Special Types of Practice: Arbitration - Guides
Arbitration
3. Pre-Arbitration Stage
Last updated: 18 Jun 2015
- You should seek legal advice before you enter into any contract. If you engage a lawyer to draft a contract it is likely they will give you the opportunity to incorporate a valid and binding arbitration clause into the contract which is an essential component for commencing arbitration.
- In order to receive statutory protection under the Commercial Arbitration Acts (CAAs) the arbitration agreement must be in writing. The writing of the agreement may be in the form of an email or in any other forms of electronic communication. If the arbitration agreement is oral or implied the common law (law of the courts rather than written law) will be applicable to enforce the agreement.
- A multi-tiered dispute resolution clause would be considered an arbitration agreement provided that all the terms are clear, certain and enforceable.
- It only takes one party to initiate the arbitration process.
- An arbitration clause should be broad enough to include both contractual and non-contractual claims. If it is a multi-party arbitration agreement it should be drafted to also cover situations where a party not included in the contract brings a claim or a claim is brought against them.
- If the arbitration agreement is valid the court is obliged to give effect to the agreement and grant a stay (pause) of any court proceedings regarding the matter under s8 of the CAAs.
- The confidentiality of arbitral proceedings is protected under s 27E of the CAAs. However there are some exceptions to this general protection under s 27F. The tribunal under s 27G or the court under s 27I may also make an order for disclosure (revealing of documents).
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