Sample Paper

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QUESTION ONE

1) The seat of arbitration

The seat of arbitration makes a determination of the extent to which the court will make an involvement. Defining the extent of the process makes it easier to solve any arising disputes from the involved parties. For instance, if contractual parties involved in a dispute made a previous agreement to the extents of court involvement, which is usually defined in the seat of arbitration, then the court to be involved in the exercise will have to make a ruling basing on the previously defined extent in the seat. The court will not have to use the diverse aspects of substantive law to apply to the case. Given the diversity of states being friendly to the arbitration process, the seat gives involved parties good choice over a state that does not impose conditions of eligibility. This way, court interventions are kept at bay, until such necessity arises.

Secondly, the seat is highly significant in that it defines the foundational laws and or procedures for adoption in the arbitration process. It also determines the kind of involvement or simply, form of intervention, which the jurisdiction exercising the process will have. This way, the seats limits the options and methods of adoption by a jurisdiction exercise over the whole process.

Lastly, the seat defines how a challenge to the kind of rewards set out in the arbitration process goes on. Sometimes, parties may express discontent on rewards and challenge it, and framework for this is defined in the seat.

2) The significance of administering institution in the arbitration process

The administering institution provides the required assistance during the arbitration process. These may include making appointments about whom the arbitrators would be and undertaking careful foundational definitions on decisions regarding challenges from an arbitrator. These are not the only functions of significance undertaken by the institution. In other instances, the institution may provide the required support in the administration process for the case, which includes collecting required fees to ensure case success (Fellas 18). Additionally, the institutions may also ensure that they assume a direct or indirect power over the case, to ensure that all the parties involved are satisfied.

3) Designation of the law that is to govern the parties’ rights and duties

A third term is a designation of the law that is to govern the parties’ rights and duties under the contract. The choice of the laws to govern the arbitration process is undertaken by the tribunal. The choice of the laws governing the process may require the application of voice indirect, or substantive laws.

The choice of the methods to be involved in the arbitration process sets out predictive results, and thus highlights what is to be expected from the results. Additionally, when two or more laws may require that a connection that might also lead to varied results, then designation of law to be applied, help in solving the problems involved. Sometimes, consideration of the principles to be involved lacks a standardized approach, whereby difficulties will always arise due to discontentment from parties involved. In such situation, the designated law provides a good ground for this undertaking, by clearly pointing out the level of expectation that every part should express content in.

The relationship among the terms

Having focused on the terms of the arbitration process, sufficient light is shed on their significances while applied alone. However, from a collaborative perspective, it is noteworthy to point out that these terms interrelate and function together. Their relationships are diverse.

To begin with, while the seat of the arbitration provides for relevant terms and a definition of the relevant laws to be applied in the course of solution of disputes in the arbitration process, it makes the designation of the law for application easy to identify and align correctly. This way, administering institutions only use what is contained in the designated law, drawn from the seat of the arbitration in order to make jurisdictions based on the needs of the arbitration.

Secondly, according to Lanni (1160), while the seat of arbitration provides for the extent to which the courts will involve themselves in the arbitration process, the administering institutions find it helpful in facilitation the arbitration process such that the courts do not become too involved in the cases beyond what the requirements of the seats stipulate. On the same note, the designation of the law for such application will then consider all the necessities of the seat, through the administering institution, to make the best choices of laws to be applied in the arbitration process. The choice of the laws will consider aspects such the most suitable state for the arbitration process, by considering all the requirements stated in the seat. This way, the administrative institutions for the case become helpful in defining and deciding on what laws the arbitration would constitute, and the best possible state that gives convenience to the exercise.

QUESTION TWO: WHY ARBITRATION PARTIES MEET BEFORE THE TRIBUNAL HEARS THE CASE

The reasons for tribunals insisting that parties meet before the tribunal makes a hearing of the case are usually aimed at ensuring that the parties make sure that the agreements stated in their foundational documents, such as the seat are clear and the case qualifies for hearing. Without prior hearing, sometimes the foundational seat for the cases might have slight confusions, which might end up creating difficulties for tribunals.

