Putting a Commercial Arbitration Clause in your contract allows a more cost effective and time efficient process for the determination of disputes.
Commercial arbitration is the system for final determination of commercial disputes in a judicial manner by a private arbitral tribunal appointed for that purpose. Domestic arbitrations are governed by model commercial arbitration legislation in the States and Territories. International Arbitration is governed by the International Arbitration Act 1974 (Cth).
The Decision is Final
Arbitration, unlike mediation, is a determinative process where the decision of the arbitrator or arbitral tribunal is final and binding. The decision of an arbitral tribunal is known as an award. An award is binding on the parties with a very limited right to seek judicial review. An arbitral award is enforceable upon registration with the relevant court as a judgment of the court.
The parties to a commercial contract may include an arbitration agreement stipulating that any disputes arising under the contract be resolved through commercial arbitration. The agreement may also stipulate the location of the arbitration and the manner of selecting an arbitrator.
After the Dispute has Arisen
Alternatively, an arbitration agreement may be entered into after a dispute has arisen between the parties where they both desire to seek resolution of their dispute by arbitration rather than by a court process or other ADR process.
When is commercial arbitration appropriate?
For many commercial disputes, arbitration is an excellent alternative to litigation. It offers a timely, private, less formal and cost effective approach for the binding determination of disputes. It provides the parties with greater control of the process than a court hearing. For example, the parties may agree to conduct the arbitration with a limited time for the presentation of oral evidence, or even with no oral evidence at all. Arbitrations are often conducted without the strict application of the rules of evidence.
The selection and appointment of an arbitrator (or an arbitral panel) to hear and determine a dispute is usually specified in the arbitration agreement entered into by the parties. Often the agreement is to have an independent nominating body make the appointment, particularly for the case where the parties in dispute are unable to agree on selection and appointment.
Victorian Bar Commercial Arbitration Appointment Service
If the parties are unable to agree on the selection of an arbitrator, the Victorian Bar's Commercial Arbitration Appointment Service provides for the President of the Victorian Bar to appoint an arbitrator (or arbitrators, if so requested) on behalf of the parties. The service ensures an independent, appropriately qualified barrister with relevant expertise and experience.
To stipulate the use of the Bar's appointment service, a clause should be inserted in the arbitration agreement. A suggested appointment clause is:
Failing agreement within 14 days after either party has given to the other a written request to agree in the appointment of an arbitrator, upon the application of a party, the dispute shall be determined by an arbitrator to be appointed by the President for the time being of the Victorian Bar.
Click here to use the Find a Barrister search tool to find Victorian Bar members who hold qualifications as arbitrators.
The Victorian Commercial Arbitration Scheme (VCAS) is a set of Rules through which the legal profession and the public can resolve disputes quickly, without needing to go to court, under a capped-fee scheme with a panel of qualified arbitrators.
VCAS arbitrators are all members of the Victorian Bar and are familiar with commercial arbitration practice.
Parties can also agree to adopt the VCAS rules using an arbitrator who is not a member of the VCAS panel.
Click here for more information about VCAS.
Alternatively, click here to be directed to the VCAS website.