolve point of difference, or gain advantage in outcome of dialogue, to produce an agreement upon courses of action, to bargain for individual or collective advantage, to craft outcomes to satisfy…


Arbitration involves complex legal issues which require expertise and knowledge of the law that governs the dispute, as well as the laws governing the procedures to be followed while litigating a case.

 Arbitration is one way that people and corporate entities resolve disputes thus it also requires special authority and regulated measures to carry out the procedures. In arbitration the principal distinction is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability and, if appropriate, an indication of the quantum of damages payable. Thus these various forms for dealing with people are highly essential and important forms of legal activities in Bangladesh.


S. A. Kumar and M. J. Kumar. Commercial Law. Kolkata: The World Press Private Limited, 2010.

U. B. Christian and K.L. Kirchhof. Arbitration and Mediation in International Business, 2nd Edition (2006).

Absolute Astronomy n. d., Arbitration Clause. Retrieved February 12,2012, from     http://www.absoluteastronomy.com/topics/Arbitration_clause

Absolute Astronomy n. d., Arbitration. Retrieved February 12,2012, from    http://www.absoluteastronomy.com/topics/Arbitration

Absolute Astronomy n. d., Common Law. Retrieved February 13,2012, from    http://www.absoluteastronomy.com/topics/Common_law

Absolute Astronomy n. d., Contract. Retrieved February 15,2012, from    http://www.absoluteastronomy.com/topics/Contract

Absolute Astronomy n. d.,  Dispute Resolution. Retrieved February 17,2012, from    http://www.absoluteastronomy.com/topics/Contract

Deacons April 2007, referencing, not plagiarism. Retrieved February18, 2012.from http://www.deaconslaw.com/eng/knowledge/knowledge_42.htm#PFA%28B%29

Licensing Digital Information December 2000, Governing Law: Dispute Resolution Retrieved17 February,2012 from http://www.library.yale.edu/~llicense/remcls.shtml#top

TRANS-LEX.org n. d. , LCIA Arbitration Rules. Retrieved 13 February, 2012. from http://www.trans-lex.org/750300

Wikipedia February 10, 2012, Chartered Institute of Arbitrators. Retrieved from http://en.wikipedia.org/wiki/Chartered_Institute_of_Arbitrators

International Court of Arbitration 2012., Standard ICC Arbitration Clause. Retrieved February 19, 2012.From http://www.iccwbo.org/court/arbitration/id4090/index.html

Answers.com n. d., Arbitration. Retrieved 21 February, 2012. From http://www.answers.com/topic/arbitration#ixzz1nPkKN5ng

[1] A. K. Sen and  J. K. Mitra, Commercial Law(Kolkata, The World Press Private Limited, 2010), P. 499.

[2] “Arbitration Clause,” Wikipedia, 2january,2012, <http://en.wikipedia.org>, Retrieved 12 February,2012

[3] “Arbitration Clause,” Wikipedia, 2january,2012, <http://en.wikipedia.org>, Retrieved 12 February,2012

[4] “Chartered Institute of Arbitrators,” Wikipedia,10 February,2012,

< http://en.wikipedia.org/wiki/Chartered_Institute_of_Arbitrators>,  Viewed 10 February,2012

[5]Standard ICC arbitration clause,” International Chamber of Commerece,2012,

 < http://www.iccwbo.org /court/arbitration/id4090/index.html> Retrieved 13 February,2012.

[6] “Arbitration: Advantages and Disadvantages,” Wikipedia, 2january,2012,      <http://en.wikipedia.org/wiki/Arbitration#Advantages_and_disadvantages>, Retrieved 13 February,2012.

[7] “Arbitration: Advantages and Disadvantages,” Wikipedia, 2january,2012,      <http://en.wikipedia.org/wiki/Arbitration#Advantages_and_disadvantages>, Retrieved 13 February,2012.

[8] Cf. e.g. Section 1030 subsection 1 of the German  Zivilprozessordnung

[9] Mitsubishi Motors v. Soler Chrysler-Plymouth, 473 U.S. 614 (1985)

[10] Section 1030 subsection 2 Zivilprozessordnung

[11] To be correct: certain form, as defined by statute, of an electronic signature using a chip card and a PIN code is  also sufficient

[12] Section 1031 subesction 5 of the Zivilprozessordnung

[13] A. K. Sen  And  J. K. Mitra, Commercial Law, PP.(499-500)

[14] “Arbitration”, Britannica Concise Encyclopedia,  2012

< http://www.answers.com/topic/arbitration> Retrieved 15 February,2012

[15] “Arbitration: Enforcement of Arbitration awards,” Wikipedia, 2january,2012,      <http://en.wikipedia.org/wiki/Arbitrations>, Retrieved 13 February,2012.

[16] “Case Studies in the Jurisdiction of the International Centre for Settlement of Investment Disputes” (1986) 35  ICLQ 813

[17] The expression appears in the majority judgment in the U.S. Supreme Court decision in Wilko v Swan 346 US 427 (1953)

[18] “A simple guide to Arbitration in Hongkong”, Deaconslaw.com 18february 2012 < http://www.deaconslaw.com>

[19] “A simple guide to Arbitration in Hongkong”, Deaconslaw.com 18february 2012 < http://www.deaconslaw.com>