Arbitration and alternative dispute resolution

The work

Arbitration is chosen for speed and privacy and often delivers neither, usually because the clause was drafted without thought or the seat and procedure were left vague. Where it works it works well, and where it does not, the court proceedings that follow are their own discipline.

When clients come with this

• A contract contains an arbitration clause and a dispute has arisen under it.
• The other side will not agree on an arbitrator and one has to be appointed.
• Assets need protection before or during the arbitration.
• An award has been passed against you and you want it set aside.
• An award is in your favour and the other side will not pay.
• A commercial dispute would be better settled than litigated.

What this covers

• Arbitration proceedings, domestic and institutional
• Applications for appointment of an arbitrator
• Interim measures under Section 9 before and during arbitration
• Challenge to awards under Section 34 and appeals under Section 37
• Enforcement and execution of awards
• Mediation, conciliation and negotiated settlement

The clause decides everything that follows

An arbitration clause drafted in two lines at the end of a contract determines how a dispute under it will be run. Whether the seat is stated, how many arbitrators there are, how they are appointed, what the governing law is, and whether the clause is capable of covering the dispute at all are questions that surface at the worst possible moment.

The most common defect is a clause that names the other party, or its nominee, as arbitrator. Clauses of that kind have been read down repeatedly, and a party faced with one is not obliged to accept an arbitrator with an interest in the outcome.

Interim protection before and during arbitration

Arbitration is of limited value if the assets in dispute disappear while it is running. The court can grant interim measures before the arbitration begins and during it, and the arbitral tribunal can grant them once constituted. Applications succeed on specific and evidenced risk — a company stripping assets, a property about to be transferred, goods about to be shipped — rather than on general apprehension.

Where speed matters more than anything else, an application for interim measures is sometimes made before the notice invoking arbitration, and the two are prepared together.

Challenging and enforcing awards

An award may be set aside only on the narrow grounds the statute prescribes, within the period it allows. Patent illegality, breach of natural justice, and an award beyond the scope of the reference are recognised; a mistaken view of the evidence is not. Applications that ask the court to re-decide the dispute are dismissed with costs, and framing a challenge correctly matters more here than in almost any other proceeding.

Enforcement, conversely, is comparatively direct. An award that has become final is enforceable as a decree, and execution proceeds in the ordinary way against the debtor's assets.