An arbitrator is a person who is chosen to settle differences or disputes, and he should be formally empowered to examine, evaluate facts and make a decision on the issue. Parties in a dispute may waive statutory remedies in favor of arbitration. Arbitration clause is enforced by the court when provisions of the contract satisfy the following ; First, it contains a language that reflects a general understanding of the claim types represented in the waiver. Second, provide that, by signing, the arbitrator agrees to mediate all statutory claims that arises out of the relationship, or any dispute or claim based on state or federal statute (Willy & Willy, 2010).
A party does not relinquish substantive rights afforded by the statute when it agrees to arbitrate statutory claim. It only presents to their resolution in an arbitral rather than judicial. However, by agreeing to arbitrate the parties are not limited to pursue the statutory remedy of cost and fees for attorneys or treble damages when available to prevailing parties.
A party claiming waiver should prove that the waiving party understood of the existing right to arbitrate and based on the circumstances, they acted erratically with that known right. There are factors that the court considers when determining if the totality of the circumstances supports a finding of waiver (Bradgate, White & Llewelyn, 2012). The factors are; first, whether a courts jurisdiction was invoked by placing a claim without requesting a stay first or by filing a complaint. Second, whether there is delay by the party seeking arbitration to request a stay. Third, the level of participation in a litigation by the party seeking to participate in the litigation. Fourth, whether there has been previous inconsistent acts the the party seeking arbitration. These are some of the reasons why one party in the arbitration cannot waiver substantive rights during arbitration.
Agreement of Arbitration and Demand As Regards the Fund within A Court
In the written agreement, the parties must expressly establish the terms and conditions that will govern the arbitration, in accordance with this Law. In the event that no specific rules are established, it will be understood that this agreement may be subject to supplementation, modification or revocation between the parties at any time, by special agreement. However; in case they decide to leave without effect an arbitration process in process, they must assume the corresponding costs, in accordance with this Law (Bradgate, White & Llewelyn, 2012).
The court to which a matter is submitted on which the parties have agreed in advance to air it in an arbitral tribunal and under the arbitration procedure, shall refer the parties to that court and proceeding at the latest, at the time of submitting the first written submission. The Fund of the litigation, or when such circumstance comes to the knowledge of the court, unless it is argued and demonstrates that said agreement is null, ineffective or of impossible execution.
Agreement of Arbitration and Adoption of Provisional Measures by the Court
It will not be incompatible with an arbitration agreement that any of the parties, either prior to the arbitral proceedings or during proceeding, request a court to adopt provisional precautionary measures or that the court grant such measures. The courts are therefore not foreclosed to the parties for reasons such as fraud and collusion (Reddy & Canavan, n.d.). Courts play a major role in arbitration and should be virtually foreclosed to the parties in the arbitration process.
The court was previously hostile to the position of arbitration. However, things have changed and the position has now changed on the courts hostile position on arbitration. The courts have decided to embrace arbitration due to various reasons.
Arbitration has taken a permanent position in the part of dispute resolution. Due to concerns on delays, congestions and rising litigation costs, arbitration has become the most preferred and alternative form of litigation (Reddy & Canavan, n.d.). As an Alternative Dispute Resolution (ADR) technique, it is faster and less costly than the normal court processes. It is however important for someone seeking to use arbitration to understand how the process works in comparison to the court process of litigation. It has become more efficient than the court process because it is quicker and more efficient process. It also has a flexible process than the normal court process and procedures (Rau, Sherman & Peppet, 2006). Parties involved can choose the arbiter who has more expertise in specific field matters than the court judges do. They also have a greater impact and flexibility in making decisions. Most jurisdictions have an arbitration process that is similar to the trial in a court of law.
Bradgate, R., White, F., & Llewelyn, M. (2012). Commercial law. Oxford: University Press.
Rau, A., Sherman, E., & Peppet, S. (2006). Arbitration. New York, NY: Foundation Press.
Reddy, J., & Canavan, R. Q & A commercial law.
Willy, A., & Willy, A. (2010). Arbitration. Wellington [N.Z.]: Brookers.