Given the specialized nature of the international dispute resolution practice, when a dispute arises on an international contract with an arbitration clause, a lawyer with international commercial arbitration experience should be consulted.
Dec 04, 2019 · If you are going to resolve your dispute during the arbitration process, an experienced attorney can provide you with assistance in trying to convince the arbitrator to find in your favor. Brown & Charbonneau, LLP has extensive experience providing assistance to individuals and businesses who must resolve their disputes during the arbitration process.
Jun 03, 2019 · The key benefits of using mediation to resolve contract disputes are: Lower costs than arbitration or litigation. Faster than arbitration or litigation. Confidential settlements. Creative solutions. Protects the relationship between the parties. No outside solution is imposed on the two sides.
The parties often select the arbitrator and exercise control over certain aspects of the arbitration procedure. Arbitrators typically have more expertise in the specific subject matter of the dispute than do judges. They may also have greater flexibility in decision-making.
Typically, a party initiates the arbitration process by sending the other party a written demand for arbitration. The demand generally describes the parties, the dispute, and the type of relief sought. The opposing party usually responds in writing, indicating whether they believe the dispute is arbitrable. If the dispute is arbitrable, the parties then select an arbitrator or panel of arbitrators.
Arbitration is generally considered a more efficient process than litigation because it is quicker, less expensive, and provides greater flexibility of process and procedure. The parties often select the arbitrator and exercise control over certain aspects ...
Under the traditional arbitration model, parties voluntarily participate in the arbitration process. Their participation may be the result of a preexisting contractual provision or an agreement that occurs after the dispute has arisen.
Arbitration is one of the more frequently used ADR processes. For anyone considering the use of arbitration, it is important to understand how the process works in the context of what they want to accomplish..
In most jurisdictions, the format for arbitration is similar to a trial. The parties make opening and closing arguments, present testimony and witnesses, and offer documents. The evidentiary rules, however, are not applicable and the discovery and cross-examination opportunities are limited.
Civil court lawsuits and trials are the traditional method for resolving accident and injury disputes. However, concerns about court congestion and delays, rising litigation costs, and the negative psychological and emotional impact of litigation have increased the use of alternative dispute resolution (ADR) techniques.
Contract disputes are typically resolved by either equitable or legal remedies. The latter is usually in the form of financial damages awarded to the plaintiff for his or her loss. With equitable remedies, the parties take action to correct the dispute.
Contract disputes occur when one or both parties to an agreement disagree about the terms and conditions. A contract is only valid when both parties fully understand the agreement and are willing to accept its terms. If the agreement is not mutual, it may be challenged in court.
Binding arbitration is another form of alternative dispute resolution. Common remedies for contract breach include: Damages are the most common breach of contract remedy and may include:
Damages. Damages are the most common breach of contract remedy and may include: Compensatory damages designed to restore the injured party to the position he or she was in prior to the breach. Punitive damages beyond full compensation for wrongful acts.
Breach of Contract. Contract disputes usually occur when a party breaches the contract, which means they do not do what they have promised to do in the agreement. Types of contract breaches include: A material breach, in which one party does not perform his or her duty and, as a result, the contract is irreparable.
Standard processes for resolving government contract disputes were established by the Contract Disputes Act of 1978 . This Act was designed to provide a fair, transparent process for definitive resolution. Both the contractor and the government bureau in question should negotiate in good faith and strive to settle the dispute at the lowest possible level. This is the contracting officer, who issues a final decision that can be challenged in either the Board of Contract Appeals or U.S. Federal Claims Court. These decisions may, in turn, be appealed in either the U.S. Federal Circuit Court of Appeals, the intermediate appellate authority, and the U.S. Supreme Court.
Liquidated damages, which are those specifically indicated in a provision of the contract. Specific performance is when the court orders the party who has breached the contract to fulfill its terms, which is typically ordered if damages are insufficient.
