Settling Disputes Through Arbitration And Things To Keep In Mind (part 2)17/12/2021 admin
As pointed out in the previous article, unlike filing a lawsuit at the Court, settling disputes by arbitration has several special issues worth taking notes. Apart from reviewing the validity of the arbitration agreement and taking measures to ensure the right to choose the arbitration centre, the following issues are just as important but are often overlooked:
3. Selecting and interviewing the arbitrator
One of the basic differences between settling disputes in courts and by arbitration is that the parties will be able to choose the arbitration centre as well as the arbitrator to resolve their disputes. This regulation allows the parties having a dispute to choose arbitrators who have the most appropriate specialties and skills for their disputes. Considering the finality of the arbitral award, the parties should be very cautious when choosing which arbitrators will adjudicate their disputes.
However, an arbitral tribunal can only be good if it is composed of good arbitrators, whether the arbitral tribunal is capable of resolving the dispute between the parties or not depends greatly on the arbitrators selected by the parties. In fact, when opting for arbitrators, the parties are likely to choose well-known or familiar arbitrators, which at first glance seems to be beneficial but isn’t always suitable in all circumstances. According to the author, the chosen arbitrators should be “appropriate” arbitrators who don’t have to be too famous but instead should be knowledgeable and appropriately skilled. In addition, assessing the chosen persons’ viewpoint is also a legal issue worth paying attention to.
Moreover, prior to officially submitting the application for arbitrator appointments, the appointing party should allow time for preliminary interviews with the arbitrators they intend to appoint about such arbitrators’ time, expertise and experience working on similar cases before making the final decision. This exchange shall focus only on viewpoints and general issues to ensure the appointed arbitrator have enough time to study and adjudicate the dispute in the best possible way, the parties should not go too deep to avoid revealing too much information about the case because this person has yet to be officially appointed as an arbitrator for the case.
4. Noticing the right to object in arbitration proceedings
When litigating a case in Court, if a party notices that the Court commits errors during the dispute settlement process and the case is being adjudicated against their interests, the disadvantaged party usually keeps those judicial errors secret to later appeal in appellate procedures or request for review under reopening/cassation proceedings. However, this trick will not be applied when disputes are resolved by arbitration because there is no reviewing procedures within arbitration proceedings.
Moreover, pursuant to Article 13 of the Law on Commercial Arbitration, in case one party is aware of a violation of a provision of this Law or the arbitration agreement but still carries on with the arbitration procedures and does not object to such violation within a period of time prescribed by this Law, that party will lose their right to object in Arbitration or in Courts. Therefore, whether the parties disagree with the arbitration’s jurisdiction or violations about the content, procedures in the arbitration’s dispute settlement process, they should nevertheless immediately exercise their right to object to avoid losing this right.
Conducting proceedings in arbitration is a long process that requires the conductors to possess certain experience and knowledge, this “settling disputes through arbitration and things to keep in mind” series can’t cover all aspects that may arise, however, we hope that this series of articles has brought you with some helpful knowledge about the process of dispute settlement in arbitration for your own use in the future.