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Chapter

Cover A Practical Approach to Alternative Dispute Resolution

26. Arbitration  

This chapter discusses arbitration, which is an adjudicative dispute resolution process. It is based on an agreement between the parties to refer a dispute or difference between them to impartial arbitrators for a decision. As a consequence of the contractual basis of arbitration, it is not every dispute that can go to arbitration. The chapter considers the requirements for an effective reference to arbitration, but it should be noted that the agreement to arbitrate may be made before or after the relevant dispute has arisen. This means that there may be a pre-existing arbitration agreement which, when a dispute arises, one of the parties wishes to evade. There is a strong public policy in favour of upholding arbitration agreements; this is supported by the idea that an arbitration clause in a contract is separable from the rest of the substantive contract. Arbitrations in England and Wales are governed by the Arbitration Act 1996, which lays down a highly developed set of procedures for arbitrations.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

29. International Arbitration  

This chapter focuses on international arbitration, which broadly covers any reference to arbitration involving parties in different states. International arbitration is most frequently met in the shipping, construction and engineering, oil and gas industries, and also in disputes involving insurance, banking, and financial services. Different systems of law may govern the substantive contract, the agreement to arbitrate, and the procedural law of an arbitration. Ideally the parties will have reached express agreement on the system(s) of law governing each of these areas. If there is no express agreement on the system of law, it will be determined from all the circumstances. The chapter then considers a range of possible challenges to the jurisdiction of a tribunal, as well as several different ways in which a challenge to the tribunal's jurisdiction can be brought. It also looks at the International Chamber of Commerce (ICC) arbitration rules and the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Arbitration.