Blog details

Legal Observer, SoftSettle Support

There is no doubt that arbitration is a serious business and a bona-fide adjudicatory remedy. Some may have diverting perception that arbitration is nothing but a legally upgraded form of any alternative dispute resolutions. But it is wrong as arbitral proceedings can become as complicated as any form of complex litigation before the courts. Online arbitration also found to be nothing but the collection of the procedures like elaborate pre-hearing conferences, a volume of documentations, a lengthy list and examination of witnesses and various expert, and innumerable motions before the arbitral tribunal and perhaps eventually the courts.

One of my friends has some contract problems that are no different brought before the courts or arbitral tribunals. Contract provisions may be inaccurate; oral agreements may have modified the written agreement over time; ambiguity in the language may not cover the actual operations of the transaction; the technical employees may have understood the business contract. Hence my friend is confronted with the problems as serious as those brought before the courts of law.

We have noticed that lawyers and law firms have taken the business of arbitration seriously as judicial litigation. But it is proved that online arbitration can ease out the tensions and pains which the lawyers or clients used to experience in the court litigation.

The story of pretension starts with formal arbitration with its professional importance and seriousness makes an wide association with the process can lead to the impression that arbitration is “pretend” or “make believe”.

Private parties acting as arbitrators pretend to be judges; all the participants in the arbitral proceedings pretend to be involved in a real trial; and the courts pretend that arbitral awards are equivalent of final and binding judicial judgments. In the international area, everyone imagines that arbitration can cement an alliance between the business and legal communities, eliminate the play of national interest and culture in the resolution of trans-border commercial conflicts, reconcile the common law and civil law concepts of procedural justice, and result in a new global unity through commerce.

Arbitrators are the unofficial judges, but the power vests in them create the authority. Society promotes the “make believe” because it can achieve a functional rule of law without all usual costs and difficulties of achievement. Law is no longer the direct product of the legislature and the judiciary, but rather is accomplished through the providers of arbitration or other ADR services. The list and examination of witnesses and various expert, and innumerable motions before the arbitral tribunal and perhaps eventually the courts. Moreover, contract problems are no different if brought before the courts or arbitral tribunals.

Arbitrators are private judges. Unlike the neutral fact-finders of other alternative dispute resolution methods, private judges have the authority to render binding legal orders and judgments, if the parties wish. Although court proceedings do not necessarily take place in a courtroom—as the parties can choose to hold proceedings from the privacy of their own home or the conference room of a law firm—the proceedings over which a private judge can preside are considered to be formal judicial proceedings.

One cannot say that arbitration process is a mode of pretence so far as the private judge deemed to be an arbitrator who may or may not have the power to render a legally binding final judgment, depending on the terms of the arbitration agreement. Unlike judges and temporary judges, arbitrators are not necessarily bound to the rules of evidence, nor are they required to follow legal precedent.