Brain Booster Articles
ARBITRATION SELECTION PROCESS
Author: Kenisha Bhagtani, I year of B.Com.,LL.B. from Institute of Law, Nirma University
ARBITRATOR SELECTION AND ITS VARIOUS ELEMENTS
In the current times of legal developments, efficiency has become an important element of the overall process of providing justice to the people in the society. The judicial proceedings that takes place in the court of law is known to take a plenty of time, of both the parties seeking justice, to arrive at a decision. Following this problem, a field of arbitration and mediation was introduced, which is more convenient and efficient than the process of litigation.
Arbitration refers to the process of selecting a party who can resolve the dispute between the parties keeping in mind, all the legal aspects and arriving at a decision. This process is less time consuming and therefore, known to be more effective and efficient than the proceedings that takes place in the court. The law is applied by the formed arbitration tribunal who takes the ultimate decision regarding the matter in conflict. Though, to opt for the process of arbitration, both the parties must agree on an arbitration agreement, which expressly states the terms for the parties to approach the arbitration tribunal.
Arbitrator selection is one of the most important process involved, where all the necessary qualities and qualifications to look for, in an arbitrator, comes into picture. Since, an arbitrator is someone who actually carries out the process of arbitration, his/her selection must take place diligently by both the parties involved in the conflict.
The qualities to look for, in an arbitrator, consists of possession of legal knowledge, competency and efficiency. The arbitrator must be available at all the requisite times, so that he can devote his time to hold the decision of the arbitration in the best interest of the parties concerned.
There are two forms of arbitration selection process- ad hoc arbitration and institutional arbitration. In ad hoc arbitration, it is the parties in dispute, who mutually decide upon the appointment of the arbitrator, method of proceedings to be carried out, etc. Parties are provided with greater freedom to choose in an ad hoc system of arbitration selection. Ad hoc arbitration is considered to be more flexible and speedy in its approach and is also less expensive than the institutional method. On the other hand, in an institutional arbitration, a well reputed institution mediates and carries on the tasks like, appointment of arbitrator, administering the arbitral process, etc. It can be called a speedy way of trial, because of the well-established rules and procedures.
There are several factors that one must consider, while selecting an arbitrator, to mediate upon his/her case, which may include the following-
1. Set skills: The arbitrator must possess the necessary skills of fluency and persuasion, so as to convince the other party to settle the case. He must be witty in his dealings, and should have confidence and conviction in his claims and statements.
2. Legal background and knowledge: The arbitrator should be well versed with all the legal transformations that have taken place, especially in respect of the field which forms the subject matter of the dispute in hand. This is important, so that he can refer to any past developments in the field which may decide the case in his/her client’s favour.
3. Workload on the arbitrator: An arbitrator who carries a larger case workload, may devote less of his time to mediate in the case, and therefore, parties must look for an arbitrator who is committed to the winning of the case with all his time and resources.
4. Impartiality: Independence of the arbitrator is considered to be an important factor in the process of selection of an arbitrator, to prevent the Council from giving coloured or biased judgements.
5. Nationality- In cases where a sole arbitrator is concerned, his nationality should not be common to either of the parties except when such is agreed in writing. If there are three member arbitrators, the parties can choose the arbitrator that belongs to their own nationality to develop a better connect.
In essence, arbitration has become a potential recourse to the tiring and cumbersome process of litigation, which takes years of time, to arrive at a judgement. It has many added advantages in comparison to litigation, such as selection of the arbitrator based on one’s own individual choice and discretion, which enables the party to gain a reasonable portion of control on the process of arbitration. Arbitration selection characteristics is something that every individual must take into consideration while choosing an arbitrator