International Law

RESOLUTION OF PROBLEMS IN OR OUTSIDE THE COURT?

By Karel.Frielink

Arbitration

A party can initiate legal proceedings in a court of law to solve a legal dispute. Alternatively, the parties may opt to appoint one or more persons (arbitrators) to decide on the dispute and by whose decision they both agree to be bound.

Why would one opt for binding dispute resolution (arbitration) over regular litigation? There are several reasons to do so:

• Arbitration is not public
• The parties can choose arbitrators, e.g., persons they particularly trust or who are experts in particular fields
• Many disputes are a mix of legal and, e.g., technical disputes, which can therefore better be decided upon by experts (it is not necessary to appoint only legally trained arbitrators)
• Generally speaking, arbitration proceedings are more flexible in terms of organizing the process and the scope

However, the parties are required to pay the arbitrators, which might be rather costly. Sometimes an arbitration procedure takes as long as or even longer than a regular court case in first instance. Nevertheless not all kinds of disputes can be settled out of court, especially not matters related to family law, criminal law or administrative law.

Article 1020 of the Netherlands Antilles and Aruba Code of Civil Procedure provides for the application of the UNCITRAL Model Law on International Commercial Arbitration. Many countries, including the Netherlands Antilles and Aruba, are a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of New York, 1958, which provides for mutual recognition. Lawyers (attorneys) can act as counsel to either the plaintiff or the defendant, and in the case of several of the lawyers at Spigthoff they may also act as arbitrators.

Karel Frielink
Attorney (Lawyer) / Partner

Full post as published by Karel's Legal Blog on April 08, 2008 (boomark / email).