TONY COLE,ASSISTANT PROFESSOR,SCHOOL OF LAW,UNIVERSITY OF WARWICK,UK,SAYS THAT THERE IS A LACK OF UNDERSTANDING OF ARBITRATION AND,HENCE,LESS PROFESSIONALS IN THE FIELD

   International arbitration is an issue of global concern. Precisely, it allows two parties that are having a dispute, whether large corporations or individuals, to have that dispute heard by a private tribunal of their own design, rather than by the courts. However, this still allows them to have the final decision of that tribunal enforced by a court if necessary.

 Elaborating on its implications in the present scenario, Tony Cole, assistant p ro f e s s o r, School of Law, University of Warwick, UK says that because of widespread international agreements regarding arbitration, a decision given by a tribunal in India, for example, will be enforced not only by Indian courts, but by courts in most countries of the world.

 As a result, Cole says, “Arbitration has come to have a central role in the resolution of disputes between parties from different countries, as it allows them to design a proceeding with which they can both be satisfied, and the resulting decision can be enforced almost anywhere in the world.”

 The primary challenges that arbitration faces at the moment ultimately derive from a lack of widespread understanding of arbitration and how it operates, says Cole, adding that although arbitration has been used for the settlement of international business disputes for centuries, its central place in the resolution of contemporary business disputes has been achieved comparatively recently. Consequently, while it has been embraced in most parts of the world, there are still some countries in which courts are still struggling to find an acceptable balance between allowing parties the freedom to resolve their own disputes through arbitration, and fulfilling their traditional obligation to ensure that justice is done.

 Cole further says that while in most countries courts will use their powers to assist arbitrations when requested to do so by one of the parties, some court systems insist upon exerting much greater degrees of control. The result of such court involvement can often be that the potential benefits of arbitration are lost to both parties, who no longer have the freedom to resolve the dispute in the proceeding that they themselves designed, and who now must adhere both to the rules imposed by a court, and to its schedule. Countries in which international arbitration has long been used have developed levels of court involvement that both courts and users of arbitration see as wellbalanced and effective, but in countries in which international arbitration is a relatively new phenomenon, finding an acceptable balance can prove difficult. Similarly, problems can also arise where the parties to the dispute are themselves unfamiliar with arbitration. .

 The solution to these problems is, he says, training of law students as well as experienced lawyers, businesspeople, and even judges. No matter how much expertise individuals may have in other areas of business or law, if they become involved with an arbitration without understanding the process, they are unlikely to make the best decisions available to them. Familiarity with arbitration will both minimise the number of times such external advice is necessary, and ensure that any decisions made before external experts are hired are right.”