What are the pros and cons of challenges to the appointment of arbitrators - Essay Example

? The Pros and Cons of Challenges to the Appointment of Arbitrators The Pros and Cons of Challenges to the Appointment of Arbitrators Introduction Arbitration is considered an alternative method of resolving disputes, which is preferred to litigation, though there are several forms of alternatives of dispute resolution with merits and demerits1. Nevertheless, the solicitor takes the vital role of advising on all possible methods that can be applied in dispute resolution, prior to recommendation of relevant in a given situation. In this case, arbitration is an alternative for resolving disputes in a situation that a third party reaches a decision, which is binding upon the parties to the dispute. The arbitrator decides on the issue in concerning the dispute, and he or she enforces a binding decision on the parties2. Therefore, arbitration is undertaken due to a certain business contract; hence, offering arbitration for is situations where the disputes arise. Moreover, arbitration is considered to be the best suited for facilitating a settlement between parties in dispute. The paper will focus on exploring pros and cons of challenges to the appointment of arbitrators in the perspectives of parties bringing the challenge, opposing party in the disputes and the arbitrator whose appointment is be. In the process of arbitration, the parties involved in the dispute agree to submit their dispute to the neutral arbitrator, instead of a court3. Therefore, the arbitrator acts like a judge, whereby he or she listens to the testimony, reviews evidence and enters a binding ruling. After the decision in made, the prevailing parties may deicide filing in court to convent the award to a judgment4. On the other hand, the prevailing party may be raise claims that the judgment, which was provided, and the process involved binding arbitration require enforcement through the courts. Pros of arbitration One of the pros of arbitration is being quicker compared to litigation, and this becomes a debatable topic with arbitration tending to similar to a formal process of the court5. Therefore, once the party bringing the challenge and the opposing party in the disputes enters into arbitration they do not have to wait for the Court to add them in to a list, which is over clouded6. The parties have a chance of acquiring a suitable arbitrator, who is available, and they are make to decide on the time of arbitration. On the other hand, the decision made during the arbitration is binding to the party bringing the challenge and the opposing party in the disputes. However, there are some of other forms of ADR, which are non-binding; hence, they facilitate failure of the arbitration, despite the cost. In this case, once the arbitration is submitted there are expectations of definitive results. Arbitration is considered faster and less formal compared to the Courts process since the appointments are planned in a way that establishes a mutual convenience among the party bringing the challenge, opposing party in the disputes and the arbitrator. However, in the courts situation, the plan is dictated by the Court calendar, hence, in arbitration there is a chance of deciding on the duration, time, which is to be spent by the arbitrator in their case7. The party bringing the challenge and the opposing party in the disputes have a chance of appointing somebody who they are familiar with in a situation of a dispute. Therefore, the arbitrator relates the process of arbitration to an industry normal practice. The party bringing the challenge, opposing party in the disputes and the arbitrator are able to include the clause in contracts sue to the likelihood of reaming confidential, unlike the disputes in the courts. Therefore, arbitration facilitates maintenance of the business relationship between the party bringing the challenge and the opposing party in the disputes8. Given that arbitration can lead to a resolution of a dispute faster than litigation, it is considered less costly than litigation since the process is more streamlined. On the other hand, the parties involved have an opportunity to select an arbitrator with specialized knowledge. For instance, in situations where there is a home inspection related dispute, the party bringing the challenge and the opposing party in the disputes may select an arbitrator with an experience in contract law and industry of home inspection. Furthermore, there is privacy involved, whereby the documents from the arbitration process are not disposed to the public. Lastly, the situations of binding arbitration, there are difficulties involved in overturning the arbitrator’s decision, and there is no long appearing process. Cons of arbitration The cons of arbitration relates to binding of parties, whereby in a situation where the arbitrator is known, he or she may decide the fate that reduces the chance of approaching settlement, thus making the arbitration to be conducted like a court hearing. However, there are situation not taken as mediation since the parties are unlikely to have binding ruling, thus failing to discuss their weakness related to their case and this contributes to failure in reaching an agreement9. The other con relates to the costs of the arbitration process, whereby it becomes similar to the court proceedings in terms of the submission of evidence and use of experts. Therefore, the legal fee is as much as the full court hearing and the costs involve charges on an hourly basis for the arbitrator’s time10. The contract signed by the parties and the arbitrator’s settlement determines the authority of the arbitrator, whereby in some situation it cannot be appealed. There is limited right to engage in discovery such as taking deposition, issues interrogatories, requesting documents and issuing subpoenas since the arbitration is a private issue that is not within the traditional court system. Moreover, lack of proper drafting of the contract the parties result to having an arbitrator having insignificant expertise in the field of interest. The other limitation is that there is no right to jury trial in arbitration, and there is an impossibility of seeking a review of the arbitrator’s decision. Therefore, in some situation the court may fail to overturn the arbitrator’s decision if the arbitrator failed to apply the law to the fact of the case11. Furthermore, the jurisdiction do not expect the arbitrator to be a lawyer or legal education; thus it may result to parities having a lawyer arbitrator, hence complicating the attempts of interpreting the complicated legal documents, statues and reported courts decisions. The other con relates to the fact that arbitration is in two elements of binding and non-binding, whereby non-binding arbitration has an effect similar to its binding counterpart. In this case, the parties involved are expected to agree on the binding arbitration, thus becoming complicated in some situations such as when, there is signing of inspection agreement12. Therefore, in this situation arbitration is considered an oppressive provision since the non-binding arbitration offers the litigant a chance. In a situation where there are several parities in dispute, arbitration is not suitable since it is common in constructions claims involving a single dispute such as between the employer and employee, a contractor and subcontractor, supplier and consultant13. Moreover, there are contracts, which dictate the arbitration while others do not since there is a likelihood of problems arising in the process of trying to make the parties fall in a parallel dispute in a situation involving different forums and results. There is no possibility of joining other parties in arbitration unless the contract of an arbitration contract with the agreement is provided. Unlike litigation, arbitration suffers many restrictions, whereby the multi-party disputes in arbitration requires drafting an agreement, which entails certain institutional rules. Finally, arbitrations clause offers the arbitrator authority to order the losing party to incur the cost of arbitration and expenses and fee for the attorney of the prevailing party14. Therefore, the contract specifies the party that will serve as the arbitrator and in a situation where it fails to do so; the arbitrator is chosen where the party bringing the challenge and the opposing party in the disputes are unable to agree on an arbitrator. Furthermore, there are contracts that are prepared by the national organization, thus requiring arbitration to be conducted by American Arbitration Association, Inspection Arbitration Services or a similar national organization. These require the parties involved to familiarize themselves with arbitration rules and fee structures of the organization prior to the agreement that binds them in the provision15. In conclusion, the essay has explored issues related to pros and cons of challenges to the appointment of arbitrators in the perspectives of parties bringing the challenge, opposing party in the disputes and the arbitrator whose appointment is be. Some of the significant issues discussed in the essay relating to the pros are the ability to choose an arbitrator with the relevant expertise, and the process being faster. On the other hand, the cons of arbitration relate to the cost of the process, which is charged hourly, and it is not suitable to multi-party disputes, and the entire discussion was based on the perspective of the party bringing the challenge, opposing party in the disputes and the arbitrator whose appointment is be. References Blackaby, N. & Partasides, C., (2009), Redfern and Hunter on International Arbitration, London: Oxford University Press  Coppo, B., (2010), Comparing institutional arbitration rules: differences and similarities in a developing international practice, Int. 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