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Frequently Asked Questions About Arbitration
Arbitration is often discussed as an ideal method of alternative dispute resolution, and many individuals and businesses prefer to take conflicts to court for litigation. However, people may have specific questions about arbitration and how proceedings work. In order to address these questions, the Thailand Arbitration Center (THAC) has compiled this set of Frequently Asked Questions (FAQs) that should provide clarification.
What is Arbitration?
Among the ADR methods, arbitration is the closest to court litigation. However, What is different and essential to the process is it offers greater control and flexibility to the parties involved. Parties can appoint one or more (usually an odd number) arbitrators who will hear evidence and make a decision, following the rules and procedures agreed upon by the disputing parties.
How does the process work?
Generally, arbitration begins when one party informs the other party that they want to pursue arbitration to resolve a specific dispute. If they have not already agreed to an arbitration clause or agreement, they will then determine the rules and process as well as appoint their arbitrator(s). Then the parties present evidence and arguments to the arbitrator(s), who will then consider all the information before deciding and conferring an arbitral award.
Will people find out about my arbitration?
Confidentiality is one of the main benefits of arbitration. While court proceedings may be public, arbitrations are private and, therefore, confidential. Nevertheless, parties should guarantee confidentiality by including definitions and parameters for confidentiality and public disclosures when drafting arbitration clauses or agreements.
How do I prepare for arbitration?
Even before arbitration is considered, parties should ensure that any arbitration clause or agreement represents their best interests. This could be done by consulting an expert such as those at THAC. Once facing arbitration, parties should contemplate preparation similar to if they were facing a court proceeding. They should ensure that their evidence clearly shows and explains their situation and arguments, that they have witnesses that will testify to confirm any evidence or arguments on their behalf, and that they have appropriate advisors to help them through the process.
Do I need a lawyer for arbitration?
There is no specific requirement that arbitration parties need a lawyer to represent them. However, if the stakes are high enough (i.e., a significant amount is likely to be the arbitral award), having a lawyer experienced in arbitration and dispute resolution may prove more beneficial.
Who picks the arbitrator?
Unlike litigation in court, where parties cannot choose their judge, arbitration agreements or clauses can outline specific arbitrators or parameters for determining arbitrators. This means that both parties can have a say as to who will oversee their dispute.
Do arbitrators have to be lawyers?
Technically, arbitrators do not have to be lawyers – in some jurisdictions. There may not even be a certification required to be an arbitrator. However, since arbitrations often involve legalities, selecting an arbitrator who is a lawyer or who at least has had experience in arbitrating specific areas may be prudent.
Are arbitrators truly independent? Will I know about any conflicts of interest?
Among the benefits of arbitration is the tenet that arbitrators are neutral, independent third parties. However, it is the ethical responsibility of the arbitrator(s) in question to disclose any conflicts of interest or overlapping appointments. Since arbitrators should want to maintain a reputation for impartiality, one would expect them to disclose any possible conflicts of interest. Nevertheless, arbitration laws as well as international rules, may have recourse for parties who question an arbitrator’s independence.
How does discovery work in arbitration?
Discovery is a process by which parties should disclose any relevant facts or evidence related to an arbitration fully. The parties usually agree upon the rules and extent of a discovery exercise in the arbitration clause or agreement. This could include costs, time frames, and the use of electronic storage and the exchange of information.
How long will an arbitration take?
The length of arbitration depends on several factors. For example, simple disputes may only take a few days, while more complicated conflicts may require a longer period of time. The availability of parties, arbitrators, and witnesses may also impact the length of a proceeding. Nevertheless, parties could expedite matters through their arbitration agreement, or arbitrators could implement a faster timetable.
How do I enforce an arbitral award?
In many jurisdictions, the courts can enforce arbitral awards if the party required to pay refuses to honor the award.
How much do arbitrations cost?
The cost of arbitration depends on the jurisdiction and arbitration rules involved. However, these fees are usually less than those that parties would have to pay if they were to pursue court litigation. Generally, there is an administration fee at the ADR center and compensation to the arbitrator(s). Other expenses could be for support services or advisors, such as a lawyer (if required).
Can I appeal an arbitration decision against me?
In many cases, an arbitration decision is final and cannot be appealed, especially if decided under a binding arbitration clause or agreement. Nevertheless, in some jurisdictions, such as the UK and Thailand, arbitration laws do set out parameters for when an arbitration award can be appealed. However, these criteria are usually very narrow and limiting.
Am I limited to only arbitration? What about mediation?
Part of the flexibility in alternative dispute resolution (ADR) is that parties can avail themselves of multi-tiered dispute resolution or med-arb. This involves pursuing mediation before undertaking an arbitration proceeding. Mediation is a less confrontational form of ADR whereby a mediator facilitates discussions between parties in dispute so that they can reach an amicable settlement. With med-arb, if the mediation does not resolve matters, then they can escalate to arbitration.
Do arbitrations follow the law, or is it only ruled by the arbitration agreement?
Parties may be able to outline the rules and procedures for an arbitration in an arbitration agreement or clause, but it must fall within the bounds of governing laws. This includes laws involving the matter(s) in dispute as well as any laws specific to Arbitrations.
THAC is your arbitration resource
If you are contemplating arbitration in Thailand, the Thailand Arbitration Center (THAC) is your resource for expertise and advice. THAC is an international-standard ADR center that can assist in every step of the arbitration process, from drafting arbitration clauses or agreements to providing facilities for hearings. Conveniently located near the Phrom Phong BTS Station in central Bangkok, THAC is accessible and suitable for local and cross-border ADR proceedings. Furthermore, THAC offers innovative online dispute resolution (ODR) services, such as its proprietary TalkDD platform, which has an intuitive interface that is accessible by most computers and mobile devices. For further information, please feel free to contact us at [email protected] or +66 (0)2018 1615. THAC is looking forward to helping you.
