Arbitration

Prof. Khem Dallakoti

Legal and Engineering
Lawyer may understand the world of law but rarely the
engineering complications
Practical problem to persuade the judge should never
be under estimated
Expert opinion may vary – what counts is judge’s
impression or feeling from expert opinion – winning
the case might be a lottery
Conflict makes project difficult
Parties in Contract
Employer
invests money for return, cost effectiveness
Wants to build structure to meet the purpose
Wants the structure in time
Wants the quality anticipated
Contractor
Manages and works for profit
Team work
Client – consultant – Contactor
• Client should know the project and priorities
• Consultant shall be experienced/qualified and
professional
• Contractor shall be capable and equipped
Arbitration
Some people say:
“It is a good and fair settlement when neither party likes
the outcome, but agree to it”
 Arbitration
 Form of ADR
 Alternative to court room litigation
 Binding dispute resolution, equivalent to litigation in the courts
 Legal technique for dispute resolution outside the courts
 Parties select the arbitrators and agree to be bound by their
decision
 Third party imposes the decision legally binding for both
parties
Types of arbitration
Voluntary
Mandatory
Binding
Nonbinding – similar to mediation but not helping
parties rather give a determination of liability
Advantage of Arbitration
Appropriate degree of expertise can be appointed
Faster than litigation in court
Cheaper and more flexible for business
Proceeding and award is non public and can be
kept confidential
Easier to enforce as in most legal systems there are
very limited avenues for appeal of an arbitral
award
Preservation of Business Relationships
Disadvantages of Arbitration
If arbitration is binding, parties waive their rights to
access the courts, erreoneous decision cannot be easily
overturned.
If multiple arbitrator delays and cost might be
considerable
Award not directly enforceable
Basic Steps in Arbitration

Making an agreement to arbitrate

Initiate process/demand for arbitration
Appoint arbitrator(s)
Pre-arbitration scheduling meeting
Arbitration hearing
Post arbitration memorandum (optional)
Decision and award
Finding the Right Arbitrator

Determine qualifications and experience desired for your

case
Review resume and written qualifications
Get recommendations and referrals, comments on
judgment, fairness, fair hearing and enforceable award
Obtain and carefully review written disclosure of all
potential conflicts
Up to date training and ethics code
Appointment of arbitrator
As specified in the agreement
Sole arbitrator or 3 member panel – each one by the
party and the third member by the selected two
members
Independence and impartiality of arbitrator
Oath to be taken by the arbitrator
Arbitral proceeding
 Equal opportunities to the parties
 Communication between the parties
 Place and language of arbitration
 Statement of claim, defense, counter-claim and reply of
counter claim (60d-30d-15d) – extension by arbitrator
 Amendment or supplement of claims
 Preliminary hearing – specify issues and procedures, witness
 Arbitration hearing – confidential and documented
 Service of expert
 Interim order – safety
 Expiry of time-limit
Arbitral proceeding
Remuneration of arbitrator, if not specified in the
agreement – be fixed by the arbitrator in consultation
with the parties
 deposit of costs – may require in advance. Final fee be
settled after the closure
Closure of hearing – no further evidences shall be
examined without agreement of the parties
Award
Usually within 30 days of closure of hearing
Written award be handed over to the parties free of
cost
Award shall be binding to the parties
Award shall not be made public without consent of the
parties
Award- decision of majority, if no majority than
opinion of chief arbitrator
Correction and supplementary award
Matters of arbitral award
Short description of dispute
Conclusion of expert report , if any
Ground to sustain jurisdiction, if question is raised
Award, reasons and basis for such award
Things or amount to be recovered or compensated
Interest chargeable
Place of arbitration and date of award
Reach height of success by managing
conflicts
Legal battle
‘

Thank you for your kind attention