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Friday, November 9, 2007
9:50:00 AM EST
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About Arbitration
About Arbitration
Arbitration , in the law, is a legal alternative to the courts whereby the parties to a dispute agree to submit their respective positions to a neutral third party, the arbitrator, for resolution.
Generally, arbitration is used in a business-related dispute and usually entails a fraction of the time and money of litigation. Both parties agree to recognize an arbitration panel as a legal authority, and agree that the decision is legally binding. If the losing party fails to pay the award amount, the winner can transfer the decision to a court, which will enforce the award judicially. Arbitration procedures are usually closed to the public.
Either party to an arbitration may appeal the arbitrator's decision to a court, however the court will generally not change the arbitrator's findings of fact but will decide only whether the arbitrator was guilty of malfeasance, or whether the arbitrator exceeded the limits of his or her authority in the arbitral award or whether the award conflicts with positive law. Some jurisdictions have instituted a limited grace period during which an arbitral decision may be appealed, but after which there can be no appeal.
Some domestic jurisdictions have stipulated that judges may require either arbitration or mediation of certain disputes as a first step toward resolution. This is often the case in family law, particularly child custody cases.
To ensure effective arbitration and to increase the general credibility of the arbitral process, arbitrators will sometimes sit as a panel, usually consisting of three arbitrators. Often the three consist of an expert in the legal area within which the dispute falls (such as contract law in the case of a dispute over the terms and conditions of a contract), an expert in the industry within which the dispute falls (such as the construction industry, in the case of a dispute between a homeowner and his general contractor), and an experienced arbitrator.
Arbitrators have wide latitude in crafting remedies in the arbitral decision, with the only real limitation being that they may not exceed the limits of their authority in their award.
Mircea Halaciuga Esq., Presedent, Member of the Internationa Bar Associtation, Judge's Chamber.
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FROM THE BENCH:
SELECTED JUDICIAL OPINIONS
SUPPORTING ARBITRATION
U.S. DISTRICT COURT, CENTRAL DISTRICT OF CALIFORNIA
“Finally, and most significantly, the NAF is an inexpensive, convenient,
and efficient forum for [Plaintiff] to resolve his disputes with
[Defendant]. It certainly is not a device that [Defendant] can use to
escape liability for alleged wrongful conduct. Under the NAF, [Plaintiff]
has a say in selecting the arbitrator. His filing fee is at most $35.
[Defendant] pays all other mandatory fees, including a commencement
and administrative fee. [Plaintiff] can file a claim simply by mail or
online. If he proceeds by mail, [Plaintiff] can use a form available from
the NAF or draft his own document. If [Plaintiff] elects to proceed on
the papers, he is not required to pay any more fees, meaning that he
could prosecute his entire claim for only $35. If he cannot afford any
fees, [Plaintiff] can request an indigent fee waiver through a simple
process that need not be disclosed to the other parties. If [Plaintiff]
prefers an in-person hearing, one will be scheduled near his residence
in California, instead of [Defendant]’s home office in Texas. As Justice
Ginsburg of the United States Supreme Court so aptly noted, the NAF
has developed ‘models for fair cost and fee allocation.’”
Provencher v. Dell, Inc., No. SA CV 05-878 CJC,
2006 WL 9626, at *4 (C.D. Cal. Jan. 3, 2006)
(citations and footnotes omitted). -
OPINIE : Presedintele Uniunii Nationale a Practicienilor in Insolventa din Romania: “Insolventa inca nu este privita de catre manageri ca o modalitate de redresare a companiei, aceasta fiind consecinta unei absente a culturii insolventei, pe care managerii din celelalte state europene o au de mult. Tocmai din acest motiv, amanarea declararii starii de insolventa a companiei se concretizeaza, de cele mai multe ori, in trecerea direct la stadiul de faliment. Declararea starii de insolventa reprezinta pentru compania aflata in incapacitate de plata un scut foarte bun. Toate datoriile pe care le are firma sunt inghetate, actiunile in instanta inaintate impotriva firmei se suspenda, chiar si executarea silita decisa asupra respectivului agent economic este stopata. Astfel, compania este protejata de orice factor extern, in vederea reabilitarii si salvarii acesteia.”
In primele opt luni ale acestui an, 10.547 de societati comerciale se aflau in situatie de faliment la nivelul intregii tari, in crestere cu 26% fata de intreg anul trecut, cand au fost raportate 7.791 de societati falimentare.
Primul loc este detinut de Bucuresti, cu 1.744 de dosare, urmat de Bistrita Nasaud, cu 1.186, Brasov, cu 598 de cazuri, si Constanta, cu 469 de firme, pentru care a fost declarata starea de faliment, conform informatiilor oferite de Camera de Comert si Industrie.
1/2/08 3:32 AM
Arbitration Clauses for International Contracts - 2nd Edition*
Paul D. Friedland
List Price: $150.00 370 pages. 1 Hardcover Volume. Appendices. Index. Table of Cases. CD-Rom. Published July 2007
ISBN-10: 1-933833-06-8 / ISBN-13: 978-1-933833-06-4
For further information and to order
http://www.jurispub.com/books
To view the Table of Contents
http://www.jurispub.com/books
* Online Access at ArbitrationLaw Online: When you purchase or subscribe to this publication you will receive access to it via our online collection of publications.