Secondly, the tribunal requires that the correct choice and application of law of the contract is enforced. Whereas parties make varied choices for the law for adoption in case their contractual agreements fail, meeting prior the tribunal helps the parties in coming to collective agreement on the choice of the governing law to be applied (Joyce 16). This way, the tribunal will not have to adopt a substantive law, if such provision was not made in the parties’ agreements. One instance to indicate this requirement might involve different law states, then choosing the appropriate law will have to consider what the parties initially agreed upon as their background law for the arbitration process.

For instance, different countries seats as the governing laws for disputes may present different scenarios as the outcomes of the case. A good example is to consider the German as a seat, while using the English law as the governing law for the contractual agreement. Choosing a law that does not fit into the contractual agreement might lead to differences, and parties must have considered this aspect prior to the tribunal discourse. This way, the negative consequences of applying the wrong law are avoided.

In the instances that there lacks a specific law to govern the arbitration process, then the tribunal will have to undertake the process according to the ad hoc clauses. In some situations, the clauses are either highly complex in application or may lack the necessary parts to make them sufficient.

Sometimes, in cases involving international arbitration, more than one law applies during a tribunal hearing. Sometimes, the parties may not have involved an expressed choice. In this regard, the tribunal requires that the parties meet to make clarification on the most applicable law, for use in the case. If for instance, multiple laws might be required to be applied through, then the parties must understand this concept before the commencement of the tribunal hearing. Choosing the most appropriate law for adoption and use in the arbitration process would require that all the parties involved in the case be contented with the chosen law, as arbitration involves bringing parties together through their collective agreements from previous cases.

Sometimes parties are encouraged to meet in order to set out the required directions that should be followed to ensure that the hearing goes on well. For instance, the tribunal might require some documents for use in the case. In the situation that documents would be required, such requirements are met during this meeting (Fellas 80). Additionally, if the case requires that some witnesses be availed, then it becomes automatic that the parties involved ensure that they are availed for the appropriateness and smooth running of the case.

While the aim of the arbitration process is to ensure that parties come to an agreement, the prior meetings of parties ensure that there is an understandable co-operate amongst them. This aspect is crucial in allowing the case to run smoothly. In the instances that lack co-operation, then reaching an agreeable end becomes elusive for the tribunal. Owing to this, the tribunal then requires that parties meet to ensure that there is a collaborative approach in reaching this agreeable end.

In some other instances, parties may have chosen a specific tribunal for their hearing of the case. In such cases, there is usually little knowledge on how that tribunal handles the case. The tribunal then requires that such parties involved in the case make prior visits to the hearing center, to get a glimpse on how that tribunal handles the cases presented to it. This would then prepare the parties involved to continue with the case using the same tribunal or simply make changes based on how they found the tribunal handling hearings. Such invites are usually done in open scenarios for parties to attend.

Based on the discussions, there are numerous reasons for prior party meetings. Such reasons arise out of the numerous needs of the arbitration process. For instance, when the parties do not have an adequate understanding of the tribunal involved in their arbitration process, invitations to attend prepare the parties. Adequate preparation is another key aspect. Without sufficient co-operation, parties might never reach a collectively agreeable end. Varied positions will only continue to make it difficult for the process, hence the encouragements of the initial meetings. Also, consideration of the type of tribunal to handle the case, choosing between an Upper Tier Tribunal and Lower Chamber tribunal is also determined during these prior party meetings.

 

Works Cited

Fellas, John. “A FAIR AND EFFICIENT INTERNATIONAL ARBITRATION PROCESS.” Dispute Resolution Journal 59.1 (2004): 78-83.

Joyce, William R. “Returning Arbitration to an Effective Process in CONSTRUCTION CONTRACTS.” Dispute Resolution Journal 63.2 (2008): 14-8.

Lanni, Adriaan. “Protecting Public Rights in Private Arbitration.” The Yale law journal 107.4 (2008): 1157-62.