When there is an arbitration clause in the contract, that usually means you will not be able to sue but instead must resolve your disagreement before an arbitrator. The Federal Arbitration Act (FAA) has largely preempted state law to ensure arbitration agreements are enforced in almost all cases.
Your arbitration agreement may set forth the specifics for how this process is supposed to work. In some cases, the process is a formal process that is similar to a court of law. In other situations, the arbitration is less formal. However, in every case, you will need to present evidence and make your case to the arbitrator to try to convince ...
If you are involved in a dispute with someone that you or your company has a contractual relationship with, you need to determine if there is an arbitration clause in your contract. Arbitration clauses are found in many construction contracts; in many contracts for the sale of consumer and business products; in contracts between employers ...
A California business litigation lawyer can provide assistance in resolving disputes that arise affecting your company. When businesses contact a litigation lawyer, they may assume their attorney will be providing them with assistance during court proceedings. This can, in fact, happen as an experienced litigator is always prepared to enforce your rights and make effective arguments in a court of law.
The FAA has been interpreted broadly by courts in recent years so even arbitration clauses which many states used to prohibit, such as clauses that included class action waivers, are now considered acceptable and enforceable. If an arbitration clause is enforced, an arbitrator will preside over the process used for dispute resolution.
If you do not wish to arbitrate your dispute, you can try to argue to a judge before arbitration begins that the contract and/or the arbitration clause should not be considered valid and enforceable. However, because the courts have broadly interpreted laws in favor of arbitration, it is very difficult to get an arbitration clause overturned.
Arbitration is sometimes a preferable method of resolving a business disagreement and you may want to arbitrate your dispute. However, there are also circumstances in which you are effectively forced into arbitration because you have signed a contract with an arbitration clause. If this happens to you, you must ensure you have an experienced Orange ...
Arbitration is a private court system. Instead of using the state or federal court system, the two sides argue their case to a private arbitrator.
Arbitration tends to favor bigger companies over smaller companies because of the way the system is designed.
Mediation allows you to use common sense business principles to resolve the issue. It is also faster and much cheaper than other forms of dispute resolution.
The mediator helps keep the conversation flowing, helps facilitate compromise, and can point out to both sides the risks of proceeding to litigation instead of coming to an agreement in mediation. Also Read 7 Flags, Alerts, and Triggers You Should Build for Government Contracts.
The key benefits of using mediation to resolve contract disputes are: When you enter into mediation, there is no set outcome. Neither side has to lose the mediation. You can craft creative solutions that preserve the relationship, and the resolution can be completely confidential.
What is the best way to handle contract disputes? You have three main tools to resolve a business dispute. You can use mediation, arbitration, or litigation. Each tool has its pros and cons. The right one for your business will depend on your goals and the nature of the dispute.
When you enter into mediation, there is no set outcome. Neither side has to lose the mediation. You can craft creative solutions that preserve the relationship, and the resolution can be completely confidential.
All claims or disputes between the contractor and the Owner arising out of or relating to the Contract Documents, or the breach thereof, shall be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association currently in effect unless the parties mutually agree otherwise.
An arbitration clause can be drafted to require the arbitrators decision to comply with the substantive law. If the arbitrator violates such a provision, the parties to the arbitration may seek to overturn the award since the arbitrator exceeded the authority granted to him under the arbitration contract clause. Thus, such a provision should be included in the arbitration clause if you want the arbitrator to follow the applicable substantive law.
The standard dispute resolution forum in the construction industry is the American Arbitration Association (AAA). The AAA has developed Construction Industry Arbitration Rules for the arbitration of disputes and has a panel of arbitrators. Over the last several years, a number of other dispute resolution service providers (e.g. Judicial Arbitration and Mediation Service "JAMS") have developed their own rules for arbitrating disputes. Many attorneys now prefer the other dispute resolution service providers over the AAA. The choice of an arbitration forum should be reviewed in context of the cost, arbitration panel members and forum arbitration rules. Particular attention should be paid to the forum's arbitration rules since they are incorporated into the arbitration clause. As will be discussed, the arbitration clause may include provisions that delete all or portions of the forum's rules.
