Arbitration: In what cases can we consider?
Arbitration is a simple procedure that allows resolving a dispute without going to court, entrusting the dispute to one or more individuals selected by the parties. This is a private justice and pay made in accordance with the principles of law.
Who can benefit?
Any individual or any company facing litigation if:
1) That the parties agree to all 2 to arbitration. This agreement can be stated:
- or by an arbitration clause included in the contract between the parties, and which provides for arbitration in case of dispute. It must be stated in writing, appoint the arbitrator or arbitrators and providing for their designation under penalty of nullity. If these conditions are not met, only the arbitration clause is null but the main contract exists;
- or by an arbitration agreement, a contract signed after the birth of the conflict, in which the parties agree to arbitration.
2) That the conflict is not:
- Conflict on the status and capacity of persons (eg affiliation);
- A dispute concerning the divorce or separation;
- A dispute interesting a community or a public corporation;
- A dispute over something out of the trade or contrary to public order and morality;
- Litigation within a particular jurisdiction is essential (for example, a dispute over a dismissal can not be resolved by the Board of tribunal).
May be submitted to arbitration disputes:
- Consumption (dispute with a merchant);
- The settlement of an estate;
- Conflicts between tenants and landlords;
- Conflicts between employees and employers.
What is the advantage of this procedure?
The case is not considered by a court but by one or more individuals called arbitrators.
Anyone can be a referee, but people usually chosen are those who are profession or experience gives them a certain competence in law.
Compared to ordinary remedies (court proceedings); this procedure is simpler, faster, quieter and generally less expensive.
This last point is true only when the nature of the dispute between the parties is relatively simple and if the dispute is resolved quickly.
Indeed, arbitrators which it is called to settle complex disputes (including international law) are often renowned experts whose fees can be quite high.
How to get?
If there is not already an arbitration clause, the two parties must sign an arbitration agreement. It must:
- Be a written document (deed or private);
- Determine precisely the subject matter and list the questions to the arbitrator (or arbitrators);
- Include the name of the arbitrator, prescribing the manner of their appointment and, if remuneration of the arbitrators by the parties, state the amount thereof.
The arbitration agreement must be signed shortly after the birth of the conflict.
It can occur even if a proceeding before a court has been started, but once it is signed, it is not possible to have recourse to an ordinary procedure: the 2 parties renounce definitively to resolve the matter by a court.
How is arbitration?
The arbitral tribunal shall consist of one or more arbitrators in odd numbers.
The arbitrators are exempted from following the usual forms of civil procedure, but must comply with against the law, unless the parties have designated as mediators. In this case, they can base their decision on equity, usages and customs, even against a rule of law.
Conflicting parties do not need to use a lawyer. Each party may appear in person or be assisted or represented by a person of his choice.
What happens next?
The decision of the arbitrators, called arbitration award shall be made by majority vote. It must contain the names of the arbitrators, the date and place where it is made, the names and addresses of the parties as well as lawyers or people who have assisted or represented parties.
The award has the same effect as a judgment but not binding. This means that it can not be enforced against the will of a party. If the party who has been convicted refuses to enforce the award, the other party must then an enforcement order from the high court of the exequatur.
It is only once the order that the award may be executed in the same way as an ordinary judgment and a seizure, for example, may be brought against the party who has been convicted.
The award may be appealed before the Appeal Court, unless the parties have expressly waived in the arbitration agreement. It is often the case, because the main interest of the arbitration is precisely to avoid going to court.