GC: n
S: ICJ – http://www.icj-cij.org/court/index.php?p1=1&p2=1 (last access: 27 November 2014); UN – http://www.un.org/press/en/2014/gal3479.doc.htm (last access: 27 November 2014).
N: 1. arbitration (n): late 14c., “absolute decision,” from Old French arbitracion, from Latin arbitrationem (nominative arbitratio) “judgment, will,” noun of action from past participle stem of arbitrari “to be of an opinion, give a decision,” from arbiter.
2. Arbitration is a formal process similar to litigation but where the hearing is in private in front of a nominated third party, the arbitrator, who makes a binding decision.
3. In fact, arbitration was defined in the 1899 Hague Convention for the Pacific Settlement of Disputes as “the settlement of differences between states by judges of their choice and on the basis of respect for law”.
4. Arbitration, which is a form of alternative dispute resolution (ADR), is considered the most effective and equitable means of dispute settlement. Arbitration cannot be initiated without the agreement of the parties to a dispute. The procedures of arbitration grew to some extent out of the processes of diplomatic settlement and represented an advance towards a developed international legal order.
5. It is interesting to point out that there is a Permanent Court of Arbitration (PCA), which is an international organization based in The Hague in the Netherlands and it was established in 1899 as one of the acts of the first Hague Peace Conference. It provides services for the resolution of disputes involving various combinations of states, state entities, intergovernmental organizations, and private parties.
6. It is relevant to know that there are different sort of arbitration:
- Institutional arbitration: a specialised institution intervenes and takes on the role of administering the arbitration process. Each institution has its own set of rules which provide a framework for the arbitration, and its own form of administration to assist in the process.
- Ad hoc arbitration: is one which is not administered by an institution such as the ICC, LCIA, DIAC or DIFC. The parties will therefore have to determine all aspects of the arbitration themselves – for example, the number of arbitrators, appointing those arbitrators, the applicable law and the procedure for conducting the arbitration.
- Arbitration in law.
- Equity arbitration.
- Domestic arbitration: takes place in a State when the arbitration proceedings, the subject matter of the contract and the merits of the dispute are all governed by this State law, or when the cause of action for the dispute arises wholly in the State or where the parties are otherwise subject to the State jurisdiction.
- International arbitration: can take place either within a State or outside this State in cases where there are ingredients of foreign origin relating to the parties or the subject matter of the dispute. The law applicable to the conduct of the arbitration and the merits of the dispute may be the domestic law or foreign law, depending on the contract in this regard, and the rules of conflict of laws.
S: 1. OED – http://www.etymonline.com/ (last access: 27 November 2014). 2, 3 & 4. CIArb – http://www.ciarb.org/dispute-resolution/resolving-a-dispute/arbitration/ (last access: 27 November 2014); PSILRS – https://sites.google.com/site/walidabdulrahim/home/my-studies-in-english/14-peaceful-settlement-of-disputes (last access: 27 November 2014). 5. PCA – http://www.pca-cpa.org/showpage.asp?pag_id=1027 (last access: 27 November 2014); ENAN – http://www.americanforeignrelations.com/A-D/Arbitration-Mediation-and-Conciliation-The-united-nations.html (last access: 27 November 2014). 6. Out-law – http://www.out-law.com/en/topics/projects-construction/international-arbitration/institutional-vs-ad-hoc-arbitration/ (last access: 27 November 2014); LSI – http://www.legalservicesindia.com/article/article/domestic-&-international-arbitration-511-1.html (last access: 27 November 2014).
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