The best method for ensuring that a construction dispute is correctly and fairly resolved is through properly drafted construction contracts. The arbitration clause is one of many clauses that is included in the typical construction contract. It is a wise contractor who reviews its contracts with legal counsel on a regular basis to ensure that it is taking advantage of recent changes in the law.
Ideally, an arbitration should be completed as near as possible to the date that the dispute arose. Speedy arbitrations prevent the dispute from expanding. An alternative provision that should be considered is a requirement for mediation. Mediation is a dispute resolution process that involves the use of a facilitator who seeks a voluntary settlement of the parties to the dispute.
For years arbitration has been considered by many to be a fast and relatively inexpensive forum for resolving construction disputes. The speed of arbitration resulted from limited pre-arbitration discovery and a binding decision that were rarely overturned by the courts. Over the last few years the courts have issued a number of decisions that impact the arbitration process. In fact there are currently two arbitration related cases pending before the California Supreme Court.
The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof.
The arbitration proceeding shall be conducted in English. The arbitral tribunal shall consist of three (3) arbitrators, with one arbitrator to be appointed by ParentCo, one arbitrator to be appointed by SpinCo, and the third arbitrator to be appointed by the Chairman of HKIAC.
Dispute Resolution and Arbitration. In the event that any dispute arises between the Company and the Executive regarding or relating to this Agreement and/or any aspect of the Executive 's employment relationship with the Company, AND IN LIEU OF LITIGATION AND A TRIAL BY JURY, the parties consent to resolve such dispute through mandatory arbitration under the Commercial Rules of the American Arbitration Association (" AAA " ), before a single arbitrator in New York, New York. The parties hereby consent to the entry of judgment upon award rendered by the arbitrator in any court of competent jurisdiction. Notwithstanding the foregoing, however, should adequate grounds exist for seeking immediate injunctive or immediate equitable relief, any party may seek and obtain such relief. The parties hereby consent to the exclusive jurisdiction in the state and Federal courts of or in the State of New York for purposes of seeking such injunctive or equitable relief as set forth above. Any and all out-of-pocket costs and expenses incurred by the parties in connection with such arbitration (including attorneys ' fees) shall be allocated by the arbitrator in substantial conformance with his or her decision on the merits of the arbitration.
Disputes (the “Disputes”) arising out of, relating to or in connection with this Agreement or the Ancillary Agreements (except as otherwise provided in any Ancillary Agreements), or in relations between the parties with respect to the subject matter hereof, for any reason or under any circumstances, shall be resolved exclusively by arbitration under the auspices of Hong Kong International Arbitration Centre (“ HKIAC ”) in accordance with the arbitration rules of the HKIAC in force at the time of the request for arbitration. The arbitration shall take place in Hong Kong at the HKIAC. The arbitration proceeding shall be conducted in English. The arbitral tribunal shall consist of three (3) arbitrators, with one arbitrator to be appointed by ParentCo, one arbitrator to be appointed by SpinCo, and the third arbitrator to be appointed by the Chairman of HKIAC. Each of the arbitrators shall be fluent in English. The arbitra tion award shall be final and binding on the Parties and shall not be subject to any appeal. Any judgment upon any award may be entered and enforced in any court having jurisdiction over a Party or any of its assets. For the purpose of enforcement of an award, the Parties irrevocably and unconditionally waive any defense of inconvenient forum in any court of competent jurisdiction.
Each of the arbitrators shall be fluent in English. The arbitration award shall be final and binding on the Parties and shall not be subject to any appeal. Any judgment upon any award may be entered and enforced in any court having jurisdiction over a Party or any of its assets.
If the contract has an arbitration clause, and the contractor goes straight to the courthouse, the case will be thrown out for failing to go through arbitration. The basic procedure is, as mentioned above, kind of like an informal mini-trial. Depending on the procedure, the actual process will vary.
How Arbitration Helps Contractors Avoid Court, Attorneys, and Extra Costs. You may not even know it, but you could be forced to settle your next construction payment dispute through arbitration. Arbitration clauses are included in most construction contracts these days, so read your contract! If a dispute arises, the clause will require you ...
Most standardized construction contract forms, such as AIA, ConsensusDOCS, or AGC, will have an ADR clause calling for the use of the American Arbitration Association (AAA). For example, this is the ADR clause on the standard AIA 201 General Conditions form:
Alternative Dispute Resolution (ADR) is a cost-effective, efficient form of resolving disputes without having to resort to a full blown lawsuit. The two main forms of alternative dispute resolution are mediation and arbitration. Think of arbitration as a mini court proceeding. In arbitration, two disputing parties present their respective sides of the story to a neutral third party (the arbitrator). Each party will have the opportunity to make statements and present evidence, and the arbitrator will make a final decision that is binding on both parties.
Pre-hearing. A pre-hearing will be scheduled as soon as possible to discuss the how the arbitration will proceed. This can either be done in person or over the phone. These are just preliminary discussions to agree on the rules and procedures that will be enforced.
In arbitration, two disputing parties present their respective sides of the story to a neutral third party (the arbitrator). Each party will have the opportunity to make statements and present evidence, and the arbitrator will make a final decision that is binding on both parties.
Which procedure applies to your dispute depends on the amount in controversy and if the parties need to physically meet to resolve the issue. However, the proceedings are all initiated through a written demand for arbitration. This is the aggrieved party’s responsibility. If the contract has an arbitration clause, and the contractor goes straight to the courthouse, the case will be thrown out for failing to go through arbitration.
Arbitration is a great solution for many individuals wanting to resolve a conflict or dispute in a timely and less costly manner. Depending on if you are the institution, or the party they have the dispute with, you might want to consider the rights you are giving up in a binding arbitrationagreement. If you are unsure, as always it’s best to get legal advice before agreeing to anything you do not clearly understand.
While binding arbitration is usually less time consuming and less expensive, it also means that you are basically giving up your right to sue in a court of law. The other factor to Binding is that it usually involves an arbitration attorney that is hired by the institution or party with whom you have the dispute with. A decision on a binding arbitrationcannot be appealed or overturned unless there are rare circumstances present (fraud, bias or other inappropriate actions on the part of the arbitration attorney). After the decision is rendered, the case is over. The losing party will typically not be able to appeal, and if they do it can turn into a costly event that can take years to get resolved (not to mention the stress you will endure throughout this process.)
Finding a Beneficial Alternative to Litigation. Arbitration is a great solution for many individuals wanting to resolve a conflict or dispute in a timely and less costly manner. Depending on if you are the institution, or the party they have the dispute with, you might want to consider the rights you are giving up in a binding arbitration agreement.
A decision on a binding arbitration cannot be appealed or overturned unless there are rare circumstances present (fraud, bias or other inappropriate actions on the part of the arbitration attorney). After the decision is rendered, the case is over.
Can a Party Still Sue After Binding Arbitration? When parties agree to binding arbitration they need to realize what that actually means. Arbitration can be non-binding or binding depending on what the parties agreed upon. Both types of Arbitration will still involve a third party arbitration attorney to preside over the dispute.
Both types of Arbitration will still involve a third party arbitration attorney to preside over the dispute. And, both types will apply to all various arbitration subjects such as divorce arbitration, medical disputes, work place conflict, personal injury arbitration, etc.
The losing party will typically not be able to appeal, and if they do it can turn into a costly event that can take years to get resolved (not to mention the stress you will endure throughout this process.) Finding a Beneficial Alternative to Litigation.